Understanding mens rea in command responsibility: From Yamashita to Blaškić and beyond

Journal of International Criminal Justice

Volumn 5, Issue 3, 2007, Pages 638-664

  Martinez, Jenny S ^a  

^a STANFORD LAW SCHOOL   (United States)

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EID: 34547925664     PISSN: 14781387     EISSN: 14781395     Source Type: Journal    
DOI: 10.1093/jicj/mqm031     Document Type: Article

References (147)

1. With the inclusion of civilian leaders as well as military commanders, the phrase 'superior responsibility' has come to be used along with the older terminology of 'command responsibility'. This article uses the terms 'superior responsibility' and 'command responsibility' interchangeably.
2. In addition to this retributive justice rationale, some observers also hope that holding leaders responsible will provide some measure of deterrence or at least incapacitation, and may also serve restorative and expressive functions. Whether and how international criminal prosecutions deter criminal conduct are, of course, empirical questions that have yet to be answered. Conceptually, one might hypothesize that prosecution of a few high-level officials would be a more efficient means of deterrence than prosecuting numerous 'low-level' offenders. But see J. Ku and J. Nzelibe, 'Do International Criminal Tribunals Deter or Exacerbate Humanitarian Atrocities?' (draft manuscript on file with author, October 2006). The incapacitation argument in its international version posits that when leaders are imprisoned by an international court, they are disabled from playing a continuing leadership role in their societies, allowing those societies to move forward less encumbered by the burdens of the past. Rehabilitation of the individual offender is less often mentioned as a major rationale for international criminal law; alternative transitional justice mechanisms such as truth and reconciliation commissions are often suggested as better tools for rehabilitation of offenders.
3. See e.g. D.L. Nersessian, 'Whoops, I Committed Genocide! The Anomaly of Constructive Liability for Serious International Crimes', 30 Fletcher Forum on World Affairs (2006) 81;
4. A.T. O'Reilly, 'Command Responsibility: A Call to Realign the Doctrine with Principles of Individual Accountability and Retributive Justice', 40 Gonzaga Law Review (2004/2005) 127;
5. M. Damaška, 'The Shadow Side of Command Responsibility', 49 American Journal of Comparative Law (2001) 445.
6. See Danner and Martinez, supra note *, at 96-102.
7. See, e.g. Judgment, Kordić (IT-95-14/2), Appeals Chamber, 17 December 2004, at §834 (holding that prosecution can meet standard of proof beyond a reasonable doubt on elements of command responsibility by inferences and indirect evidence).
8. For example, the official English translation of a controversial Trial Chamber judgment in the Blaškić case translated the original French le dol éventuel as 'recklessness' in some places, see e.g. §474, and as 'negligence' in others, see e.g. §562 (Judgment, Blaškić (IT-95-14-T), Trial Chamber, 3 March 2000).
9. Infra, at 13-16 (text accompanying footnotes 49-67).
10. Art. 7(3) ICTYSt. and Art. 6(3) ICTRSt. is substantially the same, as are the provisions in the statutes for the Sierra Leone and East Timor special courts. See Agreement Between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone, 16 January 2002, Statute for the Special Court in Sierra Leone, Art. 6(3), available at http://www.sc-sl.org (visited 9 December 2006);
11. Reg. No. 2000/15 on the Establishment of Panels with Exclusive Jurisdiction over Serious Criminal Offences, UN Transitional Administration in East Timor, UN Doc. UNTAET/REG/2000/15 (2000), available at http://www.un.org/peace/etimor/untaetR/Reg0015E.pdf (visited 9 December 2006).
12. Art. 28 ICCSt.
13. See e.g. Kordić Appeals Judgment, §839.
14. See e.g. Nersessian, supra note 3.
15. See Judgment, Krstić (IT-98-33-A), Appeals Chamber, 19 April 2004, at §141 (discussing French, German, Swiss, English, Canadian, Australian and US law on the mens rea required for aiding and abetting).
16. Damaška, supra note 3, at 456.
17. Ibid., at 463-464.
18. When this article uses the terms purpose, knowledge, recklessness and negligence without further elaboration, it intends that they be interpreted pursuant to the MPC definitions.
19. American Law Institute, Model Penal Code (1962), at §2.02(2)(a).
20. Ibid., §2.02(2)(b).
21. Ibid., §2.02(2)(c).
22. Ibid., §2.02(2)(d).
23. See G.P. Fletcher, Basic Concepts of Criminal Law (Oxford: Oxford University Press, 1998), 115;
24. compare The Law Commission of England and Wales, Report on the Mental Element in Crime, Law Commission Report No. 89 (1978) with American Law Institute, Model Penal Code (1962).
25. See e.g. J. Kaplan, R. Weisberg and G. Binder, Criminal Law (5th edn., New York: Aspen, 2004), at 182-197.
26. G.P. Fletcher and J.D. Ohlin, 'Reclaiming Fundamental Principles of Criminal Law in the Darfur Case', 3 Journal of International Criminal Justice (2005) 539, at 554.
27. Judgment, Blaškić (IT-95-14-A), Appeals Chamber, 29 July 2004, at §§ 38-39;
28. A. Cassese, International Criminal Law (Oxford: Oxford University Press, 2003), at 168.
29. Fletcher and Ohlin, supra note 22, at 554.
30. Ibid.,
31. See also M.D. Dubber, 'Book review: Lutz Eidam, Making Comparative Criminal Law Possible [ührung in das US-amerikanische Strafrecht] (Munich: C.H. Beck, 2005)', 54 Buffalo Law Review (2006) 235 (suggesting that 'from a German perspective [that] the concept of recklessness is to be seen somewhere in between the German concepts of dolus eventualis and conscious negligence (bewusste Fahrlässigkeit)' and giving the example of 'an injury case where the actor was aware that something might happen to the victim but was not certain that it would happen might lead to different results under German and American mens rea schemes if the actor hoped that he would not hit another person' since in the German case it would depend on the actor's hope, while in the American it would depend on the level of risk).
32. Some common law systems attempt to capture something similar, though not identical, to dolus eventualis by asking things such as whether the defendant acted with 'an abandoned and malignant heart', in which case he will be liable for non-intentional murder. See Kaplan, Weisberg and Binder, supra note 21, at 384.
33. See e.g. Blaškić Trial Judgment, at §474.
34. See e.g. Blaškić Trial Judgment, at §562.
35. See D. Luban, 'Contrived Ignorance', 87 Georgetown Law Journal (1999) 957, at 960-961.
36. Ibid., at 960-961.
37. It would be impossible in a short article to summarize the literature from even one nation on this topic, but for a sampling of US commentary, see e.g. L. Alexander,'Insufficient Concern: A Unified Conception of Criminal Culpability', 88 California Law Review (2000) 931;
38. A.C. Michaels, 'Acceptance: The Missing Mental State', 71 South California Law Review (1998) 953;
39. K. Simons, 'Rethinking Mental States', 72 Boston University Law Review (1992) 463;
40. G.P Fletcher, Rethinking Criminal Law (Oxford: Oxford University Press, 1978), at 296-401.
41. See e.g. R. Weisberg,'Reappraising Complicity, 4 Buffalo Criminal Law Review (2000) 217.
42. Krstić Appeals Judgment, at §141 (surveying national practice).
43. See Fletcher, supra note 20, at 189 ('American and French law support the equivalent treatment of all parties, while German and Russian law incline to the view that accessories should be punished less severely'.).
44. See G.P Fletcher,'The Theory of Criminal Negligence, A Comparative Analysis', 119 University of Pennsylvania Law Review (1971) 401, at 403.
45. See, e.g. I. Dobinson,'The Criminal Law of the People's Republic of China (1997): Real Change or Rhetoric, 11 Pacific Rim Law and Policy Journal (2002) 1.
46. Although Art. 30 ICCSt. specifies that, unless otherwise provided, liability requires that the material elements of an offence be committed with 'intent and knowledge', this is not likely reflective of customary international law, and in any event does not attempt to define other relevant mental states. See Cassese, supra note 23, at 159-160.
47. IV Law Reports of Trials of War Criminals, at 35 (United Nations War Crimes Commission, 1947).
48. Ibid., at 15.
49. Ibid., at 16.
50. See Ibid., at 40 (Murphy, J., dissenting).
51. 327 US 1(1946), at 52 (Rutledge, J., dissenting). Justice Rutledge noted, for example, that the commision 'nowhere expressly declares that knowledge was essential to guilt' and that it was 'impossible' to determine whether Yamashita had been convicted for a 'willful, informed and intentional omission' or 'a negligent failure on his part to discover this and take what measures he then could to stop the conduct'.
52. Ibid.
53. Ibid.
54. A.F. Reel, The Case Against General Yamashita (Chicago: Chicago University Press, 1949), 174 ('There was no finding of any order, any knowledge, any condonation on General Yamashitd's part.').
55. See, e.g. W.H. Parks,'Command Responsibility for War Crimes, 62 Military Law Review (1973) 130-138;
56. Reel, supra note 44, at 169 (noting that the commission stated that' [t]he prosecution presented evidence to show that the crimes were so extensive and widespread, both as to time and area, that they must either have been willfully permitted by the accused, or secretly ordered by the accused but referring to prosecution evidence on treatment of prisoners as 'criminal neglect').
57. 327 US 1(1946), at 35 (Murphy, J., dissenting). Procedural irregularities in the trial were also the subject of dissent.
58. See ibid., at 40-41;
59. ibid., at 42 (Rutledge, J., dissenting).
60. See Reel, supra note 44, at 17;
61. Cassese, supra note 23, at 203;
62. Damaška, supra note 3, at 481;
63. M. Walzer, Just and Unjust Wars: A Moral Argument with Historical Illustrations (4th edn., Basic Books, 2006), 319-322.
64. Strict liability is not equally disfavoured in all legal systems. Nevertheless, systems that do allow strict liability in criminal cases typically do so for regulatory offences, and not for very serious crimes for which a defendant may receive a lengthy term of imprisonment or even a death sentence.
65. United States v. Wilhelm List and others, VIII Law Reports of Trials of War Criminals, at 34 (1949);
66. see also XI Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law No. 10 (1950).
67. VIII Law Reports of Trials of War Criminals, at 89 (noting by contrast that in the Yamashita trial 'few if any reports of atrocities committed were made to the accused and here it is probable that the widespread nature of the offences proved was an important factor in so far as it may have convinced his judges either that the accused must have known or must be deemed to have known of their perpetration, or that he failed to fulfil a duty to discover the standard of conduct of his troops').
68. XI Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law No. 10, United States v. Wilhem List and others (1950) 1303.
69. VIII Law Reports of Trials of War Criminals, at 70.
70. VIII Law Reports of Trials of War Criminals, at 70.
71. Ibid., at 71.
72. Ibid., at 1261.
73. XII Law Reports of Trials of War Criminals, at 76 (finding Yamashita 'not entirely applicable to the facts in this case for the reason that the authority of Yamashita in the field of his operations did not appear to have been restricted by either his military superiors or the state, and the crimes committed were by troops under his command, whereas in the case of the occupational commanders in these proceedings, the crimes charged were mainly committed at the instance of higher military and Reich authorities').
74. Ibid.
75. Ibid., at 77.
76. Ibid.
77. See Judgment, Delalić and others (IT-96-21-T), Trial Chamber, 16 November 1998, at 357-363.
78. The Tokyo War Crimes Trial, The International Military Tribunal for the Far East, Judgment, Official Transcript, Annex A-6, reprinted Vol. 20 (1981), at 48, 444-448.
79. Ibid.
80. See Parks, supra note 45, at 70.
81. Ibid., at 72 (quoting 19 United States v. Soemu Toyoda, Official Transcript, at 5005).
82. Ibid. (quoting 19 United States v. Soemu Toyoda, Official Transcript, at 5005-5006).
83. The Tokyo War Crimes Trial, The International Military Tribunal for the Far East, Judgment, Official Transcript, Annex A-6, reprinted Vol. 20 (1981), at 48, 444-448.
84. XII Law Reports of Trials of War Criminals, at 76.
85. See Parks, supra note 45, at 1 (My Lai);
86. W.D. Burnett, 'Command Responsibility and a Case Study of the Criminal Responsibility of Israeli Military Commanders for the Pogrom at Shatila and Sabra', 107 Military Law Review (1985) 80;
87. see also L.C. Green, 'Command Responsibility in International Humanitarian Law', 5 Transnational Law and Contemporary Problems (1995) 319.
88. Additional Protocol I, Art. 86(2).
89. See ICRC Commentary on Protocol I Additional to the Geneva Conventions of 1949, at 1013-1014.
90. Ibid.
91. Ibid., at 1011.
92. Ibid., at 1012.
93. Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), UN Doc. S/25704, 3 May 1993, at §56.
94. Final Report of the Commission of Experts Established Pursuant to Security Council Resolution 780 (1992), UN Doc. S/1994/674, 27 May 1994, at §58. The Commission listed a variety of factors that might be relevant to this inquiry, including '(a) The number of illegal acts; (b) The type of illegal acts; (c) The scope of illegal acts; (d) The time during which the illegal acts occurred; (e) The number and type of troops involved; (f) The logistics involved, if any; (g) The geographical location of the acts; (h) The widespread occurrence of the acts; (i) The tactical tempo of operations; (j) The modus operandi of similar illegal acts; (k) The officers and staff involved; (l) The location of the commander at the time'.
95. Judgment, Akayesu (ICTR 96-4-T), Trial Chamber, 2 September 1998.
96. Ibid., at §488.
97. Ibid., §489.
98. Ibid., §691.
99. See Delalić Trial Judgment.
100. Ibid., §363, 378.
101. Ibid., §386.
102. Ibid.
103. Judgment, Delalić and others (IT-96-21-A), Appeals Chamber, 20 February 2001, §239
104. Delalić Trial Judgment, §387.
105. Ibid.
106. Ibid., §414
107. (quoting United States v. Wilhelm List., XI Law Reports of Trials of War Criminals, 1230, 1271).
108. Ibid., §393.
109. Ibid., §720; §775, §810.
110. Delalić Appeals Judgment, at §241.
111. Ibid., §226.
112. Judgment, Blaškić (IT-95-14-T), Trial Chamber, 3 March 2000, §322.
113. Ibid., at §322.
114. See also Cassese, supra note 23, at 205 n. 8 (disagreeing with Delalić Appeal Chamber's decision that there is no duty of knowledge and citing contemporary state practice in support of a duty of knowledge requirement in customary law).
115. Blaškić Trial judgment, at §562.
116. Ibid., at §332.
117. Ibid., at §733. The finding here, as in several other places, is phrased in the alternative to a finding that General Blaškić had actual knowledge of the violations.
118. Blaškić Trial judgment, at §474.
119. Ibid., §562.
120. See generally Damaška, supra note 3.
121. Blaškić Appeals Judgment, at §62.
122. Blaškić Appeals Judgment, at §63
123. (quoting Bagilishema Appeals Judgment, at §§ 34-35).
124. Judgment, Halilović (IT-01-48-T), Trial Chamber, 16 November 2005, §§ 38-100;
125. Strugar (IT-01-42-T), Trial Chamber, 31 January 2005, §363.
126. Judgment, Semanza (ICTR-97-20-A), Appeals Chamber, 20 May 2005, §257.
127. Judgment, Orić (IT-03-68-T), Trial Chamber, 30 June 2006, §§ 295-306.
128. Halilović Trial Judgment, at §54.
129. But see ibid., §95.
130. See ibid., at §§ 67-71.
131. Art. 28 ICCSt.
132. See J. Henckaerts and L. Doswald-Beck (eds), Customary International Humanitarian Law, Vol. II: Practice (Cambridge: Cambridge University Press 2005), at 3728-3745 [collecting examples: Belgium ('should have known'); Canada ('should have known'); New Zealand ('should have known') and ('had information which should have enabled him to conclude, in the circumstances at the time'); United States Naval Handbook ('failed otherwise to take reasonable measures to discover and correct violations that may occur')].
133. Ibid., at 3745-3751 [collecting examples: Argentina Draft Code of Military Justice ('possessed information leading him to conclude, in the circumstances at the time'); Armenia Penal Code ('had information which should have enabled him to conclude in the circumstances at the time'); Azerbaijan Criminal Code (section titled 'Negligence or giving criminal orders in time of armed conflict'); Bangladesh International Crimes (Tribunal) Act (imposing liability on officer who 'fails or omits to discharge his duty to maintain discipline, or to control or supervise the actions of the persons under his command or his subordinates, whereby such persons or subordinates or any of them commit any such crimes'); Cambodia Law on the Khmer Rouge Trial ('knew or had reason to know'); Canada's Crimes against Humanity and War Crimes Act (officers who were 'criminally negligent in failing to know that the person is about to commit or is committing such an offence'); Draft Amendments to Penal Code of El Salvador ('knew or had information that permitted them to conclude, in the circumstances of the time'); Germany's Law Introducing the International Crimes Code (separately designating crime of 'violation of the duty of supervision' for a military commander who 'intentionally or negligently omits properly to supervise a subordinate' where 'the imminent commission of such an offence was discernible to the commander and he or she could have prevented it'); Netherlands International Crimes Act ('culpably neglects to take measures ... where he has reasonable grounds for suspecting that a subordinate has committed or intends to commit such an offence'); Rwanda Law Setting up Gaeaca Jurisdiction ('knew or could know'); Sweden Penal Code ('superior shall also be sentenced in so far as he was able to foresee the crime')].
134. Ibid., at 3728-3745 [Netherlands Military Manual ('he must have known about it or at least have had the necessary information about it'); Switzerland military manual ('had received intelligence enabling them to deduce'); United Kingdom Military Manual ('should have knowledge through reports received by him'); United States Army Manual 'should have knowledge, through reports received by him or through other means')].
135. Ibid. [summarizing Canada's Boland case (court martial increasing sentence on defendant commander of soldiers who killed a Somali prisoner based on the fact that 'he had been negligent' and 'negligence led to the death of a prisoner'); Canada's Brocklebank case ('standard of care applicable to the charge of negligent performance of a military duty is that of the conduct expected of the reasonable person of the rank and in all the circumstances of the accused at the time of place the alleged offence occurred.'); Indonesia, Ad Hoc Tribunal on Human Rights for East Timor, judgment of 14 August 2002 in the Abilio Soares Case (liability imposed on superiors who 'had the information which enabled him/her to conclude that subordinates had or were going to commit crimes')].
136. Parks, supra note 45, at 3.
137. Ibid., at 4.
138. Ibid., at 5.
139. See e.g. In re Yamashita, 327 US 1, at 15-16 (1946) (citing 1907 Hague Convention).
140. Annex to 1907 Hague Convention IV, Regulations Respecting the Laws and Customs of War on Land, Art. 1.
141. III Geneva Convention Relative to the Treatment of Prisoners of War (1949), Art. 4(2)(a).
142. Of course, obedience to superior orders is not a defence when the orders are unlawful.
143. See e.g. J. Waller, Becoming Evil: How Ordinary People Commit Genocide and Mass Killing (New York: Oxford University Press, 2002), 29-49 (describing social science research on the role of group dynamics in the commission of mass atrocities).
144. Ibid.
145. See P. Zimbardo, The Lucifer Effect: Understanding How Good People Turn Evil (New York: Random House, 2007), 258-323 (surveying and analysing literature).
146. M. Humphreys and J.M. Weinstein, 'Handling and Manhandling Civilians', 100 American Political Science Review (2006) 429.
147. See supra notes 109-112.