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SUPERIOR RESPONSIBILITY

SUPERIOR RESPONSIBILITY. 2013/2014. Direct Superior Responsibility. Ordering Subordinates to Commit Offenses M/R of Superior ( Blaškić , ICTY, App . Ch. 2004) “clear intention that massacre would be committed ” OR

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SUPERIOR RESPONSIBILITY

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  1. SUPERIOR RESPONSIBILITY 2013/2014

  2. Direct Superior Responsibility • OrderingSubordinates to CommitOffenses • M/R of Superior (Blaškić, ICTY, App. Ch. 2004) • “clear intentionthatmassacrewouldbecommitted” OR • “awarenessofthesubstantiallikelihoodthat a crimewillbecommittedintheexecutionoftheorder”

  3. Indirect Superior Responsibility • ICTY Statute, art. 7(3) • “Thefactthat [a crime] wascommittedby a SUBORDINATEdoesnotrelieve his SUPERIORofcriminalresponsibilityif he KNEW or HAD REASON TO KNOW thattheSUBORDINATEwasabout to commitsuchacts or had done soandtheSUPERIOR FAILED TO TAKE thenecessaryandreasonablemeasuresTO PREVENT suchacts or PUNISH theperpetratorsthereof.”

  4. Indirect Superior Responsibility • Elements • Superior-Subordinate Relationship • Knew or Had Reason to Know [crime had been or about to becommitted] • Failed to Prevent or Punish • Two Theories Justifying Punishment • Direct Liability of Superior for Breach of Duty • As a consequence of Breach, indirect liabilty for crime committed by subordinate

  5. Indirect Superior Responsibility • Superior – SubordinateRelationship (Military or Civil) =EFFECTIVE CONTROL = • “ MATERIAL ABILITY to PREVENT and PUNISH offenses” (Delalić, App. Ch. ICTY 2001) • RebuttablePresumptionthat one inpossessionofde jure power haseffectivecontrol • De facto superior’s control must be “substantiallysimilar” to powersofde jure superior • Civilian Superior must “exercise a degreeofcontrol … similar to thatofmilitarycommanders” (Bagilishema, Tr. Ch. ICTR, 2001)

  6. Indirect Superior Responsibility • Knew or Had Reason to Know (Blaškić, App. Ch.) A) ActualKnowledge • Rankand Status alone do notestablish B) Had Reason to Know(ShouldHaveKnown) • Informationactuallyavailable to commanderwould put him on noticeofoffensescommittedbysubordinates (G.C. P. I, art. 86(2)) • No liability for failing to seekinformation (negligence) • Commandercannotdeliberatelyrefrainfromfindingoutwhathappened

  7. Indirect Superior Responsibility • PREVENT or PUNISH • Commander who hasknowledge prior to commissionofoffensecannotescapeliabilityif he fails to takereasonablestepsto PREVENT

  8. Article 28Responsibility of commanders and other superiors • In addition to other grounds of criminal responsibility under this Statute for crimes within the jurisdiction of the Court: • (a) A military commander or person effectively acting as a military commander shall be criminally responsible for crimes within the jurisdiction of the Court committed by forces under his or her effective command and control, or effective authority and control as the case may be, as a result of his or her failure to exercise control properly over such forces, where: • (i) That military commander or person either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes; and • (ii) That military commander or person failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.

  9. Article 28Responsibility of commanders and other superiors • (b) With respect to superior and subordinate relationships not described in paragraph (a), a superior shall be criminally responsible for crimes within the jurisdiction of the Court committed by subordinates under his or her effective authority and control, as a result of his or her failure to exercise control properly over such subordinates, where: • (i) The superior either knew, or consciously disregarded information which clearly indicated, that the subordinates were committing or about to commit such crimes; • (ii) The crimes concerned activities that were within the effective responsibility and control of the superior; and • (iii) The superior failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.

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