1
Name: M. (Ella) Diaconu Student Number: 5634261
Supervisor: prof. dr. Jean d' Aspremont
LLM International and European law: Public International Law University of Amsterdam
Could the Evolution of the Doctrine of Command
Responsibility Accommodate the Challenges Posed by
2 Table of contents:
List of abbreviations 3
1. Introduction 4
Setting the framework: the locus of the doctrine of CR in contemporary warfare 6
NFW: classification and terminology 7
2. The doctrine of CR: from de jure to de facto control 12
Yamashita: de jure control in CR 13
CR in the ad hoc military tribunals and the shift to de facto control 16
The element of subordination 17
The element of actual or constructive knowledge 19
Failure to take the necessary and reasonable measures 20
CR in the Rome Statute of the ICC 21
3. The doctrine of CR in the context of new forms of warfare 26
The elements of the doctrine of CR in remotely controlled NFW: general overview 28
Full autonomy: general observations 33
AWS as a choice of means and methods of warfare 34
CR with regard to AWS replacing the human soldier 37
External factors 40
4. Rethinking CR: normative aspects and concluding remarks 43
Normative considerations 44
Conclusion 51
3 List of abbreviations:
AC Appeals Chamber AI Artificial Intelligence
AWS Autonomous weapon systems CR Command responsibility
DoD United States Department of Defense ECtHR European Court of Human Rights ICC International Criminal Court
ICL International Criminal Law
ICRC International Committee of the Red Cross ICTR International Criminal Tribunal for Rwanda
ICTY International Criminal Tribunal for the Former Yugoslavia IHL International Humanitarian Law
IHRL International Human Rights Law LOAC Law of Armed Conflict
MoD Ministry of Defence of the United Kingdom NFW New forms of warfare
TC Trial Chamber WS Weapon System
4 1. Introduction
The traditional role assigned to the commander under International Humanitarian Law (IHL)1 comprises of ensuring compliance with that body of law by those under his control whilst coordinating the execution of the military mandate. By virtue of the authority vested in him, the commander’s issuing of illegal orders, as well as his failure to prevent or alternatively punish those under his control in case of an international (humanitarian) law violation will give rise to an issue of individual responsibility and possibly also state responsibility.2 The individual responsibility of the commander, also termed superior
responsibility, is materialized in proceedings that can go beyond the military realm (i.e.
disciplinary measures) and pertain to the domain of (national and international) criminal law.3 The application of the jus in bello provisions dealing with this matter, as were codified in the aftermath of the Second World War, as well as their equivalent in current international criminal law (ICL), raises a number of problems in light of the contemporary reality of armed conflict, where not only are most military operations conducted by two or more nations jointly (i.e. multinational or combined operations), between states and non-state actors, but the means and methods employed during the conduct of hostilities are in permanent change.
The main argument on which the present paper is based is that command responsibility (CR) is not a static concept, but can be better characterised as having a stable foundation in IHL which has in turn continuously been applied in a creative fashion by courts worldwide in order to adapt to the ever changing nature of armed conflict. The mutual reinforcement and interconnection between IHL and ICL in the light of contemporary warfare represent the crux of the evolution of the concept. The overall purpose of the analysis is to assess whether and to what extent the doctrine of CR as it stands to this date can be applied when new forms of warfare (NFW) are used during the conduct of hostilities and how the evolution of the concept can further be envisaged in order to accommodate these technological advances.
1
The terms IHL, jus in bello and law of armed conflict (LOAC) will be used interchangeably throughout the present paper and are defined here as the international body of law encompassing all rules deriving from customary law, as well as from treaty law pertaining to the treatment of persons (that is civilian, military, wounded or active). For a comprehensive list of IHL treaties see Gill and Fleck, The Handbook of the
International Law of Military Operations, 2012, p. 26-34.
2
Fleck, The Handbook of the International Humanitarian Law, 2014, p. 661; Gill and Fleck supra note 1, p. 661.
3
5
In order to do this, through the use of the descriptive perspective, the first part of the paper will depict the scope, purpose, constituent elements and historical evolution of the doctrine of CR from its first codification in international law in the First Additional Protocol to the Geneva Conventions (AP I)4 until its incorporation in the legal framework of the Rome Statute of International Criminal Court5. Reference will be made to both primary sources of IHL and ICL and secondary sources. Relevant jurisprudence of international courts will be discussed through the comparative law method, however the accent will lay on the contribution of the case law generated by the International Criminal Tribunal for the Former Yugoslavia (ICTY) 6 and how it was received by the international community. The second chapter will take a more analytical approach and assess the application of the aforementioned doctrine to situations of armed conflict where NFW are employed, with the focus on further enabling the evolution of the concept. In this respect, the compatibility of the new means and methods of warfare with the elements of the doctrine of CR as developed throughout international case law will be analysed, together with a few additional considerations such as technical malfunctions and external threats (e.g. hacking) that could interfere with establishing CR in a given case. Considering the lack of primary sources in the international law realm dealing with this specific aspect, the analysis will be based on various secondary materials, such as legal literature, commentaries to the First Additional Protocol to the Geneva Conventions,7 reports and minutes from the International Committee of the Red Cross (ICRC) and various other experts meetings, governmental documents and press releases. Having established that the doctrine of CR is faced with significant challenges when it comes to NFW, the final chapter will comprise of normative considerations regarding the future status of CR and envisage other possible legal solutions for coping with the pending limitations. The last part of the paper will consist of concluding remarks.
Prior to engaging in the substance, a few preliminary observations shall be made in order to clarify the subject matter of the paper.
4
Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, of 8 June 1977 (hereafter AP I)
5
The Rome Statute of the International Criminal Court (ICC Statute or the Rome Statute) adopted in Rome on 17 July 1998and entered into force on 1 July 2002
6
International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991
7
ICRC Commentary to Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, 1987 (hereafter ICRC Commentary to AP I)
6 Setting the framework: the locus of the doctrine of CR in contemporary warfare
First of all, any discussion regarding the issue of CR ought to start with providing the definition thereof. From a military law perspective, the term command generally refers to the hierarchical position of an individual of the armed forces regarding his capacity to direct, coordinate and control military forces.8 In this respect, from a structural point of view different types and levels of command can be identified, depending on the level of control exercised by the commander, the particular military mission and the parties involved in the execution thereof. 9 In military terms, this hierarchical construction is referred to as the chain of command.
Second of all, for the purposes of the following analysis, no distinction shall be made between international and non-international armed conflicts. Although relevant for the precise IHL and ICL legal provisions applicable in a particular scenario, the elements of the CR doctrine as applied throughout the jurisprudence of international courts do not seem to be influenced by the nature of the armed conflict.10 In this respect, the customary law status of the doctrine of CR has been confirmed inter alinea by the ICTY Appeals Chamber11 and by the ICRC study of customary IHL.12 In other words, superior responsibility is derived from the chain of command and does not depend on the inter-sovereign nature of the conflict or on
8
Gill and Fleck supra note 1, p. 237; NATO Standardization Agency, Allied Joint Publication AAP-6 2008; see also Bantekas The Contemporary Law of Superior Responsibility, Am J of I’L, Vol. 93, No. 3, 1999, p.185
9
In this respect, the international military law terminology refers to command and control structures (C2), which mainly relates to multinational operations: “[command and control] doctrine provides the framework within which military resources drawn from different nations and organisations can operate together effectively to accomplish a common mission”; in Gill and Fleck supra note 1, p. 237
10
ICTY Prosecutor v. Hadžihasanović, AC Decision on Interlocutory Appeal Challenging Jurisdiction in Relation to Command Responsibility, case no. IT-01-47-AR72 (hereafter Hadžihasanović AC interlocutory appeal), “Thus, the fact that it was in the course of an internal armed conflict that a war crime was about to be committed or was committed is not relevant to the responsibility of the commander; that only goes to the characteristics of the particular crime and not to the responsibility of the commander. The basis of the commander’s responsibility lies in his obligations as commander of troops making up an organised military force under his command, and not in the particular theatre in which the act was committed by a member of that military force” para 20
11Hadžihasanović AC interlocutory appeal, supra note 10, “at the international level, [states] have accepted that,
as a matter of customary international law, relevant aspects of international law (including the concept of command responsibility) govern the conduct of an internal armed conflict (…) The relevant aspects of international law unquestionably regard a military force engaged in an internal armed conflict as organized and therefore as being under responsible command. In the absence of anything to the contrary, it is the task of a court to interpret the underlying State practice and opinio juris (relating to the requirement that such a military force be organized) as bearing its normal meaning that military organization implies responsible command and that responsible command in turn implies command responsibility” para 17
12
7
territorial considerations.13 The distinction between CR of military and non-military superiors
will be further elaborated upon in Chapter two.
Third of all, jus ad bellum considerations shall not be addressed. Although the present author is aware of the controversy surrounding the cross-border use of Unmanned Aerial Vehicles (UAVs or drones) in order to carry out what is generally referred to as “targeted killing”14
, it is beyond the scope of the present paper to examine the legality of the use of force in those, or similar situations. It suffices to note in this respect that in as far as these attacks take place in the context of armed conflict, IHL is applicable.15 As stated in the previous paragraph, seeing how CR is premised on the hierarchical structure of the chain of command, it does not depend on a formal declaration of war, or on any considerations regarding the actual legality of the conduct of hostilities.
Last but not least, a few issues regarding NFW need to be clarified.
NFW: classification and terminology
In recent and ongoing military operations we have witnessed an increased use of weapon systems (WS) operated from outside the battlefield.16 Although technologies controlled from a distance are not entirely new (e.g. cruise missiles and mines), the focus here lays on WS operating with a higher degree of sophistication and autonomy, that is, without the need of human intervention.17 As an important note here, in IHL terms, military technologies can qualify as weapons (i.e. an instrument used to directly inflict harm) or
13
Newton and Kuhlman, WHY CRIMINAL CULPABILITY SHOULD FOLLOW THE CRITICAL PATH:
REFRAMING THE THEORY OF ‘EFFECTIVE CONTROL’, Nl Yb Int'l L, Vol. 40, 2009, p. 6
14
Melzer defines ‘targeted killing’ as lawful attacks (from IHL perspective) in the context of military operations where lethal force (by any means or weapons) is employed against specifically targeted individuals which are not in the custody of the ones conducting the operation; in Gill and Fleck supra note 1, p. 277-278.
15
In in this respect, in evaluating the statements made by various scholars (e.g. O’Connel, Shachtman, Solis) and US government officials (Koh), Drake writes: “Some have condemned targeted killings as "extrajudicial executions" and failing to comply with international human rights law, as well as international humanitarian law (IHL). " The U.S., however, maintains that being in a state of "armed conflict with alQaeda, as well as the Taliban and associated forces" justifies using "force consistent with its inherent right to self-defense under international law." The U.S. further maintains that even lethal force is justified inasmuch as it is used in compliance with the IHL principles of distinction and proportionality”; Drake, Current U.S. Air Force drone
operations and their conduct in compliance with international humanitarian law - an overview, 39 Denv J. Int'l
L. & Pol'y 629 2010-2011p. 633-634
16
In a survey conducted by the Centre for Research on Globalization dated 21 March 2014, the number of drone strikes carried mostly by the United States was inter alinea 105 in Libya until 2011, 48 in Iraq between 2008 and 2012, 340 in Pakistan between 2008 and 2012, 1015 in Afghanistan between 2008 and 2012
http://www.globalresearch.ca/unmanned-aerial-vehicles-uav-drones-for-military-and-civilian-use/5374666 <last visited 25 July 2015>
17
Liu, Categorization and legality of autonomous and remote weapons systems, International Review of the Red Cross, Vol. 94 no 886, 2012, p. 637-638
8
weapon systems (i.e. “intermediary platform from which [the actual] weapons are deployed”).18
It is argued that the precise classification is highly dependent upon the complexity, the level of autonomy, together with the scope and the manner in which the technology is used. Seeing how, as shall be explained below, the NFW are by definition more sophisticated in terms of data collection and operation level than their predecessors from the middle of the nineteenth century when most IHL rules were codified, in the humble opinion of the present author, it seems rather simplistic to refer to them as weapons and not weapon systems. Moreover, it seems that a considerable amount of legal literature fails to make this distinction, which implicitly results in an oversimplification of the process of juridical assessment of CR, as shall be further explained in Chapter 3.
As to the difference between means and methods of warfare, the ICRC commentary to article 35 AP I states that this is dependent not only upon the actual weapon (system) used, but also on the manner in which it is used. 19 In other words, not only does the technology itself have to comply with IHL, but also the way it is operated. For the present discussion, the term NFW will be used to encompass all the above mentioned possibilities, whereas the terms ‘weapon’ and ‘weapon system’ will be used accordingly.
In order to understand the transition from weapon to weapon system and what the latter implies for establishing CR, the following paragraphs will sketch the main characteristics of the new military capabilities.
Providing for a comprehensive and exhaustive definition of NFW proves to be a rather difficult task in light of the rapid contemporary technological advances.20 In this respect and for the purpose of the present paper, attempting to map the current technological developments can best be done gradually, in terms of the level of remoteness and autonomy with which weapons or weapon systems are operated, albeit to the extent this information is made available.
Based on the legal and technical literature on the subject, three broad categories of new weapons can be identified, namely remotely controlled unmanned military vehicles (UMVs), automated weapons (systems) and autonomous weapon systems (AWS).21
18
Liu supra note 17, p. 629
19
ICRC Commentary to AP I supra note 7, p. 398
20
Liu supra note 17, p. 630
21
Backstrom and Henderson, New capabilities in warfare: an overview of contemporary technological
developments and the associated legal and engineering issues in Article 36 weapons reviews, IRRC, Vol. 94 no
9
UMVs can operate on land, sea and air22 and can vary in the degree of autonomy, but to the extent they are used in the conduct of hostilities, they are nevertheless presumably controlled by a human operator from a (remote) distance, a so-called “man in/on the loop”.23 The most well-known group of UMVs are UAVs. Data based on which these systems are controlled is collected in various layers, over different timespans and geographical locations.24 In complex missions, the three environments (i.e. air, land and water) can operate together in order to perform the military mission effectively.25 A first glance at the capabilities of these technologies makes it easy to understand what those advocating in favour of the use of UMVs base their statements on – extended surveillance and layered data gathering would provide the commander with more information, which would in turn lead to a better assessment of the particular targets and the best time to commence an attack whilst minimising collateral damage.26 Peter Maurer of the International Committee of the Red Cross (ICRC) took a more cautious view, stating that while the advantages posed by the use of WS that could make targeting more precise and reduce collateral damage sound prima facie appealing, it cannot be generally stated that drone warfare is an absolute triumph.27
The second category, namely automated weapons are not controlled by humans, but are programmed to discharge at a target when the preprogramed parameters are met.28
CROSS AND RED CRESCENT, International Humanitarian Law and the challenges of contemporary armed
conflicts, 2011 (hereafter ICRC report 31IC/11/5.1.2), p. 39
22
A list, of the current unmanned military systems used by the United States in combat can be found in “Unmanned Systems Integrated Roadmap FY2013-2038” published by the Department of Defense (DoD) (hereafter DoD Roadmap) p. 4-8 http://www.defense.gov/pubs/DOD-USRM-2013.pdf <last visited 29 June 2015>
23
Liu supra note 17, p. 631
24
US DoD, Intelligence, Surveillance and Reconnaissance Joint Force 2020 White Paper, CM-0260-14, p. 1
25
DoD Roadmap supra note 22, p. 4
26
ICRC report 31IC/11/5.1.2 supra note 21 p. 39; Moreover, according to the United States Department of Defense, UAVs are lighter, can stay longer in the air than regular plains, they are financially more advantageous to produce and maintain, they spare military personnel from “dull and dangerous missions”. J. Garamone,
Unmanned Aerial Vehicles Proving Their Worth Over Afghanistan, American Forces Press Service, 2002,
http://www.defense.gov/news/newsarticle.aspx?id=44165 <last visited 29 June 2015>; The Unmanned Aerial Vehicle Association shares this view http://www.uavs.org/advantages <last visited 29 June 2015>; On the other hand, the Human Rights Watch has issued a report mapping the many civilian deaths that occurred as a result of UAVs operations, contesting the view thet collateral damage is minimised https://www.hrw.org/news/2014/03/24/truth-about-united-states-drone-program <last visited 29 June 2015>
27
The use of armed drones must comply with laws, 10-05-2013 Interview
https://www.icrc.org/eng/resources/documents/interview/2013/05-10-drone-weapons-ihl.htm <last visited 29 June 2015>
28
Backstrom and Henderson supra note 21, p. 488: “automated weapons are designed to fire automatically at a target when predetermined parameters are detected. Automated weapons serve three different purposes. Weapons such as mines allow a military to provide area denial without having forces physically present. Automated sentry guns free up combat capability and can perform what would be tedious work for long hours and without the risk of falling asleep”; see also ICRC report 31IC/11/5.1.2 supra note 21 p.39 and United Kingdom Ministry of Defence (MoD), Joint Doctrine Note 2/11, The UK Approach to Unmanned Aircraft Systems,30 March 2011 (hereafter MoD UK Approach) at 2-2 and 2-3
10
Examples are sensor-fused weapons and pressure-detonated mines, that differentiate themselves from their predecessors (e.g. naval or other contact mines, booby-traps) by their non-cooperative/automatic target recognition, that is “the ability to use technology [such as laser, communication, radar] to identify distinguishing features of enemy equipment without having to visually observe that equipment.”29
It is argued that the implications of these types of weapons/WS for the doctrine of CR are similar to the case of ‘traditional’ contact mines, with the exception of the issue of autonomy, which will be addressed hereafter.
Finally, at the top of the artificial intelligence pyramid lay the AWS, defined as WS that operate and adapt their functioning (e.g. search, identify and attack the target) without the need of human interference.30 While WS equipped with full autonomy that function at the same level with a human soldier are still a fiction, it is argued by several authors that in the next few decennia they could be manufactured.31 Certain experts claim that we are yet far from having full autonomous robots operating in the frontlines32, while others claim that we are on the verge of entering a ‘killer robot’ era.33
Without engaging in science-fiction deliberations, it needs to be noted that the United States Department of Defense (DoD) openly stated that achieving full autonomy is their ultimate goal.34 Moreover, while not exactly “killer robots” there are systems in place that do operate without any human intervention. An example thereof is the PHALANX, a US Naval system that “automatically detects, evaluates, tracks, engages, and performs kill assessment against ASM and high speed aircraft threats.”35 It can be argued that this particular AWS does not pose a threat to the CR doctrine since it is used at sea, where civilians and civilian objects are not present and it is programmed to discharge at military objectives, not people. However, full autonomy seems to be the next step
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/33711/20110505JDN_211_UAS_ v2U.pdf <last accessed 22 July 2015>
29
Backstrom and Henderson supra note 21, p 489
30
Backstrom and Henderson supra note 21, p 490-491.
31
Backstrom and Henderson supra note 21, p 491; Human Rights Watch (HRW), Losing Humanity, 2012, p 3 https://www.hrw.org/report/2012/11/19/losing-humanity/case-against-killer-robots <last visited 28 July 2015>
32
Schulzke, Autonomous weapons and distributed responsibility, Philosophy & Technology, 26.2, 2013, p. 204
33
In Losing HumanityI supra note 31, the HRW calls for an absolute ban on fully autonomous weapons, emphasising the urgency of the problem: “Some military and robotics experts have predicted that “killer robots”—fully autonomous weapons that could select and engage targets without human intervention—could be developed within 20 to 30 years.”
34
DoD Roadmap supra note 22, p. 24, 28-29; In a 2013 press release of the American Forces Press Service, entitled Cost-saving Pilot Programs to Support Warfighter Autonomy,T. Moon Cronk quoted mr. Al Shaffer, the assistant secretary of defense for research and engineering "We believe autonomy and autonomous systems will be very important for how we operate in the future” http://www.defense.gov/news/newsarticle.aspx?id=120329 <last visited 10 July 2015>
35
11
in the military artificial intelligence objectives, be it in the coming 20-30 years as Human Rights Watch warns, or sooner.
In sum, the transition from weapon to weapon system is rather obvious, seeing how the weapon of choice of the contemporary warfare is far from being categorized as a mere ‘instrument’ manoeuvred by a soldier under the commander’s supervisory control. UAVs, which were initially conceived for surveillance purposes in the military context, have been increasingly equipped with different armed capabilities and there seems to be a general inclination in military development to aim at replacing the “human in the loop” with “the human out of the loop”.36
Thus while NFW become increasingly autonomous, the persons controlling them seem to be far removed from the realities of the battlefield. As noted above, the main concerns in this respect are related to issues of targeting and civilian protection. Some experts claim that these weapons systems make it possible to identify the targets and make decisions outside the tension zone characteristic to the battlefield and that the subject of autonomy is advantageous in that it reduces the human error. On the other side of the spectrum, others advocate that it is precisely the human element and the ability to identify subtleties in behaviour that is crucial in the protection of persons and that technical errors on the functional level of these machines could prove detrimental during combat.37
The moral and legal question pertaining to the overall desirability of having and deploying these WS in the conduct of hostilities, together with their actual compliance with article 36 AP I are beyond the purpose of this paper. In this respect it suffices to note that based on the obligation resting upon States under IHL pursuant to the provision in article 36 AP I, one must trust that military forces are using these technologies bona fide and in conformity with the appropriate in bello rules and obligations. From a legal perspective, the latter must be complied with at all times, by all parties (irrespective of reciprocity) during the armed conflict38. It is not only the technology itself as such, but also the manner in which it is employed that raises problems in IHL and ICL. 39
The difficult, but nevertheless very real question then arises as to in what measure can the commander still be held accountable in case of an IHL violation. The following chapter
36
Drake supra note 15, p. 630; Project Alpha, Unmanned Effects (UFX): Taking the Human Out of the Loop, 2003, file:///C:/Users/My%20Toshiba/Downloads/nps49-041112-09.pdf <last accessed 10 July 2015> p 3-4
37
ICRC report 31IC/11/5.1.2 supra note 21, both sides are illustrated in the report, p. 39-40
38
Kleffner in Fleck supra note 2, p 43--54
39
Michael J. Boyle, The legal and ethical implications of drone warfare, The International Journal of Human Rights, 19:2, 2015, p. 107
12
will illustrate the evolution of the concept of CR, particularly from the perspective of the degree of control exercised by the commander.
2. The doctrine of CR: from de jure to de facto control
The role of the commander in the conduct of armed conflict is not only important from the military organisational perspective as to ensure the accomplishment of the operation, but also from a legal perspective, seeing how his position makes him the primary accountable for safeguarding compliance with jus in bello. As Newton notes, the idea that a commander's
orders operate with the force of law to limit the application of violence arose independently in widely disparate cultures and historical periods.40 Responsibility of the commander can be
incurred in two ways, that is based on assessing the legality of the orders issued and respectively in relation to the control he is expected to exercise over his subordinates.41 The former is in fact a form of direct individual responsibility, also called ‘responsible command’.42
In this respect, the commander is under the legal obligation to take IHL norms and principles into consideration when choosing a particular course of action in the conduct of hostilities and to give orders accordingly. Pursuant to article 57 AP I,43 which is a codification of customary law, the persons planning or deciding upon an attack must take all feasible precautions in order to minimise collateral damage, whilst acting in compliance with the principles of distinction (i.e. distinguish between civilians and civilian objects and combatants and military objectives) and of proportionality in attack (i.e. contextual determination of all the relevant factors in order to assess whether the attack is proportionate to the military advantage pursued), including careful consideration of their choice of means and methods of warfare.
The second ground for CR is based on the premises that the commander, aside from being responsible for his own actions, is also responsible for the (unlawful) conduct of his
40
Newton, Flying into the Future: Drone Warfare and the Changing Face of Humanitarian Law-Keynote
Address to the 2010 Sutton Colloquium,.Denv. J. Int'l L. & Pol'y, 39, 2010, p. 602; Newton and Kuhlman supra
note 13, p. 6
41
L.C Green, Command responsibility in international humanitarian law, Transna.’L & Contemp. Prob,1995, p. 320-321
42
Hadžihasanović AC interlocutory appeal supra note 10, para 22; Newton and Kuhlman supra note 13 p. 64
43
In commentary to API, the ICRC states with regard to article 57: “to some extent Article 57 reaffirms rules which are already contained explicitly or implicitly in other articles, in particular: Article 48 ' (Basic rule), ' which lays down the "basic rule" of distinction, Article 51' (Protection of the civilian population), ' which reiterates the general immunity enjoyed by the civilian population and prohibits indiscriminate attacks, Article 52 ' (General protection of civilian objects), ' which restricts attacks to military objectives and defines these, and Article 54' (Protection of objects indispensable to the survival of the civilian population), ' which protects indispensable objects. “ ICRC Commentary to API supra note 7, p. 679
13
subordinates. While establishing CR for unlawful orders is in principle not problematic, seeing how it presupposes an analysis of the factual circumstances and the actual orders issued, the latter form of CR has given rise to much controversial debate in legal literature, since it is not accountability for the own deeds of the superior, but for his failure to exercise enough authority over his subordinates in order to ensure compliance with the LOAC.
It is submitted that the main elements underpinning the two forms of responsibility are in essence the same, whereas to some extent the CR is the consequence of the responsible command.44
Yamashita: de jure control in CR
Throughout legal literature it is agreed that the duties of the commander that could potentially give rise to his accountability were firstly acknowledged in the international realm in the 1907 Hague Conventions.45 However, it was not until the post Second World War era that the evolution of the doctrine of CR commenced. Although both the Nuremberg and the Tokyo Tribunals tried a considerable number of military officials, 46 it was the Yamashita47 judgment that is claimed to have played the most important role in the development of the CR concept in the early nineteenth century.48 General Tomoyuki Yamashita was tried and convicted to death by the US War Crimes Commission, this decision being further confirmed by the US Supreme Court.49 Although Yamashita’s defence argued that the general had no
44
Hadžihasanović AC interlocutory appeal, supra note 10, para 22:“The Appeals Chamber recognizes that there is a difference between the concepts of responsible command and command responsibility. The difference is due to the fact that the concept of responsible command looks to the duties comprised in the idea of command, whereas that of command responsibility looks at liability flowing from breach of those duties. But, as the foregoing shows, the elements of command responsibility are derived from the elements of responsible command.”
45
Bantekas supra note 8 p. 573-574; Markham, The Evolution of Command Responsibility in International
Humanitarian Law, Penn St J. Intl A, 2011, p. 51; It is therefore submitted that apart from a number of national
law provisions, the first international recognition of the doctrine of command responsibility was in the Hague] Convention IV Respecting the Laws and Customs of War on Land, of 18 Oct.1907. Green further confirms this (p. 325) but he also notes that the idea of CR was in effect much before that in various national legal acts, such as in 1439 in an Ordinance issued by Charles VII of France, in 1621 in the Articles of War drafter by Gustavus Adolphus of Sweden and in the Lieber Code in the American Civil War. Green supra note 41, p. 321-322; see also Ching, Evolution of the command responsibility doctrine in light of the Celebici Decision of the
International Criminal Tribunal for the former Yugoslavia, NCJ Int'l L. & Com. Reg. 25, 1999, p. 176-177
46
Bantekas supra note 8, explains that the Nuremberg Tribunal ”dealt only with direct liability of the highest Nazi officials, the Military Tribunal sitting in Tokyo convicted both military and non-military persons” p. 573
47
Yamashita v. Styer, 327 U.S. 1 (1946)
48
Markham supra note 45, p. 51; Williamson, Some considerations on command responsibility and criminal
liability, ICRC, Vol. 80, no 870, 2008, p. 304; Van Sliedregt, The criminal responsibility of individuals for violations of international humanitarian law, 2003, p. 120
49
Van Sliedregt supra note 48, p. 120 and 122; see also Crowe, Command Responsibility in the Former
14
control over his subordinates and no knowledge of the war crimes perpetrated by the latter, the Commission disagreed by stating that the alleged violations were “so extensive and widespread, both as to time and area, that they must either have been wilfully permitted by the accused, or secretly ordered by the accused.”50 The interesting fact about this judgment is that Yamashita was not standing trial for ‘violations of the laws of war’ that he directly committed or directed his troops to commit, but for the mere fact that he did nothing to prevent his subordinates from perpetrating the alleged crimes and by doing this he therefore failed to fulfil his duties as commander.51 In other words, superior responsibility was based on his official capacity, i.e. the fact that he was exercising operational command over the subordinates.52 In the words of the US Supreme Court:
“[the] purpose [of the law of war] to protect civilian populations and prisoners of war from brutality would largely be defeated if the commander of an invading army could with impunity neglect to take reasonable measures for their protection. Hence the law of war presupposes that its violation is to be avoided through the control of the operations of war by commanders who are to some extent responsible for their subordinates. ”
In sum, the evolution of the doctrine of CR in the sphere of international law started with the criterion of de jure control.53 The Yamashita judgment established that although a commander might reasonably expect his subordinates to act according to his instructions, it cannot be argued a contrario that he rids himself of his obligations under IHL by delegating this authority solely with the aim of escaping criminal liability.54
Despite this judgment and the findings of the post Second World War tribunals, the doctrine of CR was not initially included in the Geneva Conventions of 1949 (GC)55, but was
50
Crowe supra note 49, quoting the US War Commission, p.203
51
In the words of the US Supreme Court: “it is urged t at the charge does not allege that petitioner has either committed or directed the commission of such acts, and consequently that no violation is charged as against him. But this overlooks the fact that the gist of the charge is an unlawful breach of duty by petitioner as an army commander to control the operations of the members of his command by 'permitting them to commit' the extensive and widespread atrocities specified.”
52
Bantekas supra note 8, p. 585-586
53
Van Sliedregt supra note 48, p 122, Van Sliedregt states that the words ‘permitting them to commit’ used by both the Commission and the US Supreme Court imply that a ‘must have known’ mens rea standard was adopted in this case.
54
Crowe supra note 49 p. 203-205; See also the wording of article 28 ICC Statute
55
Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (GC I),of 12 Aug. 1949; Convention for the Amelioration of the Condition of the Wounded, Sick, and Shipwrecked Members of Armed Forces at Sea (GC II), of 12 Aug. 1949; Convention Relative to the Treatment of Prisoners of War (GC III), of 12 Aug. 1949; Convention Relative to the Protection of Civilian Persons in Time of War (GC IV) of 12 Aug. 1949
15
subsequently codified as part of the First Additional Protocol thereto, in 1977. It is however generally agreed by scholars that the provisions in articles 86 and 87 of AP I derived from the case-law of the Nuremberg and the Tokyo military tribunals.56 Article 86 AP I concerns the responsibility of commanders for their subordinates in case the former “knew, or had information which should have enabled them to conclude in the circumstances at the time, that [the subordinate] was committing or was going to commit a breach [of the GC or the AP I] and if they did not take all feasible measures within their power to prevent or repress the breach.” It is this aspect of CR that is considered as most controversial, which consequently made it the subject of much debate in legal literature.
Conversely, article 87 AP I, which concerns the more general duties of the commander, is not the least less relevant for the purposes of the present paper. That provision lays an obligation upon States Parties to the GC and to the AP I to ensure that members of the armed forces are familiar with their obligations under the aforementioned legal documents. With respect to potential violations of these treaties, article 87 AP I further stipulates that military commanders are responsible for preventing or, if that might be the case, initiating “disciplinary or penal action”, “ with respect to members of the armed forces under their command and other persons under their control.” By adding this element of control, the ambit of the doctrine of CR was expanded in that it shifted from de jure command to incorporate a more factual reality. From the ICRC commentary to article 87 AP I, it can be concluded that though at the outset this was meant to be applied to situations of occupied territories, the ratio behind the element of control lays in the authority to exercise de facto control57.
With the adoption of these provisions in AP I, not only was the twofold obligations resting upon the commanders (i.e. the obligation to refrain from giving orders or respectively act contrary to IHL and a rather positive obligation to prevent or alternatively punish IHL violations perpetrated by those under his control) codified in IHL, but simultaneously a link was established to the potential liability for jus in bello violations under (international) criminal law.
56
For a detailed historical account of the evolution of the doctrine of CR until its incorporation in the AP I, the present author refers to the articles written by Markham supra note 45 and Green supra note 41. A more international criminal law approach is comprehensibly incorporated in Cassese, International criminal law, 2013 p. 182-187 and Ching supra note 45, p. 176-184
57
16 CR in the ad hoc military tribunals and the shift to de facto control
The establishment of the ad hoc regional tribunals by the United Nations58 towards the end of the twentieth century, constituted the next step in the development of the doctrine of CR. The notion was codified in the Statutes of the ICTY in article 759 and in the ICTR in article 660. It is submitted that although the text of the two aforementioned provisions does not use the word ‘command’ but rather refers to ‘superior responsibility’, subsequent case-law of the ICTY clarified that the two terms (i.e. CR and superior responsibility) are meant to be refer to one and the same principle.61
The Delalić case before the ICTY, commonly referred to as Čelibići after the location of the prison camp where the alleged crimes have been committed, constituted the first litigation involving CR to take place since the Second World War.62 The Čelebići Trial Chamber confirmed the customary law status of the doctrine.63 It is for this reason that, although both the ICTY and the ICTR convicted superiors on the basis of this principle, it is the case-law of the ICTY that is recognized by lawyers as the main contributor to the legal development of CR.64 However, that is not to say that the jurisprudence generated by the ICTR is a mere copy of the ICTY model.65
Based on the case law of these tribunals, three criteria need to be satisfied in order to establish the existence of command responsibility in, what I dare call, traditional warfare:
58
Namely the ICTY and the International Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighbouring States, between 1 January 1994 and 31 December 1994 (ICTR)
59
Article 7 ICTY Statute reads inter alinea:
“2. The official position of any accused person, whether as Head of State or Government or as a responsible Government official, shall not relieve such person of criminal responsibility nor mitigate punishment.
3. The fact that any of the acts referred to in articles 2 to 5 of the present Statute was committed by a subordinate does not relieve his superior of criminal responsibility if he knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.
4. The fact that an accused person acted pursuant to an order of a Government or of a superior shall not relieve him of criminal responsibility, but may be considered in mitigation of punishment if the International Tribunal determines that justice so requires.”
60
Paragraphs 2, 3 and 4 of article 6 ICTR Statute contain an almost identical provision as the one cited above.
61
The Trial Chamber of the ICTY in Prosecutor v. Delalić et al. (Čelebići), TC Judgement, Case No. IT-96-21-T, 16 November 1998 (hereafter Čelebići TC) stated in paragraph 331 of the judgment: “ The type of individual criminal responsibility for the illegal acts of subordinates which is alleged in this way against the three accused is commonly referred to as “command responsibility”. Although no explicit reference is made to this concept in the Statute of the International Tribunal, its governing principles have been incorporated into Article 7(3), which, to reiterate, provides that:”
62
Čelibići TC supra note 61, para 340
63
Čelibići TC supra note 61, paras 340-343.
64
B.J, Moloto, Command Responsibility in International Criminal Tribunals, Publicist 3, 2009, p. 14; Van Sliedregt supra note 48
65
17
(i) The existence of a relationship of subordination between the commander and those under his control,
(ii) Knowledge of the commander of the (potential) breach and
(iii) His failure to prevent the breach or punish the guilty parties under his control66
A first shift from the Yamashita approach can be seen here, in that the CR is no longer to be established merely based on the “aura of authority”, but through engaging in a more factual assessment of the given case.67
The element of subordination
Subordination, as applied in Yamashita and also from a military law perspective, is primarily premised on considerations regarding the de jure relation, i.e. established based on the chain of command.68 This hierarchical structure then presupposes different layers of exercised command and control, making it prima facie unproblematic to assess who was in charge and can therefore be held accountable in case of an IHL norm violation.69 From the point of view of decision-making and implementation in respect of the chain of command, on a vertical scale, we can distinguish a few levels. Firstly, policy command, which is exercised by the leaders, comprises of the decision whether and when to engage or withdraw armed forces.70 Secondly, strategic command is carried out by the highest military authorities and it consists of drafting a feasible military strategy with the purpose of achieving the aforementioned policy objectives, which in turn has to be approved by the policy commanders.71 Further, the actual implementation in the area of conduct of hostilities is undertaken by the senior military officers who direct the commanders of smaller groups, with the tactical commanders exerting direct command over the troops.72
66
Čelibići TC supra note 61 para 346; Williamson, supra note 48, p. 306-311, Cassese supra note 56, p. 187
67
Bantekas supra note 8, p. 576
68
AAP-6 NATO supra note 8, defines this as the succession of commanding officers from a superior to a
subordinate through which command is exercised.
69
Meloni notes that the extent and nature of the responsibility is dependent upon the type of command exercised, in that “not all the commanders in the chain of command are equally responsible, regardless of their rank in the hierarchy.” in Meloni, Command responsibility in international criminal law, 2010, p.158
70
Bantekas supra note 8, p 578
71
Bantekas supra note 8, p 579; NATO AAP-6 supra note 8, defines strategic level as the level at which a nation
or group of nations determines national or multinational security objectives and deploys national, including military, resources to achieve them.
72
Bantekas supra note 8, p 579; NATO AAP-6 supra note 8, defines tactical command (TACOM) as the
authority delegated to a commander to assign tasks to forces under his command for the accomplishment of the mission assigned by higher authority.
18
In this respect, another element in the responsibility predicament is introduced by the International Tribunals, namely the distinction between exercising de facto and de jure control. From this point of view, and of particular relevance in contemporary warfare, is the fact that it is not always the person that is vested with legal authority to act in a particular capacity that is ultimately accountable for the conduct of the subordinates, but the one that exercises control in that situation.73 As the ICTY Trial Chamber states in the Čelebići case:
“in order for the principle of superior responsibility to be applicable, it is necessary that the superior have effective control over the persons committing the underlying violations of international humanitarian law, in the sense of having the material ability to prevent and punish the commission of these offences. With the caveat that such authority can have a de facto as well as a de jure character, the Trial Chamber accordingly shares the view expressed by the International Law Commission that the doctrine of superior responsibility extends to civilian superiors only to the extent that they exercise a degree of control over their subordinates which is similar to that of military commanders.”74
This effective control criterion is in line with the wording of articles 86 and 87 of AP I.75 and with the commentary of the International Committee of the Red Cross (ICRC) to these articles.76 Moreover, if it can be stated that before the two tribunals, CR was generally established based on a combination of de jure and de facto control, the judgment of the ICTR Appeals Chamber in the Nahimana case laid the ground for a complete shift towards CR based on effective control.77 Although the defence argued that Nahimana was “a mere civilian” and “held no post of authority”78
, both the Trial Chamber and the Appeals Chamber found that Nahimana was exercising enough effective control over the population in that he
73
Čelibići TC supra note 61, para 354; ICTY, Prosecutor v Blaškić , Case No. IT-95-14-T, TC Judgment, 3 March 2000, (hereafter Blaškić TC) para 300; This was further used as model by the ICC as shall be discussed further down the line, see Prosecutor v. Jean-Pierre Bemba Gombo, (ICC 01/05-01/08), Pre-Trial Chamber II, 15 June, 2009 (hereafter Bemba) para 409; Cassese supra note 56, p. 188
74
Čelibići TC supra note 61, para 378
75
As the ICTY Trial Chamber stated in the Čelebići case: “the criminal responsibility of superiors for failing to take measures to prevent or repress the unlawful conduct of their subordinates is best understood when seen against the principle that criminal responsibility for omissions is incurred only where there exists a legal obligation to act. As is most clearly evidenced in the case of military commanders by article 87 of Additional Protocol I, international law imposes an affirmative duty on superiors to prevent persons under their control from committing violations of international humanitarian law, and it is ultimately this duty that provides the basis for, and defines the contours of, the imputed criminal responsibility” Čelibići TC supra note 61, para 334.
76
ICRC Commentary to AP I supra note 7, p. 1013 and p. 1019-1022. See also Markham supra note 45, p. 53
77
Nahimana v. Prosecutor, Case No. ICTR–99–52–A, AC Judgment, Nov. 28, 2007 (hereafter Nahimana AC), paras 1044–1052
78
19
was de facto in the position to influence and incite people to commit violations against Tutsis.79
The element of actual or constructive knowledge
According to the judgment of the Trial Chamber in the Ćelebići case, the mens rea necessary in order to incur criminal liability is present when the superior either had actual knowledge, i.e. “established through direct or circumstantial evidence, that his subordinates were committing or about to commit crimes referred to under Article 2 to 5 of the Statute”, or alternatively “where he had in his possession information of a nature, which at the least, would put him on notice of the risk of such offences by indicating the need for additional investigation in order to ascertain whether such crimes were committed or were about to be committed by his subordinates.”80
A case-by-case assessment taking into account all the relevant factors needs to be carried out in each situation, in order to establish whether the information is sufficiently alarming to justify further investigation.”81
The question then arises as to the extent to which the commander is expected to perform these investigative duties. In answering this question the Appeals Chamber in Ćelebići pursued by reviewing the relevant sources of international law available at that time,
inter alinea the customary law of command responsibility, the Yamashita judgment, Article
86 of AP I and the ICRC commentaries thereto.82 The Court concluded that the threshold of the mens rea criterion is satisfied when it is established that “a superior had some general information in his possession, which could put him on notice of possible unlawful acts by subordinates would be sufficient to prove that he ‘had reason to know’”.83 It is further not necessary that he actually was acquainted with the precise details of the situation, nor is it necessary that he consciously processed the information,84 but that he consciously refrained
79
Nahimana v. Prosecutor, Case No. ICTR–99–52–I, TC I Judgment, 5 Dec. 2003, (hereafter Nahimana TC); The Trial Chamber stated in paragraph 974 that Nahimana’s “[broadcast] was “instrumental in awakening the majority population" and in mobilizing the population to stand up against the Tursi enemy. RTLM was Nahimana's weapon of choice, which he used to instigate the killing of Tutsi civilians” See further TC paragraph 1081, confirmed by the AC, see AC paragraphs 785-786
80
Čelibići TC supra note 61,para 383
81
ICTY Prosecutor v. Hadžihasanović , case no. IT-01-47-A, 22 April 2008, AC judgment (hereafter
Hadžihasanović AC) para 28; see also Prosecutor v Stugar, Case No IT-01-42-A, AC Judgement, 17 July 2008
(hereafter Stugar AC), para 302 (for the extensive application see paras 302-308)
82
Prosecutor v Delalić et al. (Čelebići), AC Judgement, Case No. T-96-21-A, 20 February 2001 (hereafter
Čelebići AC), paras 228-235.
83
Čelebići AC supra note 82, para 238.
84
20
from investigating.85 Furthermore, this evidence can be gathered from a wide spectrum of sources and can be either written or oral, formal or informal.86
Failure to take the necessary and reasonable measures
For the establishment of command responsibility, a further criterion that needs to be satisfied is constituted by the commander’s failure to take the necessary measures in order to prevent or alternatively punish the subordinates that acted contrary to IHL. The ICTY stated in various judgments that there is in fact a difference between these obligations, namely pertaining to the temporal nature of the latter and scope thereof.87
In other words, on the one hand, the failure to punish concerns crimes that have already been committed by the subordinates, and brings about an obligation for the commander to either initiate disciplinary measures or to refer the matter to the competent authorities.88
The failure to prevent on the other hand, concerns future crimes of subordinates which imposes a duty on the commander to employ all means that are in his material power in order to prevent them from taking place.89 With regard to jus in bello breaches that were ongoing at the moment the knowledge element was established, it is submitted that the commander’s primary duty when dealing with potential IHL violations by his subordinates is to prevent and repress them and further to take either disciplinary or other appropriate measures in that respect.90 The commander cannot therefore await the completion of the crime and punish the subordinate ex post facto.91
With regard to the precise time when the duty to either prevent or respectively punish commences, this is dependent upon the element of knowledge, that is the type and extent of
85
ICTY Prosecutor v Blaškić, Case no. IT-95-14-A, AC Judgment 29 July 2004 (hereafter Blaškić AC), para 406: “The Appeals Chamber emphasizes that responsibility can be imposed for deliberately refraining from finding out but not for negligently failing to find out”
86
Čelebići AC supra note 82, para 238
87
Hadžihasanović AC supra note 81, para 259-260; Blaškić AC supra note 85, para 417; Prosecutor v Halilović , Case no. IT-01-48-T, TC Judgment,16 November 2005 (hereafter Halilović TC) para 72
88
Fleck supra note 2, p. 9, 661. The ICTY Appels Chamber stated in Blaškić: “What constitutes such measures is not a matter of substantive law but of evidence, whereas the effect of such measures can be defined by law ”
Blaškić AC supra note 85, para 72
89
Čelibići TC supra note 61, para 395; Blaškić AC supra note 85, para 417
90
Halilović TC supra notw 87, para 72; Cassese supra note 56, p. 191
91
Blaškić TC supra note 73 para 336 reads: “where the accused knew or had reason to know that subordinates were about to commit crimes and failed to prevent them, he cannot make up for the failure to act by punishing the subordinates afterwards”
21
the information that can be reasonably expected from the commander in a given case. 92 Here the interconnection with the two previously discussed elements of CR, namely his exercise of
de facto control and his duty to keep himself informed of the activities of his subordinates is
emphasised.
In an ICTY self-published report, discussing the contribution brought by the tribunal to the development of international law it was stated inter alinea that not only did the ICTY apply the CR doctrine for the first time since the WW II cases, but that it also clarified the element of knowledge and the fact that the official capacity of the superior is not a prerequisite for criminal responsibility.93
CR in the Rome Statute of the ICC
The development of the doctrine of CR by the ICTY further influenced the drafters of the ICC Statute and influenced the adoption of the provision in article 28.94 Seeing how both the ICTY and the ICTR are limited ratione temporis ánd ratione loci, the jurisdiction of the ICC on the other hand can potentially be exercised over a broader spectrum (notwithstanding the limitations contained in articles 5 and 11 of the ICC Statute), conceivably also over international crimes committed during armed conflicts in which NFW were employed, albeit to the extent that they are covered in scope by the Statute of the Court. Nevertheless, the interpretation of the doctrine of command responsibility throughout the judgments of the ICTY is particularly important in view of the vast number of cases adjudicated by the Court and also considering the extensive reasoning and detailed argumentation contained in the decisions both before the Trial and the Appeals Chambers. Conversely the cases before the ICC dealing with CR are rather limited to the present day.95 As can be seen from the ICC
92
AC Hadžihasanović supra note 81 stated: “The failure to prevent and the failure to punish are not only legally distinct, but are factually distinct in terms of the type of knowledge that is involved for each basis of superior responsibility.786 The duty to prevent arises for a superior from the moment he knows or has reason to know that a crime is about to be committed, while the duty to punish only arises after the commission of the crime. Thus, knowledge which is relevant to a superior’s duty to punish may or may not be relevant to his duty to prevent depending on when the superior acquired actual knowledge or had reason to know about it.” para 260
93
THE TRIBUNAL’S ACCOMPLISHMENTS IN JUSTICE AND LAW
http://www.icty.org/x/file/Outreach/view_from_hague/jit_accomplishments_en.pdf
94
Bantekas supra note 8, p. 575
95
The general inclination of the ICC for trying alleged perpetrators of ICL under the individual criminal responsibility constructions contained in article 25 ICC Statute rather than under article 28 is primarily based on the fact that under article 28 ICC Statute the commander could not have participated in the commission of the crime. Meloni further notes that if the commander also played a role in the perpetration, it follows that his responsibility will be established based on one of the provisions in article 25 ICC Statute (Meloni supra note 69 p. 148). This issue was also addressed by the TC in the Bemba case: “In this regard, the Chamber made it clear that Mr Jean-Pierre Bemba's criminal responsibility under article 28 of the Statute shall not be examined, unless
22
Trial Chamber II decision in the Bemba case96, the ICC is making use of the findings of the ICTY when delineating the application of CR its own jurisprudence.97 The Bemba case, seeing how it is the only judgment before the ICC so far where the court extensively dealt with the issue of CR, will serve as the main source to exemplify the application of the doctrine by the sole contemporary common international penal adjudicator.
With that in mind, it needs to be noted that criminal responsibility of superiors under the ICC Statute is formulated slightly differently and imposes a few additional criteria when compared to article 7 of the ICTY Statute. Article 28 of the Rome Statute reads:
“In addition to other grounds of criminal responsibility under this Statute for crimes within the jurisdiction of the Court:
(a) A military commander or person effectively acting as a military commander shall be criminally responsible for crimes within the jurisdiction of the Court committed by forces under his or her effective command and control, or effective authority and control as the case may be, as a result of his or her failure to exercise control properly over such forces, where:
(i) That military commander or person either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes; and
(ii) That military commander or person failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.
(b) With respect to superior and subordinate relationships not described in paragraph (a), a superior shall be criminally responsible for crimes within the jurisdiction of the Court committed by subordinates under his or her effective authority and control, as a result of his or her failure to exercise control properly over such subordinates, where:
there is a determination that there is not sufficient evidence to establish substantial grounds to believe that the suspect is criminally responsible as a "co-perpetrator" within the meaning of article 25(3)(a) of the Statute for the crimes set out in the Amended DCC” Bemba supra note 73, para 402
96
Bemba supra note 73
97
23
(i) The superior either knew, or consciously disregarded information which clearly indicated, that the subordinates were committing or about to commit such crimes;
(ii) The crimes concerned activities that were within the effective responsibility and control of the superior; and
(iii) The superior failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.”
A brief examination of article 28 leads a number of observations when compared to its equivalent under the ICTY Statute. The effective control standard seems to remain unchanged.98 The ICC provision however makes a clear distinction between military and non-military superiors, seems to exclude the criminal responsibility of the superior in case he was made aware of the crimes ex post facto and further adds an element of causation.99 These points shall briefly be discussed below.
Regarding the distinction between military and non-military superiors, building upon the ICTY judgment in the Čelebići case, the ICC Chamber stated that the “"should have known" standard requires more of an active duty on the part of the superior to take the necessary measures to secure knowledge of the conduct of his troops and to inquire, regardless of the availability of information at the time on the commission of the crime.”100 In this respect, the ICC Trial Chamber stated that in view of the wording of article 28(b) of the Rome Statute, commanders, as opposed to civilian superiors, are under stricter obligations in respect of their duty to inquire about the activities of their subordinates.101 The “should have known” standard employed by the ICC with respect to non-military commanders is therefore comparable to the overall knowledge criterion employed by the ICTY, whereas the mens rea
98
Bemba supra note 73, paras 412-419; The ICC TC extensively relied on ICTY judgments when establishing its own interpretation of effective control. However, the TC also noted in paragraph 413 that “the usage of the disjunctive "or" between the expressions "effective command" and "effective authority" calls the Chamber to interpret them as having close, but distinct meanings in order to remedy the appearance of redundancy in the text. Thus, the Chamber is of the view that although the degree of "control" required under both expressions is the same as argued in paragraph 412 above, the term "effective authority" may refer to the modality, manner or nature according to which, a military or military-like commander exercise "control" over his forces or subordinates.”
99
Bantekas supra note 8, p. 575; Cassese supra note 56, p. 187
100
Bemba supra note 73, para 433
101
