Rome Statute

of the International
Criminal Court
Rome Statute of the International Criminal Court

Article 7
Crimes against humanity
1. For the purpose of this Statute, "crime against humanity" means any of the following
acts when committed as part of a widespread or systematic attack directed against
any civilian population, with knowledge of the attack:
(a) Murder;
(b) Extermination;
(c) Enslavement;
(d) Deportation or forcible transfer of population;
(e) Imprisonment or other severe deprivation of physical liberty in violation of
fundamental rules of international law;

(f) Torture;
(g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced
sterilization, or any other form of sexual violence of comparable gravity;
(h) Persecution against any identifiable group or collectivity on political, racial,
national, ethnic, cultural, religious, gender as defined in paragraph 3, or other
grounds that are universally recognized as impermissible under international
law, in connection with any act referred to in this paragraph or any crime
within the jurisdiction of the Court;
(i) Enforced disappearance of persons;
(j) The crime of apartheid;
(k) Other inhumane acts of a similar character intentionally causing great
suffering, or serious injury to body or to mental or physical health.
2. For the purpose of paragraph 1:
(a) "Attack directed against any civilian population" means a course of conduct
involving the multiple commission of acts referred to in paragraph 1
against any civilian population, pursuant to or in furtherance of a State or
organizational policy to commit such attack;
(b) "Extermination" includes the intentional infliction of conditions of life, inter
alia the deprivation of access to food and medicine, calculated to bring about
the destruction of part of a population;
(c) "Enslavement" means the exercise of any or all of the powers attaching to the
right of ownership over a person and includes the exercise of such power in
the course of trafficking in persons, in particular women and children;
(d) "Deportation or forcible transfer of population" means forced displacement
of the persons concerned by expulsion or other coercive acts from the area
in which they are lawfully present, without grounds permitted under
international law;
(e) "Torture" means the intentional infliction of severe pain or suffering, whether
physical or mental, upon a person in the custody or under the control of the
accused; except that torture shall not include pain or suffering arising only
from, inherent in or incidental to, lawful sanctions;
(f) "Forced pregnancy" means the unlawful confinement of a woman forcibly
made pregnant, with the intent of affecting the ethnic composition of any
population or carrying out other grave violations of international law. This
definition shall not in any way be interpreted as affecting national laws
relating to pregnancy;
Rome Statute of the International Criminal Court

(g) "Persecution" means the intentional and severe deprivation of fundamental

rights contrary to international law by reason of the identity of the group or
collectivity;
(h) "The crime of apartheid" means inhumane acts of a character similar to those
referred to in paragraph 1, committed in the context of an institutionalized
regime of systematic oppression and domination by one racial group over any
other racial group or groups and committed with the intention of maintaining
that regime;

(i) "Enforced disappearance of persons" means the arrest, detention or

abduction of persons by, or with the authorization, support or acquiescence
of, a State or a political organization, followed by a refusal to acknowledge
that deprivation of freedom or to give information on the fate or whereabouts
of those persons, with the intention of removing them from the protection of
the law for a prolonged period of time.
3. For the purpose of this Statute, it is understood that the term "gender" refers to the
two sexes, male and female, within the context of society. The term "gender" does not
indicate any meaning different from the above.
Rome Statute of the International Criminal Court

Article 82
War crimes
1. The Court shall have jurisdiction in respect of war crimes in particular when
committed as part of a plan or policy or as part of a large-scale commission of such
crimes.
2. For the purpose of this Statute, "war crimes" means:
(a) Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of
the following acts against persons or property protected under the provisions
of the relevant Geneva Convention:
(i) Wilful killing;
(ii) Torture or inhuman treatment, including biological experiments;
(iii) Wilfully causing great suffering, or serious injury to body or health;
(iv) Extensive destruction and appropriation of property, not justified by
military necessity and carried out unlawfully and wantonly;
(v) Compelling a prisoner of war or other protected person to serve in the
forces of a hostile Power;
(vi) Wilfully depriving a prisoner of war or other protected person of the
rights of fair and regular trial;
(vii) Unlawful deportation or transfer or unlawful confinement;
(viii) Taking of hostages.
(b) Other serious violations of the laws and customs applicable in international
armed conflict, within the established framework of international law,
namely, any of the following acts:
(i) Intentionally directing attacks against the civilian population as such
or against individual civilians not taking direct part in hostilities;
(ii) Intentionally directing attacks against civilian objects, that is, objects
which are not military objectives;
(iii) Intentionally directing attacks against personnel, installations,
material, units or vehicles involved in a humanitarian assistance or
peacekeeping mission in accordance with the Charter of the United
Nations, as long as they are entitled to the protection given to civilians
or civilian objects under the international law of armed conflict;
1 Paragraphs 2 (e) (xiii) to 2 (e) (xv) were amended by resolution RC/Res.5 of 11 June 2010 (adding
paragraphs 2 (e) (xiii) to 2 (e) (xv)).

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(iv) Intentionally launching an attack in the knowledge that such attack

will cause incidental loss of life or injury to civilians or damage to
civilian objects or widespread, long-term and severe damage to the
natural environment which would be clearly excessive in relation to
the concrete and direct overall military advantage anticipated;
(v) Attacking or bombarding, by whatever means, towns, villages,
dwellings or buildings which are undefended and which are not
military objectives;
(vi) Killing or wounding a combatant who, having laid down his arms or
having no longer means of defence, has surrendered at discretion;
(vii) Making improper use of a flag of truce, of the flag or of the military
insignia and uniform of the enemy or of the United Nations, as well
as of the distinctive emblems of the Geneva Conventions, resulting in
death or serious personal injury;
(viii) The transfer, directly or indirectly, by the Occupying Power of parts
of its own civilian population into the territory it occupies, or the
deportation or transfer of all or parts of the population of the occupied
territory within or outside this territory;
(ix) Intentionally directing attacks against buildings dedicated to religion,
education, art, science or charitable purposes, historic monuments,
hospitals and places where the sick and wounded are collected,
provided they are not military objectives;
(x) Subjecting persons who are in the power of an adverse party to
physical mutilation or to medical or scientific experiments of any kind
which are neither justified by the medical, dental or hospital treatment
of the person concerned nor carried out in his or her interest, and
which cause death to or seriously endanger the health of such person
or persons;
(xi) Killing or wounding treacherously individuals belonging to the hostile
nation or army;
(xii) Declaring that no quarter will be given;
(xiii) Destroying or seizing the enemy's property unless such destruction or
seizure be imperatively demanded by the necessities of war;
(xiv) Declaring abolished, suspended or inadmissible in a court of law the
rights and actions of the nationals of the hostile party;
(xv) Compelling the nationals of the hostile party to take part in the
operations of war directed against their own country, even if they were
in the belligerent's service before the commencement of the war;
(xvi) Pillaging a town or place, even when taken by assault;
(xvii) Employing poison or poisoned weapons;
(xviii) Employing asphyxiating, poisonous or other gases, and all analogous
liquids, materials or devices;
(xix) Employing bullets which expand or flatten easily in the human body,
such as bullets with a hard envelope which does not entirely cover the
core or is pierced with incisions;

6
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(xx) Employing weapons, projectiles and material and methods of warfare

which are of a nature to cause superfluous injury or unnecessary
suffering or which are inherently indiscriminate in violation of the
international law of armed conflict, provided that such weapons,
projectiles and material and methods of warfare are the subject of a
comprehensive prohibition and are included in an annex to this
Statute, by an amendment in accordance with the relevant provisions
set forth in articles 121 and 123;
(xxi) Committing outrages upon personal dignity, in particular humiliating
and degrading treatment;
(xxii) Committing rape, sexual slavery, enforced prostitution, forced
pregnancy, as defined in article 7, paragraph 2 (f), enforced sterilization,
or any other form of sexual violence also constituting a grave breach of
the Geneva Conventions;
(xxiii) Utilizing the presence of a civilian or other protected person to render
certain points, areas or military forces immune from military
operations;
(xxiv) Intentionally directing attacks against buildings, material, medical
units and transport, and personnel using the distinctive emblems of
the Geneva Conventions in conformity with international law;
(xxv) Intentionally using starvation of civilians as a method of warfare by
depriving them of objects indispensable to their survival, including
wilfully impeding relief supplies as provided for under the Geneva
Conventions;
(xxvi) Conscripting or enlisting children under the age of fifteen years into
the national armed forces or using them to participate actively in
hostilities.
(c) In the case of an armed conflict not of an international character, serious
violations of article 3 common to the four Geneva Conventions of 12 August
1949, namely, any of the following acts committed against persons taking no
active part in the hostilities, including members of armed forces who have
laid down their arms and those placed hors de combat by sickness, wounds,
detention or any other cause:
(i) Violence to life and person, in particular murder of all kinds, mutilation,
cruel treatment and torture;
(ii) Committing outrages upon personal dignity, in particular humiliating
and degrading treatment;
(iii) Taking of hostages;
(iv) The passing of sentences and the carrying out of executions without
previous judgement pronounced by a regularly constituted court,
affording all judicial guarantees which are generally recognized as
indispensable.
(d) Paragraph 2 (c) applies to armed conflicts not of an international character
and thus does not apply to situations of internal disturbances and tensions,
such as riots, isolated and sporadic acts of violence or other acts of a similar
nature.

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(e) Other serious violations of the laws and customs applicable in armed
conflicts not of an international character, within the established framework
of international law, namely, any of the following acts:
(i) Intentionally directing attacks against the civilian population as such
or against individual civilians not taking direct part in hostilities;
(ii) Intentionally directing attacks against buildings, material, medical
units and transport, and personnel using the distinctive emblems of
the Geneva Conventions in conformity with international law;
(iii) Intentionally directing attacks against personnel, installations,
material, units or vehicles involved in a humanitarian assistance or
peacekeeping mission in accordance with the Charter of the United
Nations, as long as they are entitled to the protection given to civilians
or civilian objects under the international law of armed conflict;
(iv) Intentionally directing attacks against buildings dedicated to religion,
education, art, science or charitable purposes, historic monuments,
hospitals and places where the sick and wounded are collected,
provided they are not military objectives;
(v) Pillaging a town or place, even when taken by assault;
(vi) Committing rape, sexual slavery, enforced prostitution, forced
pregnancy, as defined in article 7, paragraph 2 (f), enforced sterilization,
and any other form of sexual violence also constituting a serious
violation of article 3 common to the four Geneva Conventions;
(vii) Conscripting or enlisting children under the age of fifteen years into
armed forces or groups or using them to participate actively in
hostilities;
(viii) Ordering the displacement of the civilian population for reasons
related to the conflict, unless the security of the civilians involved or
imperative military reasons so demand;
(ix) Killing or wounding treacherously a combatant adversary;
(x) Declaring that no quarter will be given;
(xi) Subjecting persons who are in the power of another party to the
conflict to physical mutilation or to medical or scientific experiments of
any kind which are neither justified by the medical, dental or hospital
treatment of the person concerned nor carried out in his or her interest,
and which cause death to or seriously endanger the health of such
person or persons;
(xii) Destroying or seizing the property of an adversary unless such
destruction or seizure be imperatively demanded by the necessities of
the conflict;
(xiii) Employing poison or poisoned weapons;
(xiv) Employing asphyxiating, poisonous or other gases, and all analogous
liquids, materials or devices;
(xv) Employing bullets which expand or flatten easily in the human body,
such as bullets with a hard envelope which does not entirely cover the
core or is pierced with incisions.

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(f) Paragraph 2 (e) applies to armed conflicts not of an international character

and thus does not apply to situations of internal disturbances and tensions,
such as riots, isolated and sporadic acts of violence or other acts of a similar
nature. It applies to armed conflicts that take place in the territory of a State
when there is protracted armed conflict between governmental authorities
and organized armed groups or between such groups.
3. Nothing in paragraph 2 (c) and (e) shall affect the responsibility of a Government
to maintain or re-establish law and order in the State or to defend the unity and
territorial integrity of the State, by all legitimate means.

(a) In cooperation with the relevant States, to prevent the absconding of persons
in respect of whom the Prosecutor has already requested a warrant of arrest
under article 58.
2. The making of a challenge shall not affect the validity of any act performed by the
Prosecutor or any order or warrant issued by the Court prior to the making of the
challenge.
3. If the Court has decided that a case is inadmissible under article 17, the Prosecutor
may submit a request for a review of the decision when he or she is fully satisfied that
new facts have arisen which negate the basis on which the case had previously been
found inadmissible under article 17.
4. If the Prosecutor, having regard to the matters referred to in article 17, defers an
investigation, the Prosecutor may request that the relevant State make available to
the Prosecutor information on the proceedings. That information shall, at the
request of the State concerned, be confidential. If the Prosecutor thereafter decides to
proceed with an investigation, he or she shall notify the State to which deferral of the
proceedings has taken place
 Rome Statute of the International Criminal Court

Article 258
Individual criminal responsibility
1. The Court shall have jurisdiction over natural persons pursuant to this Statute.
2. A person who commits a crime within the jurisdiction of the Court shall be
individually responsible and liable for punishment in accordance with this Statute.
3. In accordance with this Statute, a person shall be criminally responsible and liable for
punishment for a crime within the jurisdiction of the Court if that person:
(a) Commits such a crime, whether as an individual, jointly with another or
through another person, regardless of whether that other person is criminally
responsible;
(b) Orders, solicits or induces the commission of such a crime which in fact
occurs or is attempted;
(c) For the purpose of facilitating the commission of such a crime, aids, abets or
otherwise assists in its commission or its attempted commission, including
providing the means for its commission;
(d) In any other way contributes to the commission or attempted commission
of such a crime by a group of persons acting with a common purpose. Such
contribution shall be intentional and shall either:

(i) Be made with the aim of furthering the criminal activity or criminal
purpose of the group, where such activity or purpose involves the
commission of a crime within the jurisdiction of the Court; or
(ii) Be made in the knowledge of the intention of the group to commit the
crime;
(e) In respect of the crime of genocide, directly and publicly incites others to
commit genocide;
(f) Attempts to commit such a crime by taking action that commences its
execution by means of a substantial step, but the crime does not occur
because of circumstances independent of the person's intentions. However,
a person who abandons the effort to commit the crime or otherwise prevents
the completion of the crime shall not be liable for punishment under this
Statute for the attempt to commit that crime if that person completely and
voluntarily gave up the criminal purpose.
3 bis. In respect of the crime of aggression, the provisions of this article shall apply only to
persons in a position effectively to exercise control over or to direct the political or
military action of a State.
4. No provision in this Statute relating to individual criminal responsibility shall affect
the responsibility of States under international law.
Rome Statute of the International Criminal Court

Article 28
Responsibility 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.
Rome Statute of the International Criminal Court

Article 69
Evidence
1. Before testifying, each witness shall, in accordance with the Rules of Procedure and
Evidence, give an undertaking as to the truthfulness of the evidence to be given by
that witness.
2. The testimony of a witness at trial shall be given in person, except to the extent provided
by the measures set forth in article 68 or in the Rules of Procedure and Evidence. The
Court may also permit the giving of viva voce (oral) or recorded testimony of a witness
by means of video or audio technology, as well as the introduction of documents or
written transcripts, subject to this Statute and in accordance with the Rules of
Procedure and Evidence. These measures shall not be prejudicial to or inconsistent
with the rights of the accused.
3. The parties may submit evidence relevant to the case, in accordance with article 64.
The Court shall have the authority to request the submission of all evidence that it
considers necessary for the determination of the truth.
4. The Court may rule on the relevance or admissibility of any evidence, taking into
account, inter alia, the probative value of the evidence and any prejudice that such
evidence may cause to a fair trial or to a fair evaluation of the testimony of a witness,
in accordance with the Rules of Procedure and Evidence.
5. The Court shall respect and observe privileges on confidentiality as provided for in
the Rules of Procedure and Evidence.
6. The Court shall not require proof of facts of common knowledge but may take judicial
notice of them.
7. Evidence obtained by means of a violation of this Statute or internationally recognized
human rights shall not be admissible if:
(a) The violation casts substantial doubt on the reliability of the evidence; or
(b) The admission of the evidence would be antithetical to and would seriously
damage the integrity of the proceedings.
8. When deciding on the relevance or admissibility of evidence collected by a State, the
Court shall not rule on the application of the State's national law.
 Rome Statute of the International Criminal Court

ISSUE 1: REPORTS AS CREDIBLE EVIDENCE

1. The Prosecutor v. Theoneste Bagosora, Gratien Kabiligi, et al., Decision on

Motions for Judgment of Acquittal, Case No. ICTR-98-41-T, 2 February 2005, Para
6.

Rule 98 bis, "Motion for Judgement of Acquittal", provides that: If after the
close of the case for the prosecution, the Trial Chamber finds that the evidence
is insufficient to sustain a conviction on one or more counts charged in the
indictment, the Trial Chamber ... shall order the entry of judgement of
acquittal in respect of those counts. In interpreting a substantially identical
provision of the ICTY Rules, the Appeals Chamber succinctly defined the
phrase "insufficient to sustain a conviction": The capacity of the prosecution
evidence (if accepted) to sustain a conviction beyond a reasonable doubt by a
reasonable trier of fact is the key concept; thus the test is not whether the trier
would in fact arrive at a conviction beyond a reasonable doubt on the
prosecution evidence (if accepted) but whether it could. At the close of the case
for the prosecution, the Chamber may find that the prosecution evidence is
sufficient to sustain a conviction beyond a reasonable doubt and yet, even if no
defence evidence is subsequently adduced, proceed to acquit at the end of the
trial, if in its own view of the evidence, the prosecution has not in fact proved
guilt beyond a reasonable doubt. In assessing whether there is sufficient
evidence upon which a reasonable trier of fact could, at the end of the trial,
enter a conviction, the Chamber must "assume that the prosecution's evidence
[is] entitled to credence unless incapable of belief'. Accordingly, the object of
the inquiry under Rule 98 his is not to make determinations of fact having
weighed the credibility and reliability of the evidence; rather, it is simply to
determine whether the evidence - assuming that it is true - could not possibly
sustain a finding of guilt beyond a reasonable doubt. That will only be the case
where there is no evidence whatsoever which is probative of one or more of
the required elements of a crime charged, or where the only such evidence is
incapable of belief. To be incapable of belief, the evidence must be obviously
incredible or unreliable; the Chamber should not be drawn into fine
assessments of credibility or reliability. Needless to say, a finding that
evidence is not obviously incredible does not foreclose the Chamber, at the
end of the trial, from finding that the evidence is, in fact, neither credible nor
reliable.

2. Prosecutor v. Katanga and Ngudjolo, ICC T. Ch., ICC-01/04.01/07, 21

October 2011, para 16.
If the evidence tendered makes the existence of a fact at issue more or less
 Rome Statute of the International Criminal Court

probable, it is relevant. Whether or not this is the case depends on the purpose
for which the evidence is adduced. Unless immediately apparent from the
exhibit itself, it is the responsibility of the party tendering it to explain: (1) the
relevance of a specific factual proposition to a material fact of the case; (2) how
the item of evidence tendered makes this factual proposition more probable or
less probable.

3. The Prosecutor V. Jean-Pierre Bemba Gombo , para 20

19. The Chamber notes that the FIDH Report is the result of an investigative
mission carried out by the FIDH in Bangui between 5 and 22 July 2001.40
Although referring to events occurred outside the temporal scope of the
charges - the 28 May 2001 coup d'etat in the CAR - the FIDH Report describes
a previous intervention of the MLC troops in the CAR territory and allegations
of abuses committed by the MLC troops against CAR civilians arising
therefrom. In particular, the FIDH Report describes three instances of rape
allegedly committed by the MLC troops. The Chamber notes that the AI
Report was prepared on the basis of information gathered during and after a
visit to the CAR early in 2002 by AI representatives. Although referring to
events which occurred outside the temporal scope of the charges, the AI
Report describes a previous intervention of the MLC troops in the CAR
territory, which was said to have involved crimes of sexual violence, rape and
pillaging committed by the MLC troops against the CAR civilians, particularly
the rape of girls and women of Bangui, and refers to an acknowledgment of
those allegations by the MLC leadership.
20. The Chamber is of the view that both the FIDH Report and the AI Report
may be of relevance to the Chamber's determination of the accused's relevant
mens rea in accordance with Article 28(a) of the Statute.

4. The Prosecutor V. Jean-Pierre Bemba Gombo, ICC-01/05-01/08, para 9.

9. The Chamber recalls its general approach to the admission of evidence. In

particular, for an iten1 to be admitted into evidence it must satisfy the three-
part test under which it must (i) be relevant to the case; (ii) have probative
value; and (iii) be sufficiently relevant and probative as to outweigh any
prejudicial effect its admission may cause. Further, the Chamber underlines
once more that its determination on the admissibility into evidence of an item
has no bearing on the final weight to be afforded to it, which will only be
determined by the Chamber at the end of the case when assessing the evidence
as a whole.
 Rome Statute of the International Criminal Court

ISSUE 4: COMMANDERSHIP RESPONSIBILITY & INDIVIDUAL

CRIMINAL RESPONSIBILITY
1. The Prosecutor v. Jean-Pierre Bemba Gombo , ICC-01/05-01/08-3343,
para 170

Article 28(a) codifies the responsibility of military commanders and persons

effectively acting as military commanders. The Chamber finds that, for an
accused to be found guilty and convicted as a military commander or person
effectively acting as a military commander under Article 28(a), the following
elements must be fulfilled:
a. crimes within the jurisdiction of the Court must have been committed by
forces;
b. the accused must have been either a military commander or a person
effectively acting as a military commander;
c. the accused must have had effective command and control, or effective
authority and control, over the forces that committed the crimes;
d. the accused either knew or, owing to the circumstances at the time, should
have known that the forces were committing or about to commit such crimes;
e. the accused must have failed to take all necessary and reasonable measures
within his power to prevent or repress the commission of such crimes or to
submit the matter to the competent authorities for investigation and
prosecution; and
f. the crimes committed by the forces must have been a result of the failure of
the accused to exercise control properly over them.

2. The Prosecutor V. Bosco Ntaganda, , ICC-01/04-02/06, Para 54

It is submitted that, in the absence of applicable ICC jurisprudence beyond

Bemba, the jurisprudence of the ad hoc tribunals remains instructive and
should be taken into account when it comes to determining the Accused’s
responsibility under Article 28(a) of the Statute and interpreting the Bemba
criteria.

3. Prosecutor v.Tihomir Blaškić , Para 217

With respect to the particularity required in pleading superior

responsibility, the Trial Chamber in Krnojelac held that the description
of the accused in the indictment as the “commander” of the camp in
which the crimes were committed was sufficient to ground the charge
of command responsibility for those crimes. In Brdanin and Talic, the
Trial Chamber held that a reference to specific military duties (as set
 Rome Statute of the International Criminal Court

out in a named military order) was sufficient to identify the basis of the
accused’s alleged command responsibility. A similar decision was also
reached by the Trial Chamber in Celebi. The Trial Chamber in
Krnojelac stated that the identification of subordinates who allegedly
committed the criminal acts by their “category” or “as a group” was
sufficient, if the Prosecution was unable to identify those directly
participating in the alleged crimes by name.

4. Prosecutor v Milorad Krnojelac, para 18

18. In relation to the allegation that the accused was in a position of

superior authority, the accused requires the prosecution to identify
with precision the "grounds" for the allegations made that, "at the
critical time", he was "the head of the KPD FOCA and in a superior
position to everybody in the detention camp" and "the person
responsible for the functioning of the KPD FOCA as a detention
camp".The indictment identifies the relevant time as being from
April 1992 until at least August 1993. The statements quoted by the
accused are to some extent inaccurately transcribed, and in one aspect
significantly so. They are also taken out of context. Paragraph 3.1 in
its entirety is in the following terms:

SUPERIOR AUTHORITY

3.1 From April 1992 until at least August 1993, MILORAD

KRNOJELAC was the commander of the KP Dom and was in a
position of superior authority to everyone in the camp. As commander
of the KP Dom, MILORAD KRNOJELAC was the person responsible
for running the Foca KP Dom as a detention camp. MILORAD
KRNOJELAC exercised powers and duties consistent with his
superior position. He ordered and supervised the prison staff on a daily
basis. He communicated with military and political authorities from
outside the prison. MILORAD KRNOJELAC was present when
detainees arrived, appeared during beatings, and had personal contact
with some detainees.
 Rome Statute of the International Criminal Court

5. Prosecutor v. Mrksic, Case No. IT-95-13/1-T, Trial Judgment, paras

567,568

567. Whether a superior has discharged his duty to prevent the commission of
a crime will depend on his material ability to intervene in a specific situation.
Factors which may be taken into account in making that determination include
whether specific orders prohibiting or stopping the criminal activities were
issued, what measures to secure the implementation of these orders were
taken, what other measures were taken to ensure that the unlawful acts were
interrupted and whether these measures were reasonably sufficient in the
specific circumstances, and, after the commission of the crime, what steps
were taken to secure an adequate investigation and to bring the perpetrators to
justice; as well as the superior’s failure to secure reports that military actions
have been carried out in accordance with international law, the failure to issue
orders aiming at bringing the relevant practices into accord with the rules of
war, the failure to protest against or to criticize criminal action, the failure to
take disciplinary measures to prevent the commission of atrocities by the
troops under the superior’s command, and the failure to insist before a
superior authority that immediate action be taken. While in itself, the prior
and precautionary failure to inform subordinates of their responsibilities does
not suffice to attach criminal liability, it may be regarded as a relevant factor
when examining the factual circumstances of the case.
568. A superior’s duty to punish the perpetrators of a crime encompasses the
obligation to conduct an effective investigation with a view to establishing the
facts. This translates into an obligation on the part of the superior to take
active steps to ensure that the perpetrators will be punished. To that end, the
superior may exercise his own powers of sanction, or if he lacks such powers,
report the perpetrators to the competent authorities. He is required, however,
to utilise all measures at his disposal.

6. Prosecutor v. Milomir Stakić, IT-97-24-T, Para 459.

459. The existence of a superior-subordinate relationship is characterised by a

formal or informal hierarchical relationship between the superior and
subordinate. The hierarchical relationship may exist by virtue of a person’s de
jure or de facto position of authority. The superior may be a member of the
military or a civilian. The superior-subordinate relationship need not have
been formalised or necessarily determined by “formal status alone”. Both
direct and indirect relationships of subordination within the hierarchy are
possible991 and the superior’s “effective control” over the persons committing
 Rome Statute of the International Criminal Court

the offences must be established. Effective control means the “material ability
to prevent or punish the commission of the offences”. “Substantial influence”
over subordinates that does not meet the threshold of “effective control” is not
sufficient under customary law to serve as a means of exercising command
responsibility. Where a superior has effective control and fails to exercise that
power, he can be held responsible for the crimes committed by his
subordinates. A superior vested with de jure authority who does not actually
have effective control over his or her subordinates would not incur criminal
responsibility pursuant to the doctrine of superior responsibility, whereas a de
facto superior who lacks formal letters of appointment or commission but
does, in reality, have effective control over the perpetrators of offences might
incur criminal responsibility.

7. Prosecutor v. Mucic et al, ICTY A Ch., 20 February 2001, Paras 251–252.

251. Two points are clear from the Trial Chamber’s consideration of the issue.
First, the Trial Chamber found that a de facto position of authority suffices for
the purpose of ascribing command responsibility. Secondly, it found that the
superior-subordinate relationship is based on the notion of control within a
hierarchy and that this control can be exercised in a direct or indirect manner,
with the result that the superior-subordinate relationship itself may be both
direct and indirect. Neither these findings, nor anything else expressed within
the Trial Judgement, demonstrates that the Trial Chamber considered that, for
the necessary superiorsubordinate relationship to exist, the perpetrator must
be in a direct chain of command under the superior.
252. Examining the actual findings of the Trial Chamber on the issue, it is
therefore far from apparent that it found that the doctrine of superior
responsibility requires the perpetrator to be part of a subordinate unit in a
direct chain of command under the superior; nor is such a result a necessary
implication of its findings. This seems to have been implicitly recognised by
the Prosecution in its oral submissions on this ground of appeal at the hearing.
The Appeals Chamber regards the Trial Chamber as having recognised the
possibility of both indirect as well as direct relationships subordination and
agrees that this may be the case, with the proviso that effective control must
always be established.