Please write a memorandum to your supervisor, a new ICC Judge, discussing superior responsibility and analyzing case law, including: A. Elements of superior responsibility at ICTY under Art

International Criminal Law - Superior Responsibility

Assignment 1 (Individual Criminal Responsibility) (Townsend)

The assignment represents 50% of course grade.

Please write a memorandum to your supervisor, a new ICC Judge, discussing superior responsibility and analyzing case law, including:

A. Elements of superior responsibility at ICTY under Art. 7(3);

B. Elements of superior responsibility at ICC under Art. 28;

C. Similarities and differences between these provisions of the ICTY and the ICC;

D. A detailed analysis of the holdings of the ICC Appeal Judgement in the Bemba case (8 June 2018), as composed of the four opinions (majority, separate and dissenting opinions), especially as to:

(1) mens rea;

(2) a superior’s duty to take reasonable and necessary measures to prevent, punish or submit the matter to competent authorities;

(3) notice now required to charge a commander for his/her failure to take reasonable and necessary measures, and;

(4) causation.

E. Please also end your memo with a recommendation as to which
approach the ICC should take in the future to settle the question of the applicable mens rea for superior responsibility at the ICC, by providing a reasoned argument.

Grading:

A to C. One point will be awarded for an accurate and clear answer addressing each of parts A, B and C.

D. Four points will be awarded for an accurate and clear answer addressing part D. E. Two points will be awarded for part E

One point will be awarded for presentation / structure / formatting / style / use of standard English.
An excellent memo will accurately analyse the legal provisions, relevant jurisprudence, note areas of contention, focus on the issue, provide the clear, critical thinking of the author, and use correct citation format.

FOOTNOTE -OSCOLA

Example Answer

Memorandum
To: [Supervisor’s Name], ICC Judge
From: [Your Name], [Your Position]
Date: [Current Date]
Subject: Analysis of Superior Responsibility under Article 7(3) of the ICTY Statute

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Dear [Supervisor’s Name],

Introduction
This memorandum provides an overview of superior responsibility as set out under Article 7(3) of the Statute of the International Criminal Tribunal for the former Yugoslavia (ICTY). The doctrine of superior responsibility holds commanders and civilian superiors accountable for the crimes committed by their subordinates if specific criteria are met. I will analyse the key elements required to establish such responsibility and examine pertinent case law to illustrate how these elements have been applied.

A. Elements of Superior Responsibility under Article 7(3)
Article 7(3) of the ICTY Statute outlines three principal elements that must be satisfied to establish superior responsibility:

1. Existence of a Superior-Subordinate Relationship
   The superior must have had effective control over the subordinate, meaning they had the authority to prevent or punish the subordinate’s criminal conduct. This control may be de jure (formal, legal authority) or de facto (practical control). The superior-subordinate relationship has been interpreted expansively to include both military and civilian hierarchies. In Prosecutor v. Delalić et al. (Čelebići Case), the ICTY held that de facto control suffices for establishing responsibility, even if there is no formal position of authority.

2. Knowledge or Reason to Know of the Crime
   The superior must have known, or had reason to know, that their subordinates were committing or about to commit crimes. This element can be proven through direct knowledge or through circumstantial evidence suggesting that the superior, in their position, would have had access to information regarding the criminal acts. In Prosecutor v. Blaškić, the Trial Chamber found that a superior had constructive knowledge when they had information that should have alerted them to the need for further investigation.