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The Law of Command Responsibility
Abstract
The book studies the law of command or superior responsibility under international law. Born in the aftermath of the Second World War, the doctrine of superior responsibility provides that a military commander, a civilian leader or the leader of a terrorist, paramilitary, or rebel group could be held criminally responsible in relation to crimes committed by subordinates even where he has taken no direct or personal part in the commission of these crimes. The basis of this type of liability lies in a grave and culpable failure on the part of the superior to fulfil his duties to prevent or punish crimes of subordinates. Though it first developed in the international arena, the doctrine of superior responsibility has now spread into many domestic jurisdictions, thus offering judicial and prosecutorial authorities a ready-made instrument to hold to account the leaders of men who knew of the crimes of their subordinates and failed to respond adequately to prevent or punish those crimes. This book provides a dissection of the doctrine of superior responsibility, the scope of its application, its elements as well as the evidential difficulties involved in establishing the criminal responsibility of a superior in the context of a criminal prosecution.
... Em suma, pode-se afirmar que qualquer indivíduo é penalmente responsável por qualquer conduta quando for determinada que ele intencional ou conscientemente participou da prática de um ato ilegal que viola o Direito Internacional Humanitário, bem como no caso em que sua participação afetou substancialmente a prática desse ato ilegal por meio do apoio à concretização do crime antes, durante ou depois do incidente (Mettraux, 2009). ...
... Portanto, mesmo os crimes cometidos por subordinados, os superiores são responsabilizados por sua posição, com o fundamento de que não tomaram medidas para prevenir ou reprimir a conduta ilegal de seus subordinados. No entanto, se a omissão do superior em agir para prevenir ou reprimir a conduta ilícita de seus subordinados não causou a prática do ato ilegal, o superior não poderá ser responsabilizado penalmente pelos atos de seus subordinados (Aksenova, 2019;Mettraux, 2009 Por fim, frisa-se que a imunidade soberana gera uma drástica consequência que é a impunidade, pois impede a responsabilização do indivíduo daqueles que praticaram crimes internacionais. Dito isso, tal fator não poderá ser usado como elemento de defesa ou atenuante para Chefes de Estado e funcionários do governo. ...
... Dito isso, tal fator não poderá ser usado como elemento de defesa ou atenuante para Chefes de Estado e funcionários do governo. Portanto, a cooperação dos Estados com os tribunais penais internacionais deve ser levada em consideração como uma obrigação internacional para a prevenção de conflitos e a dissuasão de crimes internacionais -que é uma das finalidades do estabelecimento dessas cortes (Aksenova, 2019;Mettraux, 2009). ...
O artigo em tela tem por objetivo geral analisar a concretização do princípio da responsabilidade penal do indivíduo e a importância dos tribunais penais internacionais. Dessa forma, pretende-se apresentar os elementos que contribuirão para a análise em tela – i. e., os objetivos específicos-, sendo eles: (i) a análise da relevância dos tribunais penais internacionais para a efetivação da responsabilidade criminal do indivíduo; (ii) o estudo dos princípios da soberania e da jurisdição penal como um possível obstáculo para a concretização da justiça penal internacional; (iii) a apresentação das características da responsabilidade penal do indivíduo; (iv) a verificação da vinculação da responsabilidade penal com os crimes internacionais. Concluir-se-á que a acusação e a punição dos autores dos crimes internacionais têm por escopo garantir a efetividade das normas internacionais e, por sucedâneo, a repressão à reincidência dos crimes internacionais mais atrozes. Por fim, ressalta-se que o estudo se fundamenta na metodologia qualitativa, tendo como método de pesquisa a revisão bibliográfica e a análise documental, essencialmente tratados e convenções internacionais cujo teor tangenciam a temática em tela.
... When I refer to responsibility I mean command responsibility (Mettraux, 2009) which requires that humans meet the criteria for moral responsibility and legal responsibility which I discuss in more depth in the Command section below. But briefly, the basic conditions for moral responsibility and blameworthiness requires a human to have autonomy, knowledge and capability to make a decision and can reasonably forsee the consequences of that decision (Talbert, 2016). ...
21st Century war is increasing in speed, with conventional forces combined with massed use of autonomous systems and human-machine integration. However, a significant challenge is how humans can ensure moral and legal responsibility for systems operating outside of normal temporal parameters. This chapter considers whether humans can stand outside of real time and authorise actions for autonomous systems by the prior establishment of a contract, for actions to occur in a future context particularly in faster than real time or in very slow operations where human consciousness and concentration could not remain well informed. The medical legal precdent found in 'advance care directives' suggests how the time-consuming, deliberative process required for accountability and responsibility of weapons systems may be achievable outside real time captured in an 'advance control driective' (ACD). The chapter proposes 'autonomy command' scaffolded and legitimised through the construction of ACD ahead of the deployment of autonomous systems.
... Teisės akto komentare pažymima, kad šis reguliavimas įtvirtintas remiantis, anksčiau šiame straipsnyje aptarta, Tomoyukiʼo Yamashitaʼos byloje suformuota tarptautinių teismų praktika. 20 Protokolo 86 straipsnio 2 dalyje numatoma: ...
... 142 Ibid à la p 468, voir hypothèse de la « failure to punish tout court ». parce qu'il ne serait pas possible de démontrer la contribution du supérieur dans la commission de ces crimes et ainsi d'établir ce fameux lien de cause à effet entre son inaction et la perpétration des crimes par ses subordonnés 143 . Certains auteurs ont proposé d'interpréter largement l'exigence de ce lien de manière à ouvrir aussi toute contribution à l'impunité des crimes des subordonnés 144 . Cette proposition est toutefois peu convaincante parce qu'elle tend à faire revenir un concept déjà abandonné, celui du « complice après l'acte », et à confondre la contribution à la commission d'un crime et les actes d'obstruction à la justice 145 . ...
Le présent article jette un regard critique sur le jugement de la Cour pénale internationale appliquant à M. Bemba, un ancien rebelle congolais, la responsabilité pénale des supérieurs hiérarchiques. En analysant la nature de cette forme de responsabilité ainsi que ses conditions d’application, l’article démontre, dans un premier temps, qu’il existe un lien entre la connaissance (antérieure ou postérieure) qu’avait le supérieur hiérarchique sur la conduite criminelle de ses forces et les mesures (préventives ou répressives) nécessaires et raisonnables qu’il aurait dû prendre. Par rapport précisément à ces mesures, l’article démontre, dans un second temps, que si la qualité de rebelle n’a aucune incidence sur l’obligation de prendre les mesures préventives dès lors que le rebelle savait que les crimes vont être commis par ses soldats, il en est autrement des mesures répressives concernant les crimes déjà commis et dont le rebelle n’a eu la connaissance qu’après coup, puisque le Statut de Rome doit être interprété dans le respect des droits de l’homme internationalement reconnus. La critique principale formulée à l’encontre de ce jugement réside ainsi dans les incertitudes qu’il a apportées à ces deux problématiques qui semblent marquer la limite de la responsabilité des supérieurs lorsqu’il s’agit des rebelles.
Artificial intelligence (AI) has found extensive applications to varying degrees across diverse domains, including the possibility of using it within military contexts for making decisions that can have moral consequences. A recurring challenge in this area concerns the allocation of moral responsibility in the case of negative AI-induced outcomes. Some scholars posit the existence of an insurmountable “responsibility gap”, wherein neither the AI system nor the human agents involved can or should be held responsible. Conversely, other scholars dispute the presence of such gaps or propose potential solutions. One solution that frequently emerges in the literature on AI ethics is the concept of command responsibility, wherein human agents may be held responsible because they perform a supervisory role over the (subordinate) AI. In the article we examine the compatibility of command responsibility in light of recent empirical studies and psychological evidence, aiming to anchor discussions in empirical realities rather than relying exclusively on normative arguments. Our argument can be succinctly summarized as follows: (1) while the theoretical foundation of command responsibility appears robust (2) its practical implementation raises significant concerns, (3) yet these concerns alone should not entirely preclude its application (4) they underscore the importance of considering and integrating empirical evidence into ethical discussions.
This chapter discusses the regulations without which the normative description of the forms of criminal responsibility criminalized under the Statute would be incomplete. Thus, it begins with remarks dedicated to the superior responsibility. Whereas this concept alone could become the subject of a separate book, this chapter outlines the scope of Article 28 of the Rome Statute and describes its function amid other grounds of criminal responsibility indicated in the Statute. It also sketches the doubts concerning the interpretation of Article 28 that arose on the grounds of the Bemba case. What is more, the chapter describes the practical relevance of Article 25(3bis) of the Rome Statute which refers to the criminal participation in the crime of aggression which constitutes an example of the leadership crime. The last part of the chapter focuses on the problems with a practical application of Article 25(3) of the Rome Statute to the offences criminalized in Article 70.
War crimes are not typically leadership crimes, unlike aggression. In cases where they mobilize important state resources, are committed on a large or consistent scale or are ordered at the highest level, one question is how they can be attributed to heads of state. This chapter discusses some ways in which Vladimir Putin, the current President of Russia, could be brought to trial for alleged war crimes being committed by Russian armed forces in Ukraine. Specifically, it investigates some modes of liability under which could he be held criminally responsible that would particularly make sense of his special responsibilities as head of state. Two main possibilities are discussed: ordering and superior/command responsibility. We evaluate what specific challenges and opportunities each of these options involve. We contend that command or superior responsibility would probably come with the highest chance of success and express a strong sense that the head of state is ultimately responsible for how their troop behave in the field.
The possible future use of lethal autonomous weapons systems (LAWS) and the challenges associated with assigning moral responsibility leads to several debates. Some authors argue that the highly autonomous capability of such systems may lead to a so-called responsibility gap in situations where LAWS cause serious violations of international humanitarian law. One proposed solution is the doctrine of command responsibility. Despite the doctrine’s original development to govern human interactions on the battlefield, it is worth considering whether the doctrine of command responsibility could provide a solution by applying the notion analogously to LAWS. A fundamental condition underpinning the doctrine’s application is the control requirement, stipulating that a superior must exert some degree of control over subordinates. The aim of this article is to provide an in-depth analysis of this control condition and assess whether it leads to the impossibility of applying the doctrine of command responsibility to LAWS. To this end, the first section briefly introduces the topic of LAWS and responsibility gaps. The subsequent section provides a concise overview of the doctrine itself and the conditions typically necessitated for its application. In the third section, a comprehensive scrutiny of the control requirement is undertaken through examination of key case law, examining how the concept has been interpreted. Finally, the fourth section delves into the evaluation of commanders’ potential to exert effective control over their (non-human) subordinates. Based on this, the feasibility of considering command responsibility as a viable solution is assessed, aiming to determine whether its application should be prima facie excluded or warrants further exploration.
The aim of this article is to evaluate whether individual criminal responsibility (ICR) is attributable to perpetrators of the Gukurahundi atrocities committed in Matabeleland and Midlands, Zimbabwe, between 1983 and 1987. The criminal liability of Gukurahundi perpetrators is evaluated against the legal requirements garnered from conventions, jurisprudence of international criminal tribunals and the work of leading scholars. Firstly, the article provides an overview and historical development of the concept of ICR under international law. Second, it examines the theories of criminality under international law. Third, it analyses the forms and modalities of ICR including relevant specific crimes. Fourth, it evaluates the individual and superior responsibility of Gukurahundi perpetrators. A crucial feature of international criminal law is the legal obligation to investigate, prosecute and punish perpetrators of international crimes. The article therefore explores the different ways in which ICR could be attributed to perpetrators of the Gukurahundi international crimes. The author sets out to advance knowledge and understanding of possible mechanisms to hold perpetrators of the Gukurahundi atrocities criminally accountable under international law.
With regard to the Rohingya crisis, for the first time in history, the International Court of Justice (ICJ) and the International Criminal Court (ICC) are dealing with the same case at the same time. The ICJ is the principal judicial body of the United Nations and adjudicates state responsibility for interstate disputes. As the United Nations fact-finding mission has stated, there is a growing consensus that Myanmar’s armed forces and authorities are suspected of committing crimes comparable to genocide, and the ICJ is on the verge of holding the state accountable for genocide, a crime within a crime, in addition to the criminal responsibility of individuals under international law. On November 11, 2019, three days before the Pre-Trial Division of the ICC authorized the opening of an investigation into the Bangladesh/Myanmar situation, The Gambia filed a complaint with the ICJ against Myanmar under the Genocide Convention. The application includes a request of provisional measures against Myanmar. On January 23, 2020, the ICJ issued its order for provisional measures to preserve certain rights asserted by The Gambia for the protection of the Rohingya in Myanmar. The evidentiary hurdle for the ICJ to find genocide is extremely high. It is also noteworthy that neither The Gambia, which brought the suit before the ICJ, nor Canada nor the Netherlands, which have announced their intention to intervene in the case, are directly affected parties in the matter. All of which suggests that there may be yet more plaintiffs going forward with respect to issues surrounding similar breaches of the obligation erga omnes.
En droit international pénal, la question de l’imputation de l’infraction revêt une place centrale dans la détermination de la responsabilité pénale individuelle. L’un des enjeux majeurs de la justice pénale internationale se trouve en effet dans le processus d’attribution des crimes de masse à des individus qui, bien souvent, n’ont pas matériellement commis les actes qui leur sont reprochés. Dans ce contexte systémique, se pose alors la question de savoir comment imputer à un individu un crime commis collectivement. Alors que l’article 25§3 du Statut de la Cour pénale internationale vise indifféremment plusieurs mécanismes d’imputation, il semble toutefois s’organiser autour d’une distinction entre les individus qui « commettent » l’infraction et les individus qui ne font qu’y « contribuer ». Cette distinction fondée sur la nature de l’acte de participation permettrait ainsi de discerner une forme de « participation principale » et une forme de « participation accessoire ». Malgré l’apparente exhaustivité du texte, les juges et le Procureur de la Cour pénale internationale en font une application très circonscrite et empreinte d’un symbolisme certain : des premières décisions de mandat d’arrêt aux plus récents jugements, ces derniers ont en effet essentiellement mobilisé les formes de la « participation principale », lui accordant ainsi une préférence, une priorité. Profondément stigmatisant, ce choix invite aujourd’hui à reconsidérer l’appréhension et la compréhension de la chaine de responsabilité et surtout, à repenser l’articulation d’ensemble des mécanismes de participation à l’infraction prévus par le Statut.
In the past decades, great strides have been made to ensure that crimes against humanity and state-sponsored organized violence are not committed with impunity. Alongside states, large international organizations such as the United Nations and forums such as the International Criminal Court, 'de facto international prosecutors' have emerged to address these crimes. Acting as investigators and evidence-gathers to identify individuals and officials engaged in serious human rights violations, these 'private' non-state actors, and state legal 'officials' in a foreign court, pursue criminal accountability for those most responsible for core international crimes. They do so when local options to investigate fail and an international criminal tribunal remains unavailable. This study outlines three case studies of witnesses and victims who pursue those most responsible, including former heads of state. It examines their practices and strategies, and shows how witnesses and victims of core crimes emerge as key leaders in the accountability process.
This volume is one of the few books to explain in-depth the international crimes behind the scenes of substantive or procedural law. The contributors place a particular focus on what motivates participation in international crime, how perpetrators, witnesses and victims see their predicament and how international crimes should be investigated at local and international level, with an emphasis on context. The book engages these questions with a broad interdisciplinary approach that is accessible to both lawyers and non-lawyers alike. It discusses international crime through the lens of anthropology, neuroscience, psychology, state crime theory and information systems theory and draws upon relevant investigative experience from experts in international and domestic law prosecutions.
This volume is one of the few books to explain in-depth the international crimes behind the scenes of substantive or procedural law. The contributors place a particular focus on what motivates participation in international crime, how perpetrators, witnesses and victims see their predicament and how international crimes should be investigated at local and international level, with an emphasis on context. The book engages these questions with a broad interdisciplinary approach that is accessible to both lawyers and non-lawyers alike. It discusses international crime through the lens of anthropology, neuroscience, psychology, state crime theory and information systems theory and draws upon relevant investigative experience from experts in international and domestic law prosecutions.
This volume is one of the few books to explain in-depth the international crimes behind the scenes of substantive or procedural law. The contributors place a particular focus on what motivates participation in international crime, how perpetrators, witnesses and victims see their predicament and how international crimes should be investigated at local and international level, with an emphasis on context. The book engages these questions with a broad interdisciplinary approach that is accessible to both lawyers and non-lawyers alike. It discusses international crime through the lens of anthropology, neuroscience, psychology, state crime theory and information systems theory and draws upon relevant investigative experience from experts in international and domestic law prosecutions.
This volume is one of the few books to explain in-depth the international crimes behind the scenes of substantive or procedural law. The contributors place a particular focus on what motivates participation in international crime, how perpetrators, witnesses and victims see their predicament and how international crimes should be investigated at local and international level, with an emphasis on context. The book engages these questions with a broad interdisciplinary approach that is accessible to both lawyers and non-lawyers alike. It discusses international crime through the lens of anthropology, neuroscience, psychology, state crime theory and information systems theory and draws upon relevant investigative experience from experts in international and domestic law prosecutions.
This volume is one of the few books to explain in-depth the international crimes behind the scenes of substantive or procedural law. The contributors place a particular focus on what motivates participation in international crime, how perpetrators, witnesses and victims see their predicament and how international crimes should be investigated at local and international level, with an emphasis on context. The book engages these questions with a broad interdisciplinary approach that is accessible to both lawyers and non-lawyers alike. It discusses international crime through the lens of anthropology, neuroscience, psychology, state crime theory and information systems theory and draws upon relevant investigative experience from experts in international and domestic law prosecutions.
This volume is one of the few books to explain in-depth the international crimes behind the scenes of substantive or procedural law. The contributors place a particular focus on what motivates participation in international crime, how perpetrators, witnesses and victims see their predicament and how international crimes should be investigated at local and international level, with an emphasis on context. The book engages these questions with a broad interdisciplinary approach that is accessible to both lawyers and non-lawyers alike. It discusses international crime through the lens of anthropology, neuroscience, psychology, state crime theory and information systems theory and draws upon relevant investigative experience from experts in international and domestic law prosecutions.
This volume is one of the few books to explain in-depth the international crimes behind the scenes of substantive or procedural law. The contributors place a particular focus on what motivates participation in international crime, how perpetrators, witnesses and victims see their predicament and how international crimes should be investigated at local and international level, with an emphasis on context. The book engages these questions with a broad interdisciplinary approach that is accessible to both lawyers and non-lawyers alike. It discusses international crime through the lens of anthropology, neuroscience, psychology, state crime theory and information systems theory and draws upon relevant investigative experience from experts in international and domestic law prosecutions.
This volume is one of the few books to explain in-depth the international crimes behind the scenes of substantive or procedural law. The contributors place a particular focus on what motivates participation in international crime, how perpetrators, witnesses and victims see their predicament and how international crimes should be investigated at local and international level, with an emphasis on context. The book engages these questions with a broad interdisciplinary approach that is accessible to both lawyers and non-lawyers alike. It discusses international crime through the lens of anthropology, neuroscience, psychology, state crime theory and information systems theory and draws upon relevant investigative experience from experts in international and domestic law prosecutions.
This volume is one of the few books to explain in-depth the international crimes behind the scenes of substantive or procedural law. The contributors place a particular focus on what motivates participation in international crime, how perpetrators, witnesses and victims see their predicament and how international crimes should be investigated at local and international level, with an emphasis on context. The book engages these questions with a broad interdisciplinary approach that is accessible to both lawyers and non-lawyers alike. It discusses international crime through the lens of anthropology, neuroscience, psychology, state crime theory and information systems theory and draws upon relevant investigative experience from experts in international and domestic law prosecutions.
This volume is one of the few books to explain in-depth the international crimes behind the scenes of substantive or procedural law. The contributors place a particular focus on what motivates participation in international crime, how perpetrators, witnesses and victims see their predicament and how international crimes should be investigated at local and international level, with an emphasis on context. The book engages these questions with a broad interdisciplinary approach that is accessible to both lawyers and non-lawyers alike. It discusses international crime through the lens of anthropology, neuroscience, psychology, state crime theory and information systems theory and draws upon relevant investigative experience from experts in international and domestic law prosecutions.
This volume is one of the few books to explain in-depth the international crimes behind the scenes of substantive or procedural law. The contributors place a particular focus on what motivates participation in international crime, how perpetrators, witnesses and victims see their predicament and how international crimes should be investigated at local and international level, with an emphasis on context. The book engages these questions with a broad interdisciplinary approach that is accessible to both lawyers and non-lawyers alike. It discusses international crime through the lens of anthropology, neuroscience, psychology, state crime theory and information systems theory and draws upon relevant investigative experience from experts in international and domestic law prosecutions.
This volume is one of the few books to explain in-depth the international crimes behind the scenes of substantive or procedural law. The contributors place a particular focus on what motivates participation in international crime, how perpetrators, witnesses and victims see their predicament and how international crimes should be investigated at local and international level, with an emphasis on context. The book engages these questions with a broad interdisciplinary approach that is accessible to both lawyers and non-lawyers alike. It discusses international crime through the lens of anthropology, neuroscience, psychology, state crime theory and information systems theory and draws upon relevant investigative experience from experts in international and domestic law prosecutions.
This volume is one of the few books to explain in-depth the international crimes behind the scenes of substantive or procedural law. The contributors place a particular focus on what motivates participation in international crime, how perpetrators, witnesses and victims see their predicament and how international crimes should be investigated at local and international level, with an emphasis on context. The book engages these questions with a broad interdisciplinary approach that is accessible to both lawyers and non-lawyers alike. It discusses international crime through the lens of anthropology, neuroscience, psychology, state crime theory and information systems theory and draws upon relevant investigative experience from experts in international and domestic law prosecutions.
The issue of international crimes is highly topical in Asia, with still-resonant claims against the Japanese for war crimes, and deep schisms resulting from crimes in Bangladesh, Cambodia, and East Timor. Over the years, the region has hosted a succession of tribunals, from those held in Manila, Singapore and Tokyo after the Asia-Pacific War to those currently running in Dhaka and Phnom Penh. This book draws on extensive new research and offers the first comprehensive legal appraisal of the Asian trials. As well as the famous tribunals, it also considers lesser-known examples, such as the Dutch and Soviet trials of the Japanese, the Cambodian trial of the Khmer Rouge, and the Indonesian trials of their own military personnel. It focuses on their approach to the elements of international crimes, and their contribution to general theories of liability. In the process, this book challenges some orthodoxies about the development of international criminal law.
This article analyses the procedural right to a remedy under human rights law when applied to armed groups controlling territory and exercising governance. Using the Al Hassan case before the International Criminal Court as a reference point and drawing on literature on rebel governance from other disciplines, the article conducts a critical review of the application of the right to a remedy to armed groups. Finding that the right to a procedural remedy applied to armed groups can be useful and realistic, the articles evaluates how the main tools of the right to a remedy (1) domestic law and (2) domestic courts, can and should be treated, when dealing with territory controlled by armed groups. Adopting a high-altitude perspective that identifies and discusses the dynamics within the discourse that resist recognition of armed groups’ law and courts under human rights law, the article highlights key tensions within the system of international law and reflects on what the legal framework, taken as a system, can expect and require from armed groups.
It has been widely evidenced that international crimes are collective in nature and involve individuals acting through an organized structure. Thus, besides punishing the physical perpetrators, an important task for international criminal law is to develop the proper doctrines to attribute responsibility to those on top of such organizations. In this direction, the concept of superior responsibility becomes highly relevant, attributing liability to military or civilian superiors for their failure to prevent the crimes of their subordinates. Nevertheless, international criminal law has not yet developed a concrete approach to the nature and application of the superior responsibility doctrine. To overcome this shortcoming, this article identifies the links between the superior responsibility doctrine and the theoretical framework of attributing criminal responsibility to the individual for the commission of international crimes. Developing on omission theory, it suggests an alternative theoretical approach to the superior responsibility doctrine, which combines the theory of control already applied in the case law of the International Criminal Court (ICC) with the mens rea requirements of the ICC Statute.
A recent report by the Australian Defence Force arrived at a conclusion that further investigation was not warranted of commanders regarding their responsibility for failing to investigate suspicious behaviour of subordinates in Afghanistan, who were accused of violations of international humanitarian law. This troubling conclusion calls for a better analysis and understanding of command responsibility in international law and gaps in the law of command responsibility. This article identifies the conflicting precedents and scholarship regarding the law of command responsibility, which create uncertainty, and proposes a clarification of that law, with a special focus on the “reason to know” standard that triggers responsibility for failing to prevent or punish war crimes. It refutes the popular claim that commanders must act wilfully, and it rejects the common dichotomy between a commander who orders or otherwise directly participates in the war crimes of subordinates and one who unwittingly fails to prevent or punish such crimes. Using the empirical psychological literature, the article further explains how commanders can insidiously signal toleration of war crimes without giving direct orders. Finally, the article argues that international law, by absolving commanders who fail to properly train their subordinates to respect the law of armed conflict, misses a rare opportunity to deter war crimes, and offers some suggestions to fill this gap in the law.
President Rodrigo Duterte won on a law-and-order campaign promise to fatten the fish in Manila Bay with the corpses of criminals. By the time the Philippines withdrew from the Rome Statute, the body count stood at a reported 30,000, a fifth of whom were openly killed in Philippine National Police (PNP) anti-drug operations. Duterte has since been accused of Crimes Against Humanity, inter alia , as “a person effectively acting as a military commander” under Article 28(a) of the Rome Statute for failing to prevent, repress, and report the crimes of his police subordinates. This study tests the veracity of that claim. It seeks to determine whether Duterte, as the Chief Executive and overall superior of the PNP – statutorily, a civilian group – may be held liable as a military-like commander under the doctrine of command responsibility. At the core of this query lies a singular concern far from simple: the meaning of military-likeness.
Since 1980, the Zimbabwean government and ruling party, the Zimbabwe African National Union-Patriotic Front (Zanu PF), have committed atrocities against its citizens. These atrocities have been perpetrated pursuant to a political agenda, ideology and objective to systematically weaken, persecute and destroy opponents of the government and Zanu (PF) to ensure a one-party state. As part of this strategy, the government and ruling party have politicised ethnicity and committed the Gukurahundi genocide against the Ndebele supporters of the Zimbabwe African Peoples Union (PF Zapu) in Matabeleland and Midlands in the 1980s. From 1990 to now, the government and Zanu PF have politicised and racialised atrocities and targeted opposition supporters of the Zimbabwe Unity Movement (ZUM), the Movement for Democratic Change (MDC), white farmers, civil society, human rights, media and democracy activists. This chapter investigates the atrocities committed by the government and ruling party, Zanu PF, over 40 years through the prism of international criminal law. The chapter concludes that the atrocities constitute international crimes and meet the legal requirements of war crimes, genocide, crimes against humanity and torture. The chapter chronicles patterns of atrocity and impunity over four decades and examines the individual criminal responsibility of perpetrators. Finally, drawing on global comparative experiences, the chapter evaluates options and prospects of combating impunity and holding perpetrators accountable under international criminal law.KeywordsZimbabweZanu PFInternational crimesGukurahundi genocideAccountabilityIndividual criminal responsibility
In virtually every village in the Zimbabwean provinces of Matabeleland and parts of Midlands, there are reminders of unspeakable atrocities perpetrated against defenceless civilians by the government between 1982 and 1987. These atrocities, known as the ‘Gukurahundi’, resulted in the deaths of an estimated 20,000 Ndebele civilians. Many of those killed were abducted and forcibly disappeared, and their bodies thrown into mine shafts or buried secretly in shallow graves. Others were publicly executed and buried in mass graves. Thousands more starved, tortured, raped, unlawfully detained, and their homes and belongings destroyed during the senseless carnage. Survivors continue to bear physical, emotional and psychological scars whilst high-level perpetrators continue to rely on their political incumbency to enjoy impunity and remain shielded from accountability for their crimes. This chapter addresses the existing literature gap on the legal classification of the atrocities. It seeks to determine whether Gukurahundi atrocities committed against the Ndebeles by the Zimbabwe National Army (ZNA) and other security agencies constitute international crimes of genocide, crimes against humanity and war crimes. It assesses the application of international criminal and humanitarian law in Zimbabwe and investigates the status of the conflict in Matabeleland under international law. Further, it explores whether perpetrators can be held individually criminally responsible for Gukurahundi atrocities under international law. Finally, this chapter is expected to contribute to understanding Gukurahundi atrocities, the role of perpetrators and the victims’ demand for justice.KeywordsZimbabweGukurahundi AtrocitiesInternational CrimesIndividual Criminal ResponsibilityAccountability
The structures of international criminal law are especially complex with respect to the general principles of criminal responsibility. Besides the principle of legality, the general principles that may be considered binding on both international and national criminal proceedings are apparently restricted to those regarding command responsibility, superior order defense, and functional immunity of state officials. Customary international law on other general principles is applicable only to international judicial forums. Furthermore, even at the international level, there is a difference that leads the International Criminal Court (ICC) to mainly apply its own statute as a conventional law and ad hoc international criminal tribunals to apply customary international law. The substance of respective applicable laws varies with regard to topics, such as the subjective elements of crimes, the distinction between principals and accessories, command responsibility, attempt, conspiracy, and grounds for excluding criminal responsibility, including intoxication and duress, which appear problematic from the perspective of a systematic understanding of international criminal law. In some cases, however, it is apparently necessary to reflect the difference in the characteristics of applicable laws in the very substance of general principles, as is the case with the principle of mistake of law.
Since the beginning of the Colombian peace process, command responsibility has been a contentious topic. The importance of this mode of individual responsibility for the prosecution of grave crimes committed during the Colombian armed conflict cannot be overestimated. Its exact scope has not only far-reaching consequences for the possible criminal liability of the most responsible perpetrators but also symbolic importance with regard to the credibility and persuasive power of accountability within Colombia’s transitional justice process as a whole. Against this background, it is not surprising that the exact contours of the doctrine have been the object of fierce political and legal infighting. After a short introduction on the Colombian Peace Process and its Special Jurisdiction for Peace (Jurisdicción Especial para la Paz, JEP, infra I.), we will discuss the different codifications proposed (infra II). The ultimately agreed-upon definition deviates in some important respects from the international one (infra III) as developed by decades of case law and most authoritatively set out in Art. 28 Rome Statute of the International Criminal Court (hereinafter: ICC Statute), to which Colombia is a State party. This deviation may entail serious shortcomings in terms of the mentioned accountability of the most responsible and thus negatively impact Colombia’s anyway fragile peace process.
The application and interpretation of the four Geneva Conventions of 1949 and their two Additional Protocols of 1977 have developed significantly in the seventy years since the International Committee of the Red Cross (ICRC) first published its Commentaries on these important humanitarian treaties. To promote a better understanding of, and respect for, this body of law, the ICRC commissioned a comprehensive update of its original Commentaries, of which this is the third volume. The Third Convention, relative to the treatment of prisoners of war and their protections, takes into account developments in the law and practice in the past seven decades to provide up-to-date interpretations of the Convention. The new Commentary has been reviewed by humanitarian law practitioners and academics from around the world. This new Commentary will be an essential tool for anyone involved with international humanitarian law.
The application and interpretation of the four Geneva Conventions of 1949 and their two Additional Protocols of 1977 have developed significantly in the seventy years since the International Committee of the Red Cross (ICRC) first published its Commentaries on these important humanitarian treaties. To promote a better understanding of, and respect for, this body of law, the ICRC commissioned a comprehensive update of its original Commentaries, of which this is the third volume. The Third Convention, relative to the treatment of prisoners of war and their protections, takes into account developments in the law and practice in the past seven decades to provide up-to-date interpretations of the Convention. The new Commentary has been reviewed by humanitarian law practitioners and academics from around the world. This new Commentary will be an essential tool for anyone involved with international humanitarian law.
The application and interpretation of the four Geneva Conventions of 1949 and their two Additional Protocols of 1977 have developed significantly in the seventy years since the International Committee of the Red Cross (ICRC) first published its Commentaries on these important humanitarian treaties. To promote a better understanding of, and respect for, this body of law, the ICRC commissioned a comprehensive update of its original Commentaries, of which this is the third volume. The Third Convention, relative to the treatment of prisoners of war and their protections, takes into account developments in the law and practice in the past seven decades to provide up-to-date interpretations of the Convention. The new Commentary has been reviewed by humanitarian law practitioners and academics from around the world. This new Commentary will be an essential tool for anyone involved with international humanitarian law.
This chapter discusses the legal obligation of the military commander to prevent or punish the acts of human trafficking under the Rome Statute. As opposed to direct commission of the crimes under international law, superior responsibility is used to hold superiors accountable for their omission. The superior may be held criminally responsible for the acts of his subordinates if three general conditions are met. The chapter discusses the requirements for commander responsibility in relation to human trafficking as a crime against humanity under Article 7 of the Rome Statute. The requirement of effective control will be defined, with the focus on the recent judgment of the Appeal Chambers in the Bemba case.
Core crimes constitute violations of customary international law which allows for universal jurisdiction thereupon. Yet, we cannot extrapolate the applicability of the aut dedere aut judicare rule therefrom, nor can we extract it from their jus cogens status. This can be done by virtue of some determining factors. One of these relates to the qualitative gravity of core crimes, another emanates from an insufficient reach of international human rights law and a third can be triggered by acknowledging that non-prosecution could be tantamount to a threat to the peace. If a core crime is protected by a jus cogens norm and is subject to universal jurisdiction it is ipso facto, exercisable erga omnes. The execution of the aut dedere aut judicare rule in domestic courts may be equated to the assertion of universal jurisdiction by such domestic courts. The Hague formula favours a choice of the forum deprehensionis to either extradite or prosecute. It admits of two important variables, with the first variant being ‘the terrorism formula’ and the second off-shoot being ‘the drugs formula’. The fourth Geneva formula postulates the prioritization of prosecution over extradition. Limitations to the aut dedere aut judicare rule deriving from the principle of non-refoulement are also considered. The obligation to surrender which arises once the admissibility issue has been decided by the ICC, the Lockerbie incident (aut dedere aut transferre), gacaca tribunals, and the proposed EU corpus juris criminalis, may fall within the special category of alternatives to the aut dedere aut judicare formulae.
Universal jurisdiction purports to extend judicial power by overstretching jurisdiction. Recourse to implied powers may be justifiable in terms of the need to enforce victims’ rights. The ICC, as arbiter of its own jurisdiction, enjoys such power. Within the framework of admissibility proceedings, it may actually press a State to start or to reopen an investigation. International courts enjoy such inherent powers, but the same may not necessarily apply to domestic courts. In so far as such courts are concerned, the inaction of a State could anyway fall within the rubric of international human rights law. Where a nolle prosequi subsists, the only way a case can be brought to the court’s cognisance is by means of a private prosecution. Many States cater for this. When proceedings are discontinued by the prosecutor, courts should be allowed, de lege, to order prosecutors to continue such proceedings. This, however, could be useless if the prosecutor makes no effort to produce the relevant incriminating evidence. When shielding occurs the role of a domestic criminal court assumes significance. This is because the criminal court could allow the alleged victim to take over by acting as a subsidiary prosecutor. Alternatively, the criminal court should at least acknowledge, in its judgment, that there subsists the suspicion that the accused has been (deliberately) shielded. Its judgment will hence possess a marked declaratory dimension which may be referred to by other courts, be they domestic or international, which subsequently assume a ground of jurisdiction to prosecute the suspect.
International humanitarian law (IHL) provides limits to the conduct of warring parties during armed conflicts. If these limits are crossed, international criminal law (ICL) can address alleged violations of IHL. When certain conduct falls outside the scope of jurisdiction over war crimes it may result in impunity. International courts and tribunals have therefore taken a very broad approach to their jurisdiction, including with regards to the concept of non-international armed conflict, which has been expanded well beyond the initial intention of States. While an expansive approach to the application of IHL may be desirable after the fact, in order to ensure that atrocities can be prosecuted as war crimes, applying IHL too broadly to situations on the ground may not result in better protection of those affected by violence. Although the protective function of IHL remains of paramount importance, States nowadays also extensively rely on the permissive aspect of IHL that allows targeting of military objectives, combatants and other persons taking a direct part in hostilities. The present chapter addresses the tension between the desire to expand the jurisdiction over war crimes and the consequential impact on IHL. It does so by specifically looking at the manner in which international courts and tribunals have pronounced on the material scope of IHL.
The application and interpretation of the four Geneva Conventions of 1949 and their two Additional Protocols of 1977 have developed significantly in the sixty years since the International Committee of the Red Cross (ICRC) first published its Commentaries on these important humanitarian treaties. To promote a better understanding of, and respect for, this body of law, the ICRC commissioned a comprehensive update of its original Commentaries, of which this is the first volume. Its preparation was coordinated by Jean-Marie Henckaerts, ICRC legal adviser and head of the project to update the Commentaries. The First Convention is a foundational text of international humanitarian law. It contains the essential rules on the protection of the wounded and sick, those assigned to their care, and the red cross and red crescent emblems. This article-by-article Commentary takes into account developments in the law and practice to provide up-to-date interpretations of the Convention. The new Commentary has been reviewed by humanitarian-law practitioners and academics from around the world. It is an essential tool for anyone working or studying within this field.
The application and interpretation of the four Geneva Conventions of 1949 have developed significantly in the sixty years since the International Committee of the Red Cross (ICRC) first published its Commentaries on these important humanitarian treaties. To promote a better understanding of, and respect for, this body of law, the ICRC commissioned a comprehensive update of its original Commentaries, of which this is the second volume. Its preparation was coordinated by Jean-Marie Henckaerts, ICRC legal adviser and head of the project to update the Commentaries. The Second Convention is a key text of international humanitarian law. It contains the essential rules on the protection of the wounded, sick and shipwrecked at sea, those assigned to their care, and the vessels used for their treatment and evacuation. This article-by-article Commentary takes into account developments in the law and practice to provide up-to-date interpretations of the Convention. The new Commentary has been reviewed by humanitarian-law practitioners and academics from around the world, including naval experts. It is an essential tool for anyone working or studying within this field.
Torture, Psychoanalysis and Human Rights contributes to the development of that field of study referred to as ‘psycho-social’ that is presently more and more committed to providing under - standing of social phenomena, making use of the explicative perspective of psychoanalysis. The book seeks to develop a concise and integrated framework of understanding of torture as a socio-political phenomenon based on psychoanalytic thinking, through which different dimensions of the subject of study become more comprehensible. Monica Luci argues that torture performs a covert emotional function in society. In order to identify what this function might be, a profile of ‘torturous societies’ and the main psycho - logical dynamics of social actors involved - torturers, victims, and bystanders - are drawn from literature. Accordingly, a wide-ranging description of the phenomenology of tor ture is provided, detecting an inclusive and recurring pattern of key elements. Relying on psycho - analytic concepts derived from different theoretical traditions, including British object relations theories, American relational psychoanalysis and analytical psychology, the study provides an advanced line of conceptual research, shaping a model, whose aim is to grasp the deep meaning of key intrapsychic, interpersonal and group dynamics involved in torture. Once a sufficiently coherent understanding has been reached, Luci proposes using it as a groundwork tool in the human rights field to re-think the best strategies for prevention and recovery from post-torture psychological and social suffering. The book initiates a dia - logue between psychoanalysis and human rights, showing that the proposed psychoanalytic understanding is a viable conceptualization for expanding the thinking of crucial issues regarding torture, which might be relevant to human rights and legal doctrine, such as the responsibility of perpetrators, the reparation for victims and the question of ‘truth’. Torture, Psychoanalysis and Human Rights is the first book to build a psychoanalytic theory of torture from which psychological, social and legal reflections, as well as practical aspects of treatment, can be mutually derived and understood. It will appeal to psychoanalysts, psychoanalytic psychotherapists and Jungians, as well as scholars of politics, social work and justice, and human rights and postgraduate students studying across these fields.
In this chapter a historical perspective is taken on the process by which the modes of responsibility have been created and recognised in international and internationalised courts and tribunals in the last seventy years, with an eye to whether a more objective or subjective approach appears to prevail in the design and application of each one. Attention will be paid to the discussions which led to the inclusion of each mode of responsibility, and it will be considered whether there are distinguishable factors which may have determined their inclusion in a given statute, or their selection in judgments. The background legal training of participants at the various tribunals is highlighted, since this influences their perspective in the controversies and debates surrounding each mode of liability. It is demonstrated that these participants have done more than interpret and re-interpret the law, they have also been active in creating and developing the law, illustrating the nature of ICL as a patchworking process.
In the bloody aftermath of World War I it became apparent that those in military or civilian authority provided a cornerstone for the good conduct of those under their command, and hence should carry some liability for their actions. A Commission established by the allies after World War I to assess the responsibility of German officers rightly assumed that a combination of power to intervene, knowledge of crimes and subsequent failure to act should render those concerned liable for the crimes of their subordinates. Despite United States and Japanese dissent, die latter arguing that highranking officials could not be held personally accountable under international law in accordance with the abstention theory of responsibility, trials instituted at the German Supreme Court in Leipzig recognized the existence of concrete duties pertaining to military commanders. Undoubtedly, two precursors to the Leipzig proceedings, the Hague Conventions IV (1907) and X (1907) created affirmative command duties in relation to the conduct of subordinate persons, establishing the doctrine of “command responsibility.”
It was Robert Nozick who, distinguishing the classical liberal ‘night-watchman State’ which protected citizens against violence and enforced contracts on their behalf, conjured instead the ‘ultra-minimal State’
1
in which the task of the State is confined to the monopolization of violence rather than the actual provision of security (unless paid for by citizens by choice). On the face of it, it seems that Western governments are increasingly keen to move towards this model of the ultra-minimal State and to allow even the provision of force to be assumed by private enterprise on a contractual model in which the rich or the desperate may choose to avail themselves of fortifications at the going rate while the rest take their chances in life. The ultra-minimal State is left with a residual steering
2
policy role in which the parameters of contractual engagement for protection can be set. In short, it appears that nothing is sacrosanct in the onward march of the principles of neo-liberalism. Even the ultimate bastions of establishment—Her Majesty's armed forces—are not immune from processes of commodification and marketization that have previously been applied to core functions such as policing
3
and imprisonment.
4
This article examines the role that command responsibility currently plays in the case law of the International Criminal Tribunal
for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR). The ad hoc tribunals rely in principle
on a broad concept of command responsibility – which can be applied to all superiors, including political and civilian ones.
However, in practice, accused persons have only rarely been successfully charged under this form of liability. Indeed, recent
case law has gradually adopted a rigorous approach with respect to the legal requirements of command responsibility. This
has made it more difficult to establish criminal liability of superiors who have not directly participated in the commission
of international offences. The ad hoc tribunals have expressed an explicit preference for forms of ‘direct’ liability where
the accused can be convicted both under ‘direct’ and command responsibility. While the ICTY and ICTR have progressively interpreted
other international legal concepts to deal effectively with collective crimes committed by leaders of organized groups, they
seem to have confined command responsibility to international crimes perpetrated in typical military-like contexts.
This Note examines the applicability of the responsible corporate officer ("RCO") and conscious avoidance doctrines as tools to hold military and civilian officers accountable for the actions of their subordinates. The RCO doctrine imposes a duty upon senior-level officials to ensure their organization, whether a private corporation or the government, and its employees comply with relevant legal requirements. The doctrine of conscious avoidance allows for the establishment of knowledge, without proof of positive knowledge, on the basis of a defendant's deliberate avoidance of knowledge. Although these tools are often used in the context of corporate criminal law, there is a legal basis for their use in the prosecution of officers for the criminal actions of their subordinates, and they would provide a useful framework for analyzing the guilt of superiors for the actions of their subordinates.
The U.S. government has not held its personnel accountable for detainee abuse committed overseas. This lack of accountability is at least partly attributable to inherent flaws in military and federal criminal law. This Article introduces the detainee abuse problem and outlines systemic prosecutorial hurdles and criminal defenses that complicate accountability efforts. The Article concludes with recommendations that could help enable real accountability for detainee abuse cases.
I first met Hilaire McCoubrey when I was a young Army officer just starting to show an interest in the law of armed conflict. His enthusiasm for the subject and his support, both to me and to many of my colleagues, encouraged me to delve deeper and has been a major factor both in my own career and in the increased knowledge of the subject throughout Army Legal Services. It is due to him that all junior officers now attend a one-week academic course to ensure that their foundation knowledge can support their operational work. His influence lives on! The trials and tribulations of command The philosophy that lies behind the modern day doctrine of command responsibility stretches back into the mists of time. Command by its very nature brings responsibility. It comes with the territory or in the famous words to be found on the desk of President Truman, ‘The buck stops here.’ Throughout history, commanders have taken responsibility for the success or failures of their subordinates, whether it was the Roman General parading down the Via Triumphalis into the Imperial Capital or Admiral Byng being shot on the quarterdeck of his own ship ‘pour encourager les autres’. The philosophy is not unique to the military. Traditionally, those in positions of responsibility have been held accountable for the successes or failings of their subordinates. Football managers are only too well aware of how their future rests on the ability of those whom they manage.
The purpose of this article is to discuss the doctrine of command responsibility and its importation into English law via the International Criminal Court Act 2001. To this end the article discusses the origins and history of the doctrine, its modern application at the ad hoc UN Tribunals and its anticipated effect on English law.
Revival of Customary Humanitarian Law - Volume 99 Issue 4 - Theodor Meron
A disturbing feature of the conflict in the former Yugoslavia was the extent to which civilians were the target of military attacks by all three of the armed forces of the main ethnic communities. It was the military attacks by the armed forces of one of these ethnic communities—the Bosnian Croats (HZHB)—against Bosnian Muslim civilians and associated events in the Lasva Valley region of Central Bosnia from May 1992 to January 1994 that led to the indictment and eventual conviction of General Tihomir Blaskic.
General principles which draw on established norms of criminal law and cover applicable law, principle of legality and non retroactivity, individual criminal responsibility, responsibility of minors, mens rea and defences.
Superior responsibility is a concept for attributing criminal liability to military commanders and other superiors that is
employed with some frequency in the ad hoc international criminal tribunals. Nevertheless, it remains unclear for what the
superior is actually blamed. The author argues that with respect to superior responsibility as construed in Article 28 ICC
Statute the answer to this question depends on the form of superior responsibility for which the accused is found guilty.
If the superior is held responsible for not having prevented or repressed the subordinate's crime even though the superior
knew of the crime, he or she can be blamed for both, the criminal conduct of the subordinate and the wrongful consequence
caused by it. For all other forms of superior responsibility, the superior can only be blamed for his or her failure to exercise
control properly, which resulted in a wrongful consequence, but not for the criminal conduct of the subordinate.
Recent years have witnessed an increase in the number of private military and security companies (PMCs/PSCs) operating in situations of armed conflict, as well as a change in the nature of their activities, which are now increasingly close to the heart of military operations and which often put them in close proximity to persons protected by international humanitarian law. It is often asserted that there is a vacuum in the law when it comes to their operations. In situations of armed conflict, however, there is a body of law that regulates both the activities of the staff of PMCs/PSCs and the responsibilities of the states that hire them. Moreover, other states also have a role to play in promoting respect for international humanitarian law by such companies. This article examines the key legal issues raised by PMCs/PSCs operating in situations of armed conflict, including the status of the staff of these companies and their responsibilities under international humanitarian law; the responsibilities of the states that hire them; and those of the states in whose territory PMCs/PSCs are incorporated or operate.
States are increasingly hiring private military companies to act in zones where armed conflicts are occurring. The predominant feeling in the international community is that it would be best to regulate such companies. Cognizant of much confusion as to the status of the employees of private military companies under international humanitarian law, this article explains the laws on mercenaries, combatants and civilians and explores how private military companies' employees may fall into any of those categories. It demonstrates that the concept of mercenarism is unhelpful for regulating these companies and that it is unlikely that many of the employees of these companies can be considered to have combatant status. The article considers possible consequences of private military companies' employees having the status of civilians under international humanitarian law and their potential impact on regulating these companies effectively.
The statute of the newly established international criminal court provides for command responsibility; the vicarious liability of civilian and military officials for the internationally proscribed conduct of their subordinates. The interpretation of this provision requires an understanding of the doctrine's complex and convoluted evolution. The Geneva Protocol of 1977 created a measure of uniformity. The Geneva Protocol, along with the Delalic decision of the trial chamber of the Criminal Tribunal for the Former Yugoslavia, likely will inform the interpretation of command responsibility under the statute of the International Criminal Court.
The Statute of the ICTY incorporates the customary international law principle of superior responsibility. Where a superior knew or had reason to know that subordinates were about to commit or committed a crime, he/she is under an obligation to take preventative or punitive measures against subordinates. The mens
rea, or knowledge, of a superior is pivotal in determining his/her criminal responsibility. However, despite the customary law status of the principle of Superior Responsibility, the definition and standard of mens
rea applied has varied. The ICTY Trial Chambers in the Celebici and Blaškic cases reached opposite findings on the definition of the term “had reason to know” under customary law. The Appeals Chamber has rendered its definition of mens
rea. However, the standard applied appears inconsistent with the principle of Superior Responsibility.
In certain quarters of the former Yugoslavia, the ICTY judgment issued on 30 June 2006 in Prosecutor v. Naser
Oric has been strongly criticized for meting out a two-year prison sentence to the Bosnian Muslim wartime commander of Srebrenica. After a short sketch of the factual background which the trial chamber considered to be the pivotal sentencing factor, this note focuses on the legal issues underlying his conviction for having failed to prevent the murder and cruel treatment of a number of Serb prisoners. In particular, the trial chamber's interpretation of the standard of ‘reason to know’ of these crimes deserves attention. The judgment also gave rise to other significant developments, such as the approach to repeated prosecutorial violations of its disclosure obligations and an important clarification regarding the scope and nature of crimes committed by subordinates of a superior.
Commonly accepted distinctions between state and individual responsibility have created a conceptual chasm between the two sets of legal rules, which is in turn reinforced by different underlying theoretical conceptions of the international system. As a result of this conceptual chasm, current understandings of responsibility fail to describe adequately either the sources of harm to individuals or groups within states, or the changing relationships between individuals, non-state groups, and states. The doctrine of superior responsibility, however, offers the possibility for reconciliation of state and individual responsibility rules, by providing a theoretical basis and a practical method of developing understandings of liability for breaches of fundamental norms that more accurately reflect the channels of responsibility in contemporary conflict situations.
Although the prosecution of large-scale crimes at the international level shares some similarities to the prosecution of organized crime at the national level, there are a number of important differences that make the two areas hardly comparable. Two distinctive traits of international criminal proceedings stand out in this regard: (i) the lack of any enforcement agency that would allow prosecuting authorities to carry out investigations on the territory of an interested state without its assistance and the absence of a general power to carry out such arrests, which render state cooperation of prime importance and (ii) the fact that the procedural model of international criminal tribunals is mixed containing elements of accusatorial (common law) as well as inquisitorial (civil law) systems. As far as prosecutions are concerned, useful concepts and procedures adopted from both legal traditions can be found in the Statute, the Rules of Procedure and Evidence as well as in the approach of prosecutors, defence counsel and judges to the introduction of evidence and, more generally, to the manner in which proceedings are conducted. One of the main examples of this is the acceptance of proof of facts by means other than oral evidence as a result of the influence of the civil law tradition, which has progressively made its way in the procedural system of the International Criminal Tribunal for the former Yugoslavia (ICTY). Yet, on the other hand, some methods normally resorted to in national criminal prosecution may turn out to be useful at the international level, such as resorting to insider witnesses. Although known to domestic systems, such practice may have a particular significance in the context of the prosecution of international crimes. So have additional forms of criminal participation (such as the notion of joint criminal enterprise). Only a mixing of traditional and innovative investigative tools and the proper balance of the different legal cultures can ensure effective prosecution of international crimes.
Despite 50 years of doctrinal evolution, the mens rea for command responsibility is still unclear. Four factors help explain this. First, international courts frequently borrow
mens rea terminology from national legal systems without adequately understanding or explaining differences in how those terms are
used. Second, courts and commentators often neglect to engage explicitly in an element-by-element analysis of mens rea requirements, simply (and wrongly) assuming that the same mental state must apply to each element of an offence. Third, courts
sometimes react to evidentiary uncertainty by creating legal uncertainty. Finally, courts have responded to normative criticism
of command responsibility doctrine in its more expansive versions, but have been unwilling to explore the normative arguments
in favour of it. Normative arguments about command responsibility doctrine must take account of differences between ordinary
municipal criminal law and international criminal law, including the origins of command responsibility in the laws of war,
and the special factual contexts in which it is applied. The article argues that there is solid (though not incontrovertible)
support in customary international law for holding superiors liable when they culpably fail to acquire knowledge of their
subordinates’ misdeeds, and that there are strong retributive and utilitarian arguments for such an approach. International
courts should adopt such a ‘duty of knowledge’ standard.
Although long hidden from the public gaze of international humanitarian law, military entrepreneurialism has played a key role in the global organization of legitimate violence. By examining historical changes in the role and legal treatment of military entrepreneurs, the author sheds light on the contemporary “resurfacing” of privately organized violence in the form of private military companies, and its broader implications for international humanitarian law. © 2006, International Committee of the Red Cross. All rights reserved.
The nature of command responsibility is still open to debate in international criminal law: is a superior to be held criminally responsible for the crimes committed by his subordinates as an accomplice , for having participated in the commission of the crime by omission, or as a perpetrator of a separate offence of dereliction of duty? This article surveys the post-WW2 case law and the first international instruments on this point, and then analyses the jurisprudence of the International Criminal Tribunal for the former Yugoslavia (ICTY). The judges appear to have recently adopted a new approach to Article 7(3) ICTYSt. in that the superior is held responsible for failure to prevent or punish with regard to the crimes of the subordinate and no longer for the crimes of his subordinates . It is a responsibility sui generis indeed, where the crime of the subordinate plays a central role in the attribution of responsibility to the superior. It is, therefore, necessary to carefully consider the relationship between the superior's failure to act and the subordinate's crime, both with regard to objective and subjective elements. The same question finally arises in relation to Article 28 of the Rome Statute, the literal interpretation of which implies that a superior shall be punished for the same crime committed by his subordinates. In order to avoid the risk of holding a person guilty of an offence committed by others in violation of the principle of personal and culpable criminal responsibility, it is crucial to consider separately the different cases of command responsibility, which are based on distinct objective and subjective requirements.
Private security and military companies have become a ubiquitous part of modern armed conflict and post-conflict reconstruction. Their diverse clients include governments in the developed and developing world alike, non-state belligerents, international corporations, non-governmental organizations, the United Nations, and private individuals. The implications of this proliferation of private security and military companies for international humanitarian law and human rights are only beginning to be appreciated, as potential violations and misconduct by their employees have come to light in Iraq and Afghanistan. The author critically examines the theoretical risks posed by private military and security company activity with respect to violations of international humanitarian law and human rights, together with the incentives that these companies have to comply with those norms. Empirical evidence is also presented to expand on this theoretical framework. Taking a multidisciplinary approach, the author draws on law, international relations theory, criminology, economics, corporate strategy and political economy, as well as psychology and sociology, to analyse the competing "risk-factors" and ‘‘compliance levers’’ that interact at each level of private military and security company activity to enhance or reduce the likelihood of a violation occurring. These findings are then applied by the author to assess emergent measures to deal with private security and military companies outside the legal sphere, including a programme of the International Committee of the Red Cross and the advent of the International Peace Operations Association.
In recent months, commentators, corporations and the Bush Administration have joined forces to attack human rights and environmental litigation against corporate defendants under the Alien Tort Statute. This article argues that this attack rests on four myths: that United States courts cannot hold private corporations civilly liable for torts in violation of international law; that there is a flood of such cases that would impose liability on corporations simply for doing business in a difficult country; that statutory amendment or doctrinal reversal is necessary to stem this flood of litigation; and that domestic litigation is in any event a bad way to promote higher corporate standards. This article debunks each of the myths, explaining why in fact the sky is not falling, and why radical solutions are not needed to solve non-problems. Oxford University Press 2004; all rights reserved, Oxford University Press.