De jure versus de facto leaders
When assessing whether a given commander is in “effective control” of
subordinates implicated in crimes and international humanitarian law violations
(see “Command Responsibility”, above), an investigative body must not rely solely
on de jure chains of command. It may be that the commander within the formal
hierarchy has little real control, while the individual truly in charge is a militia
leader or someone outside the formal chain of command.81 Information from
insiders or defectors can be particularly valuable in proving effective control (see
Annex III).82
Impartiality
The professional obligations of all United Nations personnel require independence,
impartiality and objectivity. This means in principle that the investigation should
cast a wide net and give no consideration to who gets caught in it. Nor are United
Nations-mandated investigations “adversarial” in the common law sense; they
should have no motivation to prove or disprove violations or criminal conduct.
In addition to seeking out information that implicates individuals, therefore,
the investigative body should also be aware of the potential for information
that may exonerate a person. The investigation should strive to hear all sides
of the story, including by interviewing individuals who are implicated, assuming
they can be safely accessed and that such an interview does not place sources
or other individuals at undue risk. [See text box below: Interviewing allegedly
responsible individuals.] This does not mean that the results of identification have
to be “balanced” in numbers, but rather that an equal effort to identify is to be
made on all sides of a political divide, including by actively counterbalancing if
information on perpetrators from one side is simply easier to find than information
on perpetrators from the other. In the end, the findings are made as objectively as
possible, based on the sum total of information gathered.
The Prosecutor v. Ignace Bagilishema (Trial Judgement), ICTR-95-1A-T, International Criminal Tribunal for
Rwanda (ICTR), 7 June 2001, para. 39 (“Decisive criterion in determining who is a superior is his or her
ability, as demonstrated by duties and competence, to effectively control his or her subordinates.”).
82
Particularly valuable are witnesses who are able to describe how orders were given and carried out, and
by whom. Examples of a commander disciplining subordinates, with what means and for what purposes,
is relevant. Carrying out disciplinary measures shows that the commander not only had control but was
wielding it.
81
COLLECTING AND ANALYSING THE INFORMATION
43
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents