CYIL vol. 13 (2022)

FRANTIŠEK TÓTH CYIL 13 ȍ2022Ȏ relevant information about the atrocities, they shall not be prosecuted on the basis of a lack of (actual) knowledge. For instance, if there were no reports indicating crimes committed by the troops, the superior should not be found guilty. 68 The next element concerns the situation when the superior ‘ had reason to know ’ . This has to be understood in a sense that the superior had in their possession information, which would at least put them on notice of the risk of the committed crimes. 69 Besides that, it does not matter whether this information did provide specific details about unlawful acts committed by superior’s subordinates. 70 Subsequently, this information should have alerted them to a need for an additional investigation in order to determine whether such crimes were or were to be committed by their subordinates. 71 Therefore, in order to establish superior responsibility, there must be actual presence of alarming information about the crimes which were committed or were going to be committed. As a result, superior responsibility will only arise if they failed to acquire knowledge on the basis of information already available to them. Thus they are no longer required to actively search for information concerning the crimes and situation on the battlefield. 72 Knowledge or the mental element of the committed atrocities also has relevance to PMSCs superiors, since they are the ones who can, based on reports or other ‘already available’ information about crimes occurring. For instance, superiors of PMSCs active in the field should have the ability to gain information about the activities of their subordinates active in the field. On the other hand, many senior contractors working only within the ‘management structure’ of the company do not necessarily have to have the possibility to know details of field operations. As a result, the knowledge requirement has to be considered within a broader perspective, taking into account the specific details of the PMSC and its structure. 3.3 Failure to Take the Necessary Measures to Prevent or Repress the Crimes Failure to take the necessary measures to prevent or repress the crimes is considered to be the third element within ‘the structure’ of the doctrine of command responsibility. As the Blaškić case confirmed, the commander can be charged under command responsibility on the basis that they have failed to take necessary and reasonable measures to prevent the crime or punish the perpetrator. 73 Furthermore, Blaškić elaborated two distinct sets of legal 68 Nevertheless, there are some indicative factors (indicia) , which are helpful when deducing the superior’s actual knowledge. List of indicia was compiled by the Commission of Experts of the Security Council. United Nations Security Council, S/1994/674, Available at: https://www.icty.org/x/file/About/OTP/un_commission_of_ experts_report1994_en.pdf Check also: MELONI, note 64. 69 METTRAUX, note 22, p. 64. 70 International Criminal Law & Practice Training Materials. Modes of Liability: Superior Responsibility. Supporting the Transfer of Knowledge and Materials of War Crimes Cases from the ICTY to National Jurisdictions, funded by the European Union. Developed by the International Criminal Law Services. Available at: https://iici. global/0.5.1/wp-content/uploads/2018/03/icls-training-materials-sec-10-superior-responsibility.pdf. 71 METTRAUX, note 22, p. 64. 72 ARNOLD, R. Command Responsibility: A Case Study of Alleged Violations of the Laws of War at Khiam Detention Centre . Journal of Conflict and Security Law , Volume 7, Issue 2, 2002, Oxford, Oxford University Press, p. 205. 73 Check the original conclusion of the ICTY, according to which: “ As indicated above, the Trial Chamber is of the opinion that the accused had more than a constructive knowledge of the crimes. It is satisfied beyond all reasonable doubt that General Blaškić ordered attacks which targeted the Muslim civilian population and thereby incurred responsibility for crimes committed during these attacks or at least made himself an accomplice thereto and, as regards those crimes not ensuing from such orders, he failed in his duty to prevent them and did not take the necessary measures to punish their perpetrators after they had been committed. ” Prosecutor v Blaškić. note 54.

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