II. International Legal Framework and Analysis 64 operate as commanders.181 The commander does not need to perform exclusively military functions, and the commander and subordinates do not need to be connected by a direct chain of command— the doctrine encompasses both indirect and direct relationships, provided the superior has effective control.182 Command responsibility also applies regardless of rank—the individual may be the most senior commander in the force or have command only over a few soldiers.183 Under the command responsibility doctrine of Article 28(a) of the Rome Statute, commanders must have “effective command and control, or effective authority and control” over the forces under their command.184 Control is a term encompassing command and authority.185 “Control” is interpreted as “a material ability to prevent or punish criminal conduct.”186 Factors that enter into an assessment of whether a superior exercised effective control include but are not limited to the superior’s capacity to issue orders, the subordinates’ compliance with those orders, the authority to issue disciplinary measures, and the power to promote personnel and terminate positions.187 The commander must not only have “effective command and control” over the forces that perpetrated international crimes, but the crimes must also be a result of the commander’s “failure to exercise control properly over such forces.”188 Article 28(a) of the Rome Statute also requires that the commander either knew or should have known the forces were committing or about to commit the crimes. This necessitates either a showing that the commander had actual knowledge of the crimes or a showing of negligence.189 It has been widely established that knowledge cannot be presumed but must be shown through direct or circumstantial evidence.190 For example, the Blaskic tribunal found that a person’s position in the command structure was a significant indicator of demonstrating knowledge about the crimes committed by subordinates.191 Factors that relate to whether a commander “should have known” include the “number of illegal acts, their type and scope, the time during which these acts occurred, the number and type of troops involved, the widespread scale of the acts, the modus operandi, the tactical actions, the officers and staff involved and, finally, the location of the commander himself at the time of the atrocities.”192 The failure to punish past crimes committed by the same subordinates may also be relevant albeit not wholly sufficient to establish negligence.193 181 The doctrine has long covered both de jure and de facto commanders. See, e.g., Prosecutor v. Zdravko Mucić (a.k.a. Delalić) et al., ICTY, Case No. IT-96-21-A, Judgement (Appeal), February 20, 2001, para. 370. 182 Id. at para. 177. 183 Prosecutor v. Naser Orić, ICTY, Case No. IT-03-68-T, Judgement (Trial), June 30, 2006, para. 312. See also, Bemba, Case No. ICC-01/05-01/08, para. 187. 184 Rome Statute, Art. 28(a). 185 Centre for International Law Research and Policy, Commentary on the Law of the International Criminal Court, Part 3, Art. 28(a): Effective Command and Control or Effective Authority and Control, (citing Kai Ambos, “Superior Responsibility,” in Antonio Cassese et al. eds., The Rome Statute of the International Criminal Court: A Commentary (Oxford: Oxford University Press, 2002), p. 857.) See also, Bemba, Case No. ICC-01/05-01/08, paras.180-81 (“As noted by the Pre-Trial Chamber, the term ‘command’ is defined as ‘authority, especially over armed forces’, and the expression ‘authority’ refers to the ‘power or right to give orders and enforce obedience.’”). 186 Mucić et al., Case No. IT-96-21-A, para. 256. 187 Prosecutor v. Radovan Karadžić, ICTY, Case No. IT-95-5/18-T, Judgment (Trial), March 24, 2016, para. 581. 188 Rome Statute, Art. 28(a). 189 This is similar but slightly distinct from the “had reason to know” standard embodied in the statutes of the ICTR and ICTY, and Special Court for Sierra Leone. See, e.g., Bemba, Case No. ICC-01/05-01/08, para. 434. 190 See, e.g., Prosecutor v. Tihomir Blaškić, ICTY, Case No. IT-95-14-T, Judgement (Trial), March 3, 2000, para. 307. 191 Id. at para. 308; See also, Prosecutor v. Zlatko Aleksovski, ICTY, Case No. IT-95-14/1-T, Judgement (Trial), June 25, 1999, para. 80. 192 Geert-Jan Alexander Knoops, Defenses in International Criminal Law (Leiden: Brill Nijhoff, 2008), p. 197 (citing William J. Fenrick, “Article 28,” Margin No. 10, in Otto Triffterer ed., Commentary on the Rome Statute (Baden-Baden: Nomos, 1999)). 193 Ibid., citing Prosecutor v. Issa Hassan Sesay et al., SCSL, Case No. SCSL-04-15-T, Judgement (Trial), March 2, 2009, para. 311 (“[W]hile a superior’s knowledge of and failure to punish his subordinates’ past offences is insufficient on its own to conclude that the superior knew that future offences would be committed, such knowledge may constitute sufficiently alarming information to justify further inquiry.”).