59

Nonetheless, for a case to be brought to trial before the International Tribunal, it is imperative that further information be gathered on the orders and communication which passed between President Milosevic and his functionaries. Access to this type of information should be available through methods of co-operation and exchange established between the Office of the Prosecutor and those national governments who have the necessary capabilities and resources.

The attribution of criminal responsibility by way of Article 7(3) of the Statute is subject to rather different considerations, resting as it does on the concept of guilt by omission. Nonetheless, the indictments issued by the Tribunal Prosecutor often posit responsibility by way of Article 7(3) in addition, or alternatively, to Article 7(1)⁴⁵ and, thus, the present report also briefly addresses this "indirect superior responsibility".

In this situation, the offences committed by the military/security forces in Kosovo are attributed to their superiors on the basis that these superiors did not exercise due diligence in the control of persons under their command and thus did not prevent the commission of the offences, nor punish the perpetrators thereof. Rather than ordering or planning and instigating violations of international humanitarian law, such superiors merely acquiesce in such violations and hence become responsible along with the perpetrators.

Thus far, the concept of superior responsibility under Article 7(3) has been elaborated by the judges of the International Tribunal primarily through the Judgement rendered in the Delalic et al. case and certain elements have been clarified. First, there must exist a relationship of superiority and subordination between the accused and the perpetrator of the offence in question, be it de facto or de jure⁴⁶; second, the superior must have known or had reason to

45. See, e.g. the indictment against Dario Kordic and Mario Cerkez, dated 2 December 1998 (IT-95-14/2-PT).
46. The Trial Chamber stated that
    "persons effectively in command of such more informal structures, with power to prevent and punish the crimes of persons who are in fact under their control, may under certain circumstances be held responsible for their failure to do so…. [N]o express limitation is made restricting the scope of this type of responsibility to military commanders or situations arising under a military command. In contrast, the use of the generic term "superior" in this provision, together with its juxtaposition to the affirmation of the individual criminal responsibility of "Head[s] of State or Government" or "responsible Government official[s]" in Article 7(2), clearly indicates that its applicability extends beyond the responsibility of military commanders also to encompass political leaders and other civilian superiors in positions of authority. … [I]n order for the principle of superior responsibility to be applicable, it is necessary that the superior have effective control over the persons committing the underlying violations of international humanitarian law, in the sense of having the material ability to prevent and punish the commission of these offences. With the caveat that such authority can have a de facto as well as a de jure character, the Trial Chamber accordingly shares the view expressed by the International Law Commission that the doctrine of superior responsibility extends to civilian superiors only to the extent that they exercise a degree of control over their subordinates which is similar to that of military commanders."