Command Responsibility of Civilian Superiors for Genocide

Leiden Journal of International Law

Volumn 14, Issue 3, 2001, Pages 591-616

  Zahar, Alexander ^a  

^a UN International Criminal Tribunal for Rwanda   (South Africa)

Author keywords

Akayesu case; command (superior) responsibility; Delali et al. ( elebi i ) case; genocide; Kayishema Ruzindana case; Musema case; Rwanda

Indexed keywords

EID: 84968903701     PISSN: 09221565     EISSN: 14789698     Source Type: Journal    
DOI: 10.1017/S0922156501000292     Document Type: Article

References (43)

1. Convention on the Prevention and Punishment of the Crime of Genocide, 78 UNTS 277, adopted by the UN General Assembly on 9 December 1948.
2. See Prosecutor v. Clément Kayishema & Obed Ruzindana, Judgement, Case No. ICTR-95-1-T, T.Ch. II, 21 May 1999 (hereinafter ‘Kayishema & Ruzindana’). The cases of the two ad hoc Tribunals cited in this paper are available at www.ictr.org and www.un.org/icty.
3. See Prosecutor v. Alfred Musema, Judgement, Case No. ICTR-96-13-T, T.Ch. I, 27 January 2000 (hereinafter ‘Musema’).
4. Here I am not counting trials for genocide conducted by the national courts of Rwanda (many of which have involved civilians, and some of which, for all I know, may have invoked command responsibility), whose procedural shortcomings are generally known to be so gross that their results cannot yet be turned to for guidance (see, for example, M.A. Drumbl, Rule of Law Amid Lawlessness: Counseling the Accused in Rwanda's Domestic Genocide Trials, 29 Colum. Hum. Rts. L. Rev. 545 (1998)). Nor am I counting the guiltyplea convictions (by the UN International Criminal Tribunal for Rwanda) of Jean Kambanda (former Prime Minister) and Omar Serushago (militia leader) for, inter alia, command responsibility for genocide; see Prosecutor v. Jean Kambanda, Judgement and Sentence, Case No. ICTR-97-23-S, T.Ch. I, 4 September 1998; and Prosecutor v. Omar Serushago, Sentence, Case No. ICTR-98-39-S, T.Ch. I, 5 February 1999.
5. Subject to the qualification given in the note above. The ICTY's two contributions to date on the subject of genocide have been its judgement in Prosecutor v. Goran Jelisić, Case No. IT-95-10-T, 14 December 1999 (the accused, who pleaded guilty to killing detainees at a prison camp, was acquitted on the count of genocide), and its judgement in Prosecutor v. Radislav Krstić, Case No. IT-98-33-T, 2 August 2001 (the accused, a General, was found guilty of genocide; while the elements of command responsibility for that crime were also fulfilled, the Trial Chamber declined to enter a conviction to that effect) (hereinafter ‘Krstić’).
6. Prosecutor v. Zejnil Delalić, Zdravko Mucić, Hazim Delić and Esad Land Bo, Judgement, Case No. IT-96-21-T, T.Ch. II, 16 November 1998 (hereinafter ‘Čelebići’).
7. Prosecutor v. Zejnil Delalić, Zdravko Mucić, Hazim Delić and Esad LandBo, Judgement on Appeal, Case No. IT-96-21-A, 20 February 2001 (hereinafter ‘Čelebići Appeal’).
8. Prosecutor v. Jean-Paul Akayesu, Judgement, Case No. ICTR-96-4-T, T.Ch. I, 2 September 1998 (hereinafter ‘Akayesu’).
9. The Statute of the ICTR first appeared annexed to UN Security Council Res. 955, UN Doc. S/RES/955 (8 November 1994); that of the ICTY as part of the Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), UN Doc. S/25704 (3 May 1993).
10. Namely, in order of appearance, genocide, crimes against humanity, and war crimes against non-combatants in non-international armed conflicts, for the ICTR; and grave breaches of the Geneva Conventions of 1949, violations of the laws or customs of war, genocide, and crimes against humanity, for the ICTY.
11. W.A. Schabas, Genocide in International Law: The Crimes of Crimes, at 309 (Cambridge: Cambridge University Press, 2000).
12. Id., at 309-311.
13. Akayesu, Genocide in International Law: The Crimes of Crimes note 9, at paras. 51, 54.
14. Id., at para. 6 (which reproduces the indictment).
15. Reprinted in B.V.A. Röling & C.F. Rüter (Eds.), The Tokyo Judgment: The International Military Tribunal for the Far East (Amsterdam: University Press of Amsterdam, 1977).
16. Draft Code of Crimes Against the Peace and Security of Mankind, International Law Commission Report 1996 (UN Doc. A/51/10) (6 May-26 July 1996), para. 4 of commentary to Art. 6.
17. Kayishema & Ruzindana, Draft Code of Crimes Against the Peace and Security of Mankind note 2, at paras. 7, 9.
18. Id., at para. 5, which reproduces the indictment; the excerpt is from para. 22 of the indictment (emphasis added).
19. See also, id., at paras. 35-37 and 47-49 for repetitions of the same error. Schabas notices the error, Id. note 13, at 310-311.
20. Claiming, in contradiction with Akayesu, that “the application of criminal responsibility to those civilians who wield the requisite authority is not a contentious one.” Kayishema & Ruzindana, 35-37 and 47-49 for repetitions of the same error. note 2, at para. 213.
21. Čelebići Appeal, Claiming note 8, at para. 265.
22. See infra, Section 4.
23. Musema, infra, Section note 3, at paras. 12-13.
24. Id., Ann. A, at para. 4.6.
25. Id., Ann. A, at para. 5 (emphasis added).
26. See ICC Statute, Art. 28 (UN Doc. A/CONF.183/9 (1998), reprinted in 37 ILM 999), originally adopted in July 1998, and therefore available also to the Akayesu Chamber.
27. See also, ICC Statute note 3, paras. 897-900, 902-906, 911-915, 917-919, and 921-925.
28. See infra, Section 4.
29. However, there are instances even in this indictment where the ICTY Prosecutor (who, by the way, is also the ICTR Prosecutor) cumulatively charged Art. 7(1) and Art. 7(3) liability for the same acts. Indeed, the Chamber noted at one point (para. 778) that the defendant Delić had been charged cumulatively in this fashion for two crimes in which he was the only participant! The Chamber dismissed these Art. 7(3) allegations without further comment.
30. Čelebići, However, there are instances even in this indictment where the ICTY Prosecutor note 7, para. 1237.
31. Id., at paras. 1239-1240.
32. See id., at paras. 737, 752-753.
33. “The doctrine of command responsibility is clearly articulated and anchored on [sic] the relationship between superior and subordinate, and the responsibility of the commander for actions of members of his troops. It is a species of vicarious responsibility through which military discipline is regulated and ensured.” Čelebići, Čelebići note 7, at para. 647.
34. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), 12 December 1977, 1125 UNTS 3.
35. “The Appeals Chamber understands the necessity to prove that the perpetrator was the ‘subordinate’ of the accused […] to mean that the relevant accused is, by virtue of his or her position, senior in some sort of formal or informal hierarchy to the perpetrator.” Čelebići Appeal, Id. note 8, at para. 303.
36. As stated in the World War II Japanese case of Toyoda (referred to in Čelebići, “The Appeals Chamber understands the necessity to prove that the perpetrator was the ‘subordinate’ of the accused […] to mean that the relevant accused is, by virtue of his or her position, senior in some sort of formal or informal hierarchy to the perpetrator. note 7, para. 373), “The responsibility for discipline in the situation facing the battle commander cannot, in the view of practical military men, be placed in any hands other than his own.”
37. Čelebići, As stated in the World War II Japanese case of Toyoda note 7, at para. 806.
38. Id., at para. 767.
39. Id., at para. 378 (emphasis added). I cited the International Law Commission's relevant statement in my discussion of the Akayesu case, above.
40. Note that the ICTR's latest judgement (which was handed down after submission of this article), Prosecutor v. Ignace Bagilishema, Case No. ICTR-95-1A-T, 7 June 2001, paras. 49-53, gives a correct account of the thesis in Čelebići and briefly refers to the need for de jure “trappings.” Bagilishema was acquitted on all counts, mainly due to a paucity of evidence about his alleged commission of crimes and presence at crime scenes. In no instance was the nature of the superior-subordinate relationship a critical issue.
41. See, e.g., Akayesu, Note that the ICTR's latest judgement (which was handed down after submission of this article) note 9, at para. 498: “Genocide is distinct from other crimes inasmuch as it embodies a special intent or dolus specialis. Special intent of a crime is the specific intention, required as a constitutive element of the crime, which demands that the perpetrator clearly seeks to produce the act charged.”
42. Schabas, Note that the ICTR's latest judgement (which was handed down after submission of this article) note 9 note 13, at 305 and 312.
43. See, for example, Čelebići, Note that the ICTR's latest judgement (which was handed down after submission of this article) note 9 note 13 note 7, at paras. 379-393; Aleksovski, Note that the ICTR's latest judgement (which was handed down after submission of this article) note 9 note 13 note 42, at paras. 79-80; and Prosecutor v. Tihomir BlaCkić, Judgement, Case No. IT-95-14, 3 March 2000, paras. 304-332.