A/HRC/41/CRP.1 prosecution. Enforced disappearance is a crime even when it is committed sporadically, and not on a gross scale or systematic basis. 246. The Convention, along with the jurisdiction developed by the International Criminal Court (ICC) and ad hoc tribunals, stipulates that superiors can be criminally responsible if there is “the existence of a superior-subordinate relationship”; they “knew or consciously disregarded information which clearly indicated that subordinates were about to commit or had committed criminal acts; and “the superior failed to take the necessary and reasonable measures to prevent the criminal act or punish the perpetrator thereof.” 218 The superior/subordinate relationship need not be formal, as long as the superior had “effective control” 219 over the subordinate, and superior officers can be held responsible for subordinates of subordinates220. Conversely, superiors whose subordinates are committing crimes upon the orders of even higher-level officials remain responsible for taking reasonable and necessary steps to prevent and punish these crimes.221 247. The superior becomes responsible for their inaction “from the point at which he ‘knew or had reason to know’ of the crimes committed”. 222 A superior had reason to know “only if information was available to him which would have put him on notice of offences committed by subordinates.”223 248. Failure to punish is a crime in and of itself, and punishing the crime after the fact does not excuse or eliminate liability for any prior failure to prevent the crime.224 The response must be “necessary and reasonable” and the thoroughness of any investigation is a factor in deciding whether this obligation has been met.225 Effectively, the question is whether the superior “genuinely tried to prevent or punish” the crimes. 226 If the superior knows that reporting to authorities is “likely to trigger an investigation that was a sham, such a report would not be sufficient to fulfil the obligation to punish offending subordinates.” 227 249. The responsibility of high-level officials is not a derivative form of criminal responsibility but instead is designed to impose individual criminal responsibility for a superior’s own role in permitting gross violations of international criminal law to occur or, by failing to investigate or punish those violations, to recur228. Credible Evidence Warranting Further Investigation of Top Saudi Officials 250. The Special Rapporteur addresses the question of credible evidence warranting further investigation of high-level officials currently not being criminally charged, specifically Saud Alqahtani, and the Crown Prince Mohammed bin Salman. No conclusion is made as to guilt. 218 219 220 221 222 223 224 225 226 227 228 50 Prosecutor v. Delalić, Mucić, Delić and Landžo, Case No. IT-96-21-T, Judgement, 16 November 1998 (Čelebići Trial Judgement), para. 346. Article 28(b)(i) of the Rome Statute; UN Convention on the Protection of All Persons from Enforced Disappearance, Article 6(1)(b). The Rome Statute and the UN Convention requires conscious disregard, while the Ad Hoc tribunals use the standard “knew or had reason to know.” Čelibići Trial Judgement, para. 378. Boas, Gideon et al., International Criminal Law Practitioner Library: Vol. 1, Forms of Responsibility in International Criminal Law (Cambridge University Press: Cambridge 2008) at 191. Prosecutor v. Popović et al, Case No. IT-05-88-A, Appeal Judgement, 30 January 2015, para 1931. Prosecutor v. Kvoćka et al, Case No. IT-98-30/1-T, Trial Judgement, 2 November 2001, para 317. Prosecutor v. Delalić, Mucić, Delić and Landžo, Case No. IT-96-21-A, Appeal Judgement, 20 February 2001, para 241. Boas, Gideon et al., Forms of Responsibility in International Criminal Law, at 179. Boas, Gideon et al., Forms of Responsibility in International Criminal Law, at 233. Prosecutor v. Popović et al, para. 1927. Prosecutor v. Boškoski and Tarčulovski, Case No. IT-04-82-A, Appeal Judgement, 19 May 2010, para. 234. Prosecutor v. Blaškić, Case No. IT-95-14-T, Judgement, 3 March 2000, para. 261 (individual criminal responsibility if superior did not “prevent crimes from being committed by his subordinates or, where applicable, punish them”).