Command responsibility: Mode of liability for the crimes of subordinates or separate offence of the superior?

Journal of International Criminal Justice

Volumn 5, Issue 3, 2007, Pages 619-637

  Meloni, Chantal ^a  

^a UNIVERSITY OF MILAN   (Italy)

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EID: 34547899225     PISSN: 14781387     EISSN: 14781395     Source Type: Journal    
DOI: 10.1093/jicj/mqm029     Document Type: Article

References (133)

1. Although the expression superior responsibility should be preferred since it comprises the military commander and the civilian superior, the traditional military expression command responsibility which is still largely in use, will also be used in this article without intending any substantial difference of meaning between the two expressions.
2. See K. Ambos, 'Superior Responsibility', in A. Cassese, P. Gaeta, J.R.W.D. Jones (eds), The Rome Statute of International Criminal Law Vol. I (Oxford: Oxford University Press, 2002) 825-848; as regards ICTY case law,
3. see Judgment, Delalić and others (IT-96-21-T), Trial Chamber, 16 November 1998, §§ 333, 343 (hereinafter Delalić and others Judgment).
4. 'As an accomplice' is used here not necessarily to describe the formal status of the superior pursuant to criminal law categories, but rather from the perspective of the consequences that attach to his liability. In international criminal law (following the Anglo-American system, as well as in many civil law countries) the accomplice is charged and convicted for the (same) crime committed by the perpetrators, i.e. for the principal crime, see E. van Sliedregt, The Criminal Responsibility of Individuals for Violations of International Humanitarian Law (The Hague: TMC Asser Press, 2003), 61 ff.
5. For an important contribution on the subject, see O. Triffterer, "'Command Responsibility" - crimen sui generis or participation as "otherwise provided" in Article 28 of the Rome Statute?', in J. Arnold (ed.), Menschengerechtes Strafrecht, Festschrift für Albin Eser (München: Beck, 2005), 901-924.
6. Judgment, Hadžihasanović (IT-01-47-T), Trial Chamber, 25 March 2006 (hereinafter Hadžihasanović Judgment), §68 ff.
7. See infra part 3B.
8. See The Prosecutions Appeal Brief, Orić (IT-03-68-A), 16 October 2006, §10 (hereinafter The Prosecution's Appeal Brief).
9. See the extensive analysis of M. Damaška, 'The Shadow Side of Command Responsibility', 49 American Journal of Comparative Law (2001) 455-496.
10. See Triffterer, supra note 4, at 903, with reference to the German Völkerstrafgesetzbuch of 2002, which adopted a different solution, defining the failure to control as a separate offence of the superior (§13), as well as the failure to report the crime to the competent authorities (§14).
11. Cf. infra note 108.
12. For an interesting historical survey of command responsibility for war crimes, see W.H. Parks, 'Command Responsibility for War Crimes, 62 Military Law Review (1973) 1-104.
13. See Judgment, Halilović (IT-01-48-T), Trial Chamber, 16 November 2005 (hereinafter Halilovi_cc Judgment), §3.
14. Art. 4 of the French Ordinance of 28 August 1944, in The UN War Crimes Commission, Law Reports of Trials of War Criminals 1947-48, Vol. IV (Buffalo: Hein, 1997) (hereinafter Law Reports), 87.
15. The responsibility of the superior who ordered or instigated the commission of the crimes by subordinates is often indicated as command responsibility lato sensu, to distinguish it from the responsibility of the superior who failed to prevent or repress the criminal conduct of subordinates (command responsibility stricto sensu).
16. This is, in our view, valid also with regard to Regulation 10 of the Canadian Act respecting war crimes of 1946 (in Law Reports, Vol. IV, 128-129)
17. and Regulation 8(ii) of the British Royal Warrant of 1945 (in Law Reports, Vol. 1, 108-199)
18. quoted by the Halilović judgment as examples of command responsibility. A provision about command responsibility stricto sensu was, instead, in the British Manual of Military Law (1958), see Parks, supra note 10, at 17-20.
19. In this regard see, B.V.A. Rölling, A. Cassese (ed.), The Tokyo Trial and Beyond: Reflections of a Peacemonger (Cambridge: Polity Press, 1993), 74 ff.
20. Highly significant proceedings on this issue include the Hostage trial and the High Command trial: See infra note 17.
21. Nuremberg Trial of the United States v. Wilhelm von Leeb (the High Command trial), in Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law No. 10, Vol. XI (Buffalo: Hein, 1997), 543-512 (hereinafter TWC).
22. See also U.S. v. Wilhelm von List (the Hostage trial), in TWC, Vols X and XI, 1271.
23. The charge against General Yamashita was to have 'unlawfully disregarded and failed to discharge his duty as a commander to control the operation of the members of his command, permitting them to commit brutal atrocities and other high crimes', in Law Reports, Vol. IV, 3 ff.
24. For a survey of the process see R. Lael, The Yamashita Precedent: War Crimes and Command Responsibility (Wilmington: Scholarly Resources, 1982).
25. The case of General Yamashita has been strongly criticized as an example of a conviction on the basis of strict liability: See M.C. Bassiouni, 'Ratione personae and elements of criminal responsibility', in Crimes against Humanity in International Criminal Law (2nd edn., The Hague: Kluwer Law International, 1999).
26. For a different interpretation, see Parks, supra note 10, 22 ff.
27. Quoted in L.C. Green, 'Command Responsibility in International Humanitarian Law', 5 Transnational Law and Contemporary Problems (1995) 319-371, at 336.
28. In this sense, Parks, supra note 10, 22 ff, however, concedes that the value of the Yamashita trial lies in the recognition of the existence of an affirmative duty of the superior to take the appropriate measures in his power to control his subordinates, and that the failure to discharge such duty constitutes a violation of the law of war.
29. See also the judgment of the US Supreme Court, in Re Yamashita, 327 U.S. 1 (1945).
30. Halilović Judgment, supra note 11, §48.
31. See Yamashita, supra note 19.
32. See also the Tokyo judgment of the International Military Tribunal for the Far East where the indictment separately charged those who 'ordered, authorized and permitted' to commit the violations of the laws of war (count 54) and those who 'deliberately and recklessly disregarded their legal duty to take adequate steps to secure the observance and prevent breaches' of the laws of war (count 55). Nearly the entire Japanese cabinet was found responsible for war crimes against prisoners under the latter count. As stated by judge Röling in his dissenting opinion, 'It seems that the judgment goes too far where it assumes the responsibility of every member of the government for the atrocities committed...'
33. See Cassese, supra note 15.
34. This was however not the case in the Tokyo judgment, supra note 23.
35. See Damaška, supra note 8, at 486.
36. 'The fact that any of the acts referred to in articles 2 to 5 of the present Statute was committed by a subordinate does not relieve his superior of criminal responsibility if...'An equivalent formulation is contained in Art. 6(3) ICTRSt.
37. Final Report of the Commission of Experts, UN Doc. S/1994/674, 27 May 1994.
38. Draft is available online at http://untreaty.un.org/ilc/texts/ instruments/english/draft%/20articles/7.3.1954.pdf (visited 8 May 2007).
39. For sake of clarity it should be noted that, although in the following analysis, reference has been made specifically to the jurisprudence of the ICTY, the ICTR has also extensively dealt with this subject and has issued important judgments on superior responsibility. See, for instance, the judgments against Kambanda, Musema, Barayagwiza and Kajelijeli.
40. Cf. supra note 2.
41. Delalić and others Judgment, supra note 2, §§ 331-333.
42. Halilović Judgment, supra note 11, 53.
43. Hadžihasanović Judgment, supra note 5, §69.
44. See The Prosecution's Appeal Brief, supra note 7, §§ 159 ff;
45. ibid., §152.
46. Judgment, Orić (IT-03-68-T), Trial Chamber, 30 June 2006, §§ 292-293 (hereinafter Orić Judgment).
47. Ibid., §293.
48. Ibid.
49. Ibid., §727.
50. The Prosecution's Appeal Brief, supra note 7, §152.
51. Ibid., §158.
52. Halilović Judgment, supra note 11, §54.
53. Ibid., §54.
54. See also Hadžihasanović Judgment, supra note 5, §§ 74-75.
55. Halilović Judgment, supra note 11, §54 (emphasis added).
56. Hadžihasanović Judgment, supra note 5, §2075.
57. It may be noted, however, that the uncertainty about the nature of this form of liability results in somewhat contradictory statements on the consequences of a conviction under Art. 7(3) ICTYSt. It is affirmed that the concept of superior responsibility is an exception to the general principles of criminal law, to the extent that it allows a superior to be held responsible for a crime even if he did not take any part in the commission of the crime and even if he did not have the intention to commit the crime, thus contradicting the assumption that the superior should be liable of a separate crime of omission. This judgment represents the first conviction on the sole basis of Art. 7(3) ICTYSt. Hadžihasanović Judgment, supra note 5, §§ 2075-2076.
58. Decision on interlocutory appeal challenging jurisdiction in relation to command responsibility, Hadžihasanović (IT-01-47-AR72), Appeals Chamber, 16 July 2003 (hereinafter Command Responsibility Appeal).
59. Partial dissenting opinion of Judge Shahabuddeen, Command Responsibility Appeal, Hadžihasanović, ibid., §32.
60. Separate and partially dissenting opinion of Judge Hunt, Command Responsibility Appeal, Hadžihasanović, ibid., §13.
61. The 'failure to act under a duty to do so' has been always recognized by the jurisprudence of the Tribunals as the essence of command responsibility; it is a duty that arises from the superior's possession of effective control over the subordinates; see Judgment, Tadić (IT-94-1-A), Appeals Chamber, 15 July 1999 (hereinafter Tadić Appeal Judgment), §98 ff. It should be recalled that not only those holding de jure positions of authority, but also those exercising de facto powers of control can be charged.
62. For a critical approach, see T. Weigend, 'Bemerkungen zur Vorgesetztenverantwortlichkeit im Völkerstrafrecht', Zeitschrift für die gesamte Strafrechtwissenschaft (2004) 1004-1005.
63. See The Prosecution's Appeal Brief, supra note 7, §152.
64. At least in the attempted form, see Orić Judgment, supra note 35, §330.
65. The fact that under international law the failure to exercise control properly is not punished does not exclude that it may have disciplinary or even criminal consequences under national law, see Triffterer, supra note 4, at 911.
66. Ibid., 911 ff.
67. On the problematic causal relationship between the failure to act and the crime committed, see K. Ambos, Der allgemeine Teil des Völkerstrafrecht, Ansätze einer Dogmatisierung (Berlin: Dunker & Humblot, 2002), 683 ff.
68. See the important contribution of O. Triffterer, 'Causality, A Separate Element of the Doctrine of Superior Responsibility as Expressed in Article 28 Rome Statute?', 15 Leiden Journal of International Law (2002) 179-205 and, partially critical, Weigend, supra note 49, 999 ff.
69. See Judgment, Blaškić (IT-95-14-A), Appeals Chamber, 29 July 2004, §73 ff.
70. See Orić Judgment, supra note 35, §338.
71. See Delalić and others Judgment, supra note 2, §§ 389 ff.
72. Ibid., §399 (emphasis added).
73. Ibid., §398.
74. This affirms the existence of a causal nexus to be proven by the Prosecutor, consisting in 'the superior's power to properly (and thus effectively) control and that without this failure to control, such crimes - at least most probably - would not have occurred, Triffterer, supra note 4, at 919 and more extensively, supra note 55.
75. The reasoning is of course different if the failure to punish is considered in relation to the commission of future crimes, see Triffterer, supra note 55, at 201-202. From this perspective the superior's failure to punish can be causally related in the sense that it does not deter the commission of future and imminent crimes by the same perpetrators.
76. See Orić Judgment, supra note 35, §338.
77. For a difficult reconciliation between the failure to punish and the element of causation in command responsibility, see again the position of Triffterer, supra note 55.
78. Judgment, Delalić and others (IT-96-21-A), Appeals Chamber, 20 February 2001 (hereinafter Delalić and others Appeal Judgment), §313 (emphasis added).
79. See Triffterer, supra note 4, 909.
80. Pursuant to Art. 7(3) of the Statute, in fact, the superior can be held responsible not only if he knew, but also if he had reason to know that his subordinates were about to commit crimes or had already committed them. On the interpretation of this controversial standard, see Delalić and others Appeal Judgment, supra note 64, §233 ff.
81. See Judgment, Krnojelac (IT-97-25-A), Appeals Chamber, 17 September 2003, §149 ff (hereinafter Krnojelac Appeal Judgment).
82. Delalić and others Appeal Judgment,supra note 64, §238.
83. Krnojelac Appeal Judgment, supra note 67, §155.
84. Orić Judgment, supra note 35, §315.
85. See again Triffterer, supra note 4, 909.
86. Cf. Halilović Judgment, supra note 11, §78;
87. Hadžihasanović Judgment, supra note 5, §75;
88. Orić Judgment, supra note 35, §293.
89. 'The literal meaning of Article 7(3) is not difficult to ascertain. A commander may be held criminally liable in respect to the acts of his subordinates in violation of Articles 2 to 5 of the Statute... The commander would be tried for failure to act in respect of the offences of his subordinates in the perpetration of which he did not directly participate': Delalić and others Appeal Judgment, supra note 64, §225 (emphasis added).
90. As consistently found from the Delalić and others Judgment, three elements need to be proven for superior responsibility to be found: (i) the superior-subordinate relationship; (ii) the mental element of the superior and (iii) the failure to take the necessary measures to prevent or punish. A fourth element can be added: The commission of the crime by person other than the superior, see Orić Judgment, supra note 35, §294 and related notes.
91. In order to assess accomplice liability for an intentional offence, the minimum criteria required are the accomplice's awareness of making a contribution that facilitated the commission of the crime and the substantial and direct effect of the contribution on the commission of the crime. See Judgment, Furundžija (IT-95-17/1-T), Trial Chamber, 10 December 1998, §§ 229 ff.
92. see also Art. 2 of the Draft Code of Crimes against the Peace and Security of Mankind of 1996 and its Commentary by the International Law Commission, supra note 28.
93. For a broader analysis, see E. Amati, 'Concorso di persone nel diritto penale internazionale', in Digesto Discipline Penalistiche, Appendice di approfondimento (Torino, 2004), 128 ff.
94. Orić Judgment, supra note 35, §727 (emphasis added).
95. Ibid., §726 with related notes.
96. Ibid., §§ 728-729. The Trial Chamber found that in determining the gravity of the subordinates' crimes in relation to the responsibility of the superior the following factors shall be considered: The legal nature of the offences, their scale and brutality, their impact upon the victims and their families and the extent of the long term physical, psychological and emotional suffering of the survivors.
97. Ibid., §724.
98. See Damaška, supra note 8.
99. Doctrinally, as it has been correctly affirmed, the concept of command responsibility falls between liability for omission and complicity, G. Werle, Völkerstrafrecht (Tübingen: Mohr Siebeck, 2003), 179.
100. The Garentenstellung imposed on the superior by international law reveals the rationale beyond such responsibility, aimed at strengthening the preventive and deterrent effect of international law provisions; see, in this sense, the affirmative duties established by Art. 87 additional protocol I of 1977 and its commentary by J. De Preux, 'Article 87', in C. Pilloud et al. (eds), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (Geneva: ICRC, 1987), 1017-1023.
101. G.P. Fletcher, Rethinking Criminal Law (Oxford: Oxford University Press, 2000), 454.
102. See Weigend, supra note 49, 1003-1004, referring to superior responsibility under Art. 28 as 'eine erweiterte Form der Haftung für fremdes Unrecht'.
103. A. Cassese, International Criminal Law (Oxford: Oxford University Press, 2003), 136 ff.
104. For the adoption of this principle by the Rome Statute, see N. Pisani, 'L'elemento psicologico del crimine internazionale nella parte generale della Corte penale internazionale', Rivista Italiana di Diritto e Procedura Penale (2001) 1370 ff.
105. See G. Carlizzi, 'L' hypothèse spéciale de responsabilité du supérieur hiérarchique dans le Statut du Tribunal Pénal internationale pour l'ex-Yougoslavie', in E. Fronza and S. Manacorda (eds), La justice pénale internationale dans les décision des tribunaux ad hoc (Milano: Giuffrè, 2003), 150.
106. It is 'logically appropriate and relevant for practical purposes of sentencing to draw a distinction between different classes' of command responsibility: See Cassese, supra note 85, at 206.
107. Where 'punish' in Art. 28 is intended to encompass the two expressions 'repress' and 'submit the matter to the competent authorities'.
108. Art. 28, holding responsible the superior that 'should have known' of the crimes, is a departure to the general mens rea rule provided for by Art. 30 ICCSt., pursuant to which to be criminally 'responsible and liable for punishment for a crime within the jurisdiction of the Court', it is required that 'the material elements are committed with intent and knowledge': See A. Eser, 'Mental Elements - Mistake of Fact and Mistake of Law', in Cassese, Gaeta, and Jones (eds), supra note 2, 889 ff.
109. Such knowledge can be proven directly or through circumstantial evidence, but can never be presumed, cf. Delalić and others Judgment, supra note 2, §§ 384-386: Judgment, Aleksovski (IT-95-14/1-T), Trial Chamber, 25 June 1999, §80.
110. As a general rule of criminal law, intent does not require only the willingness to commit or to omit something, but also knowledge (i.e. awareness) of the factual circumstances underlying the situation. On the two-fold notion of knowledge, and particularly on its role as a part of intent, see Cassese, supra note 85, at 162 ff.
111. See also, Fletcher, supra note 83, at 449.
112. This standard, although still debated, would introduce a form of negligent ignorance based on the violation of the duty to control subordinates imposed on the superior by international law: See K. Ambos, supra note 2, 864 ff.
113. Arguments along these lines are found, inter alia, in the US Model Penal Code, Art. 2.02(2)(d). For a brief survey on this matter, see M. Neuner, 'Superior responsibility and the ICC Statute', in G. Carlizzi, G. Della Morte, S. Laurenti and A. Marchesi (eds), La Corte Penale Internazionale (Napoli: Vivarium, 2003) 267-278.
114. This form of culpability, is similar to the standard the jurisprudence of the ICTY has referred to as wilful blindness, that is, when a superior 'ignores information within his actual possession compelling the conclusion that criminal offences are being committed, or are about to be committed'. Cf. Delalić and others Judgment, supra note 2, §387.
115. For the concept of recklessness, unknown in civil law (it falls between conscious negligence and dolus eventualis), see Fletcher, supra note 83.
116. See also the US Model Penal Code, Art. 2.02(2)(c). To consciously disregard, on one hand, implies that simple ignorance is not enough but, on the other hand, does not require that the superior desired or intended the crimes be committed; see Neuner, supra note 92, at 274-276.
117. On participation by omission in international criminal law, see the study of K. Welz, Die Unterlassungshaftung im Völkerstrafrecht (Freiburg, 2004), in particular, 241ff.
118. Pursuant to this principle, someone can be held criminally responsible for a result if, under a legal duty to do so, he fails to act in order to prevent the result, and a causal link exists between his failure to act and the result. Therefore, assuming that international law imposes on the superior a Garantenstellung consisting of the duty to control and to prevent the crimes of subordinates, such crimes can be attributed to the superior if he intentionally fails to fulfil his duty and they occur as a consequence of his failure. The principle of 'commission by omission' is not recognized by every national system: It is not recognized in France, but is recognized in Italy and Germany. For the USA system, but with a broader view, see Fletcher, supra note 83, at 581 ff.
119. See on Art. 30(2) ICCSt., Eser, supra note 89.
120. See A.M. Maugeri, 'La responsabilité des commandants dans le Statut de la Cour pénale internationale et la défense d'ordres supérieurs', in M. Chiavario (ed.), La justice pénale internationale entre passé et avenir (Milan: Giuffre, 2003), 263 ff.
121. The early jurisprudence of the ICTY recognized 'a requirement of intent, which involves awareness of the act of participation coupled with a conscious decision to participate by planning, instigating, ordering, committing, or otherwise aiding and abetting the commission of a crime', Judgment, Tadić (IT-94-1-T), Trial Chamber, 7 May 1997, § 674. The later jurisprudence generally adopted a lowered threshold of participation, emphasizing the cognitive element ('knowledge that the act will assist') over the volitional element. See Ambos, supra note 54, at 263-326; 362-370; 638 ff.
122. Under the Rome Statute, the mens rea threshold of complicity has been significantly raised: Art. 25(3)(c) now explicitly requires that the accomplice acts 'for the purpose of facilitating' the commission of the crime. Cf. A. Di Martino, 'La disciplina del concorso di persone', in A. Cassese, M. Chiavario, G. De Francesco (eds), Problemi attuali della giustizia penale internazionale (Torino: Giappichelli, 2005), 189 ff.
123. Art. 57 of the Italian Criminal Code, for instance, provides for a form of criminal liability of the director of a newspaper who negligently fails to exercise his duty to supervise for the wilful crimes committed by others though the newspaper. See F. Albeggiani, I reati di agevolazione colposa (Milan: Giuffre, 1984).
124. Cassese, supra note 85, at 207.
125. Similarly, Maugeri, supra note 98, at 268 ff.
126. The case at hand could also be considered as a form of accomplice liability, designed under the 'natural and probable consequence' doctrine, where the superior bears responsibility for all the foreseeable consequences of his conduct. This implies, however, that the superior has intent, or at least knowledge, with regard to his conduct, see T. Wu and Y. S. Kang, 'Criminal Liability for the Actions of Subordinates - the Doctrine of Command Responsibility and its Analogues in United States Law', 38 Harvard International Law Journal (1997) 272-297.
127. Liability for failure to punish could be theoretically based on the common law doctrine of the 'accessory after the fact', which is however obsolete and has been rejected as such: See the Defence's Motion to strike portions of indictment alleging 'failure to punish' liability, Čerkez (IT-95-14/2-PT), 11 December 1997. In any case, Art. 25 ICCSt. does not admit forms of complicity after the fact. See van Sliedregt, supra note 3, at 111 ff.
128. See Triffterer, supra note 55, at 179 ff.
129. For a partially critical view, see Weigend, supra note 49, at 999ff.
130. T. Weigend, 'Zur Frage eines internationalen allgemeinen Teils', in B. Schünemann (ed), Festschrift für Claus Roxin (Berlin, New York: Verlag de Gruyter, 2001), 1397.
131. Command responsibility should always be distinguished from the other forms of complicity provided for in Art. 25(3) ICCSt. Pursuant to Art. 28, superior responsibility is 'in addition to other grounds of criminal responsibility' under the Rome Statute. 'In the case where both the provisions, Articles 25 and 28, are applicable the active participation should always prevail': Triffterer, supra note 55, at 188.
132. The German Völkerstrafgesetzbuch (VStGB) of 2002, for instance, adopted a good solution on this point, in that it implemented the principle of superior responsibility in three different provisions having different requirements and consequences, see Weigend, supra note 49, at 1026-1027.
133. On the VStGB, see G. Werle and F. Jessberger, 'Das Völkerstrafgesetzbuch', Juristen Zeitung (2002), 729 ff. The majority of domestic legislations, (including Italy) are still missing a regulation on this point.