Command or superior responsibility When superiors do not uphold their “command responsibility”, international criminal law holds them responsible for the criminal actions of their subordinates. Liability attaches to all levels of a hierarchy so long as the following criteria are met: The commander/superior: 1. was in “effective control” over the relevant subordinates; 67 2. knew or, owing to the circumstances at the time, should have known of the crimes perpetrated or about to be perpetrated;68 and 3. failed to take all necessary and reasonable measures within his or her power to prevent or repress the commission of these crimes or to submit the matter to the competent authorities for investigation and prosecution.69 Where these elements can be proven to the adopted standard, the commanders/ superior(s) should also be identified as bearing responsibility. 4. Crimes under domestic law Rarely does a country’s domestic law form the legal basis for United Nations investigations. When this does occur, a thorough understanding of the law and practice of the State’s justice mechanisms will be indispensable to the investigation. The variations in legal systems globally will require the investigative body to avail itself of considerable domestic legal expertise. Investigations should proceed with exceptional caution if rendering findings based on domestic law, and may consider qualifying their findings accordingly. Rome Statute, art. 28; also Additional Protocol I to the Geneva Conventions, art. 86 (2) and Celebici Appeal Judgment, para. 254 (“[Authority] need not be established in the sense of formal organizational structures so long as the fundamental requirement of an effective power to control the subordinate, in the sense of preventing or punishing criminal conduct, is satisfied.”). 68 Rome Statute, art. 28 (a) (ii). Note that for civilians in positions of authority the standard under the Rome Statute is: “knew, or consciously disregarded information which clearly indicated, that the subordinates were committing or about to commit such crimes.” Art. 28 (b) (i). 69 Ibid. 67 36 ATTRIBUTING INDIVIDUAL RESPONSIBILITY