Abstract
This chapter discusses the legal obligation of the military commander to prevent or punish the acts of human trafficking under the Rome Statute. As opposed to direct commission of the crimes under international law, superior responsibility is used to hold superiors accountable for their omission. The superior may be held criminally responsible for the acts of his subordinates if three general conditions are met. The chapter discusses the requirements for commander responsibility in relation to human trafficking as a crime against humanity under Article 7 of the Rome Statute. The requirement of effective control will be defined, with the focus on the recent judgment of the Appeal Chambers in the Bemba case.
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Notes
- 1.
Unless otherwise specified, the author employs the term ‘command responsibility’ in a relation to military commanders or persons effectively acting as military commanders as defined by Article 28 of the Rome Statute. The term ‘superior’ refers to military commander, as well as civilian superior.
- 2.
The Rome Statute does not contain the wording human trafficking. By referring to the crime of human trafficking under the Rome Statute, reference is made mainly to the crime of enslavement (Article 7(1)(c)), sexual slavery as a crime against humanity (Article 7(1)(g)) and sexual slavery as a war crime (Article 8(2)(b)(xxii), and Article 8(2)(e)(vi) and of the Statute). This chapter will purposefully omit the possibility of defining human trafficking as a crime of genocide; as such an approach would acquire proving special intent on the part of the perpetrator which causes controversy in relation to superior responsibility (Schabas 2009, 363).
- 3.
The terms ‘superior’ and ‘command’ have been historically employed in different contexts, particularly to distinguish between a military superior—commander—and a civilian superior. The term command responsibility gives a more accurate impression of the origin and purpose of the doctrine, whereas the term superior responsibility has been preferred during the last decade because of its neutrality, referring to both civilian and military superiors.
- 4.
In the Akayesu case (ICTR), it was found that Akayesu, in his capacity as mayor, had effective control over the communal police and found him responsible based on his superior responsibility (Prosecutor v. Akayesu 2001).
- 5.
In other word, failure to prevent or punish acts of human trafficking (commander’s failure to act) as opposed to committing human trafficking (acts of human trafficking committed by commanders’ subordinates).
- 6.
Elements of superior responsibility were defined for the first time in the Celabici case (Prosecutor v Mucić et al. 1998, para. 346.)
- 7.
The approach imposing a duty upon the superior to actively acquire information about whether subordinates have committed or are about to commit crimes was introduced by the TCH in the Blaškić case in 2000 (Prosecutor v. Blaškić 2000). According to the interpretation of the TCH, the requirement had a reason to know is also fulfilled when the superior fails to carry out his duty to actively search for information suggesting that his subordinates commit or have committed criminal acts (Prosecutor v. Blaškić 2000, paras 309–332). This approach is much stricter and imposes higher standards on the superior, namely to establish an effective reporting system. As noted by J. Fuchs, “the standard applied by the Tribunal in the Blaškić case corresponds to the ‘should have known’ standard” (Fuchs 2001, 17, see also Keith 2001, 617). However, the ACH in the Celabici case rejected this argument stating that “it comes close to the imposition of criminal liability on a strict or negligence basis” (Prosecutor v. Mucić 2001, para 226). .The ACH Celabici case stated that the superior is only held criminally responsible for failing to take necessary and reasonable measures to prevent or to punish, for example, failure to commence investigation, but not for failure to gather information suggesting that his subordinates commit or committed crimes under international law.
- 8.
In context of the Orić case (Prosecutor v. Orić 2006, para 315), Mettraux expressed concerns that opening superior responsible in relation to crimes committed by anonymous person creates a danger that the link between superiors and subordinates can be loosening while the punishment is still based on this relation between them (Mettraux 2009, 135).
- 9.
Article 28 of the Rome Statute. Although the Statute uses alternative language (‘or’) it is clear that failure to discharge any of these duties may attract criminal responsibility.
- 10.
See also Remoteness in itself cannot serve as a defence to command responsibility. Amnesty International. Opinion. 10. 10. 2018. [online] [20-01-2019]. Available at: https://hrij.amnesty.nl/remoteness-command-responsibility-icc/
- 11.
The Concurring Separate Opinion of Judge Eboe-Osuji is his written opinion attached to the majority judgment in which he agrees with the judgment made by the majority of the Chamber, but states different or additional reasons as the basis for his decision.
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Chadimová, M. (2020). Legal Responsibility of the Military Commander to Prevent or Punish the Acts of Human Trafficking Under the Rome Statute. In: Muraszkiewicz, J., Fenton, T., Watson, H. (eds) Human Trafficking in Conflict . Crime Prevention and Security Management. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-40838-1_10
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