Superior responsibility under Article 28 ICC Statute: For what exactly is the superior held responsible?

Journal of International Criminal Justice

Volumn 5, Issue 3, 2007, Pages 665-682

  Nerlich, Volker ^a,b,c  

^a HUMBOLDT UNIVERSITY   (Germany)

^b UNIVERSITY OF THE WESTERN CAPE   (South Africa)

^c Kammergericht Berlin ^*

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EID: 34547914172     PISSN: 14781387     EISSN: 14781395     Source Type: Journal    
DOI: 10.1093/jicj/mqm033     Document Type: Article

References (80)

1. G. Werle, Principles of International Criminal Law (The Hague: T.M.C. Asser Press, 2005), margin number (hereinafter: 'mn.') 368,
2. citing K. Ambos, Der Allgemeine Teil des Völkerstrafrechts (Berlin: Duncker and Humblot, 2002), 667.
3. See also J. de Preux, in Y. Sandoz, C. Swinarski, and B. Zimmermann (eds), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (Geneva: Martinus Nijhoff Publishers, 1987), Art. 86, mn. 3527: 'We should, however, point out right from the start that determining the limits of responsibility for acts of omission gives rise to a number of problems of criminal law which have not yet been resolved.'
4. Art. 7(3) ICTYSt. reads as follows: '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 he knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.'Art. 6(3) ICTRSt. contains an identical provision for the International Criminal Tribunal for Rwanda.
5. Judgment, Hadžihasanović and Kubura (IT-01-47-T), Trial Chamber, 15 March 2006, §2076 (hereinafter: 'Hadžihasanović and Kubura Trial Judgment');
6. followed in ICTY, Judgment, Orić (IT-03-68), Trial Chamber, 30 June 2006 (hereinafter 'Oric' Trial Judgment'), §724.
7. Hadžihasanović and Kubura Trial Judgment, supra note 3, §2076.
8. Ibid., §§ 724 and 727.
9. Art. 28 ICCSt. reads as follows: 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 and 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 the 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 either 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; and (iii) The superior 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.
10. This question mirrors a related doctrinal problem that is much debated: is superior responsibility a special form of accessorial liability or perpetration or is it a distinct crime in itself? This debate is summarized by B.B. Jia. 'The Doctrine of Command Responsibility Revisited,' 3 Chinese Journal of International Law (2004) 1-42, at 13 et seq.
11. See also ICTY, Judgment, Halilović (IT-01-48-T), Trial Chamber, 16 November 2005 (hereinafter 'Halilović Trial Judgment'), § 54: 'The Trial Chamber finds that under Article 7(3) command responsibility is responsibility for an omission. The commander is responsible for the failure to perform an act required by international law... Thus "for the acts of his subordinates" as generally referred to in the jurisprudence of the Tribunal does not mean that the commander shares the same responsibility as the subordinates who committed the crimes, but rather that because of the crimes committed by his subordinates, the commander should bear responsibility for his failure to act' (footnote omitted);
12. and Judgment, Krnojelac (IT-97-25-A), Appeals Chamber, 17 September 2003, §171: 'It cannot be overemphasized that, where superior responsibility is concerned, an accused is not charged with the crimes of his subordinates but with his failure to carry out his duty as a superior to exercise control.' The jurisprudence of the ICTY on superior responsibility conveniently is accessible through Human Rights Watch (ed), Genocide, War Crimes and Crimes against Humanity/A Topical Digest of the Case Law of the International Criminal Tribunal for the Former Yugoslavia (New York et al.: Human Rights Watch, 2006), 446 et seq., available at http://www.hrw.org (last accessed on 31 January 2007).
13. See A. Cassese, International Criminal Law (Oxford: Oxford University Press, 2003), 206.
14. See Art. 28(a)(ii) and (b)(iii) ICCSt.: The superior 'failed to take all necessary and reasonable measures ... to prevent or repress [the] commission [of the crimes]'.
15. See further K. Ambos, 'Superior Responsibility, in A. Cassese, P. Gaeta, and J.R.W.D. Jones (eds), The Rome Statute of the International Criminal Court: A Commentary, Vol. I (Oxford: Oxford University Press, 2002), 823-872, at 863;
16. Werle, supra note 1, mn. 387.
17. See Art. 28(a)(ii) and (b)(iii) ICCSt.: The superior 'failed to take all necessary and reasonable measures ...to submit the matter to the competent authorities for investigation and prosecution'.
18. See further Ambos, supra note 9, at 863;
19. Werle, supra note 1, mn. 388.
20. For a discussion of whether Art. 28 ICCSt. requires a causal link between the superior's failure to act and the commission of the subordinate's crime see infra, Part 4.
21. In the jurisprudence of the ICTY the terms'imputed knowledge' or 'constructive knowledge' are occasionally used to describe this form of superior responsibility (see ICTY, Judgment, Kordić and Čerkez (IT-95-14/2-T), Trial Chamber, 26 February 2001 (hereinafter: Kordić and Čerkez Trial Judgment'), §429;
22. Orić Trial Judgment, supra note 3, §321;
23. Judgment, Brdanin (IT-99-36-T), Trial Chamber, 1 September 2004 (hereinafter: 'Brdanin Trial Judgment'), §278.
24. See, in respect of Art. 7(3) ICTYSt., Decision on the Prosecution's Motion to Amend the Indictment and Submission of Proposed Second Amended Indictment and Submission of Amended Pre-Trial Brief, Boškovski and Tarčulovski (IT-04-82-T), Trial Chamber, 26 May 2006, §§ 18 et seq.; followed in Orić Trial Judgment, supra note 3, §§ 297 et seq.
25. See Halilović Trial Judgment, supra note 7, §39;
26. Judgment, Obrenović (IT-02-60/2-T), Trial Chamber, 10 December 2003, §100.
27. Judgment, Delalić and others (IT-96-21-A), Appeals Chamber, 20 February 2001 (hereinafter: 'Delalić and others Appeals Judgment'), §256.
28. On that test see further E. van Sliedregt, The Criminal Responsibility of Individuals for Violations of International Humanitarian Law (The Hague: T.M.C. Asser Press, 2003), §144 et seq.
29. Judgment, Blaškić (IT-95-14-T), Trial Chamber, 3 March 2000 (hereinafter: 'Blaškić Trail Judgment'), §§ 300-302.
30. See also Judgment, Delalić and others (IT-96-21-T), Trial Chamber, 16 November 1998 (hereinafter: 'Delalić and others Trial Judgment'), §377: 'The doctrine of command responsibility is ultimately predicated upon the power of the superior to control the acts of his subordinates'
31. Halilović Trial Judgment, supra note 7, §57.
32. See, for example, Judgment, Limaj and others (IT-03-66-T), Trial Chamber, 30 November 2005 (hereinafter: 'Limaj and others Trial Judgment'), §522
33. Halilović Trial Judgment, supra note 7, §60;
34. Judgment, Blagojević and Jokić (IT-02-60-T), Trial Chamber, 17 January 2005 (hereinafter: Blagojević and Jokić Trial Judgment'), §791
35. Judgment, Kunarac and others (IT-96-23&23/1-T) Trial Chamber, 22 February 2001
36. Judgment, Aleksovski (IT-95-14/1-T), Trial Chamber, 25 June 1999 (hereinafter: 'Aleksovski Trial Judgment'), §76;
37. Delalić and others Appeals Judgment, supra note 15, §§ 192 et seq.
38. See, Brdanin Trial Judgment, supra note 12, §281;
39. Judgment, Stakić (IT-97-24-T) Trial Chamber, 31 July 2003, § 462;
40. Judgment, Bagilishema (ICTR-95-1A-T) Trial Chamber, 7 June 2001, §42;
41. Kordić and Čerkez Trial Judgment, supra note 12, § 416;
42. Judgment and Sentence, Musema (ICTR-96-13-T), Trial Chamber, 27 January 2000, §135;
43. Judgment, Kayishema and Ruzidana (ICTR-95-1 and ICTR-96-10-T), Trial Chamber, 21 May 1999, §213;
44. Delalić and others Trial Judgment, supra note 16;
45. Judgment, Akayesu (ICTR-96-4-T), Trial Chamber, 2 September 1998, §491;
46. on the development of the jurisprudence of the ICTR on this issue see J.A. Williamson, 'Command Responsibility in the Case Law of the International Criminal Tribunal for Rwanda, 13 Criminal Law Forum (2002) 365-384, at 366 et seq.
47. The jurisprudence of the ICTY is abundant on this issue; see, for example, Judgment, Blaškić (IT-95-14-A), Appeals Chamber, 29 July 2004 (hereinafter: 'Blaškić Appeals Judgment'), §67;
48. Delalić and others Appeals Judgment, supra note 15, § 251 et seq.;
49. Judgment, Strugar (IT-01-42), Trial Chamber, 31 January 2005 (hereinafter: 'Strugar Trial Judgment'), §§ 361 et seq.
50. If the superior actually ordered the commission of the subordinate's crime, the superior may incur liability for the base crime pursuant to Art. 25(3)(b), first alternative, ICCSL, or as perpetrator-by-means pursuant to Art. 25(3)(a), third alternative, ICCSt. In such situations, which sometimes are described as cases of direct superior responsibility (see A.M. Danner and J.S. Martinez, 'Guilty Associations: Joint Criminal Enterprise, Command Responsibility and the Development of International Criminal Law', 93 California Law Review (2005) 75-169, at 121;
51. G.R. Vetter, 'Command Responsibility of Non-Military Superiors in the International Criminal Court (ICC), 25 Yale Journal of International Law (2000), 89-143, at 99), the superior might be held responsible under Art. 25(3) ICCSt. as well as under Art. 28 ICCSt. because a superior who orders the commission of a crime necessarily also fails to prevent that crime. However, liability under Art. 28 ICCSt. is subsidiary to liability under Art. 25 ICCSt.;
52. see Werle, supra note 1, mn. 540.
53. The difference between knowledge superior responsibility before the act and perpetration-by-means seems to be that a perpetrator-by-means controls the overall commission of the crime;the direct actor is merely an instrument of the perpetrator-by-means (a classical example being the'innocent agent');
54. see K. Ambos, Internationales Strafrecht (Munich: Beck, 2006), § 7, run. 27;
55. A. Eser, 'Individual Criminal Responsibility, in A. Cassese, P. Gaeta, and J.R.W.D. Jones (eds), The Rome Statute of the International Criminal Court: A Commentary, Vol. I (Oxford: Oxford University Press, 2002), 767-822, at 793 et seq.;
56. C. Roxin, Tätersehaft und Tatherrschaft (7th edn., Berlin and New York: Walter de Gruyter, 2000), 142 et seq.
57. See Ambos, supra note 9, at 853;
58. I. Bantekas,'The Contemporary Law of Superior Responsibilty', 93 American Journal of International Law (1999) 573-595, at 575 et seq.
59. See Art. 1(1) Hague Regulations Respecting the Laws and Customs of War on Land: Art. 4(2)(a) Geneva Convention III.
60. See the cases cited supra, note 18.
61. See, for example, Judgment and Sentence, Ntagerura and others (ICTR-96-10A), Trial Chamber, 25 February 2004, §660.
62. This difference is only marginal: The base crime would qualify as a consequence' of the perpetrator's conduct in terms of Art. 30(2)(b) ICCSt.; therefore, it would suffice that the perpetrator 'is aware that it will occur in the ordinary course of events' to establish intent in this regard. It should be noted that in respect of all other material elements of knowledge superior responsibility, Article 30 ICCSt. applies. Thus, it is for example necessary that the superior's conduct was intentional and that he had knowledge of his or her position. On the interpretation of Art. 30(2)(b) ICCSt. see G. Werle and E Jessberger, '"Unless Otherwise Provided": Article 30 of the ICC Statute and the Mental Element of Crimes under International Criminal Law', 3 Journal of International Criminal Justice (2005) 35-55, at 41 et seq.
63. The ICTY has held that the prosecution need not necessarily prove the exact identity of the subordinates, but only the 'category'of the perpetrators (see Decision on the Defence Motion on the Form of Indictment, Krnojelac (IT-97-25-T), Trial Chamber, 24 February 1999, §46; Hadžihasanović and Kubura Trial Judgment, supra note 3, §90); it follows that the knowledge of the superior in that respect does not have to be detailed either.
64. Blagojević and Jokić Trial Judgment, supra note 17, §686.
65. Brdanin Trial Judgment, supra note 12, §§ 717 et seq.
66. See, for example, Hadžihasanović and Kubura Trial Judgment, supra note 3, §§ 187 et seq.
67. Halilović Trial Judgment, supra note 7, §78;
68. Brdanin Trial Judgment, supra note 12, §280;
69. Blaškić Appeals Judgment, supra note 19, §77.
70. This jurisprudence has been criticized for not complying with the culpability principle, see, for example, K. Ambos, supra note 20, §7, mn. 59.
71. See also Delalić and others Trial Judgment, supra note 16, §399: 'recognition of a necessary causal nexus may be considered to be inherent in the requirement of crimes committed by subordinates and the superior's failure to take the measures within his powers to prevent them.
72. Blaškić Appeals Judgment, supra note 19, §48.
73. Ibid.
74. Pursuant to Art. 21(1) ICCSt., the ICC shall apply, first of all, the ICCSt., the ICC RPE, and the Elements of Crimes. Customary international law or general principles of law, which might be reflected in decisions of the ICTY and ICTR, will only be relevant to the extent that the ICCs specific legal instruments do not regulate an issue;
75. see on that issue in respect to Art. 28 ICCSt.
76. Jia, supra note 7, at 33 et seq.
77. But see van Sliedregt, supra note 15, at 189 et seq.
78. As the relevant conduct of the superior is an omission (failure to prevent the crime), it is more appropriate to speak of a quasi-causal link, as - strictly speaking - an omission cannot cause a result; see further on this issue G.P. Fletcher, Basic Concepts of Criminal Law (Oxford and New York: Oxford University Press, 1998), 67 et seq.;
79. C. Roxin, Strafrecht Allgemeiner Teil/Band II: Besondere Erscheinungsformen der Straftat (Munich: Beck, 2003), 639 et seq.
80. Art. 7(3) ICTYSt. does not expressively stipulate that the superior's failure to act must have resulted in the subordinate's crime.