De facto authority
|Appeal Judgement - 20.02.2001||
DELALIĆ et al. (Čelebići)
193. The power or authority to prevent or to punish does not solely arise from de jure authority conferred through official appointment. In many contemporary conflicts, there may be only de facto, self-proclaimed governments and therefore de facto armies and paramilitary groups subordinate thereto. Command structure, organised hastily, may well be in disorder and primitive. To enforce the law in these circumstances requires a determination of accountability not only of individual offenders but of their commanders or other superiors who were, based on evidence, in control of them without, however, a formal commission or appointment. A tribunal could find itself powerless to enforce humanitarian law against de facto superiors if it only accepted as proof of command authority a formal letter of authority, despite the fact that the superiors acted at the relevant time with all the powers that would attach to an officially appointed superior or commander.
197. In determining questions of responsibility it is necessary to look to effective exercise of power or control and not to formal titles. This would equally apply in the context of criminal responsibility. In general, the possession of de jure power in itself may not suffice for the finding of command responsibility if it does not manifest in effective control, although a court may presume that possession of such power prima facie results in effective control unless proof to the contrary is produced. The Appeals Chamber considers that the ability to exercise effective control is necessary for the establishment of de facto command or superior responsibility and thus agrees with the Trial Chamber that the absence of formal appointment is not fatal to a finding of criminal responsibility, provided certain conditions are met. Mucić’s argument that de facto status must be equivalent to de jure status for the purposes of superior responsibility is misplaced. Although the degree of control wielded by a de jure or de facto superior may take different forms, a de facto superior must be found to wield substantially similar powers of control over subordinates to be held criminally responsible for their acts. […]
 In relation to State responsibility see ICJ, Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, ICJ Reports, 1971, p 16 at para 118.
 At the hearing, Mucić referred with approval to the Aleksovski Judgement’s finding that “[A]nyone, including a civilian may be held responsible, pursuant to Article 7(3) of the Statute, if it is proved that the individual had effective authority over the perpetrators of the crimes. This authority can be inferred from the accused’s ability to give them orders and to punish them in the event of violations.” Appeal Transcript, p 238, referring to para 70 of the Aleksovski Appeal Judgement, quoting para 103 of the Aleksovski Judgement.
|ICTR Statute Article 6(3) ICTY Statute Article 7(3)|
|Appeal Judgement - 04.12.2001||
KAYISHEMA & RUZINDANA
294. Article 6(3) of the Statute on “Individual criminal responsibility”, provides that:
The fact that any of the acts referred to in Articles 2 to 4 of the present Statute was committed by a subordinate does not relieve his or her superior of criminal responsibility if he or she 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.
With respect to the nature of the superior-subordinate relationship, the Appeals Chamber refers to the relevant principles expressed in the Čelebići Appeal Judgement in relation to the identical provision in Article 7(3) of ICTY Statute, as follows:
(i) [A] superior is “one who possesses the power or authority in either a de jure or a de facto form to prevent a subordinate’s crime or to punish the perpetrators of the crime after the crime is committed”. Thus, “[t]he power or authority to prevent or to punish does not solely arise from de jure authority conferred through official appointment.”
(ii) “In determining questions of responsibility it is necessary to look to effective exercise of power or control and not to formal titles. […]. In general the possession of de jure power in itself may not suffice for the finding of command responsibility if it does not manifest in effective control, although a court may presume that possession of such power prima facie results in effective control unless proof to the contrary is produced. [T]he ability to exercise effective control is necessary for the establishment of de facto command or superior responsibility and […] the absence of formal appointment is not fatal to a finding of criminal responsibility, provided certain conditions are met.”
(iii) “The showing of effective control is required in cases involving both de jure and de facto superiors.”
This Appeals Chamber accepts these statements and notes that the Trial Chamber, in its Judgement, applied a similar approach when it found that:
[E]ven where a clear hierarchy based upon de jure authority is not present, this does not prevent the finding of command responsibility. Equally, as we shall examine below, the mere existence of de jure power does not always necessitate the imposition of command responsibility. The culpability that this doctrine gives rise to must ultimately be predicated upon the power that the superior exercises over his subordinates in a given situation.
Thus, “as long as a superior has effective control over subordinates, to the extent that he can prevent them from committing crimes or punish them after they committed the crimes, he would be held responsible for the commission of the crimes if he failed to exercise such abilities of control”. Therefore, Kayishema’s argument that without de jure authority, there can be no subordinate and hence, no de facto authority, is misconceived. This question turns on whether the superior had effective control over the persons committing the alleged crimes. The existence of effective control may be related to the question whether the accused had de jure authority. However, it need not be; such control or authority can have a de facto or a de jure character.
 Čelebići Appeal Judgement, para. 192.
 Ibid., para. 193.
 Ibid., para. 197.
 Ibid., para. 196.
 Trial Judgement, para. 491.
 Čelebići Appeal Judgement, para. 198.
 Čelebići Trial Judgement, para. 378, referred to and agreed with in the Čelebići Appeal Judgement, para. 196.
|ICTR Statute Article 6(3) ICTY Statute Article 7(3)|