Command Responsibility

by

Harmen van der Wilt

• LAST MODIFIED: 30 September 2013
• DOI: 10.1093/obo/9780199796953-0088

Introduction

The doctrine of command or superior responsibility stipulates that a superior—a military or civilian leader—can be held criminally responsible when his subordinates commit international crimes. The doctrine has become part of customary international law and has been incorporated into the statutes of the international criminal tribunals and into the Rome Statute of the International Criminal Court (ICC). The superior incurs criminal responsibility for failing to have prevented (or repressed) criminal acts committed by his subordinates. Command responsibility thus implies a crime of omission. As the superior may be held criminally responsible, the doctrine has to observe the basic principles of criminal law, in particular the principle of individual guilt. The International Criminal Tribunal for the former Yugoslavia (ICTY) has emphatically held in the Čelibići case that command responsibility does not involve strict liability. Criminal law is predicated on the idea of free human agency, implying that the accused has the capacity to act in conformity with the legally and morally desirable norm and that he knows that he will be held responsible whenever he flouts that norm. The doctrine of command responsibility comprises three constituent elements, reflecting, respectively, power and agency (“effective command and control”), mens rea (“he knew or should have known”), and the omission that actually triggers criminal responsibility (“failure to take the reasonable and necessary steps”). The doctrine has been shaped and refined in the case law of the ad hoc tribunals for the ICTY and for Rwanda (ICTR). These judgments therefore deserve a prominent place in this bibliography. In order to shed a clearer light on and improve understanding of the distinct aspects of the doctrine, separate sections are dedicated to its Constituent Elements. These subsections refer to specific sources in case law and literature, discussing those elements in more detail. This central section is preceded by general topics, including historical roots and the legal nature and ethical dimensions of the doctrine. Later sections put the doctrine in context. They relate to the applicability of command responsibility to civilian superiors and in noninternational armed conflicts, discuss its relationship with other concepts of criminal liability, and bear on the doctrine’s reception and interpretation by the ICC and domestic jurisdictions.

General Overviews

The doctrine of command responsibility has a mixed pedigree. Originally, the doctrine was rooted in military culture and international humanitarian law, serving as an ethical code of conduct to be observed by commanders in arms. It basically conveyed the idea that the right to engage in warfare should be counterbalanced by a collateral duty to observe meticulously the ius in bello, against the backdrop of the notion that war is an inherently dangerous affair in which things may easily run astray. War unleashes formidable forces, affording its protagonists a “license to kill,” which, if insufficiently checked, can be abused and result in endless mischief. The responsibility to control these forces squarely rests on the shoulders of military commanders, who can be held accountable if they fail to perform this primary task. This balancing of rights and duties surfaced in The Hague Conventions on the Laws and Customs of War, which stipulated that the status of “lawful combatant” is subject to the requirement that the forces are subordinated to “responsible command” and will conduct their activities in accordance with the laws and customs of warfare. In this context, the duties of commanders were presented as a quid pro quo for the right to engage in armed conflict. Only fairly recently—after World War II—the doctrine has entered the realm of criminal law. It has been discovered as an important and useful tool to prosecute and try the masterminds of system criminality and therefore features prominently in the case law of the international criminal tribunals. This bibliography reflects this twofold origin. Walzer 1977 and van Creveld 1991 are standard works of the art of warfare and emphasize the primordial importance of responsible command. Cassese and Gaeta 2013; Cryer, et al. 2010; van Sliedregt 2012; and Werle 2009 are all introductory textbooks on international criminal law that contain analyses of the doctrine and the emerging case law Bantekas 2002 and Mettraux 2009 are monographs on the specific topic.

• Bantekas, Ilias. Principles of Direct and Superior Responsibility in International Humanitarian Law. Manchester, UK: Manchester University Press, 2002.

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  Insightful monograph, paying much attention to levels of command and corresponding responsibilities.

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• Cassese, Antonio, and Gaeta, Paola. Cassese’s International Criminal Law. Revised by Antonio Cassese, Paola Gaeta, Laurel Baig, Mary Fan, Christopher Gosnell, and Alex Whiting. 3rd ed. Oxford: Oxford University Press, 2013.

  DOI: 10.1093/he/9780199694921.001.0001E-mail Citation »

  Rich and colorful introduction to international criminal law; dotted with case law, it discusses command responsibility under the heading of “omission liability and superior responsibility.”

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• Cryer, Robert, Hakan Friman, Darryl Robinson, and Elizabeth Wilmshurst. An Introduction to International Criminal Law and Procedure. 2d ed. Cambridge, UK: Cambridge University Press, 2010.

  DOI: 10.1017/CBO9780511760808E-mail Citation »

  More matter-of-fact and elementary than Cassese 2013, but a sound exposition of the elements of the doctrine.

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• Mettraux, Guénaël. The Law of Command Responsibility. Oxford: Oxford University Press, 2009.

  DOI: 10.1093/acprof:oso/9780199559329.001.0001E-mail Citation »

  Comprehensive specialist work on the doctrine from the perspective of a defense counsel who has ample experience in litigating before international criminal tribunals.

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• van Creveld, Martin. The Transformation of War: The Most Radical Reinterpretation of Armed Conflict since Clausewitz. New York: Free Press, 1991.

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  Addresses the issue how the increasing involvement of paramilitary groups and guerillas affect the position and responsibility of commanders of both traditional armies and irregular forces.

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• van Sliedregt, Elies. Individual Criminal Responsibility in International Law. Oxford: Oxford University Press, 2012.

  DOI: 10.1093/acprof:oso/9780199560363.001.0001E-mail Citation »

  While this study engages in a broad discussion of all aspects of criminal responsibility in international criminal law, including justifications and excuses, the author is an expert in the doctrine of command responsibility, evidence by her many contributions to the debate. She favors a unified standard for military commanders and civilian superiors.

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• Walzer, Michael. Just and Unjust Wars: A Moral Argument with Historical Illustrations. New York: Basic Books, 1977.

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  Classic work on warfare from the viewpoint of a moral philosopher. Addresses the relevance of command responsibility throughout the entire book but also dedicates a specific chapter to the topic.

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• Werle, Gerhard. Principles of International Criminal Law. 2d ed. The Hague: TMC Asser, 2009.

  DOI: 10.1007/978-90-6704-559-9E-mail Citation »

  Thorough analysis of the constituent elements of superior responsibility, paying special attention to the (still rather arcane) significance of the “violation of the duty to control” as a central aspect of the doctrine

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Historical Roots

As has been observed in General Overviews, the doctrine of command responsibility obtained its criminal ramifications only after World War II. In the notorious Yamashita case (United Nations War Crimes Commission 1948), the responsibility stretched unreasonably far, bordering on strict liability. In the aftermath of the Nuremberg and Tokyo trials, military courts made some half-hearted attempts to reduce the doctrine to acceptable proportions (Hostage Case, High Command Case). While these courts were obviously under the sway of the abominable atrocities committed during World War II, they may not yet have realized that the transposition of the doctrine to criminal law required a more rigid approach. To a certain extent, the ad hoc tribunals had to start from scratch, outlining the proper limits of command responsibility. The scholarly works in this section all demonstrate how the original international humanitarian law doctrine of command responsibility was transformed into a concept of criminal law. The chronological order of these works reflects the development. While Parks 1973 focuses strongly on the law on the battlefield, Green 1995 guides the reader through the interacting disciplines of international humanitarian law and criminal law and Lippmann 2000 pays much attention to international criminal law. The case law reveals the arduous struggle of courts to determine the proper limits of the doctrine in view of the exigencies of criminal law. In Prosecutor v. Delalić et al., comprehensively discussed in Sunga 2000, the International Criminal Tribunal for the ICTY addressed all constituent elements in detail, and the judgment became an important normative framework for all (international) criminal tribunals.

• Green, Leslie C. “Command Responsibility in International Humanitarian Law.” In Special Issue: International Criminal Law. Edited by Roger S. Clark and Ved P. Nanda. Transnational Law & Contemporary Problems 5.2 (1995): 319–371.

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  Demonstrates how the international humanitarian elements of the doctrine served as normative guidelines for the doctrine’s criminal law reception.

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• “High Command Case: Opinion and Judgment of United States Military Tribunal at Nuremberg in United States vs. Wilhelm von Leeb et al.” In The Law of War: A Documentary History. Vol. 2. Edited by Leon Friedman, 1421–1470. New York: Random House, 1972.

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  Effort to correct the overly broad, “strict liability” interpretation of Yamashita, stressing that command responsibility implies at least criminal negligence, in the sense of a personal dereliction of duty, amounting to a wanton, immoral disregard of the action of subordinates amounting to acquiescence;

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• “Hostage Case: Opinion and Judgment of the United States Military Tribunal at Nuremberg in United States vs. Wilhelm List et al.” In The Law of War: A Documentary History. Vol. 2. Edited by L. Friedman, 1303–1343. New York: Random House, 1972.

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  Holds that a commander has an affirmative duty to collect information in his area of command, adding that “if reports are incomplete or otherwise inadequate, he is obliged to require supplementary reports to apprise himself of all the pertinent facts” (p. 1324).

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• Lippman, Matthew. “The Evolution and Scope of Command Responsibility.” Leiden Journal of International Law 13.1 (2000): 139–170.

  DOI: 10.1017/S0922156500000108E-mail Citation »

  Probably the best historical introduction to the subject for people who are less familiar with its technical aspects; traces the origins of the doctrine back to the end of World War I and renders a clear account of the legal developments, up to Čelibići. Available online for purchase or by subscription.

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• Parks, William H. “Command Responsibility for War Crimes.” Military Law Review 62 (1973):1–104.

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  Particularly interesting on post–World War II case law.

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• Prosecutor v. Delalić et al. Trial Chamber Judgment of 16 November 1998, International Criminal Tribunal for the Former Yugoslavia (ICTY). IT-96-21-T.

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  Also known as the Čelebići case. Landmark decision of the ICTY, touching on all aspects of the doctrine and serving as a normative point of departure for all later judgments of the international criminal tribunals.

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• Sunga, Lyal. “The Celebici Case: A Comment on the Main Legal Issues in the ICTY’s Trial Chamber Judgment.” Leiden Journal of International Law 13.1 (2000): 105–138.

  DOI: 10.1017/S0922156500000091E-mail Citation »

  Welcomes the Trial Chamber’s finding that superiors may engage criminal responsibility even in informal structures, provided that effective command can be proven. Available online for purchase or by subscription.

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• United Nations War Crimes Commission. “Case No. 21: Trial of the General Tomoyuki Yamashita.” Law Reports of Trials of War Criminals. Vol. IV. By the United Nations War Crimes Commission, 1–96. London: His Majesty’s Stationery Office, 1948.

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  (In)famous and vehemently criticized landmark decision, paying hardly any attention to the knowledge and controlling powers of the accused but deducing his responsibility from the randomness of atrocities and his failure to curb his subordinates.

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Nature of Command Responsibility

The nature of command responsibility is complex and disputed. The early decisions of the ICTY, the Prosecutor v. Delalić et al. (see also Historical Roots) judgment in particular, took for granted that the commander was responsible for the crimes of his subordinates, suggesting that it was a kind of accomplice liability. Dissenting judges in the interlocutory decision of the Appeals Chamber in Prosecutor v. Hadžihasanović et al. started to reconsider the nature of command responsibility, presenting it as a separate crime of omission, consisting of a dereliction of duty. By disentangling the offense of the superior from the underlying crimes of his subordinates, these judges, whose opinion was soon to be followed by judgments in other cases, intended to meet the criticism that the acti rei and the mentes reae of superiors and subordinates were incommensurate. The new conceptualization of command responsibility implied a lesser reproach and consequently warranted a more lenient sentence. It did not solve all problems, however. First, the Rome Statute does not appear to envisage a separate offense of omission. In addition, the sentencing of commanders on the basis of the doctrine reflects the gravity of the crimes of their subordinates, suggesting a close connection between both responsibilities. The discussion has continued in scholarly writings, displaying subtle differences and preferences. Jia 2004 welcomes the “separate offense” approach, while Swart 2007, although also generally in favor of this construction, cautions that the responsibility of the superior is closely connected to the crimes of his subordinates. Ambos 2011 contends that the superior is partially responsible for his dereliction of supervision and partially for the crimes of his subordinates Meloni 2007 and van Sliedregt 2011 advocate, in a similar vein, a “sui generis” concept, somewhere between a mode of participation and a separate offense. See also Nerlich 2007.

• Ambos, Kai. Vorgesetztenverantwortlichkeit. In Internationales Strafrecht; Strafanwendungsrecht, Völkerstrafrecht, Europäisches Strafrecht, Rechtshilfe. 3d ed. Edited by Kai Ambos, 176–185. Munich: Beck, 2011.

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  Qualifies “superior responsibility” as an offense of pure omission (echtes Unterlassungsdelikt), because the superior guarantees to take appropriate measures to prevent or suppress crimes by his subordinates and incurs responsibility if he fails to do so.

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• Jia, Bing Bing. “The Doctrine of Command Responsibility Revisited.” Chinese Journal of International Law 3.1 (2004): 1–42.

  DOI: 10.1093/oxfordjournals.cjilaw.a000504E-mail Citation »

  Bing Bing Jia was one of the first authors to signal the new approach of the doctrine in the case law of the ICTY and in favor of the “separate offense” configuration. Available online for purchase or by subscription.

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• Meloni, Chantal. “Command Responsibility: Mode of Liability for the Crimes of Subordinates or Separate Offence of the Superior?” Journal of International Criminal Justice 5.3 (2007): 619–637.

  DOI: 10.1093/jicj/mqm029E-mail Citation »

  Advocates a differentiated criminal law approach toward varieties of command responsibility, depending on distinctions in actus reus and mens rea. Available online for purchase or by subscription.

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• Nerlich, Volker. “Superior Responsibility under Article 28 ICC Statute: For What Exactly Is the Superior Held Responsible?” Journal of International Criminal Justice 5.3 (2007): 665–682.

  DOI: 10.1093/jicj/mqm033E-mail Citation »

  Advertises the “German approach” (see also National Law), arguing that a commander should be held responsible for the crimes of his subordinates only if he knew about their (imminent) commission, while in all other cases he should only incur responsibility for a dereliction of duty. Available online for purchase or by subscription.

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• Prosecutor v. Delalić et al. Trial Chamber Judgment of 16 November 1998, International Criminal Tribunal for the Former Yugoslavia (ICTY), §§ 333–343. IT-96-21-T.

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  Representing the conventional thesis that a superior is responsible for the crimes of his subordinates.

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• Prosecutor v. Hadžihasanović et al. Decision on Interlocutory Appeal Challenging Jurisdiction in Relation to Command Responsibility. Appeals Chamber Judgment of 16 July 2003, International Criminal Tribunal for the Former Yugoslavia (ICTY). IT-01-47-AR72.

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  Partial dissenting opinion of Judge Shahabuddeen, and separate and partial dissenting opinion of Judge Hunt, the first and most vocal proponents of the “separate offense” approach, triggering the debate within the ICTY.

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• Swart, A. H. J. “De strafrechtelijke aansprakelijkheid van meerderen in het internationale humanitaire recht.” In Geleerde lessen: Liber Amicorum Simon Stolwijk. Edited by Menno M. Dolman, Pieter D. Duyx, and Harmen G. van der Wilt, 213–234. Nijmegen: Wolf Legal, 2007.

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  Welcomes the development of superior responsibility as a responsibility sui generis although acknowledges that the liability of the commander is still closely connected to the crimes of his subordinates.

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• van Sliedregt, Elies. “Command Responsibility at the ICTY—Three Generations of Case-Law and Still Ambiguity.” In The Legacy of the International Criminal Tribunal for the Former Yugoslavia. Edited by Bert Swart, Alexander Zahar, and Goran Sluiter, 377–400. Oxford: Oxford University Press, 2011.

  DOI: 10.1093/acprof:oso/9780199573417.001.0001E-mail Citation »

  Critical assessment of the ICTY’s case law on the topic; the author attributes the lingering confusion to the drafting of Article 7(3) of the ICTY statute, leaving no room for differentiation.

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Moral Implications of the Doctrine

At first blush, the doctrine appears to be rather straightforward. However, the proper scope and limitations of its applicability have been the subject of heated discussions and controversy in both case law and scholarly writings. The major bone of contention has been the question of how the rather light requirements in respect of actus reus (an omission) and mens rea (a duty to know, rather than actual knowledge) can be reconciled with the extremely serious character of the very crimes. Is it fair to hold the superior responsible for crimes he did not intend and to which he did not actively contribute? In this respect, the heavy prison sentence imposed in the Blaskić case, discussed in Evans and Sarooshi 2001, triggered surprise. One of the first authors to address this issue was legal philosopher Mirjan Damaška, who assessed the doctrine against the aims of criminal punishment in Damaška 2001—retribution, deterrence norm expression—and found its interpretation wanting, especially in view of the didactic and norm expressive function of criminal justice. Van der Wilt 2010 underlines the importance of this influx from legal philosophy for the development of international criminal law. Danner and Martinez 2005 and Osiel 2005 question the suitability of superior responsibility as a tool to counter system criminality. Drumbl 2007, on the other hand, contemplates the doctrine as one of the necessary tools to take collective agency into account, and Bantekas 1999 similarly exhibits a more favorable opinion, acknowledging the concept’s usefulness, complementary to direct participation in international crimes.

• Bantekas, Ilias. “The Contemporary Law of Superior Responsibility.” American Journal of International Law 93.3 (1999): 573–595.

  DOI: 10.2307/2555261E-mail Citation »

  Points at the broad field of application of the doctrine to several types of command and discusses its connection to state responsibility. Available online for purchase or by subscription.

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• Damaška, Mirjan. “The Shadow Side of Command Responsibility.” American Journal of Comparative Law 49.3 (2001): 455–496.

  DOI: 10.2307/840901E-mail Citation »

  Discusses the doctrine in the context of theories of punishment and shows apprehension in view of the risks of its exceeding the limits of criminal law. Available online for purchase or by subscription.

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• Danner, Allison Marston, and Jenny S. Martinez. “Guilty Associations: Joint Criminal Enterprise, Command Responsibility, and the Development of International Criminal Law.” California Law Review 93 (2005):75–169.

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  Warning that an overly broad and uncritical application of joint criminal enterprise and command responsibility may be conducive of convictions based on “guilt by association,” which pay insufficient attention to the individual guilt principle.

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• Drumbl, Mark A. Atrocity, Punishment, and International Law. Cambridge, UK: Cambridge University Press, 2007.

  DOI: 10.1017/CBO9780511611100E-mail Citation »

  Questions in general the international community’s preference for traditional punishment of international crimes and favoring “on the ground” initiatives, like restorative justice instead.

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• Evans, Malcolm D., and Danesh Sarooshi. “Command Responsibility and the Blaskić Case.” International and Comparative Law Quarterly 50 (2001):452–465.

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  Case comment on the Blaskić judgment, stressing the moral opprobrium that the Trial Chamber intended to convey in sentencing the accused to forty-five years of imprisonment. Available online for purchase or by subscription.

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• Osiel, Mark. “The Banality of Good: Aligning Incentives against Mass Atrocity.” Columbia Law Review 105.6 (2005): 1751–1862.

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  Highly original contribution to the discussion, positioning the employment of specific concepts of criminal responsibility in the perspective of legal politics and arguing that international prosecutors, keen on casting the net as wide as possible, favor joint criminal enterprise, while domestic prosecutors are more inclined to opt for superior responsibility in their quest to target a few highly placed persons. Available online for purchase or by subscription.

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• van der Wilt, Harmen. “Why International Criminal Lawyers Should Read Mirjan Damaška.” In Future Perspectives on International Criminal Justice. Edited by Carsten Stahn and Larissa van den Herik, 44–57. The Hague: TMC Asser, 2010.

  DOI: 10.1007/978-90-6704-495-0E-mail Citation »

  Taking stock of Damaška’s critical analysis of the doctrine and propagating “normative expression” as an adequate framework to assess its shortcomings.

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Constituent Elements

As indicated in the introduction, the doctrine of command responsibility consists of three contextual elements. The superior–subordinate relationship is reflected in the prerequisite that the superior wields “effective command and control” over his subordinates, which has been defined as the material ability to prevent and punish criminal conduct. This power of control derives from the hierarchical relationship between superiors and subordinates, both enabling and authorizing the former to steer the conduct of the latter and based on the further assumption that subordinates will obey the orders and instructions of their superiors in rank. The knowledge element (mens rea) is embodied in the requirement that the superior must have known that his subordinates committed or were about to commit international crimes. Alternately, if he did not know, it must be proven that he is to blame for his ignorance because he defaulted on his obligation to apprize himself on the conduct of his men. The omission that creates criminal responsibility entails the failure to take adequate measures to prevent or repress crimes by subordinates. While these elements are uncontested, there are major differences of opinion on whether there needs to be a causal link between the crimes and the failure of the superior to exercise proper control.

Successor Superior Responsibility

The disjunctive phrasing of the commander’s omissions—failure to prevent or repress—both potentially triggering his responsibility, gives rise to the question of whether the superior who assumed command over subordinates who previously had committed war crimes incurs criminal responsibility if he fails to punish them. The issue came to the fore in Prosecutor v. Hadžihasanović et al. and was answered in the negative. According to the majority of the Appeals Chamber, customary international law requires that the commander exercise effective control at the time of the offense, which precludes responsibility for the successor superior on the sole basis of his failure to repress the crimes. The decision, though representing the current state of the law, may not be written in stone, in view of the vehement dissents of some ICTY judges. In Prosecutor v. Orić, Judge Shahabuddeen reiterates his disagreement with the majority in Hadžihasanović, Indicating that courts should be prepared to accept responsibility for successor commanders. In the literature, the issue has received mixed reactions. Greenwood 2004 agrees with the majority view in Hadžihasanović; van Sliedregt 2011 notes and is concerned about the uncertain legal situation that persists due to the distinct opinions; and Sander 2010 endeavors to reconcile the opposing views by probing into the nature of superior responsibility. Orie 2012 puts the question in wider perspective, as an example of the vicissitudes of stare decisis. Again, the topic bears close connection to the nature of command responsibility (see also Nature of Command Responsibility and Causality) and the causality issue. If one is inclined to consider command responsibility as a separate offense of dereliction of duty, one will be equally prepared to accept successor superior responsibility. National legislation, implementing the Rome Statute, increasingly tends to embrace this point of view. (See also National Law.)

• Greenwood, Christopher. “Command Responsibility and the Hadžihasanović Decision.” Journal of International Criminal Justice 2.2 (2004): 598–605.

  DOI: 10.1093/jicj/2.2.598E-mail Citation »

  Sides with the majority in Hadžihasanović, arguing that the duty to prevent and the obligation to punish (perpetrators of) international crimes cannot be separated. Available online for purchase or by subscription.

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• Orie, Alphons M. M. “Stare Decisis in the ICTY Appeals System? Successor Responsibility in the Hadžihasanović Case.” Journal of International Criminal Justice 10.3 (2012): 635–644.

  DOI: 10.1093/jicj/mqs022E-mail Citation »

  Presents the successor responsibility as a case study to discuss and censure the reluctance of the Appeals Chambers to overturn prior doctrinal pronouncements out of respect for the stability of the law. Available online for purchase or by subscription.

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• Prosecutor v. Hadžihasanović et al. Decision on Interlocutory Appeal Challenging Jurisdiction in Relation to Command Responsibility. Appeals Chamber Judgment, IT-01-47-AR72, Appeals Chamber Judgment, International Criminal Tribunal for the Former Yugoslavia (ICTY), 16 July 2003, §§ 37–56.

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  The majority holds that a superior cannot be held responsible for merely failing to punish crimes committed by his subordinates if he did not wield “effective command and control” over them at the time of commission.

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• Prosecutor v. Orić. Appeals Chamber Judgment of 3 July 2008, International Criminal Tribunal for the Former Yugoslavia (ICTY). IT-03-68-A.

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  See the declaration of Judge Shahabuddeen, disagreeing with the holding in Hadžihasanović and indicating that a new majority of appellate thought had developed that would be prepared to accept that superiors could incur responsibility for acts committed by their subordinates prior to their assuming control over them.

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• Sander, Barrie. “Unravelling the Confusion Concerning Successor Superior Responsibility in the ICTY Jurisprudence.” Leiden Journal of International Law 23.1 (2010): 105–135.

  DOI: 10.1017/S0922156509990355E-mail Citation »

  Argues that the opposite opinions on successor superior responsibility can be reconciled by taking the international criminal law nature of the doctrine of superior responsibility seriously. Available online for purchase or by subscription.

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• van Sliedregt, Elies. “Command Responsibility at the ICTY—Three Generations of Case-Law and Still Ambiguity.” In The Legacy of the International Criminal Tribunal for the Former Yugoslavia. Edited by Edited by Bert Swart, Alexander Zahar, and Goran Sluiter, 377–400. Oxford: Oxford University Press, 2011.

  DOI: 10.1093/acprof:oso/9780199573417.001.0001E-mail Citation »

  Notices that the lingering disagreements on the topic create legal uncertainty.

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Civilian Superiors

While the terms “command responsibility” and “superior responsibility” are generally used interchangeably, the latter qualification is arguably more appropriate, because it connotes the idea that civilian superiors may incur responsibility under the doctrine as well. To be sure, ministers and directors of industrial companies have been held responsible for the crimes of their subordinates by the Nuremberg Military Tribunals under Control Council Law No. 10 and by the Tokyo Tribunal (The Tokyo War Crimes Trial 1972), although not always explicitly on the basis of the doctrine of superior responsibility. The major problem of holding civilians responsible under the doctrine is that they, unlike the military, are usually not integrated in strictly hierarchical structures that would enable them to wield “effective control” by demanding unquestioned obedience. This puts the issue of the source of legal duties that logically sustain each crime of omission into sharp perspective. The case law of the International Criminal Tribunal for the ICTR has been particularly instructive for the assessment of civilian superiors’ responsibility. Generally, the Chambers have applied rigid standards, either requiring that the civilian operated within a “military-like” structure (Prosecutor v. Bagilishema) or seeking to compensate for the lack of hierarchical relations through more demanding requirements in respect of mens rea (Prosecutor v. Kayishema and Ruzindana). Occasionally, the Chambers have lowered the standard, inviting criticism that they insufficiently distinguished between psychological influence and effective control (Prosecutor v. Musema). In their commentaries on these cases, Zu Wenqi 2001 and Aptel and Williamson 2000 express understanding for the findings of the ICTR Chambers. More critical are Nybondas 2010 and Zahar 2001, which point at the fundamental differences between military culture and civilian life, putting in doubt whether command responsibility can be properly applied to civilians at all. The Rome Statute has officially corroborated the applicability of superior responsibility for both military commanders and civilian superiors (see also Command Responsibility at the International Criminal Court), creating different standards in respect of superior–subordinate relationship and mens rea.

• Aptel, Cecile, and Jamie A. Williamson. “Case Note: Prosecutor v. Musema: A Commentary on the Musema Judgment Rendered by the United Nations International Criminal Tribunal for Rwanda.” Melbourne Journal of International Law 1.1 (2000): 131–148.

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  Comparatively mild criticism on the judgment, that, while acknowledging some shortcomings, nevertheless welcomes the outcome as a valuable contribution to the broadening of protection under international criminal law.

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• The Tokyo War Crimes Trial. November 1948. International Military Tribunal for the Far East, The United States of America et al. v. Koki Hirota. 1972. In The Law of War: A Documentary History. Vol. I. Edited by Leon Friedman, 1029–1183, 1132–1134. New York: Random House.

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  Early example of a trial by the Tokyo Tribunal of a civilian leader (a foreign minister) for failure to prevent or repress war crimes while the accused had no superior powers over the perpetrators.

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• Nybondas, Maria L. Command Responsibility and its Applicability to Civilian Superiors. The Hague: TMC Asser, 2010.

  DOI: 10.1007/978-90-6704-443-1E-mail Citation »

  Seminal monograph on the topic arguing that, as superior responsibility is strongly embedded in military culture and engrafted on the concept of “military command,” it is not particularly suitable to civilian political leaders.

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• Prosecutor v. Bagilishema. Trial Chamber Judgment of 7 June 2001., International Criminal Tribunal for the Former Yugoslavia (ICTY). ICTR-95-1A.

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  Indicates that the organization in which the civilian superior operated should have a military style structure, partially revised by the Appeals Chamber (Case No. ICTR-95-1A-A, 3 July 2002, § 55) holding that the civilian is only expected to have the same degree of control.

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• Prosecutor v. Kayishema and Ruzindana. Trial Chamber Judgment of 21 May 1999, International Criminal Tribunal for Rwanda, §§ 213–231. ICTR-95-1-T.

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  Consents with the more lenient mens rea standard for civilian superiors, as expressed in Article 28 of the Rome Statute.

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• Prosecutor v. Musema. Trial Chamber Judgment of 27 January 2000, International Criminal Tribunal for Rwanda, §§ 863–883. ICTR-96-13-A.

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  Deduces de jure authority of the accused, a tea factory owner, from the legal and financial control over his employees, particularly from his power to appoint and remove these employees from their positions at the tea factory.

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• Wenqi, Zhu. “The Doctrine of Command Responsibility as Applied to Civilian Leaders: The ICTR and the Kayishema Case.” In International Law in the Post–Cold War World: Essays in Memory of Li Haopei. Edited by Sienho Yee and Wang Tieya, 373–384. New York: Routledge, 2001.

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  Agrees with the application of the doctrine of superior responsibility to civilian leaders, provided that they wield a similar degree of authority and control as military leaders.

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• Zahar, Alexander. “Command Responsibility of Civilian Superiors for Genocide.” Leiden Journal of International Law 14.3 (2001): 591–616.

  DOI: 10.1017/S0922156501000292E-mail Citation »

  Criticizing the outcome in Kayishema and Musema, the author argues that the application of the doctrine to civilian superiors will only be properly operative where the superior’s control of subordinates strongly resembles that enjoyed by military commanders. Available online for purchase or by subscription.

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Superior Responsibility in Noninternational Armed Conflicts

Nowadays, it is undisputed that the doctrine of command responsibility applies equally in armed conflicts of a noninternational character (Prosecutor v. Hadžihasanović et al.). In Prosecutor v. Delalić et al., the Trial Chamber even explicitly paid attention to the issue of de facto command exercised by superiors in irregular and paramilitary groups enmeshed in noninternational armed conflicts. According to Zegveld 2002, the same criteria for command responsibility should apply. This stands to reason, because the privileged status of “lawful combatant” is dependent on an armed group’s capacity to observe the laws and customs of war fare under responsible command. Nonetheless, it may be difficult to assess whether leaders of irregular forces should incur criminal responsibility on the basis of the doctrine, as they often lack the proper tools to steer the conduct of their subordinates in view of their poorly developed hierarchical structures. In this respect the position of leaders of irregular forces resembles the predicament of civilian superiors, discussed in the previous section. The ad hoc criminal tribunals and internationalized tribunals have grappled with the issue, understandably focusing on de facto authority. The Special Court for Sierra Leone (Prosecutor v. Brima, Kamara, and Kanu and Prosecutor v. Fofana and Kondewa) in particular has developed indicia that, in the absence of formal power relations, might point to the existence of “effective control.” Interestingly though, the Special Court has taken the organizational structure of traditional armies as the normative starting point and has searched for parameters that more loosely structured irregular forces have in common with this original paradigm. One of the renowned defense counsels, acting before the Sierra Leone Court, Knoops (see Knoops 2007) remained skeptical about the applicability of the doctrine in the context of irregular groups operating in noninternational armed conflicts.

• Knoops, Geert-Jan Alexander. “The Transposition of Superior Responsibility onto Guerilla Warfare under the Laws of the International Criminal Tribunals.” International Criminal Law Review 7.2–3 (2007): 505–529.

  DOI: 10.1163/156753607X204293E-mail Citation »

  Generally skeptical about the applicability of superior responsibility doctrine in respect of “irregular forces.” Available online for purchase or by subscription.

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• Prosecutor v. Brima, Kamara, and Kanu. Trial Chamber Judgment of 20 June 2007, Special Court for Sierra Leone, §§ 779–800. SCSL-04-16-T.

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  Also known as the AFRC case. Identifies parameters indicative of effective control of superiors in irregular forces.

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• Prosecutor v. Delalić et al. Appeals Chamber Judgment of 20 February 2001, International Criminal Tribunal for the Former Yugoslavia (ICTY), §§ 186–214. IT-96-21-A.

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  Discussion of de facto command, in particular in the context of irregular forces and paramilitary groups.

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• Prosecutor v. Fofana and Kondewa. Trial Chamber Judgment of 2 August 2007, Special Court for Sierra Leone, §§ 337–373. SCSL-04-14-T.

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  Also known as the CDF case. Meticulously assesses the command structures within the CDF and Kamajor society and the positions of the distinct protagonists.

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• Prosecutor v. Hadžihasanović et al. Decision on Interlocutory Appeal Challenging Jurisdiction in Relation to Command Responsibility. Appeals Chamber Judgment of 16 July 2003, International Criminal Tribunal for the Former Yugoslavia (ICTY), §§ 11–31. IT-01-47-AR72.

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  Confirms that the doctrine of superior responsibility is applicable in noninternational armed conflicts.

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• Zegveld, Liesbeth. Accountability of Armed Opposition Groups in International Law. Cambridge, UK: Cambridge University Press, 2002.

  DOI: 10.1017/CBO9780511495199E-mail Citation »

  General study on the accountability of nonstate actors for violations of international humanitarian law; argues that Trial Chambers should apply the same standards to assess command responsibility in international and internal conflicts (see part 3, chapter 3).

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Relationship to Other Forms of Individual Criminal Responsibility

Direct criminal responsibility and command responsibility are not per se mutually exclusive. Bonafé 2007 correctly observes that a superior who orders his subordinates to commit crimes or engages together with them in a joint criminal enterprise may in theory be charged under the heading of command responsibility as well, provided he wields effective control over them. For reasons of conceptual clarity, however, it is important to distinguish between different modes of criminal responsibility. Ambos 2007 compares the doctrine with joint criminal enterprise responsibility, while Meloni 2010 more generally attempts to distinguish superior responsibility from other forms of criminal responsibility. In Semanza v. Prosecutor, the Trial Chamber engages in a comprehensive analysis of command responsibility and modes of direct criminal responsibility in comparative perspective. In the case of “cumulation,” the ad hoc tribunals display a clear preference for direct criminal responsibility, holding that a conviction for both individual (direct) responsibility and command responsibility would be inappropriate (Prosecutor v. Blaskić). Command responsibility is subsumed under individual responsibility, and the accused’s superior position should be considered as an aggravating factor in sentencing. In Prosecutor v. Krstić, the Trial Chamber elaborates on the impact of superior position on the determination of punishment. For two reasons, it is questionable whether these holdings reflect a correct understanding of the relationship between the direct criminal responsibility and command responsibility. First, the “absorption thesis” tends to obscure the notion that “pure” command responsibility is a very distinct form of liability, connoting the often tragic predicament of persons who do not actively and intentionally engage in crimes but are simply not capable of mustering their considerable tasks. Second, it conceals the evidentiary problem of proving the element of superior–subordinate responsibility. The Trial Chamber of the Rwanda Tribunal in Prosecutor v. Gacumbitsi at least deserves credit for candidly avowing this difficulty.

• Ambos, Kai. “Joint Criminal Enterprise and Command Responsibility.” Journal of International Criminal Justice 5.1 (2007): 159–183.

  DOI: 10.1093/jicj/mql045E-mail Citation »

  Comparative analysis of both doctrines, identifying some common elements but mainly focusing on distinctive features. Available online for purchase or by subscription.

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• Bonafé, Beatrice I. “Finding a Proper Role for Command Responsibility.” Journal of International Criminal Justice 5.3 (2007): 599–618.

  DOI: 10.1093/jicj/mqm030E-mail Citation »

  Demonstrates the initial confusion of the proper relationship between direct responsibility and command responsibility and argues that courts have generally given preference to the former, which might explain the scarcity of decisions on command responsibility. Available online for purchase or by subscription.

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• Meloni, Chantal. Command Responsibility in International Criminal Law. The Hague: TMC Asser, 2010.

  DOI: 10.1007/978-90-6704-605-3E-mail Citation »

  Discusses the overlap and differences between command responsibility and other forms of criminal responsibility, including liability for omission and joint criminal enterprise. See especially pp. 209–247.

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• Prosecutor v. Blaskić. Appeals Chamber Judgment of 29 July 2004, International Criminal Tribunal for the Former Yugoslavia (ICTY), § 91. IT-95-14.

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  Authoritatively corroborates findings in earlier cases that cumulative convictions under Article 7(1) (direct individual responsibility) and Article 7(3) of the ICTY statute (command responsibility) are anathema.

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• Prosecutor v. Gacumbitsi. Trial Chamber Judgment of 17 June 2004, International Criminal Tribunal for Rwanda, § 332. ICTR-2001-64.

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  Presents the lack of evidence of a superior–subordinate relationship as a reason for not considering the command responsibility of the accused.

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• Prosecutor v. Krstić. Trial Chamber Judgment of 2 August 2001, International Criminal Tribunal for the Former Yugoslavia (ICTY), § 709. IT-98-33-T.

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  Explains why and in which cases a superior position will aggravate a sentence of a person convicted on the basis of individual responsibility.

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• Semanza v. Prosecutor. Appeals Chamber Judgment of 20 May 2005, International Criminal Tribunal for Rwanda, § 257 and §§ 355–364. ICTR-97-20-A.

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  Elucidation of distinction between command responsibility and aiding and abetting, instigation and ordering.

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The International Criminal Court

The Rome Statute dedicates a separate, comprehensive provision (Article 28) to superior responsibility, setting the doctrine apart from individual criminal responsibility (Article 25). The most conspicuous feature, as noted in Civilian Superiors, is the explicit acknowledgement of civilian superior responsibility. Article 28 recognizes the different contexts in which military commanders and civilian superiors tend to operate by distinguishing both in actus reus (“effective command and control” versus “effective authority and control”) and mens rea (“knew or, owing to the circumstances at the time, should have known” versus “consciously disregarding information, clearly indicating the—imminent—commission of crimes”). Many sources explicitly focus on this topic. Arnold 2008 favors a broad application of command responsibility to civilian superiors. Karsten 2009 argues that the distinction between military and civilians is too coarse and requires further refinement. Vetter 2000 is pessimistic about the opportunities of criminal law enforcement regarding civilian superiors in view of the demanding requirements. The introduction of the uncommonly broad “should have known” standard for military commanders, arguably implying a “duty to know,” is noted in Mens Rea. Moreover—and as already discussed in Causality—Article 28 requires a causal relationship between the superior’s lack of control and the commission of crimes, refuting the presentation of superior responsibility as a separate offense of omission (see also Nature of Command Responsibility). The other sources provide more general analyses of the incorporation of the doctrine in the statute, each displaying different focuses. Fenrick 1999 offers a rich survey of preceding case law of the ad hoc tribunals, demonstrating the differences in approach. Ambos 2002 elaborates on historical developments, and Schabas 2010 pays additional attention to the preparatory proceedings. Article 28 has prompted wide discussion in the legal literature and speculations on its scope and potential deviations from the standards as developed by the ad hoc tribunals. However, with the exception of Prosecutor v. Bemba Gombo,which offers an extensive survey of the doctrine, all suspects have so far been charged with individual responsibility, so it remains to be seen how the ICC will actually interpret the doctrine.

• Ambos, Kai. “Superior Responsibility.” In The Rome Statute of the International Criminal Court: A Commentary. Vol. I. Edited by Antonio Cassese, Paola Gaeta, and John R. W. D. Jones, 823–872. Oxford: Oxford University Press, 2002.

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  Very thorough discussion of the concept of superior responsibility, including surveys of case law and historical developments.

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• Arnold, Roberta, and Otto Triffterer. “Article 28.” Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article. 2d ed. Edited by Otto Triffterer, 795–843. Baden-Baden, Germany: Nomos, 2008.

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  Generally adequate follow-up to Fenrick 1999, favoring a broad application of superior responsibility to business leaders and civil servants.

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• Fenrick, W. J. “Article 28.” In Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article. Edited by Otto Triffterer, 515–522. Baden-Baden, Germany: Nomos, 1999.

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  Systematic analysis of all constituent elements of the doctrine as incorporated in Article 28, with due attention to case law.

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• Karsten, Nora. “Distinguishing Military and Non-Military Superiors: Reflections on the Bemba Case at the ICC.” Journal of International Criminal Justice 7.5 (2009): 983–1004.

  DOI: 10.1093/jicj/mqp071E-mail Citation »

  Censures the ICC Pre-Trial Chamber’s decision in Bemba for insufficiently elaborating on the question of whether the accused would qualify as a “military commander,” a person “effectively acting as a military commander,” or a civilian superior. Available online for purchase or by subscription.

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• Prosecutor v. Bemba Gombo. Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo. International Criminal Court, 15 June 2009, §§ 402–443. ICC-01/05-01/08-424.

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  Extensive survey of the law on superior responsibility with special emphasis on the new aspects introduced by the Rome Statute.

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• Schabas, William. An Introduction to the International Criminal Court. 3d ed. Cambridge, UK: Cambridge University Press, 2010.

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  Seminal study on the Rome Statute paying abundant attention to the preparatory proceedings and discussion.

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• Vetter, G. R. “Command Responsibility of Non-Military Superiors in the International Criminal Court.” Yale Journal of International Law 25 (2000):89–141.

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  Discusses the possible consequences of the less exacting requirements in respect of nonmilitary superiors and concludes that the civilian command responsibility provisions in the Rome Statute reduce the ICC’s power to bring human rights violators before the rule of law.

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National Law

State parties to the Rome Statute have implemented the international standards in their domestic legislation. Henckaerts and Doswald-Beck 2005 demonstrates that many states have more or less copied Article 28 of the statute, including its distinctive standards in respect of military commanders and civilian superiors. For some states, the introduction of command responsibility implies challenges and potential tensions with domestic law. May and Powles 2002 demonstrates that command responsibility is a relatively unfamiliar concept in UK law, Wu and Kang 1997 analyzes how superior responsibility relates to similar concepts in US law, and Schabas 2000 explains how the implementation of the concept runs the risk of violating the Rome Statute. Other states have explicitly strayed from the international standard. Bevers, et al. 2003 describes how the statute has been incorporated in Dutch law, which differentiates between intentional and negligent forms of superior responsibility. Neuner 2003 explains that Germany even makes a threefold distinction between superior responsibility tout court, violation of the duty of supervision, and omission to report a crime. The latter approaches reflected—or sometimes anticipated and influenced—the shifting opinions within the ad hoc tribunals on the nature of the doctrine (compare Nature of Command Responsibility). This raises the question, in view of the principle of complementarity, whether and to what extent state parties are allowed to deviate from the standards developed at the international level (van der Wilt 2008). National case law is scarce so far, as domestic courts have, just like their international colleagues, given preference to prosecutions and convictions on the basis of individual responsibility.

• Bevers, Hans, Jaap Roording, and Olivia Swaak-Goldman. “The Dutch International Crimes Act (Bill).” In National Legislation Incorporating International Crimes: Approaches of Civil and Common Law Countries. Edited by Matthias Neuner, 179–197. Berlin: BWV, 2003.

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  Points out that Dutch implementing legislation distinguishes between intentional and negligent superior responsibility, with the maximum penalty for the negligent version being one-third lower.

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• Henckaerts, Jean-Marie, and Louise Doswald-Beck, eds. Customary International Humanitarian Law. Vol. II, Practice. Cambridge, UK: Cambridge University Press, 2005.

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  Famous studies by the International Red Cross giving a bird’s-eye view of military manuals and statutes, incorporating the doctrine of superior responsibility. See especially pp. 3728–3751.

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• May, R., and S. Powles. “Command Responsibility: A New Basis of Criminal Liability in English Law?” Criminal Law Review 38 (2002):363–378.

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  Submits that indirect command responsibility pursuant to Section 65 of the ICC Act 2001, implementing the Rome Statute in English law, represents a new basis of criminal liability in English law; argues that English courts, when applying this section, should take into account and apply the broader customary international law standards as developed by the ICC.

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• Neuner, Matthias. “General Principles of International Criminal Law in Germany.” In National Legislation Incorporating International Crimes: Approaches of Civil and Common Law Countries. Edited by M. Neuner, 105–136. Berlin: BWV, 2003.

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  Comprehensive discussion of the German approach toward superior responsibility, distinguishing between participation in the very crime and offenses based on superiors’ breach of different duties; criticizes the lack of separate offense of “failure to punish.”

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• Schabas, William A. “Canadian Implementing Legislation for the Rome Statute.” Yearbook of International Humanitarian Law 3 (2000):337–346.

  DOI: 10.1017/S1389135900000684E-mail Citation »

  Emphasizes that Canadian legislation, in deference to the Constitution, while running the risk of noncompliance with the Rome Statute, treats command responsibility as a distinct offense rather than a form of committing. Available online for purchase or by subscription.

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• van der Wilt, Harmen. “Equal Standards? On the Dialectics between National Jurisdictions and the International Criminal Court.” International Criminal Law Review 8.1–2 (2008): 229–272.

  DOI: 10.1163/156753608X265295E-mail Citation »

  Argues that national states should have some leeway in implementing and interpreting international criminal law standards.

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• Wu, Timothy, and Yong-Sung Kang. “Criminal Liability for the Actions of Subordinates: The Doctrine of Command Responsibility and its Analogues in United States Law.” Harvard International Law Journal 38 (1997):272–297.

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  Draws analogies between command responsibility and the responsible corporate officer (RCO) doctrine and accomplice liability in US law, concluding that the analogy with the former is incomplete because, different from RCO, the underlying offenses are not strict liability crimes.

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