WHY CRIMINAL CULPABILITY SHOULD FOLLOW THE CRITICAL PATH: REFRAMING THE THEORY OF ‘EFFECTIVE CONTROL’

Abstract

Commanders are the critical path enabling the formation and employment of any fighting organization. By extension, their units are most militarily effective where they are governed by adequate control mechanisms. The classic doctrine of command responsibility that imputes the criminality of subordinates onto their leaders is founded on the legal premise that commanders are responsible for establishing affirmative controls over their subordinates to regulate their conduct. The commander is thereby criminally culpable for failing to create a climate of compliance with the laws and customs of war. The obligation of commanders to control the conduct of their subordinates, or to take action to ameliorate violations when they do occur, applies to both formalized regular military organizations and the loosely structured non-state entities that are common in modern conflicts. Current legal tests for evaluating such ‘effective control’ inaccurately reflect modern operational reality by narrowly focusing on the particular circumstances of the criminal act and the precise relationship between the perpetrators and the superior at the moment of the offense. However, courts have developed and applied a series of tests for evaluating ‘effective control’ that in practice become formulaic and limiting. This trend is exacerbated when applied to warlords or non-state actors in non-hierarchical organizations. Command responsibility has deep historical roots that transcend culture and geography, indicating a timeless consensus that commanders bear personal and professional responsibility for the acts of their subordinates regardless of the context in which they occur. International law subsequently developed to place a heightened responsibility on commanders who field a fighting organization and control the application of violence by their subordinates. Without the proper internal enforcement of the laws and customs of warfare, the commander becomes liable to external criminal enforcement, directed towards both the subordinates and the commander. Prosecutorial trends toward charging joint criminal enterprises and other new theories of individual responsibility fail to understand the essence of the criminality at issue for all fighting organizations – that it is the fielding of the fighting organization without the proper safeguards that in many cases is the causal factor for mass atrocities. Is the law presently configured such that a rebel warlord, a terrorist leader or an outsourced intelligence operator may evade superior responsibility simply because of the unorthodox structure of the fighting organization or the disaggregated orchestration of violence? If the theory of effective control is not reconceived, the answer will be yes, and increasingly so. It is perhaps inevitable that the changing face of warfare requires a modernized conception of effective control. The concept of effective control should be reconceptualized by jurists to extend its present applications by including an imputed responsibility to any commander or non-state actor assuming that role who organizes a collective entity with the intent of conducting hostilities and thereafter fails to create a climate of compliance with the laws and customs of war. This approach will permit the extension of liability to commanders who organize cellular units that operate on the basis of primary loyalty to a local leader and with little/no tactical control by the hierarchy, such as the tactics seen in Iraq, Afghanistan, and a number of modern non-international armed conflicts. Jurists should analyze superior responsibility cases with full cognizance of modern command and control theory in order to sustain its viability as a practical prosecutorial tool to regulate the crimes committed by loosely knit groups and non-state actors conducting atrocities in chaotic circumstances. A reconceived theory of effective control would retain the current indicia developed by jurists, which are most often applicable to state actors and formalized military hierarchies. To be clear, the current jurisprudence may well support liability in many cases, but the Composite Theory proposed herein would make localized findings of effective control one aspect of the larger judicial inquiry. A Composite Theory of Responsibility would revitalize and modernize the doctrine of superior responsibility and avoid impunity for those perpetrators clever or lucky enough to exploit the lacunae in current case law.