whether orders were acted upon;2149
formal procedures for appointment to office;2150
the position of the accused in the overall institutional, political and military
organisation;2 15 1
the actual tasks performed;2152
evidence that the accused has a high public profile;2 153
the accused's overall behaviour towards subordinates and his duties;2154
the accused's use of his extant authority to prevent crimes and mistreatment; 2155
the exercise of powers generally attached to a military comrnand;2156
the submitting of reports to competent authorities in order for proper measures
to be taken;2157 and
sanctioning power.2 158
Knowledge
- The Prosecution must show that a superior "knew or had reason to know that a
subordinate was about to commit a prohibited act or had done son.2159 The mental state
requirement can be satisfied either by actual knowledge, i.e., "actual notice", or by "notice of
the risk of such offencesn,2 160 i.e., "inquiry notice". The same state of knowledge is required
for both civilian and military commanders.2161 - Actual knowledge - is "defined as the awareness that the relevant crimes were
committed or were about to be committed",2162 and can be established through either direct or
circumstantial evidence.2163 This Tribunal has used the United Nations Commission of
Experts' non-exclusive list of factors to prove actual knowledge circumstantially: the number, type
and scope of the illegal acts; the time during which the acts occurred; the number and type of troops
involved; the logistics involved, if any; the geographical location of the acts; the widespread
occurrence of the acts; the speed of the operations; the modus operandi of similar illegal acts; the
officers and staff involved; and the location of the commander at the time.2164 An individual's
command position "per se is a significant indicium that he knew about the crimes committed by his
subordinatesn.2 165 - Alternatively, the accused "had reason to know" his subordinates were about to or had
committed certain offences, if he "had some general information in his possession, which would put
him on notice of possible unlawful acts by his subordinates7'.2166 Once he is "in some way put on
notice that criminal activity is afoot", then Article 7(3) imposes a duty on the superior "to obtain
information about crimes committed by subordinates".2167 For
example, the "widespread nature of large-scale atrocities over a long period of time" should
put an accused in a position of superior auth ority "on notice that crimes were being or had
been committed by his subordinates".2168 The indicia listed by the United Nations
Commission of Experts for actual notice can also be applied to inquiry notice.2169 - The general information putting a superior on notice "needs only to have been
provided or available to the superior, or ... 'in the possession of ".2l7O "It is not required that
he actually acquainted himself with the information".2171 Therefore, although Article 7(3) is
not a form of strict liability,2172 a superior is criminally responsible if he deliberately ignores
available information that would put him on notice.2173