Command Responsibility

by

Harmen van der Wilt

• LAST REVIEWED: 30 September 2013
• 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.

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

• 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/9780199694921.001.0001

  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.”

• 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/CBO9780511760808

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

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

  DOI: 10.1093/acprof:oso/9780199559329.001.0001

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

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

  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.

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

  DOI: 10.1093/acprof:oso/9780199560363.001.0001

  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.

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

  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.

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

  DOI: 10.1007/978-90-6704-559-9

  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