WEBVTT
1
00:00:16.000 --> 00:00:17.320
Greetings from the seat
2
00:00:17.320 --> 00:00:18.770
of the International Criminal Court
3
00:00:18.770 --> 00:00:19.430
in the Hague.
4
00:00:19.430 --> 00:00:20.960
My name is Jelena Plamenac,
5
00:00:21.040 --> 00:00:22.020
and I work here in the
6
00:00:22.020 --> 00:00:23.510
Office of the Prosecutor.
7
00:00:23.880 --> 00:00:25.390
In the next half an hour in my
8
00:00:25.390 --> 00:00:27.390
personal capacity, I will talk about
9
00:00:27.390 --> 00:00:29.420
article 28 paragraph (b)
10
00:00:29.420 --> 00:00:30.590
of the Rome Statute.
11
00:00:31.310 --> 00:00:33.020
For a comprehensive understanding of
12
00:00:33.020 --> 00:00:34.820
article 28 and the command
13
00:00:34.820 --> 00:00:37.240
responsibility doctrine under the statute,
14
00:00:37.630 --> 00:00:39.380
I invite you to also listen to the
15
00:00:39.380 --> 00:00:40.920
lecture about paragraph (a)
16
00:00:40.920 --> 00:00:42.160
of the same provision.
17
00:00:42.930 --> 00:00:45.120
This lecture is divided in three parts.
18
00:00:45.270 --> 00:00:47.160
The first part addresses the purpose
19
00:00:47.160 --> 00:00:49.290
and historical background of the provision.
20
00:00:49.900 --> 00:00:51.940
The second part explains elements
21
00:00:51.940 --> 00:00:53.410
required to prove the criminal
22
00:00:53.410 --> 00:00:55.410
responsibility of a superior
23
00:00:55.640 --> 00:00:57.290
and finally, the third part,
24
00:00:57.290 --> 00:00:58.920
briefly outlines the potential
25
00:00:58.920 --> 00:00:58.930
of this provision and its future
26
00:00:58.930 --> 00:01:00.640
of this provision and its future
27
00:01:00.640 --> 00:01:02.640
application in the ICC litigations.
28
00:01:03.780 --> 00:01:06.340
Talking about the purpose of article 28,
29
00:01:06.340 --> 00:01:08.540
the ICC Trial Chamber in the case
30
00:01:08.540 --> 00:01:09.890
of Jean-Pierre Bemba
31
00:01:10.270 --> 00:01:11.740
considered that it is designed
32
00:01:11.740 --> 00:01:13.320
"to reflect the responsibility
33
00:01:13.320 --> 00:01:15.470
of superiors by virtue of the powers
34
00:01:15.470 --> 00:01:17.470
of control they exercise
35
00:01:17.470 --> 00:01:18.800
over their subordinates...
36
00:01:19.270 --> 00:01:20.670
These responsibilities of
37
00:01:20.670 --> 00:01:22.550
control aim at ensuring the
38
00:01:22.550 --> 00:01:24.640
effective enforcement of fundamental
39
00:01:24.640 --> 00:01:25.870
principles of international
40
00:01:25.870 --> 00:01:26.000
humanitarian law, including the
41
00:01:26.000 --> 00:01:28.210
humanitarian law, including the
42
00:01:28.210 --> 00:01:28.230
protection of protected persons
43
00:01:28.230 --> 00:01:29.920
protection of protected persons
44
00:01:29.920 --> 00:01:32.060
and objects during armed conflict."
45
00:01:32.990 --> 00:01:34.880
The most significant novelty
46
00:01:35.090 --> 00:01:36.620
in the definition of the command
47
00:01:36.620 --> 00:01:39.190
responsibility doctrine codified in the
48
00:01:39.190 --> 00:01:41.760
statute is that article 28
49
00:01:41.760 --> 00:01:43.620
explicitly distinguishes between
50
00:01:43.620 --> 00:01:45.270
two categories of superiors.
51
00:01:45.760 --> 00:01:47.850
The first category is defined in
52
00:01:47.850 --> 00:01:49.470
paragraph (a), and relates
53
00:01:49.470 --> 00:01:51.100
to a military commander or a
54
00:01:51.100 --> 00:01:52.720
person effectively acting
55
00:01:52.720 --> 00:01:54.060
as a military commander.
56
00:01:54.550 --> 00:01:56.480
The second category includes
57
00:01:56.480 --> 00:01:58.830
all other superior and subordinate
58
00:01:58.830 --> 00:02:00.660
relationships not described in
59
00:02:00.660 --> 00:02:01.440
paragraph (a).
60
00:02:02.770 --> 00:02:04.520
Before we move to the historical
61
00:02:04.520 --> 00:02:05.960
background of this division,
62
00:02:05.960 --> 00:02:07.930
I would like to clarify the terminology
63
00:02:07.930 --> 00:02:09.970
that I will use throughout this lecture.
64
00:02:10.710 --> 00:02:12.210
The language of paragraph (b)
65
00:02:12.210 --> 00:02:13.840
does not explicitly mention
66
00:02:14.200 --> 00:02:16.340
civilian superiors, but suggests
67
00:02:16.340 --> 00:02:18.600
a broader category, as just mentioned,
68
00:02:18.600 --> 00:02:20.600
defined as every relationship
69
00:02:20.600 --> 00:02:21.830
that is not one of
70
00:02:22.160 --> 00:02:24.420
de jure or de facto military command.
71
00:02:24.960 --> 00:02:26.580
This can be of whatever kind,
72
00:02:26.580 --> 00:02:28.100
but since the drafting history
73
00:02:28.100 --> 00:02:29.930
of the statute demonstrates
74
00:02:29.930 --> 00:02:31.960
that the drafters focused on civilian
75
00:02:31.960 --> 00:02:33.910
superiors when creating this
76
00:02:33.910 --> 00:02:35.740
division in article 28,
77
00:02:36.170 --> 00:02:38.530
when referring to superiors under (b),
78
00:02:38.530 --> 00:02:40.180
for the purposes of this lecture,
79
00:02:40.180 --> 00:02:42.440
I will refer to civilian superiors.
80
00:02:43.870 --> 00:02:45.790
Situations of mass atrocities
81
00:02:45.790 --> 00:02:47.790
in worlds contemporary history
82
00:02:47.790 --> 00:02:50.360
involved civilians not only as victims
83
00:02:50.360 --> 00:02:52.990
but also as perpetrators and superiors.
84
00:02:53.390 --> 00:02:55.280
Indeed, the Trial Chamber of the
85
00:02:55.280 --> 00:02:56.930
International Criminal Tribunal
86
00:02:56.930 --> 00:02:59.360
for Rwanda in the Akayesu Judgement
87
00:02:59.590 --> 00:03:01.180
confirmed that the doctrine
88
00:03:01.180 --> 00:03:03.190
of command responsibility also
89
00:03:03.190 --> 00:03:04.960
applies to civilians
90
00:03:05.240 --> 00:03:06.890
holding de facto positions
91
00:03:06.900 --> 00:03:09.830
of authority in situations of international
92
00:03:10.010 --> 00:03:12.000
and non-international armed conflicts.
93
00:03:12.880 --> 00:03:14.690
If we look back at the post
94
00:03:14.690 --> 00:03:16.690
Second World War jurisprudence,
95
00:03:16.940 --> 00:03:18.590
already military tribunals
96
00:03:18.590 --> 00:03:20.430
in Nuremberg established
97
00:03:20.430 --> 00:03:22.120
in the aftermath of the war,
98
00:03:22.380 --> 00:03:24.240
applied a command responsibility
99
00:03:24.240 --> 00:03:26.240
doctrine on civilian superiors.
100
00:03:26.240 --> 00:03:28.240
For example in the Flick case,
101
00:03:28.490 --> 00:03:31.270
six civilian industrialists
102
00:03:31.270 --> 00:03:33.080
were accused of war crimes
103
00:03:33.080 --> 00:03:34.730
and crimes against humanity
104
00:03:34.950 --> 00:03:36.570
for their direct and indirect
105
00:03:36.570 --> 00:03:38.780
involvement in enterprises involving
106
00:03:38.780 --> 00:03:40.240
the enslavement of civilians
107
00:03:40.240 --> 00:03:41.650
from occupied territory.
108
00:03:42.240 --> 00:03:44.160
It was alleged that the accused used
109
00:03:44.160 --> 00:03:45.790
tens of thousands of slave
110
00:03:45.790 --> 00:03:47.710
labourers in the businesses
111
00:03:47.728 --> 00:03:49.472
that they owned or controlled.
112
00:03:50.872 --> 00:03:52.400
International Military Tribunal
113
00:03:52.400 --> 00:03:54.096
for [the] Far East also found
114
00:03:54.096 --> 00:03:55.776
guilty of international crimes
115
00:03:55.776 --> 00:03:57.952
a number of civilian political leaders
116
00:03:58.072 --> 00:04:00.304
charged with having deliberately
117
00:04:00.304 --> 00:04:00.320
and recklessly disregarded their
118
00:04:00.320 --> 00:04:02.408
and recklessly disregarded their
119
00:04:02.408 --> 00:04:05.016
legal duty to take adequate steps
120
00:04:05.016 --> 00:04:07.400
to secure the compliance of law
121
00:04:07.400 --> 00:04:08.568
and customs of war,
122
00:04:08.568 --> 00:04:10.416
and to prevent their breach.
123
00:04:11.168 --> 00:04:13.056
International Criminal Tribunals
124
00:04:13.056 --> 00:04:14.880
for the Former Yugoslavia and Rwanda
125
00:04:14.880 --> 00:04:17.072
have also tried civilian superiors.
126
00:04:17.616 --> 00:04:19.112
Statutes of these tribunals
127
00:04:19.112 --> 00:04:21.544
as well as the Statute of the Special
128
00:04:21.544 --> 00:04:22.952
Court for Sierra Leone
129
00:04:23.152 --> 00:04:25.712
responsibility of a superior who
130
00:04:25.712 --> 00:04:28.104
may be a civilian or military without
131
00:04:28.104 --> 00:04:30.128
setting any separate requirements
132
00:04:30.128 --> 00:04:32.256
or limitations when applying the
133
00:04:32.256 --> 00:04:33.736
provision to civilians.
134
00:04:34.392 --> 00:04:35.968
Certainly, differences is in the
135
00:04:35.968 --> 00:04:37.808
nature and degree of control of
136
00:04:37.808 --> 00:04:39.872
subordinates were taken into account
137
00:04:39.872 --> 00:04:41.024
when determining whether a
138
00:04:41.024 --> 00:04:42.504
particular element of
139
00:04:42.504 --> 00:04:44.296
the responsibility was proven.
140
00:04:45.424 --> 00:04:46.776
The Rome Statute, however,
141
00:04:46.776 --> 00:04:48.648
did not follow this trend of applying
142
00:04:48.648 --> 00:04:49.888
the same standard for all
143
00:04:49.888 --> 00:04:51.272
categories of superiors.
144
00:04:52.000 --> 00:04:53.816
The distinction between military and
145
00:04:53.816 --> 00:04:56.136
other superiors is a direct result
146
00:04:56.136 --> 00:04:57.904
of the intervention of the United
147
00:04:57.904 --> 00:04:59.900
States delegation at the diplomatic
148
00:04:59.900 --> 00:05:02.200
conference that negotiated and
149
00:05:02.200 --> 00:05:03.512
agreed on the text of the Rome
150
00:05:03.512 --> 00:05:05.424
Statute back in 1998.
151
00:05:06.272 --> 00:05:07.864
Among others, there were
152
00:05:07.864 --> 00:05:10.008
two interesting arguments in favour
153
00:05:10.008 --> 00:05:11.704
of applying different standards
154
00:05:11.704 --> 00:05:12.744
that [the] US held.
155
00:05:13.664 --> 00:05:15.672
First, there are different rules
156
00:05:15.672 --> 00:05:17.328
governing civilian and military
157
00:05:17.328 --> 00:05:19.280
organizations, especially with regard
158
00:05:19.280 --> 00:05:20.816
to disciplinary structure of
159
00:05:20.816 --> 00:05:23.128
civilian authority that is usually weak,
160
00:05:23.408 --> 00:05:25.632
as opposed to that of the military,
161
00:05:25.632 --> 00:05:27.272
which has a penal dimension
162
00:05:27.488 --> 00:05:29.992
within a strict and rigid command structure.
163
00:05:30.488 --> 00:05:32.568
Second, the US delegation argued
164
00:05:32.568 --> 00:05:34.096
that a military commander is in
165
00:05:34.096 --> 00:05:36.080
charge of a lethal force, which is
166
00:05:36.080 --> 00:05:37.512
inherent and unique
167
00:05:37.664 --> 00:05:39.632
to the military as a basis for the
168
00:05:39.632 --> 00:05:41.264
existence of negligence when
169
00:05:41.264 --> 00:05:43.260
proving the criminal responsibility.
170
00:05:44.128 --> 00:05:45.768
That's the accepted final version
171
00:05:45.768 --> 00:05:47.760
of the text of article 28.
172
00:05:47.872 --> 00:05:49.920
It establishes two main differences
173
00:05:49.920 --> 00:05:52.176
between the two categories of superiors.
174
00:05:52.680 --> 00:05:54.184
First is related to the scope
175
00:05:54.288 --> 00:05:56.376
of the authority and second,
176
00:05:56.376 --> 00:05:57.640
to the alternative knowledge
177
00:05:57.640 --> 00:05:58.944
of a superior about
178
00:05:58.944 --> 00:06:00.256
the commission of crimes.
179
00:06:00.608 --> 00:06:01.880
Meaning that the burden of
180
00:06:01.880 --> 00:06:03.568
responsibility for a superior
181
00:06:03.568 --> 00:06:05.448
falling under (b) is much lower.
182
00:06:05.672 --> 00:06:07.544
We will come to this in a moment.
183
00:06:08.336 --> 00:06:10.656
There is still no ICC case law that
184
00:06:10.656 --> 00:06:11.592
would help us to
185
00:06:11.592 --> 00:06:13.000
interpret paragraph (b).
186
00:06:13.384 --> 00:06:15.088
The court did however deliver
187
00:06:15.088 --> 00:06:16.704
jurisprudence relevant for the
188
00:06:16.704 --> 00:06:18.512
application of paragraph (a)
189
00:06:18.760 --> 00:06:20.248
in the case of Bemba,
190
00:06:20.568 --> 00:06:22.392
finding him guilty as a military
191
00:06:22.392 --> 00:06:24.128
commander of the army for the
192
00:06:24.128 --> 00:06:26.840
liberation of the Congo for crimes
193
00:06:26.840 --> 00:06:28.568
of his subordinates committed in the
194
00:06:28.568 --> 00:06:28.608
Central African Republic.
of his subordinates committed in the
195
00:06:28.608 --> 00:06:30.040
Central African Republic.
196
00:06:30.552 --> 00:06:32.672
As you will see, since many elements
197
00:06:32.672 --> 00:06:34.352
of command responsibility are
198
00:06:34.352 --> 00:06:36.200
common for superiors under both
199
00:06:36.200 --> 00:06:38.248
paragraphs, the Trial Chamber
200
00:06:38.248 --> 00:06:40.408
judgment is useful for understanding
201
00:06:40.408 --> 00:06:42.400
and applying its interpretation
202
00:06:42.656 --> 00:06:44.480
requirements of paragraph (b)
203
00:06:44.480 --> 00:06:46.312
where these two provisions overlap.
204
00:06:48.024 --> 00:06:49.864
Before continuing with the elements
205
00:06:49.864 --> 00:06:51.584
of superior responsibility,
206
00:06:51.584 --> 00:06:53.136
let me briefly explain the
207
00:06:53.136 --> 00:06:54.184
relationship between
208
00:06:54.184 --> 00:06:57.152
article 28 and 25 of the statute.
209
00:06:58.120 --> 00:07:00.736
Article 28 reflects a form
210
00:07:00.856 --> 00:07:03.024
of criminal responsibility other
211
00:07:03.024 --> 00:07:05.480
than those found in article 25,
212
00:07:05.480 --> 00:07:07.208
in the sense that a superior
213
00:07:07.440 --> 00:07:09.096
may be held responsible for the
214
00:07:09.096 --> 00:07:10.512
prohibited conduct of
215
00:07:10.512 --> 00:07:12.008
his or her subordinates
216
00:07:12.008 --> 00:07:14.160
for failing to fulfil his duties.
217
00:07:14.920 --> 00:07:16.896
In other words, article 28
218
00:07:16.896 --> 00:07:19.056
establishes liability for violations
219
00:07:19.056 --> 00:07:21.200
of duties in relation to crimes
220
00:07:21.200 --> 00:07:22.464
committed by others,
221
00:07:22.768 --> 00:07:24.280
while article 25
222
00:07:24.280 --> 00:07:25.960
establishes liability for
223
00:07:25.960 --> 00:07:27.120
one's own crimes.
224
00:07:28.096 --> 00:07:30.344
Now, let us look at the elements.
225
00:07:30.512 --> 00:07:32.560
For an individual to be held criminally
226
00:07:32.560 --> 00:07:35.720
responsible under 28(b),
227
00:07:36.224 --> 00:07:38.104
the prosecutor needs to prove
228
00:07:38.104 --> 00:07:39.144
that the following seven
229
00:07:39.144 --> 00:07:40.504
elements are fulfilled.
230
00:07:40.872 --> 00:07:42.776
First, crimes within the jurisdiction
231
00:07:42.776 --> 00:07:43.760
of the Court have been
232
00:07:43.760 --> 00:07:44.944
committed by forces.
233
00:07:46.000 --> 00:07:47.440
Second, the superior must be
234
00:07:47.440 --> 00:07:49.224
other than a military commander
235
00:07:49.224 --> 00:07:50.856
or a person effectively acting
236
00:07:50.856 --> 00:07:52.192
as a military commander.
237
00:07:52.952 --> 00:07:54.256
Third, the superior had
238
00:07:54.256 --> 00:07:55.992
effective authority and control
239
00:07:55.992 --> 00:07:57.008
over the forces that
240
00:07:57.008 --> 00:07:58.056
committed the crimes.
241
00:07:58.784 --> 00:08:01.144
Fourth, the crimes concerned activities
242
00:08:01.424 --> 00:08:02.896
that were within the effective
243
00:08:03.168 --> 00:08:05.064
control and responsibility
244
00:08:05.064 --> 00:08:06.064
of the superior.
245
00:08:07.424 --> 00:08:09.480
Five, the person either knew
246
00:08:09.480 --> 00:08:11.872
or consciously disregarded information
247
00:08:11.872 --> 00:08:13.536
which clearly indicated that the
248
00:08:13.536 --> 00:08:15.240
subordinates were committed or
249
00:08:15.240 --> 00:08:16.816
about to commit such crimes.
250
00:08:18.008 --> 00:08:19.872
Sixth, the superior failed to take
251
00:08:19.872 --> 00:08:22.016
all necessary and reasonable measures
252
00:08:22.016 --> 00:08:24.312
within his or her power to prevent
253
00:08:24.312 --> 00:08:27.256
or repress their commission or to submit
254
00:08:27.272 --> 00:08:28.848
the matter to the competent
255
00:08:28.848 --> 00:08:30.400
authorities for investigation
256
00:08:30.400 --> 00:08:31.400
and prosecution.
257
00:08:32.040 --> 00:08:33.240
And finally seventh,
258
00:08:33.456 --> 00:08:35.216
the crimes committed by the forces
259
00:08:35.216 --> 00:08:35.240
must have been a result of the
the crimes committed by the forces
260
00:08:35.240 --> 00:08:36.928
must have been a result of the
261
00:08:36.928 --> 00:08:39.160
failure of the accused to exercise
262
00:08:39.160 --> 00:08:40.912
control properly over them.
263
00:08:42.728 --> 00:08:44.528
With regard to the first element,
264
00:08:44.528 --> 00:08:46.112
that crimes within the jurisdiction
265
00:08:46.112 --> 00:08:46.128
of the court have been
266
00:08:46.128 --> 00:08:47.056
of the court have been
267
00:08:47.056 --> 00:08:48.320
committed by forces,
268
00:08:48.568 --> 00:08:51.320
it is required that relevant forces
269
00:08:51.320 --> 00:08:52.688
committed the crimes listed in
270
00:08:52.688 --> 00:08:54.232
article 5 of the Statute,
271
00:08:54.232 --> 00:08:55.608
that is: war crimes, crimes
272
00:08:55.608 --> 00:08:57.152
against humanity, and genocide.
273
00:08:57.936 --> 00:08:58.904
These crimes have
274
00:08:58.904 --> 00:09:00.440
to be actually committed.
275
00:09:00.736 --> 00:09:02.528
In Bemba, the Trial Chamber held
276
00:09:02.528 --> 00:09:04.216
that the commission by subordinates
277
00:09:04.328 --> 00:09:06.640
in the context of superior responsibility
278
00:09:06.936 --> 00:09:08.992
includes modes of liability beyond
279
00:09:08.992 --> 00:09:11.680
"commission" in the strict sense
280
00:09:11.992 --> 00:09:13.064
of its meaning.
281
00:09:13.384 --> 00:09:14.768
It means that the commission of
282
00:09:14.768 --> 00:09:16.176
crimes would also include,
283
00:09:16.176 --> 00:09:18.384
for example, planning, instigating,
284
00:09:18.384 --> 00:09:19.960
or aiding and abetting crimes.
285
00:09:21.336 --> 00:09:22.984
The second element is related
286
00:09:22.992 --> 00:09:24.760
to the status of the superior.
287
00:09:25.208 --> 00:09:27.400
Since it distinguishes between two
288
00:09:27.400 --> 00:09:28.736
categories of superiors
289
00:09:28.736 --> 00:09:29.960
and their relationships,
290
00:09:30.344 --> 00:09:32.792
mainly, a military or military-like
291
00:09:32.800 --> 00:09:34.160
commanders on one hand
292
00:09:34.160 --> 00:09:35.496
and all other superiors,
293
00:09:36.096 --> 00:09:38.488
article 28 requires that this
294
00:09:38.488 --> 00:09:40.504
status of the superior is firstly
295
00:09:40.504 --> 00:09:42.520
established prior to going further
296
00:09:42.520 --> 00:09:44.248
into the required elements of
297
00:09:44.248 --> 00:09:45.936
criminal responsibility.
298
00:09:46.848 --> 00:09:48.240
The ICC jurisprudence
299
00:09:48.240 --> 00:09:49.824
is yet to establish underlying
300
00:09:49.824 --> 00:09:51.512
criteria for the assessment of
301
00:09:51.512 --> 00:09:53.304
whether an individual qualifies
302
00:09:53.304 --> 00:09:54.720
as a superior under (b).
303
00:09:55.360 --> 00:09:56.608
Some examples include
304
00:09:56.608 --> 00:09:58.512
political leaders, business leaders,
305
00:09:58.512 --> 00:10:00.360
and senior civil servants.
306
00:10:00.496 --> 00:10:02.368
The ICTR, for example,
307
00:10:02.704 --> 00:10:04.664
convicted a business leader under
308
00:10:04.664 --> 00:10:06.768
the command responsibility provision,
309
00:10:06.768 --> 00:10:08.400
Mr. Alfred Musema,
310
00:10:08.400 --> 00:10:10.480
, in the context of the widespread
311
00:10:10.480 --> 00:10:12.328
attack against Tutsis and moderate
312
00:10:12.328 --> 00:10:14.672
Hutu civilians in 1994.
313
00:10:15.264 --> 00:10:16.184
The accused was
314
00:10:16.184 --> 00:10:17.920
the director of a tea factory.
315
00:10:18.568 --> 00:10:20.768
It is important to note, however,
316
00:10:21.040 --> 00:10:23.240
that the civilians who are effectively
317
00:10:23.240 --> 00:10:24.952
part of a command structure
318
00:10:25.112 --> 00:10:27.624
that involved military or paramilitary
319
00:10:27.624 --> 00:10:29.224
forces would fall within the
320
00:10:29.224 --> 00:10:31.296
category of persons "effectively
321
00:10:31.296 --> 00:10:33.504
acting as a military commander" under (a).
322
00:10:34.176 --> 00:10:35.640
This would also include political
323
00:10:35.640 --> 00:10:37.344
leaders of a state who under
324
00:10:37.344 --> 00:10:39.136
national law become commanders
325
00:10:39.136 --> 00:10:40.880
in chief during armed conflicts.
326
00:10:41.288 --> 00:10:43.304
The ICC Prosecutor, for example,
327
00:10:43.304 --> 00:10:44.768
charged the former president
328
00:10:44.768 --> 00:10:45.856
of the Ivory Coast,
329
00:10:45.856 --> 00:10:47.760
Mr. Laurent Gbagbo,
330
00:10:47.784 --> 00:10:49.200
as the military commander in
331
00:10:49.200 --> 00:10:49.216
the context of a non-international
332
00:10:49.216 --> 00:10:50.768
the context of a non-international
333
00:10:50.768 --> 00:10:53.544
armed conflict in Ivory Coast in 2011.
334
00:10:54.384 --> 00:10:55.840
The Trial Chamber in Bemba
335
00:10:55.840 --> 00:10:57.424
also interpreted the phrase
336
00:10:57.424 --> 00:10:59.560
to include individuals who do not
337
00:10:59.560 --> 00:11:01.872
perform exclusively military functions,
338
00:11:02.144 --> 00:11:03.960
but may exercise a similar
339
00:11:03.960 --> 00:11:05.272
authority over the forces.
340
00:11:06.080 --> 00:11:07.744
In conclusion, the status of a
341
00:11:07.744 --> 00:11:09.360
superior would have to be
342
00:11:09.360 --> 00:11:11.648
determined on a case by case basis.
343
00:11:13.144 --> 00:11:14.480
The third element
344
00:11:14.480 --> 00:11:15.832
that the superior had effective
345
00:11:15.832 --> 00:11:17.368
authority and control over the
346
00:11:17.368 --> 00:11:18.928
forces that committed the crimes,
347
00:11:19.520 --> 00:11:21.312
involves determining
348
00:11:21.712 --> 00:11:24.128
the superior-subordinate relationship.
349
00:11:24.608 --> 00:11:26.432
Both categories of superiors
350
00:11:26.432 --> 00:11:27.552
under (a) or (b)
351
00:11:27.816 --> 00:11:29.520
are required to be in a position
352
00:11:29.520 --> 00:11:31.840
of "effective control and authority",
353
00:11:32.152 --> 00:11:34.440
while military commanders, in addition,
354
00:11:34.440 --> 00:11:36.304
need to exercise "effective
355
00:11:36.304 --> 00:11:37.656
command and control"
356
00:11:37.880 --> 00:11:39.160
indicated the difference
357
00:11:39.160 --> 00:11:39.920
in the scope of
358
00:11:39.920 --> 00:11:41.920
the authority mentioned earlier.
359
00:11:43.024 --> 00:11:44.920
As the Bemba Trial Chamber held,
360
00:11:44.920 --> 00:11:47.592
the "authority" refers to the modalities,
361
00:11:47.592 --> 00:11:49.720
manner, or nature in which
362
00:11:49.720 --> 00:11:51.968
the superior exercised the control over
363
00:11:52.280 --> 00:11:53.448
his or her forces.
364
00:11:54.024 --> 00:11:55.440
The "effective control"
365
00:11:55.440 --> 00:11:57.512
refers to the material ability
366
00:11:57.512 --> 00:11:59.112
to prevent or repress the
367
00:11:59.112 --> 00:12:00.256
commission of the crimes
368
00:12:00.664 --> 00:12:02.032
or to submit the matter
369
00:12:02.032 --> 00:12:03.536
to the competent authorities.
370
00:12:04.336 --> 00:12:06.024
Any lower degree of control
371
00:12:06.024 --> 00:12:07.928
such as the ability to exercise
372
00:12:07.928 --> 00:12:10.304
influence even substantial influence
373
00:12:10.304 --> 00:12:11.256
over the forces
374
00:12:11.256 --> 00:12:12.312
who committed the crimes
375
00:12:12.656 --> 00:12:14.464
would be insufficient to establish
376
00:12:14.464 --> 00:12:16.152
the superior responsibility.
377
00:12:17.330 --> 00:12:18.864
When establishing the existence
378
00:12:18.864 --> 00:12:21.000
of a superior-subordinate relationship,
379
00:12:21.000 --> 00:12:22.808
it is not required to identify
380
00:12:23.008 --> 00:12:25.048
principal perpetrators by name,
381
00:12:25.160 --> 00:12:26.616
although such a determination
382
00:12:26.616 --> 00:12:27.832
would be helpful
383
00:12:28.376 --> 00:12:30.208
to prove such existence,
384
00:12:30.968 --> 00:12:32.576
it is sufficient to identify the
385
00:12:32.576 --> 00:12:34.570
perpetrators by group or unit
386
00:12:34.632 --> 00:12:36.424
in relation to a particular crime.
387
00:12:37.568 --> 00:12:39.424
The perpetrators need however
388
00:12:39.424 --> 00:12:41.936
to be identified at least to the
389
00:12:41.936 --> 00:12:43.584
extent necessary to
390
00:12:44.016 --> 00:12:46.536
assess the existence of the relationship.
391
00:12:47.432 --> 00:12:49.400
Also there is no minimum number
392
00:12:49.400 --> 00:12:50.920
of superiors that are required to
393
00:12:50.920 --> 00:12:50.936
be involved to trigger the responsibility.
394
00:12:50.936 --> 00:12:53.480
be involved to trigger the responsibility.
395
00:12:54.344 --> 00:12:56.056
The effective control does not
396
00:12:56.056 --> 00:12:58.136
need to be exclusively exercised
397
00:12:58.136 --> 00:12:59.112
over the forces
398
00:12:59.112 --> 00:13:00.280
who committed the crimes.
399
00:13:00.824 --> 00:13:03.048
Instead, it is possible that multiple
400
00:13:03.048 --> 00:13:05.128
superiors can be held concurrently
401
00:13:05.128 --> 00:13:06.336
responsible for actions
402
00:13:06.336 --> 00:13:07.568
of their subordinates.
403
00:13:08.952 --> 00:13:10.840
The existence of effective control
404
00:13:10.840 --> 00:13:12.632
will depend on the circumstances
405
00:13:12.632 --> 00:13:13.648
of each case.
406
00:13:13.936 --> 00:13:15.600
Some factors that could indicate
407
00:13:15.600 --> 00:13:16.832
such control include:
408
00:13:17.712 --> 00:13:19.616
The official position of the superior
409
00:13:19.616 --> 00:13:21.392
within the structure or organization
410
00:13:21.392 --> 00:13:23.632
in question and the actual tasks
411
00:13:23.632 --> 00:13:25.208
that he or she carried out;
412
00:13:25.528 --> 00:13:27.232
The capacity to issue orders
413
00:13:27.232 --> 00:13:28.472
or binding decisions
414
00:13:28.472 --> 00:13:29.648
to its subordinates;
415
00:13:30.080 --> 00:13:32.112
The capacity to ensure compliance
416
00:13:32.112 --> 00:13:33.904
with such orders or decisions;
417
00:13:34.328 --> 00:13:36.368
The power to promote, replace
418
00:13:36.368 --> 00:13:38.320
remove or discipline any person
419
00:13:38.320 --> 00:13:39.808
within the organization;
420
00:13:40.240 --> 00:13:41.944
The control over finances;
421
00:13:42.312 --> 00:13:44.264
His or her capacity to represent
422
00:13:44.264 --> 00:13:46.080
the organization and subordinates
423
00:13:46.336 --> 00:13:47.536
when interacting with
424
00:13:47.536 --> 00:13:49.312
external partners;
425
00:13:50.528 --> 00:13:52.008
Whether he or she represents
426
00:13:52.008 --> 00:13:53.512
the ideology of the movement
427
00:13:53.512 --> 00:13:55.510
and has a certain level of profile,
428
00:13:55.510 --> 00:13:56.992
manifested through public
429
00:13:56.992 --> 00:13:58.576
appearances and statements.
430
00:13:59.392 --> 00:14:00.904
If we go back to our example
431
00:14:00.904 --> 00:14:00.920
of Mr. Musema, the Trial Chamber
432
00:14:00.920 --> 00:14:02.896
of Mr. Musema, the Trial Chamber
433
00:14:02.896 --> 00:14:04.768
found that in his function as the
434
00:14:04.768 --> 00:14:06.040
director of the factory
435
00:14:06.328 --> 00:14:07.384
and because of the
436
00:14:07.384 --> 00:14:08.776
poverty of the region,
437
00:14:09.216 --> 00:14:11.376
Musema exercised considerable
438
00:14:11.376 --> 00:14:12.688
authority in relation to the
439
00:14:12.688 --> 00:14:13.872
people he employed,
440
00:14:14.032 --> 00:14:15.408
but also in relation to the
441
00:14:15.408 --> 00:14:15.416
communal authorities,
442
00:14:15.416 --> 00:14:16.704
communal authorities,
443
00:14:16.808 --> 00:14:18.168
which were dependent on the
444
00:14:18.168 --> 00:14:19.232
tax income from
445
00:14:19.232 --> 00:14:20.304
the factory employees.
446
00:14:21.888 --> 00:14:23.520
The Chamber found that Musema
447
00:14:23.520 --> 00:14:25.624
exercised de jure authority and de
448
00:14:25.624 --> 00:14:27.620
facto control over employees
449
00:14:27.880 --> 00:14:29.448
while they were on the factory
450
00:14:29.448 --> 00:14:30.776
premises and while they were
451
00:14:30.776 --> 00:14:32.656
engaged in their professional duties
452
00:14:32.656 --> 00:14:34.392
as employees of the factory,
453
00:14:34.688 --> 00:14:36.136
even if those duties were
454
00:14:36.136 --> 00:14:38.432
performed outside factory premises.
455
00:14:39.112 --> 00:14:40.976
The accused exercised the legal
456
00:14:40.976 --> 00:14:42.544
and financial control over
457
00:14:42.544 --> 00:14:44.160
these employees, particularly
458
00:14:44.160 --> 00:14:45.656
through his power to appoint
459
00:14:45.656 --> 00:14:47.608
and remove employees from their
460
00:14:47.608 --> 00:14:49.104
positions at the factory.
461
00:14:51.040 --> 00:14:52.944
The fourth crucial requirement
462
00:14:52.944 --> 00:14:54.688
of the superior responsibility is
463
00:14:54.688 --> 00:14:56.952
that the crimes concerned activities
464
00:14:58.184 --> 00:14:59.816
that were within the effective
465
00:14:59.816 --> 00:15:02.360
responsibility and control of the superior,
466
00:15:02.550 --> 00:15:04.672
limiting the scope of the superior
467
00:15:04.672 --> 00:15:06.360
responsibility to those acts
468
00:15:06.360 --> 00:15:08.056
that would be committed for example
469
00:15:08.056 --> 00:15:09.648
only during their working hours
470
00:15:10.176 --> 00:15:12.304
or were related to their working.
471
00:15:13.032 --> 00:15:15.360
This is one of the two key differences
472
00:15:15.360 --> 00:15:16.864
that the categories of superiors
473
00:15:16.864 --> 00:15:18.272
in the paragraph (a)
474
00:15:18.320 --> 00:15:20.608
whose responsibility has
475
00:15:20.608 --> 00:15:20.632
no limitation with regard
476
00:15:20.632 --> 00:15:22.208
no limitation with regard
477
00:15:22.208 --> 00:15:23.968
to the crimes, as long as the
478
00:15:24.160 --> 00:15:26.136
superior had the effective control
479
00:15:26.136 --> 00:15:27.928
over subordinates at the time
480
00:15:28.112 --> 00:15:29.888
of the commission of the crime.
481
00:15:32.024 --> 00:15:34.504
Article 28 (b) encompasses
482
00:15:34.784 --> 00:15:36.984
two standards of fault element.
483
00:15:36.984 --> 00:15:39.688
The first, which is encapsulated by
484
00:15:39.688 --> 00:15:41.752
the term "knew", for both
485
00:15:41.752 --> 00:15:43.750
categories of superiors, requires
486
00:15:43.750 --> 00:15:45.560
the existence of actual knowledge.
487
00:15:46.040 --> 00:15:47.904
The second, "alternative or
488
00:15:47.904 --> 00:15:49.072
constructive knowledge",
489
00:15:49.336 --> 00:15:51.504
requires that the superior consciously
490
00:15:51.504 --> 00:15:53.112
disregarded information
491
00:15:53.408 --> 00:15:55.344
which clearly indicated, that
492
00:15:55.392 --> 00:15:57.328
subordinates were committing or
493
00:15:57.328 --> 00:15:58.784
about to commit such crimes.
494
00:16:00.424 --> 00:16:01.688
Actual knowledge can be
495
00:16:01.688 --> 00:16:03.368
established either by direct
496
00:16:03.368 --> 00:16:06.320
or indirect (so-called circumstantial) evidence.
497
00:16:06.664 --> 00:16:08.496
Examples of direct evidence
498
00:16:08.496 --> 00:16:10.320
include the accused's admission of
499
00:16:10.320 --> 00:16:12.184
knowledge or statements he may have
500
00:16:12.184 --> 00:16:14.216
made in relation to the crimes.
501
00:16:15.152 --> 00:16:16.432
Article 28 does not
502
00:16:16.432 --> 00:16:18.072
require that the superior knew
503
00:16:18.072 --> 00:16:19.736
the identities of the specific
504
00:16:19.736 --> 00:16:21.730
individuals who committed the crimes.
505
00:16:22.448 --> 00:16:24.856
And it is also unnecessary to establish
506
00:16:24.856 --> 00:16:26.664
that the accused mastered every
507
00:16:26.664 --> 00:16:27.744
detail of each crime
508
00:16:27.744 --> 00:16:29.136
committed by the forces.
509
00:16:30.448 --> 00:16:32.424
Instead, relevant factors that
510
00:16:32.424 --> 00:16:34.216
may indicate knowledge include
511
00:16:34.216 --> 00:16:36.210
any orders to commit crimes,
512
00:16:36.448 --> 00:16:37.904
or the fact that the accused was
513
00:16:37.904 --> 00:16:39.816
informed personally that his
514
00:16:39.816 --> 00:16:42.328
subordinates were involved in criminal activity.
515
00:16:42.904 --> 00:16:44.992
Other indicia include the number,
516
00:16:44.992 --> 00:16:47.488
nature, scope, location and timing
517
00:16:47.488 --> 00:16:48.648
of the illegal acts,
518
00:16:48.928 --> 00:16:51.136
and other prevailing circumstances;
519
00:16:51.176 --> 00:16:53.392
the means of available communication;
520
00:16:53.664 --> 00:16:56.584
the modus operandi of similar acts;
521
00:16:57.016 --> 00:16:59.072
the scope and nature of the superior's
522
00:16:59.072 --> 00:17:01.136
position and responsibility within
523
00:17:01.136 --> 00:17:02.248
the organisation;
524
00:17:02.512 --> 00:17:04.192
the notoriety of illegal acts,
525
00:17:04.192 --> 00:17:05.392
such as whether they were
526
00:17:05.392 --> 00:17:07.072
reported in media coverage
527
00:17:07.072 --> 00:17:08.648
of which the accused was aware.
528
00:17:10.800 --> 00:17:12.056
As mentioned, the core of the
529
00:17:12.056 --> 00:17:14.464
division in article 28 is in two
530
00:17:14.464 --> 00:17:16.400
separate alternative knowledge
531
00:17:16.400 --> 00:17:17.848
requirements that depend on the
532
00:17:17.848 --> 00:17:19.320
civilian or superior
533
00:17:19.320 --> 00:17:19.336
status of the
534
00:17:19.336 --> 00:17:20.264
status of the
535
00:17:21.456 --> 00:17:23.800
military status of the superior.
536
00:17:24.552 --> 00:17:25.944
Such an explicit provision
537
00:17:25.944 --> 00:17:28.096
aims at creating a higher standard
538
00:17:28.096 --> 00:17:29.880
of proof when the superior
539
00:17:29.880 --> 00:17:30.840
falls under (b).
540
00:17:31.360 --> 00:17:33.352
If we compare the language of
541
00:17:33.352 --> 00:17:35.208
two sub-paragraphs under (a),
542
00:17:35.608 --> 00:17:37.384
a de facto or de jure military
543
00:17:37.384 --> 00:17:39.096
commander is responsible
544
00:17:39.096 --> 00:17:41.984
for subordinates conduct if he knew,
545
00:17:42.456 --> 00:17:44.520
or owing to the circumstances
546
00:17:44.520 --> 00:17:45.296
at the time,
547
00:17:45.296 --> 00:17:47.352
should have known that the crimes
548
00:17:47.352 --> 00:17:49.128
in question were being committed
549
00:17:49.128 --> 00:17:50.792
or about to be committed.
550
00:17:51.392 --> 00:17:52.952
Under (b) a superior is
551
00:17:52.952 --> 00:17:55.176
only responsible if he or she
552
00:17:55.264 --> 00:17:57.768
knew or consciously disregarded
553
00:17:57.768 --> 00:17:59.488
information which clearly
554
00:17:59.488 --> 00:18:01.792
indicated that subordinates were
555
00:18:01.792 --> 00:18:02.888
committing or about to
556
00:18:02.888 --> 00:18:03.896
commit such crimes.
557
00:18:04.888 --> 00:18:06.872
The highest standard is indicated
558
00:18:06.872 --> 00:18:09.064
in the terms consciously disregarded
559
00:18:09.064 --> 00:18:10.528
and clearly indicated.
560
00:18:11.328 --> 00:18:12.520
As explained before,
561
00:18:12.808 --> 00:18:14.520
one of the main reasons for this
562
00:18:14.710 --> 00:18:17.056
distinction is that military commanders
563
00:18:17.056 --> 00:18:19.328
within a strictly hierarchical
564
00:18:19.328 --> 00:18:21.320
or organized structure would have
565
00:18:21.320 --> 00:18:23.320
far more possibilities to receive
566
00:18:23.320 --> 00:18:24.864
information on the conduct
567
00:18:24.864 --> 00:18:26.136
of their subordinates.
568
00:18:27.144 --> 00:18:29.904
Thus, while article 28 imposes
569
00:18:29.904 --> 00:18:31.608
a more active duty upon the
570
00:18:31.608 --> 00:18:33.808
superior to inform himself of
571
00:18:33.992 --> 00:18:36.080
activities of his subordinates,
572
00:18:36.256 --> 00:18:37.800
if he falls under (a),
573
00:18:37.976 --> 00:18:39.072
this is not required
574
00:18:39.072 --> 00:18:40.328
for other superiors.
575
00:18:40.552 --> 00:18:42.320
The ICTR Trial Chamber
576
00:18:42.496 --> 00:18:44.312
in Hategekimana also agreed
577
00:18:44.312 --> 00:18:45.096
with this view.
578
00:18:46.008 --> 00:18:48.352
It is instead necessary to establish
579
00:18:48.808 --> 00:18:50.648
first, that information clearly
580
00:18:50.648 --> 00:18:53.208
indicating a significant risk that
581
00:18:53.208 --> 00:18:54.840
subordinates were committing or
582
00:18:54.840 --> 00:18:57.184
were about to commit offences existed.
583
00:18:58.168 --> 00:18:59.904
Second, that this information was
584
00:18:59.904 --> 00:19:01.568
available to the superior.
585
00:19:02.168 --> 00:19:04.392
Three, that the superior, while
586
00:19:04.392 --> 00:19:06.264
aware that such a category of
587
00:19:06.264 --> 00:19:09.400
information existed, declined to refer
588
00:19:09.616 --> 00:19:11.400
to the category of information.
589
00:19:11.608 --> 00:19:12.312
And four,
590
00:19:13.336 --> 00:19:15.440
that it involved crimes concerning
591
00:19:15.440 --> 00:19:17.032
activities within the effective
592
00:19:17.032 --> 00:19:19.440
responsibility and control of a superior,
593
00:19:19.776 --> 00:19:21.104
as explained earlier.
594
00:19:21.776 --> 00:19:23.720
This impermissible, wilful
595
00:19:23.720 --> 00:19:26.120
blindness of the part of a superior
596
00:19:26.120 --> 00:19:29.288
is also referred to in the commentary of
597
00:19:29.288 --> 00:19:30.952
the International Committee of
598
00:19:30.952 --> 00:19:31.896
the Red Cross to
599
00:19:31.896 --> 00:19:33.176
article 86
600
00:19:34.376 --> 00:19:35.776
paragraph (2) of the
601
00:19:36.064 --> 00:19:37.512
first additional protocol.
602
00:19:38.384 --> 00:19:40.744
A superior cannot absolve himself
603
00:19:40.744 --> 00:19:43.080
from responsibility by pleading
604
00:19:43.080 --> 00:19:46.024
ignorance of reports addressed to him.
605
00:19:46.440 --> 00:19:48.272
In other words, the superior has
606
00:19:48.272 --> 00:19:50.480
a duty to be appraised at least
607
00:19:50.480 --> 00:19:52.048
of information that is made
608
00:19:52.048 --> 00:19:53.504
directly available to him.
609
00:19:55.168 --> 00:19:56.608
The sixth element related
610
00:19:56.608 --> 00:19:58.568
to necessary and reasonable measures
611
00:19:58.568 --> 00:20:00.408
require that the superior failed
612
00:20:00.408 --> 00:20:01.608
at least to fulfil one
613
00:20:01.616 --> 00:20:02.992
of the three duties listed:
614
00:20:03.624 --> 00:20:05.128
the duty to prevent crimes;
615
00:20:05.272 --> 00:20:07.320
the duty to repress crimes;
616
00:20:07.320 --> 00:20:08.728
or the duty to submit the
617
00:20:08.728 --> 00:20:10.656
matter to the competent authorities
618
00:20:10.656 --> 00:20:12.440
for investigation and prosecution.
619
00:20:13.104 --> 00:20:15.008
These three duties arise at three
620
00:20:15.008 --> 00:20:16.168
different stages in the
621
00:20:16.168 --> 00:20:17.160
commission of crimes:
622
00:20:17.872 --> 00:20:19.480
before, during and after.
623
00:20:19.990 --> 00:20:21.656
Thus, a failure to fulfil
624
00:20:21.664 --> 00:20:23.576
one of these duties is itself
625
00:20:23.576 --> 00:20:25.176
a separate crime under (b).
626
00:20:26.216 --> 00:20:28.008
The duty to prevent arises
627
00:20:28.008 --> 00:20:29.568
before the commission of the crimes
628
00:20:29.568 --> 00:20:31.416
and it includes crimes in progress
629
00:20:31.584 --> 00:20:32.448
and crimes which
630
00:20:32.456 --> 00:20:33.944
involve ongoing elements.
631
00:20:35.016 --> 00:20:36.528
A superior would violate
632
00:20:36.528 --> 00:20:38.208
his or her duty to prevent
633
00:20:38.208 --> 00:20:40.088
when he fails to take measures
634
00:20:40.088 --> 00:20:41.768
to stop crimes that are about to be
635
00:20:41.768 --> 00:20:42.968
committed or crimes that
636
00:20:42.968 --> 00:20:43.976
are being committed.
637
00:20:46.944 --> 00:20:48.784
The duty to repress encompasses
638
00:20:48.784 --> 00:20:50.880
two separate duties arising at
639
00:20:50.880 --> 00:20:52.136
two different stages of the
640
00:20:52.136 --> 00:20:53.072
commission of crimes.
641
00:20:53.784 --> 00:20:55.736
First, the duty to repress includes
642
00:20:55.736 --> 00:20:57.824
a duty to stop ongoing crimes from
643
00:20:57.824 --> 00:20:59.248
continuing to be committed.
644
00:20:59.680 --> 00:21:01.072
Second, the duty to repress
645
00:21:01.072 --> 00:21:03.070
includes an obligation to punish
646
00:21:03.070 --> 00:21:05.070
forces after the commission of crimes.
647
00:21:05.656 --> 00:21:06.848
The aim is to bring the
648
00:21:06.848 --> 00:21:08.712
perpetrators to justice in order
649
00:21:08.712 --> 00:21:10.016
to avoid impunity
650
00:21:10.016 --> 00:21:11.592
prevent future crimes.
651
00:21:12.512 --> 00:21:14.096
This duty to punish may be
652
00:21:14.096 --> 00:21:15.688
fulfilled in two different ways.
653
00:21:16.264 --> 00:21:18.216
Either by the superior himself
654
00:21:18.216 --> 00:21:20.210
taking necessary and reasonable measures,
655
00:21:20.720 --> 00:21:23.200
or, if he doesn't have the ability to do so,
656
00:21:23.408 --> 00:21:24.872
by referring the matter to the
657
00:21:24.872 --> 00:21:26.144
competent authorities.
658
00:21:27.016 --> 00:21:28.296
Thus, the duty to punish
659
00:21:28.296 --> 00:21:30.290
constitutes an alternative to this
660
00:21:30.520 --> 00:21:31.976
third duty of referral.
661
00:21:32.824 --> 00:21:34.896
What constitutes "all necessary
662
00:21:34.896 --> 00:21:36.080
and reasonable measures"
663
00:21:36.080 --> 00:21:37.944
to prevent or repress the crimes
664
00:21:37.944 --> 00:21:39.496
is established on a
665
00:21:39.728 --> 00:21:41.104
case-by-case basis
666
00:21:41.328 --> 00:21:43.216
and must be addressed in concreto.
667
00:21:43.896 --> 00:21:45.424
The Trial Chamber in Bemba
668
00:21:45.424 --> 00:21:46.776
followed the jurisprudence of
669
00:21:46.776 --> 00:21:48.248
the ad hoc tribunals that
670
00:21:48.248 --> 00:21:50.056
"necessary" measures are those
671
00:21:50.056 --> 00:21:51.872
appropriate for the superior to
672
00:21:51.872 --> 00:21:53.544
discharge his obligation,
673
00:21:53.944 --> 00:21:55.888
and "reasonable" measures are those
674
00:21:55.888 --> 00:21:58.472
reasonably falling within the commander's
675
00:21:58.472 --> 00:22:00.992
material power and the exercise
676
00:22:01.024 --> 00:22:02.990
he or she makes of this power.
677
00:22:03.504 --> 00:22:05.336
In case the superior took all
678
00:22:05.336 --> 00:22:07.040
necessary and reasonable measures
679
00:22:07.040 --> 00:22:08.208
within his power,
680
00:22:08.208 --> 00:22:09.912
he cannot be held responsible.
681
00:22:11.096 --> 00:22:12.280
Since in most cases
682
00:22:12.280 --> 00:22:14.920
of civilian superiors, it is unlikely
683
00:22:14.920 --> 00:22:16.920
they would have disciplinary powers,
684
00:22:16.920 --> 00:22:18.544
unlike military commanders,
685
00:22:18.784 --> 00:22:20.960
it is reasonably expected from
686
00:22:20.960 --> 00:22:22.448
them to report the misconduct
687
00:22:22.448 --> 00:22:22.464
to the competent authorities.
688
00:22:22.464 --> 00:22:24.112
to the competent authorities.
689
00:22:24.432 --> 00:22:26.048
A superior may dismiss
690
00:22:27.360 --> 00:22:30.080
his subordinates, but once dismissed,
691
00:22:30.080 --> 00:22:31.824
a criminal proceeding against
692
00:22:31.824 --> 00:22:33.320
the employee should be opened.
693
00:22:34.656 --> 00:22:36.864
In our example of Musema,
694
00:22:36.864 --> 00:22:38.576
the Chamber found that Musema was
695
00:22:38.576 --> 00:22:40.456
in a position, by virtue of his
696
00:22:40.456 --> 00:22:42.944
powers, to appoint and remove employees,
697
00:22:43.352 --> 00:22:44.824
to take reasonable measures,
698
00:22:44.824 --> 00:22:46.616
such as removing or threatening
699
00:22:46.616 --> 00:22:48.304
to remove an individual from his
700
00:22:48.304 --> 00:22:50.216
or her position at the tea factory
701
00:22:50.456 --> 00:22:52.552
if he or she was identified
702
00:22:52.552 --> 00:22:54.120
as a perpetrator of crimes
703
00:22:54.120 --> 00:22:56.120
within the ICTR jurisdiction.
704
00:22:57.560 --> 00:22:58.920
The Chamber also found that
705
00:22:58.920 --> 00:23:00.344
Musema was in a position
706
00:23:00.344 --> 00:23:02.984
to take reasonable measures
707
00:23:03.000 --> 00:23:04.984
to attempt to prevent or to punish
708
00:23:04.984 --> 00:23:06.976
the use of factory vehicles,
709
00:23:06.976 --> 00:23:09.528
uniforms or other factory property
710
00:23:09.528 --> 00:23:11.008
in the commission of such crimes.
711
00:23:12.800 --> 00:23:14.456
This brings us to the third part
712
00:23:14.456 --> 00:23:15.376
of this lecture.
713
00:23:15.624 --> 00:23:18.272
It is yet to be seen how article 28 (b)
714
00:23:18.272 --> 00:23:19.840
will be applied before the Court.
715
00:23:20.304 --> 00:23:21.776
It is obvious, however, that
716
00:23:21.776 --> 00:23:24.064
by setting a high standard of proof
717
00:23:24.064 --> 00:23:25.504
for establishing the criminal
718
00:23:25.504 --> 00:23:27.848
responsibility of civilian superiors,
719
00:23:28.200 --> 00:23:30.584
this provision raises a high bar
720
00:23:30.700 --> 00:23:32.128
to the successful prosecution
721
00:23:32.128 --> 00:23:33.232
of civilian leaders.
722
00:23:33.930 --> 00:23:35.496
This is particularly true when
723
00:23:35.496 --> 00:23:37.200
establishing the alternative knowledge
724
00:23:37.200 --> 00:23:39.440
of a superior also taking into
725
00:23:39.440 --> 00:23:41.264
account the additional requirement
726
00:23:41.264 --> 00:23:42.496
that the scope of that
727
00:23:42.496 --> 00:23:43.832
knowledge is limited
728
00:23:44.088 --> 00:23:45.792
to crimes under his effective
729
00:23:45.792 --> 00:23:47.424
responsibility and control,
730
00:23:47.680 --> 00:23:49.480
which makes the case even harder.
731
00:23:50.032 --> 00:23:52.248
The wording consciously disregarded
732
00:23:52.248 --> 00:23:53.736
information which clearly
733
00:23:53.736 --> 00:23:56.136
indicated brings the threshold
734
00:23:56.136 --> 00:23:57.536
of alternative knowledge
735
00:23:57.536 --> 00:24:00.248
very close to actual knowledge
736
00:24:00.248 --> 00:24:02.880
or in other situations, wilful blindness
737
00:24:02.880 --> 00:24:04.048
for crimes committed.
738
00:24:04.920 --> 00:24:06.856
In case of interest, I encourage you
739
00:24:06.864 --> 00:24:09.440
to explore article 28(b) further.
740
00:24:09.592 --> 00:24:11.256
It would be interesting to have
741
00:24:11.256 --> 00:24:13.280
research done on this topic
742
00:24:13.280 --> 00:24:15.176
with the aim to identify indicators
743
00:24:15.176 --> 00:24:17.032
of an alternative knowledge
744
00:24:17.032 --> 00:24:19.296
that could assist in future prosecutions,
745
00:24:19.888 --> 00:24:22.104
in particular with regard to situations
746
00:24:22.104 --> 00:24:23.496
of wilful blindness.
747
00:24:24.040 --> 00:24:25.488
Also it would be helpful to
748
00:24:25.488 --> 00:24:27.624
identify merging points of the two
749
00:24:27.752 --> 00:24:29.296
paragraphs that could ease
750
00:24:29.296 --> 00:24:30.856
the division and bring the two
751
00:24:30.856 --> 00:24:33.216
categories of superiors even closer.
752
00:24:34.592 --> 00:24:36.464
Let me conclude here and wish
753
00:24:36.464 --> 00:24:37.544
you the best of luck
754
00:24:37.544 --> 00:24:39.040
in your studies. Bye.