Doctrines of International Criminal Law

Author:Andreas O'Shea

Page 95

1 Introduction

In this chapter various doctrines that are essential to the proper understanding of international criminal law, from command responsibility to amnesties, are considered. These legal doctrines, which are more or less exclusive to international criminal law, have emerged from the jurisprudence of the international ad hoc tribunals, national courts and international legal instruments. They are often linked to the unique nature of the core crimes prosecuted in international tribunals that will form the subject matter of prosecutions in domestic courts under the complementarity regime.

2 Command Responsibility
2. 1 Foundation of the doctrine of command responsibility

Command responsibility is a form of liability for or mode of participation in international crimes.1 It is the responsibility of a person in a position of command for the commission of crimes by those under his command. The term 'superior responsibility' is sometimes used, but it is perhaps less appropriate because command responsibility derives not only from a superior status but also from the duties and control attached to a position of command. In other words, it is the subordinate position rather than merely the inferior status of the main perpetrator of a crime that invokes command responsibility.

Command may be military or civilian. However, the notion of command responsibility has been most often employed in the military context and there are firm indications in the jurisprudence that civilian command responsibility is less easily invoked.2

Command responsibility deriving from the giving of orders to commit a crime under international law creates little difficulty in terms of determining liability since the commander has in such cases directly instigated the unlawful conduct. Where command responsibility is most contentious and difficult to determine is in cases of responsibility by virtue of the failure to control the unlawful conduct of subordinates. The term 'command Page 96 responsibility' is in current times often confined to this more controversial aspect of the responsibility of a commander, and it is on this aspect that the following discussion will focus.

The legal basis for the doctrine is customary international law, that is to say, a general State practice accompanied by opinio juris (accepted as law: that the practice is done through a sense of legal obligation).3 The evidence of a customary norm on command responsibility is principally derived from Protocol I to the Geneva Conventions of 1949, with international and national case law4 as a secondary indication of the state of this customary doctrine.

In terms of Article 87 of Protocol I:

1 The High Contracting Parties and the Parties to the conflict shall require military commanders, with respect to members of the armed forces under their command and other persons under their control to prevent and, where necessary, to suppress and report to competent authorities breaches of the Conventions and of this Protocol.

2 In order to prevent and suppress breaches, High Contracting Parties and the Parties to the conflict shall require that, commensurate with their level of responsibility, commanders ensure that members of the armed forces under their command are aware of their obligations under the Conventions and this Protocol.

3 The High Contracting Parties and Parties to the conflict shall require any commander who is aware that subordinates or other persons under his control are going to commit or have committed a breach of the Conventions or of this Protocol, to initiate such steps as are necessary to prevent such violations of the Conventions or this Protocol, and, where appropriate, to initiate disciplinary or penal action against violators thereof.

Article 86 sets out the foundation for command responsibility for the war crimes of subordinates:

1 The High Contracting Parties and the Parties to the conflict shall repress grave breaches, and take measures necessary to suppress all other breaches, of the Conventions or of this Protocol which result from a failure to act when under a duty to do so.

2 The fact that a breach of the Conventions or of this Protocol was committed by a subordinate does not absolve his superiors from penal or disciplinary responsibility, as Page 97 the case may be, if they knew or had information which should have enabled them to conclude in the circumstances at the time, that he was committing or was going to commit such a breach and if they did not take all feasible measures within their power to prevent or repress the breach.

This contains a direction to States to sanction any failure to act that resulted in a grave breach of the Geneva Conventions.5 There is further the establishment of a principle of command responsibility to the effect that where a superior was aware or ought in the circumstances to have been aware from information available to him that a breach was being or about to be committed, he will be responsible for the failure to take all feasible measures within his power to prevent or repress the breach. Further, while Article 87 appears to focus on the duties of commanders, as opposed to policy makers, Article 86 by its reference to 'superiors' rather than 'commanders' makes no such distinction, or for that matter any distinction, between civilian and military superiors. On the other hand, it also endorses the fact that the mere position of command or superiority does not in itself imply command responsibility.

The principle of command responsibility for superiors as encapsulated in Article 86 therefore contains three essential elements: (1) there must be a superior-subordinate relationship; (2) there must be a degree of knowledge, actual or constructive, of the wrongdoing or potential wrongdoing of the subordinate; and (3) the superior must have failed to act in relation to this wrongdoing. These three basic limbs to command responsibility have been retained in subsequent formulations in the Statutes of the International Criminal Tribunals for the former Yugoslavia and Rwanda (ICTY and ICTR), the Special Court for Sierra Leone and the International Criminal Court (ICC).6

These courts all incorporate the general principle of law (known by the maxim nullum crimen sine /egejthat a person should not be punished without the pre-existence of a law that was foreseeable and accessible, i.e., that statutes should not apply retroactively. It results from this principle that a form of liability, like a crime, must be not only envisaged in the Statute of the Court but reflected in general international law.7 In the case of command responsibility it is founded in customary international law in that it has been retained in widely representative international instruments and implemented by international and national courts to the extent that one can speak of a general state practice accompanied by opinio juris.

The understanding of this form of liability under customary law has been developed through the jurisprudence of the ICTY and ICTR. In particular, some clarity has been reached with respect to the three essential elements - subordination, knowledge and failure to act - and the application of command responsibility to civilian commanders and to internal as well as international armed conflicts. Page 98

2. 2 The application of command responsibility under the ICC Statute

The Statute of the ICC incorporates the most advanced and detailed exposition of the concept of command responsibility to date. Thus, Article 28 reads:

"In addition to other grounds of criminal responsibility under this Statute for crimes within the jurisdiction of the Court:

(a) A military commander or person effectively acting as a military commander shall be criminally responsible for crimes within the jurisdiction of the court committed by forces under his or her effective command or control, or effective authority and control as the case may be, as a result of his or her failure to exercise control properly over such forces, where:

(i) That military commander or person either knew or, owing to circumstances at the time, should have known that the forces were committing or about to commit such crimes; and

(ii) That military commander or person failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.

(b) With respect to superior and subordinate relationships not described in paragraph (a), a superior shall be criminally responsible for crimes within the jurisdiction of the Court committed by subordinates under his or her effective authority and control, as a result of his or her failure to exercise control properly over such subordinates, where:

(i) The superior knew, or consciously disregarded information which clearly indicated, that the subordinates were committing or about to commit such crimes;

(ii) The crimes concerned activities that were within the effective responsibility and control of the superior;

(iii) The superior failed to take all necessary and reasonable measures within his...

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