CYIL vol. 13 (2022)

CYIL 13 ȍ2022Ȏ COMMAND RESPONSIBILITY FOR CRIMES COMMITTED BY PRIVATE MILITARY… obligations for commanders. Firstly, a commander has a duty to prevent the commission of crimes committed by their subordinates. This is mainly because commanders are those who have the potential ability to prevent the commission of the crimes. 74 For this reason, they are the ones who can take effective measures if they want to prevent the atrocities. The question that still remains unclear lies in the fact, which measures can be regarded as those that have the ability to prevent the crimes from happening. For instance, as a ‘minimum’, commanders must ensure that their subordinates are trained properly and in accordance with international humanitarian law. For instance, superiors of PMSCs could also be held responsible for the fact that they contracted inadequately trained personnel. This could concern especially the lack or inadequate training in the law of armed conflict and human rights. 75 Moreover, in order to prevent the atrocities, they can take various disciplinary measures. 76 On the other hand, commanders and superiors have also a duty to punish their subordinates or report the commission of their crimes to competent authorities in case it was not possible to prevent the crimes. 77 This duty to repress or punish the perpetrators has to be read in connection with Article 86 of AP I. As the Trial Chamber in the Prosecutor v. Bemba case stated, the purpose of an obligation of a commander to repress the crimes is “ to ensure that military commanders fulfil their obligation to search for the perpetrators and either bring them before the courts or hand them over to another state for trial. ” 78 This means that even after the crimes have been committed, commanders have a duty to search for the perpetrators. The intended result is that there shall be no impunity for the crimes committed by the superior’s subordinates. Therefore, they have to either report the commission of these crimes or hand these persons directly over for a trial. These duties incumbent upon commanders shall not be considered as alternatives in the meaning that either the commander has to prevent or the have to punish the commission of the crimes. 79 As the Trial Chamber in Blaskić stated “ The obligation to ‘ prevent or punish ’ does not provide the accused with two alternative and equally satisfying options. ” 80 Moreover, these duties arise at different stages in regard to the commission of the 74 As the ICTY Trial Chamber in Prosecutor v Hadžihasanović noted: “ By virtue of the authority vested in them, com manders are qualified to exercise control over troops and the weapons they use, more than anyone else, they can prevent breaches by creating the appropriate frame of mind, ensuring the rational use of the means of combat, and by maintaining discipline. ” Prosecutor v Enver Hadžihasanović, Amir Kubura . Trial Chamber. ICTY, Available at: https://ucr.irmct. org/LegalRef/CMSDocStore/Public/English/Judgement/NotIndexable/IT-01-47/JUD152R2000224478.pdf. 75 FRULLI, note 16, p. 450. 76 In Prosecutor v Bemba , the court argued: “ The scope of the duty to prevent depends on the material power of the commander to intervene in specific situation. This is dependent on the circumstances at the relevant time. The Pre Trial Chamber identified relevant measures which include (i) ensuring that the forces are adequately trained in international humanitarian law, (ii) securing reports that military actions were carried out in accordance with international law, (iii) issuing orders aiming at bringing the relevant practices into accord with the rules of war, and (iv) taking disciplinary measures to prevent the commission of atrocities by the forces under the commander’s command. ” International Criminal Court, Trial Judgment in the Case of the Prosecutor v. Jean-Pierre Bemba Gombo. Available also at: https://casebook.icrc.org/case-study/international-criminal-court-trial-judgment-case prosecutor-v-jean-pierre-bemba-gombocheck also: NEILSON, note 4, p. 139. 77 FRULLI, note 16, p. 449. 80 Check the original wording of the Judgment: “ The obligation to ‘ prevent or punish ’ does not provide the accused with two alternative and equally satisfying options. Obviously, where the accused knew or had reason to know that subordinates were about to commit crimes and failed to prevent them, he cannot make up for the failure to act by punishing the subordinates afterwards. ” Prosecutor v. Blaškić , note 54. 78 Ibid., p. 449. 79 Ibid., p. 449.

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