Bridging the Conceptual Chasm: Superior Responsibility as the Missing Link between State and Individual Responsibility under International Law

Leiden Journal of International Law

Volumn 18, Issue 4, 2005, Pages 795-828

  Reid, Natalie L ^a  

^a International Criminal Tribunal for the former Yugoslavia   (United States)

Author keywords

command responsibility; criminal; individual; international relations; state responsibility; superior responsibility

Indexed keywords

EID: 84968751841     PISSN: 09221565     EISSN: 14789698     Source Type: Journal    
DOI: 10.1017/S0922156505003018     Document Type: Article

References (138)

1. Judgment of the International MilitaryTribunal for the Trial of German Major War Criminals, 30 September-1 October 1946, ‘The Law of the Charter’, reprinted in HisMajesty's Stationery Office,Misc. no. 12 (1946), at 41.
2. Prosecutor v. Blaškić, Judgment on the request of the Republic of Croatia for Review of the decision of Trial Chamber II of 18 July 1997,CaseNo. IT-95-14-AR108 bis,App.Ch., 29Oct. 1997 (hereafterBlaškić Interlocutory Appeal), para. 25.
3. While there are several possible models for analysing the international system, the two that are presented here-institutionalism and liberalism-find the strongest support in the scope, content, and contours of contemporary international law. Both theories emerged in response to realism, which was the dominant theory of international politics for much of the twentieth century. Many of the principles of international law are rooted in and, in fact, fit most easily with realism. Nevertheless, to the extent that it is possible to generalize, the trends in current and developing international law-particularly those in the areas of lawthat are the focus of this article-resonate much more with the two views discussed below. See A.-M. Slaughter, ‘International Law and International Relations Theory: A Dual Agenda’, (1993) 87 AJIL 205, at 206.
4. The notion that the principal actors in international relations are states does not originate with institutionalism, but rather is one of the central assumptions of both classical political realism and structural realism. See, e.g., H.Morgenthau, Politics Among Nations: The Struggle for Power and Peace (1948), and K.Waltz, Man, the State, andWar: A Theoretical Analysis (1959). What distinguishes institutionalism from realism are precisely the characteristics described above: instead of positing a zero-sum game in which actors’ interests are necessarily conflictual, institutionalists argue that ‘“rules, norms, principles, and decision-making procedures” can mitigate the effects of anarchy and allow states to cooperate in the pursuit of common ends’. A.-M. Slaughter, ‘International Law and International Relations’, in Hague Academy of International Law, (2000) 285 Recenil des Cours 9, at 18 (citing S. D. Krasner, ‘Structural Causes and Regime Consequences: Regimes as Intervening Variables’, in S. D. Krasner (ed.), International Regimes (1982), at 2).
5. For the pure IR theory view of liberalism, see A.Moravcsik, ‘Taking Preferences Seriously: A Liberal Theory of International Politics’, (1997) 51 International Organization 513; for the application of liberal IR theory to law, discussing the individualization of international law, see Slaughter, The notion that the principal actors in international relations are states does not originate with institutionalism, but rather is one of the central assumptions of both classical political realism and structural realism note 3; A.-M. Slaughter and W. Burke-White, ‘An International ConstitutionalMoment’, (2002) 43Harvard International Law Journal 1, at 13-16. Unless otherwise specified, the term ‘liberal’ is used in this article to refer to IR liberalism.
6. See generally H. J. Steiner and P. Alston, International Human Rights in Context: Law, Politics,Morals (2000), at v, vii-viii; H.Hannum, ‘The Status of theUniversal Declaration ofHuman Rights inNational and International Law’, (1995/1996) 25 Georgia Journal International & Comparative Law 287; J. S. Gibson, ‘International Human Rights Law: Progression of Sources, Agencies, and Law’, (1990) 14 Suffolk Transnational Law Journal 41.
7. ‘Regime’ is not used here as a term of political science or international relations theory, and therefore is not meant to invoke Stephen Krasner's definition, ‘sets of implicit or explicit rules, norms, principles and decision-making procedures around which actors’ expectations converge’. See International Human Rights in Context: Law note 4. Under this definition, international law itselfmay be seen as a regime. Indeed, the term ‘regime’ has come to be replaced in international relations theory with ‘institution’, and the phenomena that it describes are the focus of institutionalist theory. Instead, ‘regime’ is used in the more limited (though related) sense of a legal regime, defined as ‘a set of rules, policies, and norms of behaviour [within a legal system] that cover any legal issue and that facilitate substantive or procedural arrangements for deciding that issue’. Black's Law Dictionary (1999) at 1286.
8. ThejurisprudenceoftheInternationalCriminalTribunalfor theformerYugoslaviaonArt.2of thatTribunal's Statute-pertaining to grave breaches of the Geneva Conventions-could also be read to establish some relationship between state and individual criminal responsibility. The Tribunal has repeatedly held that in order for the Geneva Conventions to apply to an armed conflict, that conflict must be international in nature. See, e.g., Prosecutor v. Brdanin, Judgment, CaseNo. IT-99-36-T, T. Ch. II, 1 Sept. 2004, para. 121; Prosecutor v. Blaškić, Judgment, Case No. IT-95-14-A, App. Ch., 29 July 2004 (Blaškić Appeal Judgment), para. 170. One way in which a conflict may be termed international, or may become internationalized, is if some of the participants in an internal armed conflict act on behalf of another state. The Tribunal applies three tests, each specific to the circumstances of the conflict, to determine the degree of control necessary to deem the participants in an internal conflict de facto state organs, i.e., acting on behalf of a state, and each relies on the rules of the state responsibility regime. See, e.g., Prosecutor v. Tadić, Judgment, Case No. IT-94-1-A, App. Ch., 15 July 1999, paras. 118, 120, 124-131, 132-138, 141-144. The Tribunal's reliance on state responsibility principles, however, is restricted to the determination of whether the general requirements of Art. 2 have been satisfied, and the crime in question is therefore punishable as a grave breach. Since this limited use does not extend to the determination of an individual accused's culpability, it establishes no real theoretical link between the two responsibility regimes.
9. This argument applies not only to the highest leaders of a state-where it may seem intuitively evident-but also to lower-level military and civilian superiors. See infra section 3.
10. To the extent that state responsibility has a domestic analogue, it is civil liability. See infra note 73 and accompanying text.
11. ThePeace ofWestphaliawasa set ofEuropean treaties, concluded in 1648,whichbrought to an end the Eighty YearsWar between Spain and the Dutch, and the German phase of the Thirty YearsWar. In its limitation of the power of the Holy Roman Empire, it is traditionally seen as the beginning of the modern state system, and is generally cited as the classic legal codification of an international political system based on sovereign states.
12. See, e.g., L. Oppenheim, International Law: A Treatise, ed. H. Lauterpacht (1955) (hereafter Lauterpacht), § 164 ('International Law imposes the duty upon every State as far as possible to prevent its own subjects, and such foreign subjects as live within its territory, from committing injurious acts against other States') (emphasis added); L. F. Damrosch et al., International Law: Cases andMaterials (2001) ('State responsibility for injuries to aliens. was not seen as creating rights for the alien under international law; he or she would benefit because the law sees an offense to the individual as an offense against the state whose nationality the individual bears; remedies for violation of those norms are accorded to the state').
13. P. C. Jessup, AModern Law of Nations (1948), at 98.
14. See, e.g., AModern Law of Nations., at 97. But see J. L. Brierly, The Law ofNations (1954), at 217-31 (not discussing the nascent law of human rights in his treatment of state jurisdiction over aliens and the principles of diplomatic protection).
15. D. Bodansky andJ. R. Crook, ‘Symposium:TheILC's StateResponsibilityArticles, IntroductionandOverview’, (2002) 96 AJIL 773, at 775.
16. InternationalLawCommission, ‘DraftArticles onResponsibility of States for InternationallyWrongfulActs’, in Report of the International Law Commission on theWork of Its Fifty-Third Session, UNGAOR, 56th Sess., Supp. No. 10, at 43, UN Doc. A/56/10 (2001) (hereafter ILC Articles).
17. See generally F. V. Garcý a-Amador, First Report on International Responsibility, (1956) 2 Yearbook of the International Law Commission 173, UN Doc. A/CN.4/SER.A/1956/Add.1; F. V. Garcý a-Amador, Sixth Report on International Responsibility, (1961) 2 Yearbook of the International Law Commission 46, UN Doc. A/CN.4/SER.A/1961/Add.1.
18. See R. Ago, First Report of the Special Rapporteur, (1969) 2 Yearbook of the International Law Commission 306, para. 66(c), UN Doc. A/CN.4/217/Add.1. Professor Ago did not specifically use the terms ‘primary’ and ‘secondary’ to differentiate between the two types of rules; those denominations are how later scholars characterize his distinction. But see Bodansky and Crook, First Report on International Responsibility note 19, at 780-1 (summarizing academic critique about the difficulty ofmaintaining the difference between primary and secondary rules as a coherent or consistent distinction).
19. There are actually two kinds of secondary rules dealt with in the Articles: (i) the set of legal duties and rights that are peculiar to state responsibility (e.g., the obligations of cessation and reparation; the right of certain states to invoke the responsibility of the breaching state); and (ii) those governing the transition from general international law into the regime of state responsibility. In essence, the secondary rules determine when an obligation has been breached, and what the consequences of that breach are. See Bodansky and Crook, First Report of the Special Rapporteur note 19, at 779.Note that this conception is different fromH. L.A.Hart's secondary rules, ofwhich the classic examplewas the provisions of the Vienna Convention on the Law of Treaties. See H. L. A.Hart, The Concept of Law (1961), at 91-2. Hart's secondary rules are closer tometa-rules ('rules about rules'), and do not comprise a distinct legal regime.
20. The focus on secondary rules is a key similarity between the law of state responsibility and the process by which individual responsibility is assessed in international criminal law, and forms part of the theoretical basis for the bridge between regimes. See infra Part 1.4.1.
21. See Bodansky and Crook, The focus on secondary rules is a key similarity between the law of state responsibility and the process by which individual responsibility is assessed in international criminal law, and forms part of the theoretical basis for the bridge between regimes note 19, at 774-5. Note, e.g., the ILC's recognition in Art. 55 that such specialized legal regimes would be exceptions to the lex generalis of the Articles.
22. Bodansky and Crook., at 781.
23. See ILC Articles, Bodansky and Crook note 20, Arts. 1, 2.Note that this definition of state responsibility has been described as tautological on its face, but also indicative of the Commission's view that certain substantive elements that would determine whether or not an obligation has been breached-such as fault or injury-are addressed by the primary rules and are not the province of the ILC's secondary rules. See Bodansky and Crook, Bodansky and Crook note 19, at 782.
24. Bodansky and Crook, ILC Articles note 19, at 775.
25. According to their terms, Arts. 40 and 41 apply only to ‘serious breach[es] by a State of an obligation arising under a peremptory norm of general international law’, where ‘serious’ is defined as involving ‘a gross or systematic failure by the responsible State to fulfil the obligation’. ILC Articles, Bodansky and Crook note 20, Art. 40. Although the Commentary to this Article does not so state, the Commission's formulation does seem to invoke the substantive elements of human rights-related peremptory norms: ‘gross’ may be a reference to either the numerosity or the nature of the offence, and ‘systematic’ is one of the two scope-related criteria for a crime against humanity. See infra note 31 and accompanying text.
26. Peremptory norms are understood here not as originating from the principles of natural law, but rather as functional aspects of the development of an international community governed increasingly by the rule of law. As such, peremptory norms form the basis for principles of public order within international law. See infra note 38 and accompanying text.
27. BarcelonaTraction, Light,andPowerCompany (Belgiumv.Spain),SecondPhase,Judgmentof5Feb.1970,[1970]ICJ Rep. 3 (hereafter Barcelona Traction), at 32. The ILC adopted the second formulation (obligations ‘towards the international community as a whole') to avoid linguistic confusion, becausemultilateral treaty obligations are termed obligations erga omnes partes or erga omnes contractantes, or obligations owed to all [contracting] parties. See International Law Commission, ‘Commentaries to Draft Articles on Responsibility of States for Internationally Wrongful Acts’, in Report of the International Law Commission on the Work of Its Fifty-Third Session, UN GAOR, 56th Sess., Supp. No. 10, UN Doc. A/56/10 (2001) (hereafter ILC Commentaries), Commentary to Article 48, paras. (6), (9). For the purpose of brevity, however, the author will use the term ‘obligations erga omnes’ to describe these obligations to the international community.
28. The Alien Torts Claims Act (ATCA) in the United States does impose civil liability on individuals for violations of customary international law, see Filartiga v. Pen. a-Irala, 630 F.2d 876 (2d. Cir. 1980), but federal courts entertaining ATCA actions have been careful to base their jurisdiction on the US Constitution and federal statutes. See also Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 776 (D.C. Cir. 1984), cert. denied, 470 U.S. 1003 (1985) (Edwards, J., concurring) (distinguishing Filartiga on the grounds that international law does not impose ‘the same responsibility or liability on non-state actors, such as the PLO [Palestine Liberation Organization], as it does on states and persons acting under color of state law').
29. See ILC Articles, The Alien Torts Claims Act (ATCA) in the United States does impose civil liability on individuals for violations of customary international law note 20, Arts. 4.11.
30. The concept of public order, in contrast to the contractual and voluntary model of international law that dominated traditional discussions of state-to-state relations, covers two related subjects: first, the creation of an international society or community, including butnot limited to states, that is both peaceful and governed by the rule of law; and second, the development of ‘international lawfulness’, inthat respect for the rule of law is the concern of allmembers of that international community regardless of whether there has been material harm to an actor's particular interests. See, e.g., S.Wiessner and A. R.Willard, ‘Policy-Oriented Jurisprudence and Human Rights Abuses in Internal Conflict: Toward a World Public Order of Human Dignity’, (1999) 93 AJIL 316; N. Rostow, ‘“Who Decides” and World Public Order’, (1995) 27 New York University Journal of International Law&Politics 577; International LawCommission, Report of the International LawCommission on the Work of Its Fiftieth Session, UN GAOR, 53rd Sess., Supp. No. 10, UN Doc. A/53/10 (1998), para. 283 (hereafter 1998 ILC Report) (noting that members of the Commission regarded the notion of objective responsibility-i.e., unrelated to harm or direct injury-in the Draft Articles as bringing the law of state responsibility closer to public order).
31. The invocation of the language of the International Court of Justice in Barcelona Traction is deliberate; as will be seen later in the discussion of state criminality, peremptory or jus cogens norms and erga omnes obligations on one hand are conceptually related to each other, and on the other are both implicated in the public-order aspects of international law. See infra note 92.
32. Individualcriminalresponsibilitywasacceptedmuchearlier intheorythaninpractice.AsProfessorBrownlie notes, ‘Since the latter half of the nineteenth century it has been generally recognized that there are acts or omissions for which international law imposes criminal responsibility on individuals, and for which punishment may be imposed, either by properly empowered international tribunals or by national courts and military tribunals’. I. Brownlie, Principles of Public International Law (1998), at 565.
33. A commission created by the Preliminary Peace Conference at Versailles concluded that the instigation of an aggressive war did not violate then-extant international law, but individuals responsible for atrocities committed during the war should be subject to prosecution. See Commission on the Responsibility of the Authors of theWar and on Enforcement of Penalties (29March 1919), (1920) 14AJIL 95, at 113-16 (quotation at 116). The Allies eventually concluded that ‘conducting international trials would destabilize theWeimar regime and risk revolutionary insurrection. The Germans ultimately were permitted to prosecute fortyfive individuals before the Penal Senate of the Supreme Court (Reichsgericht). These proceedings, for the most part, focused on lower-level combatants’.M. Lippman, ‘Humanitarian Law: The Uncertain Contours of Command Responsibility’, (2001) 9 Tulsa Journal of Comparative & International Law 1, at 7 (internal citations omitted).
34. SeeAgreementbytheGovernmentof theUnited StatesofAmerica, theProvisionalGovernmentof theFrench Republic, the Government of theUnitedKingdom of Great Britain andNorthern Ireland and theGovernment of the Union of Soviet Socialist Republics for the Prosecution and Punishment of the MajorWar Criminals of the European Axis (8Aug. 1945), available at http://www.yale.edu/lawweb/avalon/imt/proc/imtchart.htm (hereafterLondonAgreement) (creating theInternational MilitaryTribunal to try ‘Major [German]WarCriminals'); Charter of the International Military Tribunal, 82 UNTS 279 (1945); Charter of the International Military Tribunal for the Far East (19 Jan. 1946), available at http://www.yale.edu/lawweb/avalon/imtfech.htm (establishing an International Military Tribunal to try Japanese war criminals).
35. See PrincetonUniversity Program in Lawand PublicAffairs, Princeton Principles onUniversal Jurisdiction (2001) (hereafter Princeton Principles), at 28, Principle 1.
36. The International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda (hereafter the ad hoc international criminal tribunals or ICTs) have repeatedly discussed the potential problem of charging or convicting individuals for several crimes that arise out of the same underlying conduct. See, e.g., Prosecutor v. Blaškić, Decision on theDefenceMotion toDismiss the Indictment Based upon Defects in the Form Thereof, Case No. IT-95-14-AR108 bis, T. Ch. I, 4 April 1997, para. 32 (noting that ‘the concept of concurrent legal characterizations has been identified and is known in national criminal law'); Prosecutor v. Akayesu, Judgment, Case No. ICTR-96-4-T, T. Ch. I, 2 Sept. 1998 (hereafter Akayesu Trial Judgment), para. 468 (outlining the conditions under which it is ‘acceptable to convict the accused of two offences in relation to the same set of facts').
37. But see E. V. Kontorovich, ‘The Piracy Analogy:Modern Universal Jurisdiction's Hollow Foundation’, (2004) 45Harvard International Law Journal 183 (arguing that international criminal law's reliance on piracy as the model for the exercise of universal jurisdiction is misplaced, as the reasons for its status as a crime subject to the jurisdiction of any state weremore pragmatic than principled).
38. This list is derivedfromthefollowing international instruments:Statute of theTribunal for theProsecutionof PersonsResponsible for SeriousViolations of InternationalHumanitarian LawCommitted in the Territory of the formerYugoslavia since 1991,Report of the Secretary-GeneralPursuant toParagraph 2of Security Council Resolution 808, Annex,UNDoc. S/25704/Add.1/Corr.1 (1993), reprinted in(1993) 32ILM1192 (hereafterICTY Statute), Arts. 2-5; Statute of the International Criminal Tribunal for Rwanda, SC Res. 955,UNSCOR, Annex, 49th Sess., 3453d mtg., UN Doc. S/RES/955 (1994), reprinted in (1994) 33 ILM 1598 (hereafter ICTR Statute), Arts. 2-4; Princeton Principles, ‘The Piracy Analogy:Modern Universal Jurisdiction's Hollow Foundation’ note 45, Principle 2; Rome Statute of the International Criminal Court, entry into force 1 July 2002,UNDoc.A/CONF.183/9 of 17 July 1998, reprinted in (1998) 37 ILM 999 (hereafter Rome Statute), Art. 5.
39. See 1998 ILC Report, This list is derivedfromthefollowing international instruments:Statute of theTribunal for theProsecutionof PersonsResponsible for SeriousViolations of InternationalHumanitarian LawCommitted in the Territory of the formerYugoslavia since 1991 note 38, para. 276. Indeed, under customary international law as applied by the tribunals and codified in the Rome Statute, crimes against humanity in particular require knowledge by the individual that his or her actions are part of a widespread or systematic attack on a civilian population, a criterion thatmight be read to imply a policy designed or practice implemented at a level superior to that of the individual. See Prosecutor v. Kunarac, Kovač, and Vuković, Judgment, Case Nos. IT-96-23 and IT-96-23/1-A, App. Ch., 12 June 2002, para. 85; Prosecutor v. Ntakirutimana, Judgment, Case Nos. ICTR-96-10&ICTR-96-17-T, T. Ch. I, 21 Feb. 2003 (hereafter Ntakirutimana Trial Judgment), para. 812; Rome Statute, This list is derivedfromthefollowing international instruments:Statute of theTribunal for theProsecutionof PersonsResponsible for SeriousViolations of InternationalHumanitarian LawCommitted in the Territory of the formerYugoslavia since 1991 note 48, Art. 7.
40. See Brierly, 1998 ILC Report note 18, at 218-19. This result is by no means an artefact of hidebound conceptions of international law: the current work of the ILC on the Draft Articles of Diplomatic Protection recognizes that the assumption of the claim of an individual by a state is still at the discretion of the state; there is no obligation toadopt the claimsof individuals. See generally J. R. Dugard, FirstReportonDiplomatic Protection, UN Doc. A/CN.4/506/Add.1 & Corr. (2000), paras. 61-75 (hereafter First Report on Diplomatic Protection).
41. See Slaughter and Burke-White, Brierly note 5, at 13-14.
42. First Report on Diplomatic Protection, Slaughter and Burke-White note 50, para. 32.
43. The protection and development of individual human rights, while originally more linked to a liberal conception of human rights, can also find purchase within an institutionalist framework, as long as the systematic violation of fundamental human rights is conceived of as a threat to peace and security-international order-the more traditional concern of institutionalism. See First Report on Diplomatic Protection note 40.
44. Although the ILC Articles do contain provisions that make some moves towards ensuring that states are held liable for actions that constitute crimeswhen conducted by individuals or groups, see, e.g., ILC Articles, infra section 2.2 note 20, Arts. 10(2), 26, 40, 41, neither the text of the Articles nor the commentaries thereto present a mechanism for that process. This article proposes the superior responsibility doctrine as such a mechanism. See infra section 3.2.3.
45. This observation is perhaps stronger with respect to the international tribunals than for the ILC, which through its commentaries to the Articles acknowledges the customary roots of the rules and principles it codifies. See generally ILC Commentaries, Although the ILC Articles do contain provisions that make some moves towards ensuring that states are held liable for actions that constitute crimeswhen conducted by individuals or groups note 32.
46. Bodansky and Crook, This observation is perhaps stronger with respect to the international tribunals than for the ILC, which through its commentaries to the Articles acknowledges the customary roots of the rules and principles it codifies note 19, at 779.
47. See ILC Articles, Bodansky and Crook note 20, Art. 3.
48. See ILC Articles notes 23-24 and accompanying text; see also ILC Commentaries, ILC Articles note 32, Introduction, paras. 2-4.
49. See, e.g., Akayesu Trial Judgment, ILC Articles notes 23-24 and accompanying text; see also ILC Commentaries note 46, para. 731 (finding that rape can constitute genocide under international law); Prosecutor v. Furundžija, Judgment, Case No. IT-95-17/1-T, T. Ch. II, 10 Dec. 1998 (hereafter Furundžija Trial Judgment), paras. 267-269 (finding that rape can constitute torture under international law).
50. Barcelona Traction, Akayesu Trial Judgment note 32, para. 34.
51. Both the International Convention on the Suppression and Punishment of theCrime ofApartheid, entry into force 18 July 1976, 1015 UNTS 243, and the Rome Statute, Barcelona Traction note 48, Art. 7, establish apartheid as a crime against humanity. The definitions used by both instruments, however, act to distinguish apartheid from mere racial discrimination. The Apartheid Convention in Art. II notes that the crime of apartheid includes ‘similar policies and practices of racial segregation and discrimination as practised in southern Africa’, but then lists several ‘inhuman acts’ that constitute apartheid, such as ‘[d]enial to a member or members of a racial group or groups of the right to life and liberty of person’. The Rome Statute subjects apartheid to the chapeau requirements ofArt. 7, namely that the actmust be ‘committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack’ in order to constitute a crime against humanity.
52. See, e.g., Rome Statute, Both the International Convention on the Suppression and Punishment of theCrime ofApartheid note 48, Art. 5. Whether these norms have to be jus cogens (and not simply erga omnes obligations) is a separate question, and will be discussed below. See infra section 2.3.
53. See UN Charter, Art. 2(4) (aggression, 191 parties); 1948 Convention on the Prevention and Punishment of the Crime of Genocide, 78 UNTS 277 (hereafter Genocide Convention) (137 parties); 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, 266 UNTS 3 (hereafter Supplementary Slavery Convention) (119 parties); 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1465 UNTS 85, UN Doc. A/39/51 (1984) (hereafter Torture Convention) (139 parties).
54. See Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion of 28 May 1951, [1951] ICJ Rep. 23 (norms in genocide convention part of general, i.e., customary, international law);AkayesuTrial Judgment,UN Charternote46, para.495(genocide is customaryinternational law); Furundžija Trial Judgment, UN Charter note 62, paras. 138-9 (torture is customary international law); Prosecutor v. Musema, Judgment, Case No. ICTR-96-13, T. Ch. I, 27 Jan. 2000, para. 214 (crimes against humanity are customary international law).
55. See ILC Articles, Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide note 20, Arts. 4-11 for the rules governing attribution of conduct to a state.
56. See Furundžija Trial Judgment, ILC Articles note 62, para. 142 ('Under current international humanitarian law, in addition to individual criminal liability, State responsibilitymay ensue as a result of State officials engaging in torture or failing to prevent torture or to punish torturers. If carried out as an extensive practice of State officials, torture amounts to a serious breach on a widespread scale of an international obligation of essential importance for safeguarding thehumanbeing, thus constituting a particularly grave wrongful act generating State responsibility'). The positive obligation to prevent or punish international crimes-as distinct from the obligation to abstain from their commission-presents a different question, one that is explored at length in section 3, the discussion of superior responsibility.
57. See, e.g., ILC Articles, Furundžija Trial Judgment note 20 and accompanying text; ILC Commentaries, Furundžija Trial Judgment note 32, Commentary to Art. 48; Furundžija Trial Judgment, Furundžija Trial Judgment note 62, para. 151; Kupreškić Tu Quoque Decision, Furundžija Trial Judgment note 63, para. 4.
58. See, e.g., East Timor (Portugal v. Australia), Judgment of 30 June 1995, [1995] ICJ Rep. 90, para. 29; Legality of the Threat or Use of NuclearWeapons, Advisory Opinion of 8 July 1996, [1996] ICJ Rep. 226, para. 83; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) (hereafter Genocide Convention Case), Preliminary Objections, Judgment of 11 July 1996, [1996] ICJ Rep. 595, para. 31; Genocide Convention Case, Counter-Claims, Order of 17 Dec. 1997 on the Admissibility of Counter-Claims by Yugoslavia, [1997] ICJ Rep. 243, para. 35.
59. Punitive damages, however, are almost certainly unprecedented in the law governing reparations, rendering it even less like a criminal regime than the law applicable in many domestic civil proceedings. See, e.g., D.VagtsandP.Murray, ‘Litigating theNazi LabourClaims:ThePathnotTaken’, (2002) 43Harvard International Law Journal 503, at 525 ('[T]here would be a serious question as to whether international law authorizes punitive damages benefiting private claimants’.); Bodansky and Crook, East Timor note 19, at 784 n. 78 (noting that ‘[o]f course, international law lacks notions of punitive damages'). But see 1998 ILCReport, East Timor note 38, para. 284 (noting a difference of opinion among ILCmembers as to the nature of state responsibility, dividing roughly into three camps: those who saw it as civil liability; those who saw it as purely international and sui generis in nature; and those who suggested future development in international responsibility of states to distinguish between civil and criminal responsibility).
60. See especially J. H. H. Weiler, A. Cassese, and M. Spinedi (eds.), International Crimes of State (1989) (hereafter Weiler, Cassese, and Spinedi) (reproducing the working papers prepared for a conference on Art. 19, summarizing scholarly debate during the conference, and including additional commentary by esteemed contributors and a limited bibliography spanning 13 pages and listing 147 items).
61. J. H. H.Weiler, ‘OnProphetsandJudges: SomePersonalReflectionsonStateResponsibilityandCrimes of State: Concluding Remarks to the Florence Conference on State Responsibility’, in Weiler, Cassese, and Spinedi, International Crimes of State note 74, at 325. See also G. Abi-Saab, ‘The Uses of Article 19’, (1999) 10 EJIL 339, at 351 (explaining that international crimes of state did not mean ‘criminal responsibility of states’, but rather an ‘aggravated regime of state responsibility').
62. Weiler, ‘OnProphetsandJudges: SomePersonalReflectionsonStateResponsibilityandCrimes of State: Concluding Remarks to the Florence Conference on State Responsibility’ note 75, at 320.
63. Weiler., at 320-1.
64. Weiler., at 319, 322.
65. See, e.g., S. R. Ratner and J. S. Abrams Accountability for Human Rights Atrocities in International Law: Beyond the Nuremberg Legacy (2001, at 189; H. T. King Jr, ‘Nuremberg and Sovereignty’, (1996) 28 Case Western Reserve Journal of International Law 135; L. Henkin, The Age of Rights (1990, at 1, 16).
66. UNCharter, Art. 4, para. 1. The organization has come close to realising its goal,with 191 members as of 2005. Growth in United NationsMembership, 1945-2005, available at http://www.un.org/Overview/growth.htm, last updated April 2005.
67. UN Charter, Art. 2, para. 1.
68. Note, for example, the language in the Preamble describing the purposes of the Organization: ‘to practice tolerance and live together in peace with one another as good neighbours, and to unite our strength to maintain international peace and security’. UN Charter, Preamble.
69. For the definitive account of the origins and drafting history of Art. 19, seeM. Spinedi, ‘Crimes of State: The Legislative History’, inWeiler, Cassese, and Spinedi, Note, for example, the language in the Preamble describing the purposes of the Organization: ‘to practice tolerance and live together in peace with one another as good neighbours, and to unite our strength to maintain international peace and security’ note 74, at 5-138.
70. International Law Commission, ‘Article 19’, Report of the International Law Commission on theWork of its Forty-eighth Session, UN GAOR, 51st Sess., Supp. No. 10, UN Doc. A/51/10 (1996), at 131-2.
71. See 1998 ILC Report, International Law Commission note 38, para. 242 (noting that ‘[m]ere circularity was not fatal to article 19’ and citing the precedent of Art. 53 of the Vienna Convention on the Law of Treaties, which defines peremptory norms as those recognized as such by the international community of states as a whole).
72. See ILCArticles, ILC Report note 20, Arts. 1, 2. See also Art. 12, which declares: ‘There is a breach of an international obligation by a State when an act of that State is not in conformity with what is required of it by that obligation’.
73. ILCArticles., Art. 3.
74. See 1998 ILC Report, ILCArticles note 38, para. 288 (noting that criticism of Art. 19 included the fact that ‘The definition of State crimes contained in article 19 was. confusing, circular, lacking the necessary precision for criminal law, unhelpful for the indictment of any individual or State, and uncertain because it was dependent on subsequent recognition by the international community').
75. See ILC Report note 74 and accompanying text; see especially 1998 ILC Report, ILC Report note 38, paras. 215-331.
76. The following discussion of the arguments for and against Art. 19 does some disservice to both the variety and sophistication of the contentions that were made on both sides. A more detailed review of the literature, however, is beyond the scope of this article. See, e.g., B. Graefrath, ‘A Specific Regime of International Responsibility of States’, in Weiler, Cassese, and Spinedi, ILC Report note 74, at 164 ('No immunity can be claimed for State conduct that has been qualified as an international crime. Sovereignty cannot be claimed as a shield to cover acts which constitute an international crime. What is reflected here, in the area of international responsibility are basic changes in the structure of current international law’.);Weiler, ‘On Prophets and Judges’, ILC Report note 75, at 324 ('For those who support Article 19 in its present form, it is the efficiency of language which justifies, even necessitates, the term Crime. [N]othing less than the most abject condemnation, translated into the most powerful “negative” in the legal vocabulary, will suffice. If States care, as clearly they do, about being labelled by others as international wrongdoers, so much more will they care. about the attachment of the tag of a “criminal”’).
77. Weiler, ‘On Prophets and Judges’, The following discussion of the arguments for and against Art note 75, at 323.
78. See First Crawford Report, ‘On Prophets and Judges’ note 79, para. 81 (noting that the ‘domestic analogy’ to municipal concepts of crime and delict could not be completely discounted, and that ‘if a concept and terminology [i.e., ‘crime'] is to be adopted which is associated with a wealth of national and international legal experience, it can hardly be objected that that experience, and the legal standards derived from it, are also regarded as potentially relevant'). Art. 19's text did not attain the precision demanded of criminal law, and the failure of the Commission to agree on any method of clarifying its provisions led to its deletion from the Articles. See infra, Part 2.3.
79. See generally First Crawford Report, First Crawford Report note 89 and accompanying text note 79.
80. See generally First Crawford Report., paras. 61-5; see also 1998 ILC Report, generally First Crawford Report note 38, para. 273.
81. First Crawford Report, generally First Crawford Report note 79, para. 71.
82. First Crawford Report., paras. 66-75.
83. See First Crawford Report., paras. 52-60.
84. J. Crawford, ‘Revising the Draft Articles on State Responsibility’, (1999) 10 EJIL 435, at 443.
85. See Bodansky and Crook, ‘Revising the Draft Articles on State Responsibility’ note 19, at 784 n. 78 (arguing that if the distinction between criminal and civil liability is the function of rules that prohibit, rather than price, undesirable conduct, ‘the regime of state responsibility seems in some respectsmore akin to criminal rather than civil responsibility').
86. See also First Crawford Report, Bodansky and Crook note 79, paras. 52, 79-80 (noting that the proposed regime of crimes of state would conflict with the role of the Security Council inmaintaining international peace and security); P.-M. Dupuy, ‘Implications of the Institutionalization of International Crimes of States’, inWeiler, Cassese, and Spinedi, Bodansky and Crook note 74, at 173-9 (describing the hazards inherent in introducing responsibility for state crimes, including threats to the determinacy and coherence of the law, and challenges to the functioning of the United Nations).
87. See ILC Articles, also First Crawford Report note 20, Art. 48.
88. ILC Articles., Arts. 40, 41.
89. E. B.Weiss, ‘Invoking State Responsibility in the Twenty-First Century’, (2002) 96 AJIL 798, at 804.
90. Note that this description includes both states and international organizations: it was the General Assembly of theUnitedNations that referred the question to the International Court of Justice that resulted in the erga omnes declaration in the NuclearWeapons case. See ‘Invoking State Responsibility in the Twenty-First Century’ note 72 and accompanying text.
91. SeeWeiss, Note that this description includes both states and international organizations: it was the General Assembly of theUnitedNations that referred the question to the International Court of Justice that resulted in the erga omnes declaration in the NuclearWeapons case note 107.
92. Though genocide, slavery, torture, and crimes against humanity can occur outside the context of internal or international armed conflict, superior responsibility as the link between individual and state responsibility is particularly useful in times of conflict, when formal structures of government may be either in flux or non-existent. See infra, section 3.1.
93. 1907 Hague Convention No. IV Respecting the Laws and Customs of War on Land, Annex of Regulations, Art. 43, 36 Stat. 222, TS 539, 1 Bevans 631.
94. 1907 Hague Convention No. X Concerning Bombardment by Naval Forces in Time ofWar, Art. 19, 36 Stat. 2351, TS 542, 1 Bevans 681.
95. United States v. Tomoyuki Yamashita, Military Commission Appointed by Paragraph 24, Special Orders 110, Headquarters United States Army ForcesWestern Pacific, 1 Oct. 1945, cited in L. Friedman (ed.), The Law of War: A Documentary History (1972), at 1596.
96. Other trials of accused Japanese war criminals did in fact develop and apply notions of the responsibility of commanders to intervene and suppress the crimes of their subordinates that correspond more to the contemporary contours of the doctrine, see, e.g., United States v.Hirota, 3 Judgments of the InternationalMilitary Tribunal for the Far East (1948), 1 but these cases are little-known and are not referred to in the judgments of the ad hoc Tribunals. This section of the article will therefore focus on the Nuremberg cases.
97. See London Agreement, Other trials of accused Japanese war criminals did in fact develop and apply notions of the responsibility of commanders to intervene and suppress the crimes of their subordinates that correspond more to the contemporary contours of the doctrine note 43.
98. Control Council Law No. 10, reproduced in (1952) VI Trials of War Criminals before the Nuernberg Military Tribunal under Control Council LawNo. 10, at 17, was the governing constitutive document for theNuremberg Military Tribunal that tried almost all the cases involving non-'major’ German war criminals.
99. United States v. von Leeb et al., Judgment, XI Trials ofWar Criminals before theNuernberg Military Tribunals under Control Council Law No. 10 (hereafter High Command Case).
100. United States v. von List et al., Judgment, X Trials of War Criminals before the Nuernberg Military Tribunals under Control Council Law No. 10 (hereafter Hostages). The Hostages Case was actually tried before the High Command Case, but it is in the latter case that the Nuremberg court's reasoning on superior responsibility is more clearly enunciated.
101. The judgment also implicitly required knowledge that the actions were illegal. However, the crimes for which the accused in the war crimes trials were being prosecuted were of such a notorious character that the war crimes commission and the tribunals regularly found that no commander could have believed that the action(s) contemplated in the order, or being committed by his subordinates, were in conformity with the laws of war. See, e.g., High Command Case, Field Marshal von Leeb, for example, was found guilty of transmittal and application of the Barbarossa Jurisdiction Order, which exempted German soldiers from prosecution if they committed a crime against any Soviet civilian note 118, discussing the charges against von Leeb (noting that there was no question that the use of prisoners of war to clear minefields violated international law).
102. See The judgment also implicitly required knowledge that the actions were illegal note 120.
103. Prosecutor v. Delalić, Mucić, Delić, and Landžo, Judgment, Case No. IT-96-21-T, T. Ch. II quater, 16 Nov. 1998 (hereafter čelebić i Trial Judgment).
104. The exact terminology used by the čelebić i Trial Chamber was that themental element of superior responsibility was satisfied by proof of either ‘actual knowledge’ on the part of the superior, or that he ‘had in his possession information of a nature,which at the least,would put him on notice of the risk of such offences by indicating the need for additional investigation in order to ascertain whether such crimes were committed or were about to be committed by his subordinates’. čelebić i Trial Judgment, Such a relationship could be presumed by the post-SecondWorldWar tribunals note 124, para. 383; see also Such a relationship could be presumed by the post-SecondWorldWar tribunals., paras. 384-93.
105. The exact terminology used by the čelebić i Trial Chamber was that themental element of superior responsibility was satisfied by proof of either ‘actual knowledge’ on the part of the superior, or that he ‘had in his possession information of a nature,which at the least,would put him on notice of the risk of such offences by indicating the need for additional investigation in order to ascertain whether such crimes were committed or were about to be committed by his subordinates’., para. 344.
106. See The exact terminology used by the čelebić i Trial Chamber was that themental element of superior responsibility was satisfied by proof of either ‘actual knowledge’ on the part of the superior, or that he ‘had in his possession information of a nature,which at the least,would put him on notice of the risk of such offences by indicating the need for additional investigation in order to ascertain whether such crimes were committed or were about to be committed by his subordinates’., para. 647.
107. The exact terminology used by the čelebić i Trial Chamber was that themental element of superior responsibility was satisfied by proof of either ‘actual knowledge’ on the part of the superior, or that he ‘had in his possession information of a nature,which at the least,would put him on notice of the risk of such offences by indicating the need for additional investigation in order to ascertain whether such crimes were committed or were about to be committed by his subordinates’., para. 354.
108. The exact terminology used by the čelebić i Trial Chamber was that themental element of superior responsibility was satisfied by proof of either ‘actual knowledge’ on the part of the superior, or that he ‘had in his possession information of a nature,which at the least,would put him on notice of the risk of such offences by indicating the need for additional investigation in order to ascertain whether such crimes were committed or were about to be committed by his subordinates’., para. 646.
109. The exact terminology used by the čelebić i Trial Chamber was that themental element of superior responsibility was satisfied by proof of either ‘actual knowledge’ on the part of the superior, or that he ‘had in his possession information of a nature,which at the least,would put him on notice of the risk of such offences by indicating the need for additional investigation in order to ascertain whether such crimes were committed or were about to be committed by his subordinates’., para. 377.
110. The exact terminology used by the čelebić i Trial Chamber was that themental element of superior responsibility was satisfied by proof of either ‘actual knowledge’ on the part of the superior, or that he ‘had in his possession information of a nature,which at the least,would put him on notice of the risk of such offences by indicating the need for additional investigation in order to ascertain whether such crimes were committed or were about to be committed by his subordinates’., para. 378, affirmed in Prosecutor v. Delalić, Mucić, Delić, and Landžo, Judgment, Case No. IT-96-21-A, App. Ch., 20 Feb. 2001 (hereafter čelebić i Appeal Judgment), paras. 192, 196-198. The material ability to prevent and punish is thus a constitutive factor relating to both the first and third criteria of the čelebić i test, and is the sine qua non of superior or command responsibility.
111. Compare Akayesu Trial Judgment, The exact terminology used by the čelebić i Trial Chamber was that themental element of superior responsibility was satisfied by proof of either ‘actual knowledge’ on the part of the superior, or that he ‘had in his possession information of a nature,which at the least,would put him on notice of the risk of such offences by indicating the need for additional investigation in order to ascertain whether such crimes were committed or were about to be committed by his subordinates’ note 46 (holding that a civilian superior is not held to the same standard of effective control as a military commander), with Prosecutor v. Bagilishema, Judgment, Case No. ICTR-95-1, T. Ch. I, 7 June 2001, para. 37 (purporting to adopt the reasoning of the čelebić i Trial Judgment and the ILC and holding that responsibility ‘extends to civilian superiors only to the extent that they exercise a degree of control over their subordinates which is similar to that ofmilitary commanders').
112. See Prosecutor v. Bagilishema, Judgment, Case No. ICTR-95-1A-A, App. Ch., 3 July 2002, para. 52 (noting also that ‘[i]t is not suggested that “effective control” will necessarily be exercised by a civilian superior and by a military commander in the same way, or that it may necessarily be established in the same way in relation to both a civilian superior and amilitary commander’, Case No. ICTR-95-1A-A, Judgment, paras. 54-56).
113. Rome Statute, Prosecutor v. Bagilishema note 48, Art. 28(b)(i).
114. See, e.g., Black's Law Dictionary, Rome Statute note 7, at 1313 (defining the term in the area of torts as ‘[t]he doctrine holding an employer or principal liable for the employee's or agent's wrongful acts committed within the scope of the employment or agency) (emphasis added).
115. The difference between the direct liability of a superior and superior responsibility is captured in the distinction between Arts. 7(1) and 7(3) in the ICTY Statute, and Arts. 6(1) and 6(3) of the ICTR Statute. See Black's Law Dictionary note 48.
116. See, e.g., I. Bantekas, ‘The Contemporary Law of Superior Responsibility’, (1999) 93 AJIL 573, at 577.
117. Whatever theory is adopted, however, the responsibility of superiors derives notmerely from the position of power, but that of authority. See Bantekas, ‘The Contemporary Law of Superior Responsibility’ note 138, at 576-7 (noting that ‘The crux of the issue is that because of their aura of authority, military and civilian superiors are entrusted with far-reaching duties and must especially ensure their troops’ compliance with the laws of war'). This authority is necessarily derived from the fact that military and civilian superiors are representatives of the state,movement, or organization that exercises control over the actions of the individual perpetrators.
118. See M. Damaska, ‘The Shadow Side of Command Responsibility’, (2001) 49 American Journal of Comparative Law 455.
119. ‘The Shadow Side of Command Responsibility’., at 457. For the purposes of his analysis, Professor Damaska discounted distinctions between the form superior responsibility takes in the jurisprudence of the ad hoc tribunals and that included in the Rome Statute. See ‘The Shadow Side of Command Responsibility’ note 135 and accompanying text.
120. ‘The Shadow Side of Command Responsibility’., at 463 (citing as an example the ICTY Trial Judgment in Prosecutor v. Blaškić, wherein it sufficed that the commander ‘failed to implement measures which could have yielded this kind of information [of the impending criminal activity of his troops], provided that he “should have known” that the failure to implement these measures was a “criminal dereliction”’) (quotation from Damaska).
121. ‘The Shadow Side of Command Responsibility’., at 464.
122. ‘The Shadow Side of Command Responsibility’., at 468.
123. See ‘The Shadow Side of Command Responsibility’ note 142.
124. Prosecutor v. Blaškić, Judgment, Case No. IT-95-14-A, App. Ch., 29 July 2004, paras. 62-63 (footnotes omitted).
125. See infra notes 150-158 and accompanying text. This observation is not meant to imply that the superior responsibility doctrine does not require proof of a certain mental state on the part of the superior. Take Professor Damaska's remaining example-what he terms ‘conscious disregard’ of the ‘risk of subordinate delinquency’, i.e., the superior who is ‘aware of the possibility that his underlings might commit a crime, [but] yet fails to take necessary and reasonable crime-preventingmeasures’. Damaska, Prosecutor v. Blaškić note 140, at 463. Although this sort of knowledge does not fit neatly into either category expressed in the second criterion of superior responsibility, see Prosecutor v. Blaškić note 126 and accompanying text, it comes closer to ‘had reason to know’ that crimeswill be committed by his subordinates. Seečelebić i,Appeal Judgment, Prosecutor v. Blaškić note 132, para. 238.A related concern is that a superiormay be convictedwithout proof that he shared themental state of the actual perpetrators. See, e.g., Prosecutor v. Brdanin, Decision on Interlocutory Appeal, Case No. IT-99-36-A, App. Ch., 19 March 2004, paras. 7, 10. However, it must be emphasized again that, although superior responsibility is described as liability for the actions of subordinates, it is actually liability imposed directly on certain individuals for their omissions in the face of an express obligation to act.
126. It is interesting to note that although the institutionalist view of international law (as represented by the state responsibility regime) cannot tolerate the idea of states being treated like individuals, see infra notes 150-158 and accompanying text note 132 and accompanying text note 120 and accompanying text note 79 and accompanying text, the liberal view of international law (as represented by international criminal law) appears to have relatively little difficulty treating certain individuals like states.
127. Genocide Convention, It is interesting to note that although the institutionalist view of international law note 67, Art. 1.
128. Genocide Convention., Art. 4. As the Genocide Convention has become customary international law, all three obligations are imposed on all states: the prohibition against genocide, and the obligations to prevent and to punish its commission. See Genocide Convention note 68 and accompanying text. Similar status is accorded to the provisions of the other conventions mentioned here.
129. Supplementary Slavery Convention, Genocide Convention note 67, Art. 2(a)-(b).
130. Supplementary Slavery Convention., Art. 6.
131. Torture Convention, Supplementary Slavery Convention note 67, Arts. 2, 4.
132. See generally 1949 Convention (III) Relative to the Treatment of Prisoners of War, Art. 129, 75 UNTS 135; 1949 Convention (IV) Relative to the Protection of Civilian Persons in Time ofWar, Art. 146, 75 UNTS 287; C. van den Wyngaert, ‘War Crimes, Genocide and Crimes Against Humanity-Are States Taking National Prosecutions Seriously?’, in M. C. Bassiouni, International Criminal Law (1999), at 230.
133. See generally 1949 Convention (III) Relative to the Treatment of Prisoners of War note 48.
134. Although the definition of torture contained in the Torture Convention was initially limited to acts committed by or with the acquiescence of a state official, the Preparatory Commission for the International Criminal Court, after receiving comments from states on the proposed Draft Elements of Crimes for that court, determined that the customary definition had evolved so as to remove that requirement. See Rome Statute, generally 1949 Convention (III) Relative to the Treatment of Prisoners of War note note 48, Arts. 7(1)(f), 8(2)(a)(ii); Preparatory Commission for the International Criminal Court, Elements of Crimes, UN Doc. ICC-ASP/1/3, at 119, 126 (omitting from the definition of torture as a crime against humanity or as a war crime the requirement of official involvement), available at http://www.icccpi. int/docs/basicdocs/elements(e).html.
135. See, e.g., Corfu Channel (United Kingdom v. Albania),Merits, Judgment of 9 April 1949, [1949] ICJ Rep. 4, paras. 22-23; United States Diplomatic and Consular Staff in Tehran (United States v. Iran),Merits, Judgment of 24May 1980, [1980] ICJ Rep. 3, paras. 63-67.
136. See ILC Articles, Corfu Channel note 20, Arts. 4-11.
137. See ILC Articles., Art. 10.
138. See ILC Commentaries, ILC Articles note 32, Commentary to Art. 10, para. (4).