However, despite the majority’s opinion upholding Yamashita’s conviction, Justice Murphy’s dissent illustrated that it was unclear if Yamashita actually had the requisite control over his troops.21 As Justice Murphy noted, Yamashita had only arrived in the Philippines at the end stages of the invasion so he did not have much time to assert control over the troops who committed the atrocities.22 Moreover, the Japanese army and navy fought with one another and therefore it was not even clear within the Japanese military if Yamashita truly exercised control over many soldiers.23 Finally, the Japanese substandard communications technology and Yamashita’s battle plan which divided his troops between the mountains and urban areas also made it more difficult for Yamashita to command his troops to commit atrocities or stop them from doing so.24 Overall, “there was no assertion that Yamashita had committed any of the crimes, had ordered any of the crimes, or had acquiesced in any of the crimes.”25

Yet, despite this lack of clarity regarding the extent of Yamashita’s control over his troops, the Supreme Court upheld Yamashita’s conviction and Yamashita was subsequently executed.26

In terms of the progression of the command responsibility doctrine, Yamashita’s27 case addressed the question of what level of mens rea is necessary for the command responsibility doctrine to apply.28 As detailed above, there was little proof that Yamashita actually knew or should have known that his subordinates were committing the atrocities.29 In fact, Yamashita testified at his trial that he had never given orders to murder civilians and that he did not have any information of the crimes taking place.30 Thus, when the Court ultimately convicted and executed Yamashita, it arguably created a form of strict liability of command responsibility, whereby a general was convicted solely based on the evidence that war crimes had been committed without any proof that the general had the ability to prevent the war crimes from being committed in the first place.31 Overall, the Yamashita32 decision proved to be a harsh command responsibility decision and created a prosecution—friendly standard whereby evidence of war crimes committed by subordinates could implicate commanders without any proof of commander culpability.

II. Nuremberg Cases

After the Yamashita33 case, the command responsibility doctrine was used to prosecute Senior Nazi Officials in the Nuremberg Cases in the aftermath of World War II.34 American prosecutors brought some command responsibility cases in a series of cases known as the Subsequent Nuremberg Proceedings.35 Two of the notable command responsibility cases from the Subsequent Nuremberg Proceedings were United States v. von Leeb et al.,36 and United States v. List et al.37

United States v. von Leeb et al. concerned William von Leeb and thirteen co-defendants who were all former high-ranking German officers from the German Army, Navy and German High Command.38 The defendants were charged with crimes against peace, war crimes and crimes against humanity.39 Some of the crimes defendants were charged with included invading certain countries, ordering the murder of civilians in towns the Germans wanted cleared, ordering the execution of Red Army Soldiers upon capture, and ordering the extermination of Jews.40 The von Leeb41 trial was different than other command responsibility trials in that there were clear orders from senior officers commanding others to violate international law.42 Therefore, there was no question that the superior officers were criminally responsible for their orders; rather the issue for the tribunal was to figure out the extent of an officer’s guilt for giving an order or passing along an order from a superior.43

Moreover, the Von Leeb44 tribunal was tasked with differentiating between the responsibility of commanders for orders that had come from military actors and orders that they received from the state.45 Ultimately, the von Leeb46 tribunal concluded that a high commander will not be held liable for acts that were committed at the behest of state actors without “a personal dereliction” to the high commander.47 According to the von Leeb48 tribunal, a personal dereliction occurs:

[O]nly where the act is directly traceable to [the high commander] or where [the high commander’s] failure to properly supervise his subordinates constitutes criminal negligence on his part.49

However, the von Leeb50 tribunal clarified that military commanders of occupied territories are responsible for crimes committed regardless of whether there is a personal dereliction or if it is a state command.51 Finally, the von Leeb52 tribunal summarized rule for military commanders by stating that:

[A] military commander, whether it be of an occupied territory or otherwise, is subject both to the orders of his military superiors and the state itself as to his jurisdiction and functions.53

In addition to the von Leeb54 trial, the United States v. List et al.55 trial also concerned the command responsibility doctrine and Nazi Officers. The defendants were senior Nazi officers who were charged with issuing orders to kill thousands of civilians, looting, wanton destruction of towns, refusing to quarter enemy soldiers, and deporting civilians to concentration camps.56 Since all of the foregoing crimes violated The Hague Convention of 1907, the defendants were charged with violating the command responsibility doctrine when they ordered their subordinates to commit those crimes.57 Defendants contended that they were unaware of many of the reports and orders because they had been away from their headquarters at the time that these orders and reports were delivered.58 However, despite the defendant’s denial of responsibility, the List59 tribunal ultimately held the defendants responsible, stating that “[they were] convinced that military information was received by these high ranking officers promptly” based on the known “efficiency of the German armed forces.”60

Ultimately, the Nuremberg cases of von Leeb61 and List62 contributed to the progression of the command responsibility doctrine by addressing the question of when command responsibility is conflated with superior orders. Both the von Leeb63 and List64 tribunals were tasked with determining if commanders were to be held accountable for giving illegal orders because they had received the orders themselves.65 Overall, tribunal judges usually did not accept the superior order defense, and even stated in the von Leeb66 case that to recognize a superior order defense “would be in practical effect to say that all the guilt charged in the Indictment was the guilt of Hitler alone.”67 In the end, the von Leeb68 tribunal acquitted two defendants and convicted the rest of the defendants, sentencing them to terms spanning time served to life imprisonment.69 Similarly, the List70 tribunal also acquitted two defendants and convicted and sentenced the others to terms of time served to life imprisonment.71 Ultimately, all of the defendants were released by 1955, with many of the releases carried out to cement good relations between the US and West Germany in the early years of the Cold War.72 Overall, the Nuremberg cases clarified that the command responsibility doctrine usually applies even when commanders received superior orders, although the Nuremberg cases did create an exception for high commanders who would not be held liable for any and all orders under their command.

III. ICTY Cases

The doctrine of command responsibility reappeared again in the ICTY trials. In February 1993, the United Nations (UN) Security Council passed Resolution 808 which established the ICTY to handle the humanitarian crisis in the former Yugoslavia.73 The Secretary General then proposed a governing statute for the ICTY and it was adopted in Resolution 827.74 The ICTY Statute contained the following provision on command responsibility:

The fact that any of the acts referred to in articles 2 to 5 of the present Statute [grave breaches of the Geneva Conventions of 1949, violations of the laws or customs of war, genocide, and crimes against humanity] was committed by a subordinate does not relieve his superior of criminal responsibility if he knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.75

The ICTY command responsibility statute essentially provided that commanders could be held liable for subordinate actions if they knew or should have known that the subordinates would commit the actions or had already committed them. This ICTY codification of the command responsibility doctrine limited the interpretation of the Nuremberg cases, which held military commanders responsible for any actions committed by subordinates, regardless if the commander had known or should have known of the actions. According to the ICTY interpretation, if it was found that a military commander did not know of the actions or could not have reasonably known of them, this would absolve the commander of responsibility for subordinate actions.

In order to understand the ICTY stance on command responsibility, it is helpful to analyze two of the ICTY decisions on command responsibility, namely the Čelebići76 case and the combined Kordić & Čerkez77 ruling. The Čelebići78 case concerned four defendants who were charged with killing, torturing, sexually assaulting and beating Bosnian Serbs in the Čelebići prison camp.79 Ultimately, the court acquitted defendant Delalić after finding that he did not have sufficient command and control over the Čelebići camp so as to hold him criminally liable for subordinate actions.80 The remaining defendants were all convicted and sentenced to 7–15 years in prison.81

The Čelebići82 appellate case addressed a number of facets of the command responsibility doctrine. First, the court held that an individual may be sufficiently deemed a commander based on de facto command and need not necessarily be a military commander.83 To qualify as a de facto commander, the Appeals Chamber ruled that a superior needs to have effective control over the persons violating international law, and that effective control may be established by a showing that the superior had “the material ability to prevent or punish the commission of these offences.”84 Next, the Appeals Chamber addressed the “reason to know” requirement in Article 7(3) of the ICTY Statute.85 According to the Čelebići86 court, a superior sufficiently has knowledge of the subordinate’s crimes if the superior knew of information that would put him or her on notice of the crimes.87 The knowledge standard established by the Čelebići88 court was not a strict liability or negligence standard as the commander needed to receive relevant information to be held liable.89 However, at the same time, the knowledge standard appeared to be set relatively low, as evidenced by the court’s statement that a commander who learns that his subordinates have a violent or unstable character or have been drinking alcohol before a mission may be found to have sufficient knowledge to be held liable under the command responsibility doctrine.90

Many other ICTY cases relied and expanded on the precedent of the Čelebići91 decision, including the combined Kordić & Čerkez92 rulings and the Blaškić93 decision. Kordić and Čerkez were Croatian citizens who were charged with murder, inhumane treatment, use of human shields, pillaging and destroying religious institutions against Bosnian Muslims.94 Ultimately, the Trial Chamber found that Čerkez was liable as a commander for the inhumane treatment of detainees at the Vitez detention center.95 However, the court absolved Kordić of any command responsibility after finding that there was not enough evidence to determine that he had effective control over the treatment of the detainees.96 Thus, the Kordić & Čerkez97 decision expanded on the Čelebići98 effective control standard for command responsibility, illustrating that the effective control standard requires sufficient evidence of a connection between a commander and subordinate, which was lacking with respect to Kordić.

In addition to the Kordić & Čerkez99 decisions, the ICTY expanded on the question of the level of knowledge required of superiors in the Blaškić100 decision. Blaškić was a Bosnian Croat general who was charged with persecutions, unlawful attacks against the civilian population, willful killing, taking civilian hostages and using civilian shields.101 The Trial Chamber had concluded that Blaškić was negligent when he did not inform himself of his subordinates crimes.102 However, the Appeals Chamber overturned this ruling, upholding the Čelebići103 standard of knowledge instead (i.e., holding a superior responsible only if information was available to him which would have put him on notice regarding the offenses committed by subordinates).104 Thus, the Blaškić105 appellate decision clarified the knowledge requirement for the command responsibility doctrine in that a superior needs to have actual information available to him which would allow him to have the requisite knowledge to be held criminally responsible.

Overall, the Čelebići,106 Kordić & Čerkez107 and Blaškić108 decisions added to the progression of the command responsibility doctrine by clarifying that an individual is sufficiently considered a commander for the purposes of the command responsibility doctrine if they have effective control over their subordinates as established by evidence that the commander had the material ability to prevent or punish the commission of these offenses. Furthermore, the decisions clarified that the standard of knowledge required for the command responsibility doctrine to apply is that the superior needs to have information available to him which would have put him on notice regarding the offenses committed by subordinates. As opposed to the Nuremberg decisions, the ICTY cases elaborated the command responsibility doctrine in a way that created a more favorable doctrine for the accused in that they could now argue that they did not have the requisite control or knowledge of their subordinates, which had not been available to them in the earlier cases.

IV. ICTR Cases

Similar to the ICTY, the ICTR adjudicated a number of cases that concerned the command responsibility doctrine. The ICTR was established after the UN Security Council passed Resolution 955 to create an international tribunal to address the atrocities that were being perpetrated in Rwanda.109 As the ICTR was established in a relatively short period after the ICTY, the ICTR’s provision on command responsibility directly matched the ICTY language. This language was reflected in Article 6(3) in the ICTR Statute.110 The ICTR interpreted the Article 6(3) command responsibility doctrine through a number of cases including the Bagilishema111 case and the Kayishema & Ruzindana112 cases.

The Prosecutor v. Bagilishema113 was the first important ICTR judgment addressing the doctrine of command responsibility.114 Bagilishema was a former mayor of the Mabanza commune in Rwanda, who was charged with genocide, complicity in genocide, violations of the Geneva Conventions, murder, extermination and other crimes against humanity.115 An issue at the forefront of the Bagilishema case was the extent to which an accused needs to have knowledge of their subordinate’s crimes.116 In its reasoning, the trial chamber had inquired as to whether Bagilishema was negligent when he failed to acquire knowledge of his subordinates actions.117

Ultimately, the Appeals Chamber affirmed Bagilishema’s acquittal after finding that the prosecution had failed to prove that Bagilishema had the requisite knowledge of his subordinates actions.118 In it’s reasoning, the Appeals Chamber relied on the Čelebići119 decision, and clarified that the standard for knowledge is “whether the accused knew or had reason to know of the subordinates’ crime,” and was not a per se negligence standard of responsibility for a commander who failed to inquire about his or her subordinates even if the commander did not know or have reason to know of the subordinate’s crimes.120 The Appeals Chamber clarified the command responsibility requirement in their opinion, by stating that:

[T]he law imposes upon a superior a duty to prevent crimes which he knows or has reason to know had been committed, by subordinates over whom he has effective control.121

However, the Appeals Chamber did state that a military commander could be held liable:

[I]f he fails to discharge his duties as a superior either by deliberately failing to perform them or by culpably or willfully disregarding them.122

Thus, the Bagilishema123 decision reinforced the Čelebići124 holding that the command responsibility knowledge requirement was not a negligence standard but rather required proof that the commander knew or should have known of his or her subordinate’s crimes.

In addition to the Bagilishema125 case, the Kayishema & Ruzindana126 cases further elaborated on the ICTR’s standard of command responsibility. Kayishema and Ruzindana were Rwandan prefects who were charged with conspiracy to commit genocide, crimes against humanity, and war crimes.127 One of the primary issues in the case concerned what constituted “necessary and reasonable” measures to prevent a subordinates crime.128 The Appeals Chamber cited the Čelebići129 standard of “necessary and reasonable measures” which was held to be “measures that are within [a commander’s] material possibility.”130 The Kayishema & Ruzindana131 Appeals Chamber then reinforced the Trial Chamber judgment where the court had clarified that a commander can be held responsible if they were in a position to prevent or punish their subordinates.132 However, the Appeals Chamber created a loophole for commanders by stating that at times it can be impossible for a commander to take necessary and reasonable measures to prevent subordinate crimes, and therefore:

[A]ny imposition of responsibility must be based upon a material ability of the accused to prevent or punish the crimes in question.133

Thus, the Kayishema & Ruzindana134 cases further explained what constitutes “necessary and reasonable” measures, recognizing that there may be times when commanders may not have the ability to effect any of their subordinate actions. Thus, the ICTR standard for “necessary and reasonable” measures departed from the Yamashita135 case of strict liability where General Yamashita was executed for subordinate crimes despite arguably not being in a position to prevent or punish his subordinates.

Overall, the Bagilishema136 and Kayishema & Ruzindana137 cases added to the progression of the command responsibility doctrine by further clarifying the standard of knowledge needed for a commander to be held liable for subordinate actions and what “necessary and reasonable measures” needed to be taken to absolve a commander from liability. The Bagilishema138 decision reiterated the Čelebići139 view that a negligence standard of knowledge was not enough to hold a commander responsible; rather the standard for knowledge was whether the superior knew or had reason to know that their subordinates were going to commit the crimes. Furthermore, the Kayishema & Ruzindana140 cases clarified the “necessary and reasonable measures” standard by stating that the measures needed to be within a commander’s material possibility, and acknowledging that there may be times where a commander does not have the ability to prevent or punish subordinate’s crimes. This standard for “necessary and reasonable measures” was a clear departure from the earlier Yamashita141 case and was markedly more favorable for accused commanders who now had the option of arguing that it was impossible for them to prevent their subordinates from committing their crimes.

V. ICC and the Bemba142 Decision

The command responsibility doctrine was further expanded on in the ICC. Unlike the ICTY and ICTR, the ICC took a while to be established. Proposals to create an international tribunal began at the turn of the Twentieth Century, however, the ICC was officially established in 2002.143 The Rome Statute, the founding statute of the ICC, lays out the laws and rules that regulate the daily operations of the ICC. Specifically, Article 28 of the Rome Statute addresses the topic of command responsibility.144 The Article reads as follows:

In addition to other grounds of criminal responsibility under this Statute for crimes within the jurisdiction of the Court:

1. 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:

   1. 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

   2. 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.145

The ICC command responsibility doctrine clearly evolved from the ICTY and ICTR command responsibility doctrines. The ICC doctrine utilized the concept of “known or should have known” along with the concept of “necessary and proper measures,” both ideas taken from the ICTY and ICTR command responsibility statutes.146 However, the ICC Statute specifically states that a commander is required to have “effective control” over subordinates before being held responsible for his or her actions.147 While the ICC Statute is unique in mentioning the concept of “effective control,” the concept is also borrowed from the Čelebići148 ICTY case. Thus, it is apparent that the ICC command responsibility doctrine evolved from the ICTY and ICTR decisions involving the command responsibility doctrine. However, the ICC differentiated it’s standard for the command responsibility doctrine in terms of the level of knowledge required, necessary and reasonable measures standard, and causality requirement.

The ICC established its command responsibility doctrine in the The Prosecutor v. Jean-Pierre Bemba Gombo.149 The June 2009 Bemba hearing was the first opportunity for the ICC to interpret the command responsibility doctrine of the Rome Statute.150 Bemba was a leader of the Mouvement pour la Liberation du Congo (MLC) who was charged with rape, murder, torture, pillage and crimes against humanity and war crimes.151 Initially, the Trial Chamber had decided in 2016 that Bemba was criminally responsible pursuant to Article 28(a) of the Rome Statute for crimes committed by MLC troops in the Central African Republic between October 2002 and March 2003.152 The court determined that Bemba was guilty after finding that Bemba qualified as a military commander who had effective control over the MLC troops.153 The Trial Chamber adopted the Čelebići154 test from the ICTY trials, to find that Bemba had effective control over the MLC troops because Bemba had the “material ability to prevent and punish criminal conduct by his subordinates,” and therefore, had effective control over the troops.155 However, the Trial Chamber elaborated on the ICTY “effective control” standard, adding that the factors of a commander’s official position, a commander’s power to issue or give orders, and a commander’s capacity to ensure compliance with his orders, are all necessary criteria to analyze in an effective control analysis.156

However, although the Bemba157 Trial Chamber adopted the ICTY “effective control” standard, it also differentiated the command responsibility doctrine in a number of ways. First, the ICC disagreed with the ICTY practice to hold commanders liable for crimes committed before the commander had authority over the subordinate.158 Additionally, the Bemba159 Trial Chamber created a causality requirement since:

[I]t is […] necessary to prove that the commander’s omission increased the risk of the commission of the crimes charged.160

As the Trial Chamber stated, if a commander failed to prevent a subordinate’s crime, in order to hold the commander criminally responsible, it is necessary to prove that the commander’s omission led to the increased risk of the commission of the crime to hold the commander criminally responsible.161 Thus, the Bemba162 court enumerated a causality requirement in the command responsibility doctrine, which other international courts had not done.

Surprisingly, however, in June 2018, the Appeals Chamber of the ICC acquitted Bemba from the charges of crimes against humanity (murder and rape) and war crimes (murder, rape and pillaging).163 The Appeals Chamber determined that Bemba had been wrongfully convicted for specific criminal acts that were outside the scope of the charges, and after deciding that Bemba was not lacking in taking “all necessary and reasonable measures” since he was a remote commander with limitations in terms of how much he could investigate subordinate crimes.164 Ultimately, the Appeals Chamber identified a number of reasons why Bemba did not take all necessary and reasonable measures and therefore should be acquitted of the charges.165 A number of these reasons include the considerations that Bemba was limited in the extent to which he could investigate and prosecute crimes because he was a remote commander with troops in a foreign country, additionally the consideration that Bemba sent a letter to CAR authorities, and also the consideration that the Trial Chamber faulted Bemba for his measures that were poorly executed by his subordinates.166

In its analysis, the Appeals Chamber essentially interpreted the “all necessary and reasonable measures” clause by emphasizing “necessary and reasonable” in a way that favored defendant commanders.167 As the Bemba appeals decision illustrates, Bemba was acquitted of his charges because it was deemed that it wasn’t necessary or reasonable for him to mitigate his subordinates crimes because he was in a remote geographical location where it was difficult for him to investigate or prosecute his force’s actions.168 The Appeals Chamber succinctly stated that:

[C]ommanders are allowed to make a cost/benefit analysis when deciding which measures to take, bearing in mind their overall responsibility to prevent and repress crimes committed by their subordinates.169

Ultimately, the Appeals Chamber’s analytical framework really seems to be defendant friendly as they create the calculus to be a flexible cost/benefit analysis as opposed to the previous Yamashita,170 Nuremberg, ICTY and ICTR analyses, all of which were less forgiving to defendants and often held defendants accountable, especially when defendants knew or should have known of the crimes that their subordinates were committing.

Evidently, the majority Bemba171 Appeals Chamber decision creates a command responsibility standard that is highly defense friendly, and creates a higher burden for the prosecutor to fill. Once the ICC acquitted Bemba of any responsibility for his subordinates crimes after giving credence to the fact that he was a remote commander and that he communicated with the CAR authorities, commanders in future cases have a lower burden to plead once they argue that they were remote commanders and lacked investigative and other powers over their forces. The lightened command responsibility doctrine under Bemba172 definitely contrasts with the ICTY and ICTR command responsibility doctrine where commanders were prosecuted because they should have known of their subordinates crimes, and were not afforded the opportunity to have their actions analyzed according to cost benefit analyses of the mitigating factors in their military location or otherwise.

Overall, the command responsibility doctrine has progressed in many ways from its first iteration in the days of General Yamashita. Evidently, it appears that in 1944 a commander would be killed for crimes that he may have had little control over, while that same commander may be acquitted in 2018 in the face of a lot more damning evidence. Tracing the progression of the command responsibility doctrine through the Yamashita,173 Nuremberg, ICTY, ICTR and ICC trials illustrates how the doctrine was clarified, relied on and distinguished through trials that spanned decades and miles from each other. Generally, the doctrine that has currently emerged purports to hold commanders responsible for illegal actions of their subordinates that they knew of or should have known of and that they failed to take all necessary and reasonable measures to prevent. However, as the case law illustrates, the doctrine is open to much interpretation, and often courts may choose to interpret the doctrine in a number of ways. And while some scholars argue that the Bemba174 acquittal “transformed command responsibility into an admonition with little effect, a legal burden too easily shirked,”175 only time will tell the effect that the Bemba176 decision will have on international jurisprudence and the command responsibility doctrine overall. Perhaps command responsibility as a whole will adopt this defense friendly standard, or perhaps others will ignore Bemba’s177 acquittal and forge their own interpretations We can’t predict what the Bemba178 effect will have. However, we can accurately predict that the command responsibility doctrine will continue to evolve, continue to expand and continue to progress for many years to come.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

   Diane Marie Amann, In Bemba and Beyond, Crimes Adjudged to Commit Themselves, EJIL Talk (Jun. 13, 2018), available online, archived. ↩

2. 2.

   Adria De Landri, Command Responsibility in the International Tribunals: Is There a Hierarchy?, ExpressO Unpublished Paper (Dec. 14, 2011), available online. ↩

3. 3.

   The Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05-01/08 A, Judgment on the appeal of Mr Jean-Pierre Bemba Gombo against Trial Chamber III’s “Judgment pursuant to Article 74 of the Statute ” (AC, Jun. 8, 2018) [hereinafter Bemba Appeals Chamber Judgment], available online, archived. ↩

4. 4.

   Press Release, ICC, ICC Appeals Chamber Acquits Mr. Bemba from Charges of War Crimes and Crimes Against Humanity (Jun. 8, 2018) [hereinafter Bemba Press Release], available online. ↩

5. 5.

   Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17, 1998, UN Doc. A/CONF.183/9, as amended [hereinafter Rome Statute], available online. ↩

6. 6.

   Bemba Press Release, supra note 4. ↩

7. 7.

   Bemba Appeals Chamber Judgment, supra note 3. ↩

8. 8.

   Amann, supra note 1. ↩

9. 9.

   In re Yamashita, 327 U.S. 1 (Feb. 4, 1946) [hereinafter Yamashita], available online. ↩

10. 10.

    Bemba Appeals Chamber Judgment, supra note 3. ↩

11. 11.

    Id. ↩

12. 12.

    Id. ↩

13. 13.

    Yamashita, supra note 9. ↩

14. 14.

    Id. ↩

15. 15.

    De Landri, supra note 2, at 4. ↩

16. 16.

    Id. at 5. ↩

17. 17.

    Michael J. Sherman, Standards in Command Responsibility Prosecutions: How Strict, And Why?, 38 N. Ill. U. L. Rev. 298, 301 (2017), available online. ↩

18. 18.

    Id. ↩

19. 19.

    Id. ↩

20. 20.

    Id. at 301–02. ↩

21. 21.

    Id. at 302. ↩

22. 22.

    Id. at 302–03. ↩

23. 23.

    Id. ↩

24. 24.

    Id. at 303. ↩

25. 25.

    Id. ↩

26. 26.

    Id. at 301. ↩

27. 27.

    Yamashita, supra note 9. ↩

28. 28.

    De Landri, supra note 2, at 6. ↩

29. 29.

    Sherman, supra note 17, at 301–03. ↩

30. 30.

    Id. at 303. ↩

31. 31.

    Id. at 302. ↩

32. 32.

    Yamashita, supra note 9. ↩

33. 33.

    Id. ↩

34. 34.

    De Landri, supra note 2, at 7. ↩

35. 35.

    Sherman, supra note 17, at 6. ↩

36. 36.

    United States v. Wilhelm von Leeb et al., Judgment, IMT (Oct. 27, 1948), [hereinafter The German High Command Trial], available online. ↩

37. 37.

    United States v. Wilhelm List et al., Judgment, IMT (Feb. 19, 1948) [hereinafter The Hostage Trial], available online. ↩

38. 38.

    Sherman, supra note 17, at 6. ↩

39. 39.

    Id. ↩

40. 40.

    Id. ↩

41. 41.

    The German High Command Trial, supra note 36. ↩

42. 42.

    Id. ↩

43. 43.

    Id. ↩

44. 44.

    Id. ↩

45. 45.

    Sherman, supra note 17 at 6. ↩

46. 46.

    The German High Command Trial, supra note 36. ↩

47. 47.

    See Law Reports of Trials of War Criminals, 12 UN War Crimes Comm. 76 (1949) [hereinafter Reports on Trials], available online. ↩

48. 48.

    The German High Command Trial, supra note 36. ↩

49. 49.

    Reports on Trials, supra note 47. ↩

50. 50.

    The German High Command Trial, supra note 36. ↩

51. 51.

    William H. Parks, Command Responsibility for War Crimes, 62 Mil. L. Rev. 43 (1973), available online. ↩

52. 52.

    The German High Command Trial, supra note 36. ↩

53. 53.

    Parks, supra note 51. ↩

54. 54.

    The German High Command Trial, supra note 36. ↩

55. 55.

    The Hostage Trial, supra note 37. ↩

56. 56.

    Sherman, supra note 17, at 7. ↩

57. 57.

    Id. ↩

58. 58.

    Id. ↩

59. 59.

    The Hostage Trial, supra note 37. ↩

60. 60.

    Parks, supra note 51, at 59. ↩

61. 61.

    The German High Command Trial, supra note 36. ↩

62. 62.

    The Hostage Trial, supra note 37. ↩

63. 63.

    The German High Command Trial, supra note 36. ↩

64. 64.

    The Hostage Trial, supra note 37. ↩

65. 65.

    Sherman, supra note 17, at 7. ↩

66. 66.

    The German High Command Trial, supra note 36. ↩

67. 67.

    Reports on Trials, supra note 47, at 71. ↩

68. 68.

    Id. ↩

69. 69.

    Sherman, supra note 17, at 7. ↩

70. 70.

    The Hostage Trial, supra note 37. ↩

71. 71.

    Id. ↩

72. 72.

    Sherman, supra note 17, at 7. ↩

73. 73.

    Id. at 9. ↩

74. 74.

    Id. ↩

75. 75.

    Statute for the International Tribunal for the Former Yugoslavia, S.C. Res. 827, Art. 7(3), U.N. Doc. S/RES/827 (May 25, 1993) [hereinafter ICTY Statute], available online. ↩

76. 76.

    The Prosecutor v. Zejnil Delalić, Zdravko Mucić, Hazim Delić & Esad Landžo, IT-96-21-A, Judgement, ¶¶ 192, 197 (ICTY AC, Feb. 20, 2001) [hereinafter Čelebići], available online. ↩

77. 77.

    The Prosecutor v. Dario Kordić and Mario Čerkez, IT-95-14/2-A, Judgement (ICTY AC, Dec. 17, 2004) [hereinafter Kordić & Čerkez], available online. ↩

78. 78.

    Id. ↩

79. 79.

    Press Release, IMT, Čelebići Case: The Judgement of the Trial Chamber (Nov. 16, 1998), available online. ↩

80. 80.

    Id. ↩

81. 81.

    Id. ↩

82. 82.

    Čelebići, supra note 76. ↩

83. 83.

    Press Release, IMT, Appeal Judgement in the Čelebići Case (Feb. 20, 2001), available online. ↩

84. 84.

    Id. ↩

85. 85.

    Id. ↩

86. 86.

    Čelebići, supra note 76. ↩

87. 87.

    Id. ↩

88. 88.

    Id. ↩

89. 89.

    De Landri, supra note 2, at 11. ↩

90. 90.

    Id. ↩

91. 91.

    Čelebići, supra note 76. ↩

92. 92.

    Kordić, supra note 77. ↩

93. 93.

    The Prosecutor v. Tihomir Blaškić, IT-95-14-A, Judgment (ICTY AC, Jul. 29, 2004) [hereinafter Blaškić], available online. ↩

94. 94.

    Sherman, supra note 17, at 11. ↩

95. 95.

    Case Information Sheet: “Lašva Valley” Kordić & Čerkez, IMT, IT-95-14/2-A, available online (last visited Jun. 6, 2019). ↩

96. 96.

    Id. ↩

97. 97.

    Kordić, supra note 92. ↩

98. 98.

    Čelebići, supra note 76. ↩

99. 99.

    Kordić, supra note 92. ↩

100. 100.

     Blaškić, supra note 93. ↩

101. 101.

     Press Release, ICTY, General Blaškić Found Guilty on All Charges and Sentenced to 45 Years Imprisonment (Mar. 3, 2000), available online. ↩

102. 102.

     Id. ↩

103. 103.

     Čelebići, supra note 76. ↩

104. 104.

     Id. ↩

105. 105.

     Blaškić, supra note 93. ↩

106. 106.

     Čelebići, supra note 76. ↩

107. 107.

     Kordić, supra note 92. ↩

108. 108.

     Blaškić, supra note 93. ↩

109. 109.

     Sherman, supra note 17, at 11. ↩

110. 110.

     Statute for the International Tribunal for Rwanda, S.C. Res. 955 Annex, Art. 6(3), U.N. Doc. S/RES/955 (Nov. 8, 1994) [hereinafter ICTR Statute], available online. ↩

111. 111.

     The Prosecutor v. Ignace Bagilishema, ICTR-95-1A-T, Judgement (TC I, Jun. 7, 2001) [hereinafter Bagilishema], available online. ↩

112. 112.

     The Prosecutor v. Clément Kayishema and Obed Ruzindana, ICTR-95-1-A, Judgment (ICTR AC, Jun. 1, 2001) [hereinafter Kayishema & Ruzindana], available online. ↩

113. 113.

     Bagilishema, supra note 111. ↩

114. 114.

     De Landri, supra note 2, at 11. ↩

115. 115.

     Bagilishema, Ignace, Hague Just. Portal, available online (last visited Jun. 6, 2019). ↩

116. 116.

     De Landri, supra note 2, at 12. ↩

117. 117.

     Id. ↩

118. 118.

     Id. ↩

119. 119.

     Čelebići, supra note 76. ↩

120. 120.

     De Landri, supra note 2, at 12. ↩

121. 121.

     Id.; Bagilishema, supra note 111. ↩

122. 122.

     De Landri, supra note 2, at 12. ↩

123. 123.

     Bagilishema, supra note 111. ↩

124. 124.

     Čelebići, supra note 76. ↩

125. 125.

     Bagilishema, supra note 111. ↩

126. 126.

     Kayishema & Ruzindana, supra note 112. ↩

127. 127.

     The Prosecutor v. Clément Kayishema and Obed Ruzindana, Int’l Crimes Database, available online (last visited Jun. 6, 2019). ↩

128. 128.

     Superior Responsibility, ICTY Case Law Database, available online (last visited Jun. 6, 2019). ↩

129. 129.

     Čelebići, supra note 76. ↩

130. 130.

     Id. ↩

131. 131.

     Kayishema & Ruzindana, supra note 112. ↩

132. 132.

     Id. ↩

133. 133.

     Id. ↩

134. 134.

     Id. ↩

135. 135.

     Yamashita, supra note 9. ↩

136. 136.

     Bagilishema, supra note 111. ↩

137. 137.

     Kayishema & Ruzindana, supra note 112. ↩

138. 138.

     Bagilishema, supra note 111. ↩

139. 139.

     Čelebići, supra note 76. ↩

140. 140.

     Kayishema & Ruzindana, supra note 112. ↩

141. 141.

     Yamashita, supra note 9. ↩

142. 142.

     Bemba Appeals Chamber Judgment, supra note 3. ↩

143. 143.

     Sherman, supra note 17, at 13. ↩

144. 144.

     Rome Statute, supra note 5. ↩

145. 145.

     Id. ↩

146. 146.

     ICTR Statute, supra note 110, Art. 6(3); ICTY Statute, supra note 75, Art. 7(3). ↩

147. 147.

     Id. ↩

148. 148.

     Čelebići, supra note 76. ↩

149. 149.

     Bemba Appeals Chamber Judgment, supra note 3. ↩

150. 150.

     De Landri, supra note 2, at 21. ↩

151. 151.

     Id. ↩

152. 152.

     Bemba Press Release, supra note 4. ↩

153. 153.

     Id. ↩

154. 154.

     Čelebići, supra note 76. ↩

155. 155.

     De Landri, supra note 2, at 22. ↩

156. 156.

     Id. at 22–23. ↩

157. 157.

     Bemba Appeals Chamber Judgment, supra note 3. ↩

158. 158.

     Robert Cryer, Command Responsibility at the ICC and ICTY: In Two Minds on the Mental Element?, EJIL Talk (Jul. 20, 2009), available online. ↩

159. 159.

     Bemba Appeals Chamber Judgment, supra note 3. ↩

160. 160.

     Id. ↩

161. 161.

     Id. ↩

162. 162.

     Id. ↩

163. 163.

     Bemba Press Release, supra note 4. ↩

164. 164.

     Id. ↩

165. 165.

     Id. ↩

166. 166.

     The Prosecutor v. Jean-Pierre Bemba Gombo, Summary of Appeal Judgment, 7–8 (AC, Jun. 8, 2018), available online, archived. ↩

167. 167.

     Amann, supra note 1. ↩

168. 168.

     Bemba Appeals Chamber Judgment, supra note 3. ↩

169. 169.

     Amann, supra note 1. ↩

170. 170.

     Yamashita, supra note 9. ↩

171. 171.

     Bemba Appeals Chamber Judgment, supra note 3. ↩

172. 172.

     Id. ↩

173. 173.

     Yamashita, supra note 9. ↩

174. 174.

     Bemba Appeals Chamber Judgment, supra note 3. ↩

175. 175.

     Amann, supra note 1. ↩

176. 176.

     Bemba Appeals Chamber Judgment, supra note 3. ↩

177. 177.

     Id. ↩

178. 178.

     Id. ↩