Evidence used in command responsibility cases
There are three pillars of command responsibility: knowledge, effective control, and failure to act. The following are the key evidence types used in such cases.
- Direct evidence
Direct evidence is based on documents, testimony, or recordings that explicitly link a superior to the crimes and its knowledge. Examples:
Arrest warrants for Netanyahu—II
• Military orders: Written or verbal orders directing or approving unlawful actions.
• Public statements: Speeches, interviews, or public comments demonstrating intent or awareness of crimes.
• Communication records: Emails, phone transcripts, or meeting minutes showing involvement or awareness.
Example: In Jean-Pierre Bemba case, radio communications were used to prove Bemba’s control over his forces and knowledge of their actions.
Arrest warrants for Netanyahu-I
- Patterns of behaviour
Even in the absence of direct evidence, systematic patterns can demonstrate that crimes were widespread and well-known.
Examples:
• Repeated reports of misconduct from reliable sources, such as UN agencies or NGOs.
• Documentation of similar incidents across multiple locations or times, suggesting a policy or tolerance for illegal conduct.
Example: In Radovan Karadzic case, reports of ethnic cleansing and massacres across Bosnia established that such crimes were a central policy, implicating leadership.
- Chain of command documentation
The examples to prove charges on the basis of chain of command include:
• The structure of authority.
• Who issued or approved plans leading to the crimes.
• A clear link between superiors and the actions of their subordinates.
In Thomas Lubanga, the ICC relied on evidence showing Lubanga’s recruitment policies and how he directed child soldiers.
- Witness testimony
Testimonies from victims, insiders, or experts play a critical role in reconstructing events. Examples:
• Victim testimonies: Highlighting the impact of policies or actions on civilians.
• Defector or insider accounts: Statements from military or political insiders about instructions or discussions at leadership levels.
• Expert analysis: Experts in military tactics or international law explaining how policies violated legal standards.
Example: In Slobodan Milosevic, witnesses testified about orders given during ethnic cleansing operations.
- Reports and warnings
Leaders can be held accountable if they were warned about crimes and failed to act. Examples:
• NGO and UN reports: Alerts sent to leaders about ongoing or impending violations.
• Media coverage: Widespread reporting that should have made leaders aware of crimes.
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• Internal reports: Warnings or complaints from subordinates about illegal conduct.
Example: In Charles Taylor case, reports of atrocities in Sierra Leone were used to show Taylor’s knowledge of the crimes his forces committed.
- Forensic and material evidence
Physical evidence can corroborate allegations and provide concrete proof of crimes. Examples:
• Battlefield evidence: Weapons, attack remnants, or remains tied to specific operations.
• Satellite images: Documenting destruction of civilian infrastructure or mass graves.
• Medical records: Showing patterns of injuries consistent with alleged crimes.
Example: In the Karadzic case, forensic evidence from mass graves was critical in proving genocide at Srebrenica.
- Failure to prevent or punish
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Evidence of inaction or deliberate negligence can establish liability. Examples:
• No disciplinary measures: Lack of investigations or punishments for reported crimes.
• Continuation of crimes: Crimes occurring repeatedly without intervention.
• Internal policies: Evidence of policies tolerating or enabling illegal actions.
Example: In Jean-Pierre Bemba, the ICC highlighted Bemba’s failure to prosecute or discipline soldiers, even after repeated reports of atrocities.
Application to the Netanyahu’s case
For Netanyahu, the ICC would likely focus on:
1.Knowledge:
• Public and internal reports about civilian casualties and humanitarian crises in Gaza.
• Warnings from the UN, NGOs, and other states regarding the impact of military actions and blockades.
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- Control:
• Netanyahu’s position as Prime Minister and documented oversight of military and government policies in Gaza.
• Evidence of his role in approving or continuing operations.
- Inaction:
• Failure to investigate or halt operations that led to civilian harm, despite repeated warnings.
• Continuation of policies restricting humanitarian aid, contributing to alleged starvation and suffering.
(Concluded)
Copyright Business Recorder, 2024
The writer is a PhD in International Law from Concordia College, LL.M from Washington University in St. Louis School of Law: MPA: University of Southern California. LL.B: Punjab University, an associate of Azimuddin Law Associates
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