Convictions for Command Responsibility Under Articles 7(1) and 7(3) of the Statute of the International Criminal Tribunal for the Former Yugoslavia

Abstract

This article discusses whether it is permissible to cumulatively convict a superior under both Articles 7(1) and 7(3) of the ICTY Statute. After introducing the various modes of command responsibility under each provision, the discussion is premised on the double jeopardy/non bis in idem concerns underlying the case law of the Tribunal, and that of the ICTR, in relation to cumulative convictions for substantive offences. The article first presents arguments supporting the proposition that superiors should not be held cumulatively responsible under the aforementioned provisions. It then presents arguments to the contrary, including considerations in relation to the impact on sentencing. In this light, the article critically appraises the case law of both Tribunals.