Causality, a Separate Element of the Doctrine of Superior Responsibility as Expressed in Article 28 Rome Statute?

Leiden Journal of International Law

Volumn 15, Issue 1, 2002, Pages 179-205

  Triffterer, Otto ^a  

^a UNIVERSITY OF SALZBURG   (Austria)

Author keywords

causality; command responsibility; International Criminal Court

Indexed keywords

EID: 85011457856     PISSN: 09221565     EISSN: 14789698     Source Type: Journal    
DOI: 10.1017/S0922156502000080     Document Type: Article

References (37)

1. See čelebíci, note *, at para. 396 et seq.; for the quotation see para. 401 and the section on construction of criminal statutes, paras. 402-418. For a survey on relevant jurisprudence see note 34, infra.
2. For a more comprehensive analysis see O. Triffterer, “Command Responsibility”, Grundstrukturen und Anwendungsbereiche von Artikel 28 des Rom Statutes-Eignung, auch zur Bekämpfung des internationalen Terrorismus?, in C. Prittwitz, et al. (Eds.), Festschrift für Claus Lüderssen 437 et seq (2002).
3. See The Carnegie Endowment (Ed.), Report of the International Commission to Inquire into the Causes and Conduct of the Balkan Wars (1914), reprinted in 1993 with an introduction by G.F. Kennan. He pointed out, with regard to command responsibility in his introduction: If the behaviour in question was not ordered by the regular commanders, they [the 1913 commissioners] pointed out, it was certainly tolerated and winked at, sometimes actually encouraged, by them. Again, the comparison with what is going on today [meaning on the territory of former Yugoslavia since 1991] is obvious (brackets added). Similar facts were established and conclusions made by the Commission on the Responsibilities of Authors of War and Enforcement of Penalties with regard to World War I, infra note 8.
4. General Orders No. 100, Instructions for the Government of Armies of the United States in the Field, 1863.
5. Hague Convention respecting the Laws and Customs of War on Land, 18 October 1907.
6. Treaty of Peace between Germany and the Allied and Associate Powers, signed at Versailles, 28 June 1919. See, also with references for notes 4 and 5, M.C. Bassiouni, Crimes Against Humanity in International Law 373 et seq. (1992).
7. All further articles without indication are those of the Rome Statute.
8. See, for instance, H.-H. Jescheck, Die Verantwortlichkeit der Staatsorgane nach Völkerstrafrecht 62 (1952). See also for All further articles without indication are those of the Rome Statute. notes 4 and 5, Carnegie Endowment for International Peace (Ed.), Report of the Commission on the Responsibilities of the Authors of War and Enforcement of Penalties (1919), reprinted in 14 AJIL 95 (1920).
9. Agreement for the Prosecution of the Major War Criminals of the European Axis, 8 August 1945, 82 UNTS 279, 59 Stat. 1544 ('Nuremberg Charter').
10. Charter of the International Military Tribunal for the Far East ('IMTFE') at Tokyo, Special Proclamation by the Supreme Commander for the Allied Powers at Tokyo, 19 January 1946 (amended 26 April 1946), TIAS No. 1589.
11. See, for instance, 1st Report of Special Rapporteur Spiropoulos regarding a draft Code of Offences against the Peace and Security of Mankind and the Nuremberg principles, 2 April 1950, Report of the ILC on the Work of its Second Session, UN Doc. A/1316 (5 June-29 July 1950), para. 86 et seq., reprinted in B. Ferencz, An International Criminal Court, Vol. II, 196 et seq. (1980); L.C. Green, War Crimes, Crimes against Humanity, and Command Responsibility, 50 Naval War College Review 26 et seq. (1997), available also at http:// www.nwc.navy.mil/press/Review/1997/spring/art2sp97.htm. See also Prosecutor v. Musema, Judgment, Case No. ICTR-96-13, 27 January 2000, para. 127 et seq.; Prosecutor v. BlaCkíc, Judgment, Case No. IT-95-14, 3 March 2000, para. 319 et seq.; čelebíci, 1st Report of Special Rapporteur Spiropoulos regarding a draft Code of Offences against the Peace and Security of Mankind and the Nuremberg principles note *, at para. 333 et seq.
12. In the čelebíci case, 1st Report of Special Rapporteur Spiropoulos regarding a draft Code of Offences against the Peace and Security of Mankind and the Nuremberg principles note *, para. 394, the Trial Chamber confirms such an influence, even with regard to the submission of the matter to the competent authorities and also with regard to further crimes.
13. Convention on the Prevention and Punishment of the Crime of Genocide, 78 UNTS 277 (1951).
14. 1949 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 75 UNTS 31 (1950) ('Geneva Convention I'); 1949 Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea, 75 UNTS 85 (1950) ('Geneva Convention II'); 1949 Geneva Convention Relative to the Treatment of Prisoners of War, 75 UNTS 135 (1950) ('Geneva Convention III'); and 1949 Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 75 UNTS 287 (1950) ('Geneva Convention IV').
15. United States v. Calley, 46 CMR 1131 (1971), affirmed 48 CMR 19, 24 (1973).
16. See K.A. Howard, Command Responsibility for War Crimes, 21 J. Pub. L. 7 (1972).
17. See, for the interpretation of this article, J. de Preux, Article 86-Failure to Act, in Y. Sandoz, C. Swinarski & B. Zimmermann (Eds.), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, para. 3524 et seq. (1987).
18. Report of the ILC on the Work of its Fortieth Session, for the interpretation of this article note 19.
19. Statute for the International Tribunal for the Former Yugoslavia, in the Secretary-General's Report on Aspects of Establishing an International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia, UN Doc. S/25704 (3 May 1993), reproduced in 32 ILM 1159 (1993), Art. 9(2) and Statute for the International Tribunal for Rwanda, Annex to Security Council Res. 955, UN Doc. S/RES/955 (8 November 1994), Annex, Art. 8(2).
20. See for this development and the debates in Rome, W.J. Fenrick, Article 28, in O. Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court, Observers’ Notes, Article by Article 515 et seq. (1999); and P. Saland, International Criminal Law Principles, in R.S. Lee (Ed.), The International Criminal Court, The Making of the Rome Statute 202 et seq. (1999).
21. For details see BlaCkíc, For details see BlaCkíc, For details see BlaCkíc, The International Criminal Court, The Making of the Rome Statute 202 et seq. note 13, at para. note 13, at para. note 13, at para. 337 et seq.
22. The question, how far the knowledge or the negligent lack of information have to encompass his own power to prevent and thereby, the consequences of his omission, has to be answered in the affirmative according to the general principle of criminal law; see, for instance, Triffterer, The question, how far the knowledge or the negligent lack of information have to encompass his own power to prevent and thereby, the consequences of his omission, has to be answered in the affirmative according to the general principle of criminal law; note 28, Chapter 14, marginal note 23 et seq.; and čelebíci, The question, how far the knowledge or the negligent lack of information have to encompass his own power to prevent and thereby, the consequences of his omission, has to be answered in the affirmative according to the general principle of criminal law; note *, para. 334.
23. Prosecutor v. Krstíc, Judgment, Case No. IT-98-33, 2 August 2001, para. 478 et seq.; Prosecutor v. Bagilishema, Judgment, Case No. ICTR-95-1A-T, 7 June 2001, para. 37 et seq.; Prosecutor v. Kordíc and čerkez, Judgment, Case No. IT-95-14/2, 26 February 2001, para. 401 et seq.; Prosecutor v. Delalíc, Mucíc, Delíc and LandBo ('čelebíci'), Judgment, Case No. IT-96-21-T, 20 February 2001, para. 182 et seq.; Prosecutor v. Aleksovski, Judgment, Case No. IT-95-14/1, 24 March 2000, para. 66 et seq.; BlaCkíc, The question, how far the knowledge or the negligent lack of information have to encompass his own power to prevent and thereby, the consequences of his omission, has to be answered in the affirmative according to the general principle of criminal law; note 13, para. 289 et seq.; Musema, The question, how far the knowledge or the negligent lack of information have to encompass his own power to prevent and thereby, the consequences of his omission, has to be answered in the affirmative according to the general principle of criminal law; note 13, para. 127 et seq.; Prosecutor v. Aleksovski, Judgment, Case No. IT-95-14/1, 25 June 1999, para. 66 et seq.; Prosecutor v. Kayishema and Ruzindana, Judgment, Cases Nos. ICTR-95-1, ICTR-96-10, 21 May 1999, para. 208 et seq.; čelebíci, The question, how far the knowledge or the negligent lack of information have to encompass his own power to prevent and thereby, the consequences of his omission, has to be answered in the affirmative according to the general principle of criminal law; note *, at para. 330 et seq.; Prosecutor v. Akayesu, Judgment, Case No. ICTR-96-4-T, 2 September 1998, para. 486 et seq.
24. Entwurf eines Gesetzes zur Einführung des Völkerstrafgesetzbuches, 22 June 2001, available at http://www.bmj.bund.de/images/10185.pdf. The draft has passed the cabinet in the middle of January 2002, see, for instance, G. Werle, Konturen eines deutschen Völkerstrafrechts, 56 JZ 884-895 (2001); G. Werle, Völkerstrafrecht und geltendes deutsches Strafrecht, 55 JZ 755-760 (2000).
25. In regard to effects of criminal law and its application see O. Triffterer, The Preventive and Repressive Function of the Permanent International Criminal Court, in G. Nesi & M. Politi (Eds.), The Rome Statute of the International Criminal Court: A Challenge to Impunity 137 et seq. (2001).
26. See čelebíci, The Preventive and Repressive Function of the Permanent International Criminal Court note *, at para. 400.
27. See Triffterer, čelebíci note 2, at 144 et seq.
28. The differentiation between “should have known” and “consciously disregarded information which clearly indicated,” marks a different threshold for military and other superiors: The first should be held responsible for negligence in any way, the second group, however, only for conscious negligence. See for this differentiation Triffterer, čelebíci note 2, at 444; and C. Garraway, Command Responsibility, Transcript of a presentation held at the Conference Preparing for the International Criminal Court in the Hague, December 2001. With respect to the standard applied to “other superiors” see G.R. Vetter, Command Responsibility of Non-Military Superiors in the International Criminal Court (ICC), 25 Yale J. Int'l L. 89 et seq. (2000).
29. See infra Sections 2.3 and 2.4.
30. Triffterer, infra Sections 2.3 and 2.4 note 28, Chapter 8, marginal note 52 et seq., in general and Chapter 14, marginal note 82 et seq. with special regard to omissions.
31. For details see Triffterer, id., Chapter 14, marginal note 86 with further references.
32. For individual responsibility in the sense of a causal nexus without a normative evaluation see K. Ambos, Der “Allgemeine Teil des Völkerstrafrechts”, Ansätze einer Dogmatisierung 87 et seq., for command responsibility 97 et seq. and 147 et seq., and, in particular, 666 et seq. (2002).
33. čelebíci, Der “Allgemeine Teil des Völkerstrafrechts” note *, at para. 400.
34. Triffterer, Id., at para. 396 et seq. note 2, at 445 et seq.
35. See čelebíci, Triffterer, Id., at para. 396 et seq. note 2, at 445 et seq. note *, at para. 400.
36. For the exceptions in cases of torture, deprivation of liberty and other “permanent crimes” see čelebíci Section 1.2.
37. See in this context O. Triffterer, New Dimensions of International Terrorism, Concurring with Core Crimes?, LJIL (2002) (forthcoming).