“Crashing Down on Us” 65 Article 30 of the Rome Statute provides that a person can be held criminally responsible for a crime if the material elements of intent and knowledge are present.194 Intent can be gauged by whether “that person means to engage in the conduct” and “that person means to cause that consequence or is aware that it will occur in the ordinary course of events.”195 And knowledge is the “awareness that a circumstance exists or a consequence will occur in the ordinary course of events.”196 Where a commander has effective control and the requisite knowledge about crimes, they must act on their obligation to prevent or punish them or submit them to the appropriate authorities by taking all necessary and reasonable measures within their power.197 That is, commanders must take measures that are within their material ability or the bounds of their effective command to control their subordinates.198 The Karadžić case defined “necessary measures” as those “‘appropriate for the superior to discharge his obligation’ to prevent or punish the underlying crime,” and “reasonable measures” as those “reasonably falling within the material powers of the superior.”199 What constitutes a necessary and reasonable measure in each case will depend on the commander’s official power and his or her effective ability to implement such measures.200 Ultimately, the commander must have failed to fulfill one of three duties arising at three different stages in the commission of crimes: the duty to prevent crimes (before a crime’s commission), the duty to repress crimes (during their commission), or the duty to submit the matter to the competent authorities for investigation and prosecution (afterward).201 Each failure constitutes its own crime.202 In other words, failing both to prevent a crime and to punish those responsible would be two offenses stemming from the same underlying crime.203 Further, failing to prevent a crime could not be rectified by submitting the matter to the competent authorities.204 Modes of Liability In addition to the mode of command responsibility found in Article 28 of the Rome Statute, Article 25 provides other avenues, or “modes,” of liability to find individuals liable for their participation in war crimes. The various modes allow the ICC to find individuals liable based on: (1) direct or indirect perpetration or co-perpetration of the crime; (2) ordering, soliciting, or inducing the commission of the crime (often seen as the inverse of command responsibility, in that rather than being liable 194 Rome Statute, Art. 30(1). 195 Id. at Art. 30(2). 196 Id. at Art. 30(3). 197 Prosecutor v. Naser Orić, ICTY, Case No. IT-03-68-A, Judgement (Appeal), July 3, 2008, para. 177. 198 Ibid. 199 Karadžić, Case No. IT-95-5/18-T, para. 588. 200 Id. at para. 442 (citing Prosecutor v. Dario Kordić and Mario Čerkez, ICTY, Case No. IT‑95‑14/2‑A, Judgment (Appeal), December 17, 2004, para. 443.) (“[I]t is the actual ability, or effective capacity to take measures which is important. . . . When assessing whether a superior failed to act, the Trial Chamber will look beyond his formal competence to his actual capacity to take measures.”)). The Bemba Appeals Chamber found the Trial Chambers’ analysis erred on this point by demanding more of superiors than the law requires. Prosecutor v. Jean-Pierre Bemba Gombo, ICC, Case No. ICC-01/05-01/08 A, Judgment (Appeal), June 8, 2018, para. 166. The Appeals Chamber emphasized, “it is not the case that a commander is required to employ every single conceivable measure within his or her arsenal, irrespective of considerations of proportionality and feasibility.” At para. 8. It continued, “[i]n assessing reasonableness, the Court is required to consider other parameters, such as the operational realities on the ground at the time faced by the commander.” At para. 170, the Appeals Chamber cautioned against evaluating a superior’s actions “with the benefit of hindsight” and found trial chambers must specifically identify what a superior should have done “in concreto” rather than make “a list of measures which the commander could hypothetically have taken.” 201 Karadžić, Case No. IT-95-5/18-T, para. 589. 202 Ibid. 203 Ibid. 204 Ibid.