I argue here that, while determinations of “reasonable and necessary measures” in individual cases will, and should, be conducted on a case-by-case basis, there is a need to identify certain foundational principles to guide the determinative process. By this I do not simply mean principles such as the need to determine these measures in concreto, which, though valuable guides, only further the particularistic nature of the determinative process. I, instead, refer to creating a normative framework rooted in the basic tenets of international humanitarian law and the goals of the ICC itself, that can help guide determinations regarding necessary and reasonable measures. Creating such a framework can help in deciding the relevance of factors such as the commander’s motivations or in clarifying concepts such as competent authority by the simple expedient of slightly shifting our focus from particularisms to norms.

The first part of this comment will provide a basic description of how command responsibility and necessary and reasonable measures have been defined in international jurisprudence. The second part will elucidate the normative elements of command responsibility, and the third part will discuss how to convert these discrete normative ideas into an applicable framework that informs individual determinations regarding necessary and reasonable measures.

II. Basic Elements of Command Responsibility

The jurisprudence on command responsibility developed by the ICTY and other ad hoc tribunals identifies command responsibility as a sui generis form of individual responsibility. The elements of command responsibility were first categorically listed in Čelebići7 which identified three such elements:

1. that the superior exercises de jure or de facto command or control, whether directly or indirectly, over the perpetrators;

2. the superior knows or has reason to know (including situations where the lack of knowledge results from his own failure to supervise his subordinates) that the crimes in question had been or were about to be committed;

3. the superior failed to take such reasonable and necessary measures as were within his power or at his disposal in the particular circumstances to prevent the perpetrators from committing the offenses or for punishing them if the offenses had been committed.

Drawing from this jurisprudence, the Trial Chamber in Bemba defined command responsibility as a sui generis form of liability, distinct from that imposed under other sections of the Rome Statute. Responsibilities imposed on commanders under Article 28 were seen as being rooted in their power to control the actions of their subordinates.8

The Trial Chamber identified six elements necessary to affix criminal liability under Article 28(a):

1. The crimes in question must fall within the Court’s jurisdiction and must have been perpetrated by forces;

2. The accused must be either a military commander or acting effectively as a commander;

3. The accused must exercise either effective command and control or effective authority and control over the forces that committed the crimes in question;

4. The accused had actual knowledge or should have known (based on the circumstances) that his subordinates had or were about to commit the crimes in question;

5. The accused did not take all necessary and reasonable measures that were within his power to: a) prevent/repress the commission of the crimes in question or, b) to submit the matter to the competent authorities for investigation and prosecution;

6. The accused’s failure to exercise proper control over his forces caused the commission of the crimes in question.9

A. Necessary and Reasonable Measures

While the failure to take necessary and reasonable measures is an integral element of command responsibility, its particularistic nature makes it extremely difficult to apply. Courts have largely refrained from attempting to define it to any extent. Even in Čelebići, for instance, while every other aspect of command responsibility was thoroughly discussed, this element was left open with the declaration that it was so fact-specific that “any attempt to formulate a general standard would not be meaningful.”10 Tribunals have largely worked with a simplistic formulation of necessary and reasonable measures—that these measures are simply those “suitable to contain the situation at hand,” i.e., those measures that are suitable to prevent and punish.11

Subsequent judgments have identified certain factors that can possibly be employed in determinations. In Strugar, the Trial Chamber created a non-exhaustive list of factors to be considered in an assessment of whether or not all necessary and reasonable measures had been taken. For the duty to prevent, these included the issuance of specific orders prohibiting/ ending alleged criminal activity, measures taken to ensure implementation of such orders and other steps taken to stop criminal activity (including their sufficiency under the particular circumstances). For the duty to punish, steps taken to adequately investigate the crimes and ensure prosecution of the perpetrators were to be considered.12 If the commander himself is the competent authority, he is obligated to discipline the perpetrators. If he does not have such authority, or where his authority is limited to measures that will prove inadequate under the circumstances, he must refer the matter to an authority with the required competence.13 However, which factors are applied in a given case and to what extent is determined on a case by case basis, thereby limiting their utility. As I discuss in detail later, this can be remedied by using the normative goals of furthering justice and ending impunity as a yardstick.

The language employed by the statutes of the ad hoc tribunals categorizes indirect command responsibility as including the duty to prevent and the duty to punish. The ICTY phrases it as the failure to “take the necessary and reasonable measures to prevent such acts or punish the perpetrators thereof.”14 This has been categorized as the duty to prevent and the duty to punish.15 Similarly, the Statute for Special Court for Sierra Leone imposes liability when the commander “failed to take the necessary and reasonable measures to prevent the criminal act or punish the offender.”16 The Rome Statute, on the other hand, employs different phrasing:

[A]ll 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.17

Despite this difference in terminology, the Rome Statute can be interpreted in the same manner as the statutes of the ad hoc tribunals with the duty to investigate being the minimum requirement of the duty to repress and submit the matter to the competent authority.

The Trial Chamber in Bemba again largely concurred with the jurisprudence of prior ad hoc tribunals and reiterated the following principles:

• The contextual nature of this determination and the need to define them in concreto;18

• The distinction between “necessary” and “reasonable” measures, the former being defined as measures appropriate for the discharge of a commander’s responsibility and the latter as those which were reasonably within his material power.19

• The focus on the “material ability to act” regardless of whether the nature of the commander’s power was de jure or de facto.20

• The distinction between the duty to prevent, the duty to repress and the duty to submit the matter to the competent authorities for investigation and prosecution and the corollary that the failure to perform one of these three could not be remedied by the performance of the other two.

• The obligation to exercise disciplinary power (within his competence), or in the absence of such power, referring the case to the authority possessing such power.21

III. The Normative Background of Command Responsibility

The Trial Chamber in Bemba identified the “effective enforcement of fundamental principles of international humanitarian law, including the protection of protected persons and objects during armed conflict” as one of the primary aims of imputing responsibility on commanders for the actions of their subordinates, with the magnitude of potential harm that could be caused by a failure to fulfil these responsibilities being an important consideration.22 Further, the Trial Chamber held that bringing offenders to justice, preventing future crimes and ending impunity were the goals of imposing a duty to punish or submit the matter to competent authorities on commanders.23 These goals have been previously recognised in a number of judgments by ad hoc tribunals.24

The understanding that the ultimate goal of command responsibility is ensuring justice and ending impunity has given rise to the conception of command responsibility as arising from the affirmative duty of commanders to uphold international humanitarian law within their sphere of power arises from an. In Fofana, for example, it was held that the core of indirect command responsibility was “the failure to act when under a duty to do so.”25

Indirect command responsibility has, therefore, been defined as a liability based on omission that arises out of the affirmative duty imposed on commanders to prevent their subordinates from violating international humanitarian law. This positive obligation of commanders to ensure that international humanitarian law is upheld received recognition in the aftermath of the Second World War. It was upheld by the United States Supreme Court in Yamashita26 and later in the Subsequent Nuremberg Proceedings in United States v. List (the Hostage Case) and United States v. von Leeb (the High Command Case).27 Subsequently, this principle was codified in Article 87 of Additional Protocol I to the Geneva Convention which states that:

In order to prevent and suppress breaches, High Contracting Parties and Parties to the conflict shall require that, commensurate with their level of responsibility, commanders ensure that members of the armed forces under their command are aware of their obligations under the Conventions and this Protocol.28

Thus, the duty to uphold humanitarian law is at the heart of the principle of command responsibility. In the next section, I discuss how this core duty can be employed as a yardstick for determining whether necessary and reasonable measures have been taken in a given situation.

IV. Applying Norms

While the twin principles of ensuring justice and ending impunity are considered to be the guiding principles of command responsibility, in practice, they are given little more than a courteous nod in the judgments of tribunals and the ICC. However, these goals can be employed as a yardstick for determining whether or not necessary and reasonable measures have been taken to prevent or repress a crime or to submit the matter to the competent authorities for investigation and prosecution. This can be done by analyzing every action taken by the concerned commander from the point of view of furthering justice. In other words, for an action or actions to be considered sufficient to discharge the obligation to take necessary and reasonable measures under Article 28(1)(ii) it must contribute to the process of prosecution of the crimes done and ensuring justice for victims.

Elements of this idea are already present in the ICTY’s jurisprudence in which the commander has been held to be obligated to further the ends of justice by concretely contributing to the investigation and prosecution of alleged crimes by his subordinates. As held by the Trial Chamber in Kvoĉka, the commander must “take an important step in the disciplinary process.”29 Again, in Delić, the commander’s obligation was held to be to “take active steps to ensure that the perpetrators are brought to justice.”30

When the emphasis is on analyzing the commander’s contribution to the “justice process”, it has the effect of broadening the court’s inquiry. Rather than simply determining whether or not an action was taken, equal focus is also laid on the effectiveness of that action. As a result, factors such as the thoroughness with which the investigation was conducted and whether or not a report was called for will be relevant.31

A. The Normative Minimum

Once the effectiveness of actions becomes the central question, the next question is whether a minimum standard can be set for determining whether the action has effectively contributed to the investigation and prosecution of the crimes in question.

In Bemba, while they recognized that the scope of the duty to prevent depended on the specifics of the situation, both the Pre-Trial and Trial Chambers identified certain “relevant” preventive measures that could be taken by commanders. A quick review of these measures shows that these were largely general in nature constituting such measures as could be said to fall within commanders’ ordinary duty to prevent violations of international humanitarian law. They included such measures as training of forces on international humanitarian law, issuing orders specially focused on prevention of such violations, actively gathering information through regular reports, discipline and redeployment of non-conforming subordinates, etc.32

These potential preventive measures were, however, set aside by the Appeals Chamber as merely hypothetical and speculative which held that the Trial Chamber must point out the specific measures that Mr. Bemba failed to take, having regard to the particular facts and circumstances he was faced with at the time.33 Thus, while the Trial Chamber—and the Prosecutor before the Appeals Chamber—were of the view that there were certain basic minimum standards that a commander was expected to comply with in order to fulfill the duty to prevent and punish crimes, many of which were inherent in the duties of a commander, the Appeals Chamber was focused on a situation specific analysis.

The idea of a minimum standard is a recurring theme in judgments of the ad hoc tribunals, (predictably) usually introduced by the prosecutor. In Čelebići, the Prosecutor identified a number of steps that the accused could have taken such as creation and implementation of internal policies aimed at preventing violations of international humanitarian law, establishing reporting systems, publicly condemning illegal practices, conducting bona fide investigations, disciplining perpetrators, co-operating with relevant external organizations, etc. It was further argued by the Prosecutor that some of these measures could have been taken by the accused even if his actual authority and control over the prison camp in question was lesser than had been alleged.34 The Prosecutor, in essence, seems to be arguing that the duty to prevent crimes entailed that a certain minimum standard of compliance with international humanitarian law be maintained in internal policy and practice thereby reducing the likelihood of violations occurring. While the entirety of this argument was not directly addressed by the Trial Chamber, the Chamber’s analysis in the case of Mucić seemed to imply that superiors are expected to take a proactive approach towards prevention of crimes. The Chamber pinpointed the fact that Mucić did not issue any prior instructions to his subordinates that would have prevented them from committing the crimes in question (in this case cruel and inhuman treatment of detainees at a prison camp).35

Again, in Delić, the prosecution argued that Delić had an obligation to enforce and monitor compliance with the norms of international humanitarian law among his subordinates, establishing responsibility for breaches, and transferring the matter to a prosecuting agency if required.36

The Trial Chamber in Halilović attempted to provide some conceptual clarity by distinguishing between general and specific obligations that together constitute the duty to prevent. While general obligations were the basic measures all commanders were expected to take in order to ensure compliance with international humanitarian law, specific obligations were those that accrued to a commander in a particular set of facts and circumstances, having regard to his material ability to punish and prevent.37 While the Chamber was careful to note that only a specific obligation could trigger liability under the ICTY Statute, it did provide an exhaustive description of general obligations. These general obligations were “seen to arise from the importance which international humanitarian law places on the prevention of violations.”38 Relying heavily on the ICRC Commentary to Article 87 of Additional Protocol I, the Chamber emphasized ability of commanders to inculcate respect for international humanitarian law among their subordinates and to minimise the risk of violations by creating the “appropriate frame of mind”, focusing on rationalising means of combat and maintaining discipline.39 This responsibility is also an individual responsibility. Thus, the presence of a parallel authority that also exercises effective control over the subordinates in question does not absolve a commander of his responsibility.40

These conflicting approaches epitomize the difference between an analysis centered around norms of justice and an analysis centered around particularism. A focus on furthering the goals of justice will require that the duty to prevent crimes be discharged right from the beginning stages. If a commander fails to maintain certain minimum standards of compliance among his subordinates, he creates an atmosphere of acquiescence for violations of international humanitarian law. Thus, an emphasis on justice results in the duty to prevent not arising simply when there is the possibility of a crime but right from the moment a superior takes command of a force and results in the obligation to create a culture of compliance within the force.

Even if these general obligations are not recognised, the ad hoc tribunals have created a “minimum standard” that must be met in order to discharge the duty to punish—at the very least, the commander is obligated to take steps towards conducting an adequate investigation targeted towards ensuring that the perpetrators are prosecuted. For instance, in Strugar,41 the Trial Chamber held that the duty to investigate arises the moment the commander receives information that:

[P]uts him on notice of the risk of such offences so as to indicate the need for additional information or investigation to ascertain whether such offences were about to be committed.42

Thus, the information received by the commander need not conclusively prove that a crime has been or is about to be committed—a reasonable suspicion of the same gives rise to the obligation to investigate the truth of the allegations.

B. Material Ability

Rooted in the basic principle of criminal law that an individual cannot be penalized for failing to perform the impossible, the principle of material ability entails that a superior can be held liable only for not taking those necessary and reasonable measures that were within his material possibility, or, in the words of the Rome Statute, within his power. In this regard, if material ability has been proven, the presence or absence of legal authority is largely irrelevant. It can, however, serve as an indicator of material ability.43 By definition, the concept of material ability also subsumes within itself possible limitations that may be placed on the commander’s ability in any given situation.44 Thus, in Popović, while the it was acknowledged that the accused’s material ability to take reasonable measures was limited by geographical distance and minimal communication linkages, it did, nevertheless, impose criminal liability on the accused since despite these limitations, he continued to maintain effective control over his subordinates.45

The concept of material power played an important role in Bemba. Both the Trial Chamber and the Appeals Chamber paid significant attention to the concept in their analysis of whether or not necessary and reasonable measures had been taken by Bemba. The Trial Chamber looked at factors such as the communications network in place, the well-knit command structure of the MLC, the existence of clearly established reporting mechanisms and Bemba’s position as commander-in-chief and his ability to cold courts-martial and exercise discipline over MLC troops as evidence of his material ability to take reasonable and necessary steps to prevent or repress the crimes in question or submit the matter for investigation or prosecution to the competent authorities.46

The Appeals Chamber, on the other hand, focused its attention on the limitations placed on Bemba’s ability to take reasonable measures by the fact that MLC troops were operating on foreign territory and that investigation and prosecution of crimes was dependent on the co-operation of the CAR authorities, resulting in its ruling that Bemba did not possess the material ability to investigate and prosecute crimes being committed in CAR.47

If the concept of material ability is reinterpreted in the light of the responsibility to pursue justice, it changes our view of the effect of logistical and distance-based limitations on the obligation to take necessary and reasonable measures. The responsibility to pursue justice has also been understood as being independent of results. In Popović, for example, it was held that “the fact that the crimes may be substantially beyond prevention does not relieve a commander of his duty to prevent those which may still be prevented.”48 A commander may be operating under limitations of time, distance and logistics but is still obligated to prevent and punish crimes to the best of his ability. Thus, in this case, the Appeals Chamber rejected the accused’s defense that he did not refer the matter to the concerned authority because of doubts regarding the fairness of the concerned authority’s proceedings. The Appeals Chamber ruled that while feasibility in a particular set of circumstances has to be taken into account, the inquiry has to remain rooted in a commander’s material ability. If it was within the accused’s material ability (as it was) to initiate an investigation, he was obligated to do so.

The Appeals Chamber, in fact, turned the defense argument around to hold that:

If the superior knows that the appropriate authorities are not functioning or if he knows that a report was likely to trigger an investigation that was sham, this entails that such a report would not be sufficient to fulfil the obligation to punish offending subordinated. It does not mean that the action of reporting becomes impossible in the circumstances.49

He should, instead, have actively looked for alternative ways to discharge his obligation.50

Thus, a justice-based approach imposes the duty to attempt to overcome limitations, to the extent possible, rather than to use limitations as a defense. This is not to say, of course, that a commander has an absolute duty to overcome each and every limitation imposed on him by circumstances. He is simply obligated to make an active effort to try and overcome these limitations, to the extent possible.

C. Competent Authority

The obligation to take reasonable and necessary measures to submit the matter to the competent authorities for investigation and prosecution requires the definition of the term “competent authority”. However, the competent authority in any given situation will depend on the structure of the force in question, the presence or absence of a robust legal system and the structure of that legal system. Neither the ad hoc tribunals and the ICC have addressed this question and have limited themselves to identifying the competent authority in the particular case before them. In Bemba, the competent authority was Bemba himself as the Head of State of the Democratic Republic of Congo and the Commander in Chief of the MLC.

However, if the focus is on achieving the goals of justice and ending impunity, the competent authority has to be one that can do so in a fair and independent manner. In other words, the competent authority will have to be one that has: a) legitimacy and b) the means to maintain its legitimacy. Legitimacy, in turn, will have two aspects: legitimacy of authority and legitimacy of process. Thus, the goals of justice will require that the matter in question be referred to an authority that has formal and effective authority, that is procedurally fair and that has sufficient independence to maintain its legitimacy.

V. Conclusion

To conclude, I have argued here that a normative approach to defining necessary and reasonable measures to prevent or repress crimes or to submit the matter to the competent authorities under Article 28 of the Rome Statute allows us to redevelop standards applicable to this determination. By balancing larger justice-based principles with an analysis of the exigencies on individual situations, the principle of command responsibility can be effectively implemented without placing too great or little a burden on commanders, while simultaneously ensuring that perpetrators of crimes are prosecuted.

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

1. 1.

   The Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05-01/08-3343, Judgment pursuant to Article 74 of the Statute (TC III, Mar. 21, 2016) [hereinafter Bemba Trial Chamber Judgment], available online, archived. ↩

2. 2.

   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. ↩

3. 3.

   Prosecutor v. Rasim Delić, IT-04-83-T, Judgement (ICTY TC I, Sep. 15, 2008), [hereinafter Delić], available online. ↩

4. 4.

   Id. ¶ 76. ↩

5. 5.

   Prosecutor v. Zejnil Delalić, Zdravko Mucić, Hazim Delić and Esad Landžo, IT-96-21-T, Judgement (ICTY TC, Nov. 16, 1998) [hereinafter Čelebići], available online; see also Prosecutor v. Moinina Fofana and Allieu Kondewa, SCSL-04-14-T, Judgement (SCSL TC I, Aug. 2, 2007) [hereinafter Fofana], available online. ↩

6. 6.

   Bemba Trial Chamber Judgment, supra note 1, ¶ 212. ↩

7. 7.

   Čelebići, supra note 5. ↩

8. 8.

   Bemba Trial Chamber Judgment, supra note 1, ¶ 172. ↩

9. 9.

   Id. ¶ 170. ↩

10. 10.

    Čelebići, supra note 5, ¶ 394. ↩

11. 11.

    Id. ¶ 76. ↩

12. 12.

    Prosecutor v. Pavle Strugar, IT-01-42-T, Judgement, ¶ 378 (ICTY TC II, Jan. 31, 2005) [hereinafter Strugar], available online. ↩

13. 13.

    Bemba Trial Chamber Judgment, supra note 1, ¶ 228. ↩

14. 14.

    See e.g., Updated Statute of the International Criminal Tribunal for the Former Yugoslavia, S.C. Res. 827, U.N. Doc. S/RES/827, art. 7 ¶ 3 (Sep. 2009, as amended), available online. ↩

15. 15.

    Čelebići, supra note 5. ↩

16. 16.

    Fofana, supra note 5. ↩

17. 17.

    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], Art. 28(1)(ii), available online. ↩

18. 18.

    Bemba Trial Chamber Judgment, supra note 1, ¶ 197. ↩

19. 19.

    Id. ¶ 198. ↩

20. 20.

    Id. ¶ 199. ↩

21. 21.

    Čelebići, supra note 5 ¶ 344. ↩

22. 22.

    Bemba Trial Chamber Judgment, supra note 1, ¶ 172. ↩

23. 23.

    Id. ¶ 209. ↩

24. 24.

    See e.g., Strugar, supra note 12. ↩

25. 25.

    Fofana, supra note 16. ↩

26. 26.

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

27. 27.

    See Michael J. Sherman, Standards in Command Responsibility Prosecutions: How Strict And Why?, 38 N. Ill. U. L. Rev. 298, 302 (2017), available online. ↩

28. 28.

    Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, Art. 87, 1125 UNTS 3, Jun. 8, 1977, [hereinafter Additional Protocol I], available online. ↩

29. 29.

    Prosecutor v. Miroslav Kvočka, Milojica Kos, Mlađo Radić, Zoran Žigić and Dragoljub Prcać, IT-98-30/I-T, Judgement, ¶ 316 (ICTY TC, Nov. 2, 2001), available online. ↩

30. 30.

    Delić, supra note 3, ¶ 74. ↩

31. 31.

    Id. ↩

32. 32.

    Bemba Trial Chamber Judgment, supra note 1, ¶ 203, 204. ↩

33. 33.

    Id. ¶ 173. ↩

34. 34.

    Čelebići, supra note 5, ¶ 625. ↩

35. 35.

    Id. ¶ 773. ↩

36. 36.

    Delić, supra note 3, ¶ 537. ↩

37. 37.

    Prosecutor v. Sefer Halilović, IT-01-48-T, Judgement, ¶ 80 (ICTY TC I, Nov. 16, 2005) [hereinafter Halilović], available online. ↩

38. 38.

    Id. at 81. ↩

39. 39.

    Halilović, supra note 37, ¶ 85. ↩

40. 40.

    Prosecutor v. Vujadin Popović, Ljubiša Beara, Drago Nikolić, Radivoje Miletić and Vinko Pandurević, IT-05-88-A, Judgement, ¶ 1893 (ICTY AC, Jan. 30, 2015) [hereinafter Popović], available online. ↩

41. 41.

    Strugar, supra note 12. ↩

42. 42.

    Id. ¶ 416. ↩

43. 43.

    Delić, supra note 3, ¶ 76. ↩

44. 44.

    Popović, supra note 40, ¶ 1857. ↩

45. 45.

    Id. ¶ 1859. ↩

46. 46.

    Bemba Trial Chamber Judgment, supra note 1, ¶ 697. ↩

47. 47.

    Id. ¶ 171. ↩

48. 48.

    Popović, supra note 40, ¶ 1898. ↩

49. 49.

    Id. ¶ 1929. ↩

50. 50.

    Id. ¶ 1940. ↩