Command Responsibility and Organisationsherrschaft: Ways of Attributing International Crimes to the ‘Most Responsible’

Abstract

Th e increasing trend to prosecute and punish international crimes and criminals, to fight against the widespread impunity for gross violations of human rights, with the means of (international) criminal law (see para. 4 of the preamble of the ICC Statute) is certainly to be welcomed and has received broad support in the academic literature, including by this author. At the same time, however, one must not lose sight of the fundamental principles of criminal law which are the product of centuries’ long fights for fairness and the rule of law and which must not be ignored by the international criminal tribunals, especially the International Criminal Court (hereinafter ‘ICC’). Indeed, from a national criminal law perspective, rooted in the tradition of enlightenment, there exists a tension between International Criminal Law (hereinafter ICL)/international criminal jurisdiction and national criminal law/domestic jurisdictions at least in two respects. On the one hand, the increasing trend to criminalization, especially in its extreme form promoted by certain NGOs as prosecution and punishment at whatever cost, oft en conflicts with the traditional criminal law principles grounded in the rule of law ( Rechtsstaat ). To a lesser extent, the criminalization efforts at the international level may conflict with decriminalization efforts at the national level, either by a reduction of the substantive criminal law (downgrading criminal offenses to mere administrative infringements of the law) or by procedural means using the well-known techniques of procedural discretion, abbreviations of criminal proceedings or various forms of negotiations (guilty plea, conformidad, pattagamiento, transactie, etc.). On the other hand, the relationship between the system (criminality) and the individual (criminality) is not free from doubt. While it is clear that ICL is concerned with macrocriminality in the sense of Herbert Jagers’ fundamental study and that domestic criminal law is, normally, concerned with ordinary and individual criminality, the boundaries between the system and the individual level are blurred. While criminal law, at whatever level and in whatever form, always goes aft er the individual perpetrator, it is clear that ICL cannot do without investigating and understanding the political, social, economic and cultural framework and background of the crimes (the ‘crime base’) and thus goes well beyond the establishment of mere individual responsibility. Th is is all the more true if we take into account that current practice in ICL concentrates increasingly, as a matter of law or fact, on the top or high-level perpetrators and leaves the mid- or low-level perpetrators to the domestic jurisdictions. Th e focus on the top necessarily leads to an inquiry into the criminal structures they represent. In this sense, it also seems clear that the system and individual level are not mutually exclusive but rather complement each other; a one-sided focus on one or the other would not fully take into account the complexities of macro criminality. For the analysis of individual criminal responsibility, this means that one should focus on the rules of imputation or attribution for the top perpetrators, the intellectual mastermind, the ‘man in the background’, i.e. the people running the criminal organization or enterprise responsible for the atrocities. 6 Th is brings us to the three possible forms of attribution which may be applied alternatively or cumulatively: joint criminal enterprise (‘JCE’); command responsibility; and control/domination of the act by virtue of a hierarchical organization (hereinafter: Organisationsherrschaft or ‘domination by virtue of an organization’). As the fi rst one is the object of another study in this book, by Harmen van de Wilt, I will focus on command responsibility (in section II) and Organisationsherrschaft (section IV) and treat JCE only in relation to the former (section III).