Superior Responsibility Research Articles

The Ascension of Blue Beret Accountability: International Criminal Court Command and Superior Responsibility in Peace Operations

Personnel involved in United Nations (UN) peace operations have been found to commit misconduct, some of which amounts to criminal conduct. The UN has been working to establish a disciplinary system which will prevent and punish any misconduct by peace operation personnel. However, the UN cannot prosecute criminal perpetrators. Criminal jurisdiction can only be enacted by states and the International Criminal Court (ICC). This article seeks to analyse how Article 28 of the Rome Statute of the ICC can be used to prosecute commanders and superiors of a UN peace operation for war crimes, crimes against humanity and genocide. The application of Article 28, however, is not straightforward, due to the complexity of the command, authority and control structure of a peace operation. Examination of both military command and civilian superior responsibility is undertaken, including recognition of the cross-over of the roles of military and civilian commanders and superiors in peace operations. While this article argues that prosecution under command and superior responsibility is essential, the complications that may arise with the application of such responsibility are recognized and directions for the prosecutor offered.

Business Leaders and the Modes of Individual Criminal Responsibility under International Law

The article tries to provide an overview of possible modes of individual criminal responsibility for business leaders with regard to typical business activities. Particular attention will be paid to aiding and abetting or otherwise assisting in a crime as this is arguably the most important mode of criminal responsibility business leaders may be faced with in future. Contested issues like the subjective requirements of accomplice liability under Article 25(3)(c) ICC Statute (including evidentiary strategies for proving the mental element) and the determination of objective limits for criminal responsibility will be discussed. Contributing to a crime by a group of persons acting with a common purpose according to Article 25(3)(d) ICC Statute provides another important mode of criminal responsibility of which business leaders have to be aware. As that provision is — arguably — simultaneously referring to the rare yet not impossible ‘hard core’ scenario of a business leader being a party to a common purpose joint criminal enterprise, this form will also briefly be discussed. Finally, the discussion on superior responsibility will result in a warning against (further) loosening the effective control test.

Unravelling the Confusion Concerning Successor Superior Responsibility in the ICTY Jurisprudence

AbstractThe recent jurisprudence of the ICTY concerning the proper interpretation of the doctrine of superior responsibility under Article 7(3) of the ICTY Statute has been stifled by division and uncertainty. In particular, the question of the responsibility of successor superiors for crimes committed by their subordinates prior to taking command has led to a number of 3–2 majority decisions. This paper seeks to reconcile the divergent judicial opinions by moving away from a narrow analysis of successor superior responsibility, instead focusing on the determination of the underlying nature of the doctrine of superior responsibility. While a polarity of opinions also exists in relation to the nature of the doctrine of superior responsibility, this paper argues that the opinions can be reconciled by adopting a more principled approach to customary international law, an approach justified by the international criminal law context. Such an approach involves two elements: first, ensuring that a clear distinction is drawn between international humanitarian and international criminal legal concepts; and, second, the invocation of the principle of individual culpability as a standard against which the weight to be attributed to authorities evidencing custom ought to be assessed. A principled approach would enable the identification of the nature of the doctrine of superior responsibility while ensuring that the doctrine reinforces international criminal law principles rather than acts as an exception to them; in addition, by determining the nature of the doctrine of superior responsibility, the principled approach would unravel the confusion concerning successor superior responsibility in the ICTY jurisprudence.

Reasonable Grounds Evidence Involving Sexual Violence in Darfur

Internal and international conflicts can often involve a level of impunity that allows sexual violence to persist unchecked by military and political leaders. The recent reversal by an appeals panel at the International Criminal Court of a pretrial decision not to charge President al‐Bashir of Sudan with genocide in Darfur offers an important foundation for introducing new types of evidence that can increase the investigation and prosecution of sexual violence during conflicts. The reversal cited the incorrect use of the “beyond a reasonable doubt” standard when the lesser standard of “reasonable grounds” applied. Social science provides methods and measures that can be uniquely used to develop reasonable grounds evidence, for example, to demonstrate the roles of physical perpetrators acting together in horizontal relationships, as well as to establish the indirect participation through vertical relationships of higher‐level defendants, in a chain of command of superior responsibility. We illustrate these points by presenting social science evidence of the responsibility of President al‐Bashir and middle‐ and lower‐level figures in genocidal violence in Darfur.

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

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.

Distinguishing Military and Non-military Superiors: Reflections on the Bemba Case at the ICC

The article deals with the distinction between military and non-military superiors. As Article 28 of the Rome Statute sets forth different requirements of superior responsibility for military and non-military superiors, it has become necessary to distinguish between the two types of superiors. In the recent confirmation of charges decision in the Bemba case before the International Criminal Court, the Pre-Trial Chamber qualified Bemba as a military commander. The author analyses this decision and discusses the distinguishing features of military and non-military superiors and their appropriateness for the purposes of Article 28. The author argues that the military or non-military status of the superior is dependent on the unit or entity in which the superior is incorporated. A military commander may be defined as a superior in a unit whose underlying rationale is to act or be deployed as a party to an armed conflict, whereas a non-military superior belongs to an entity that does not have such a purpose.

Municipal Night Nurses’ Experience of the Meaning of Caring

The aim of this study was to elucidate municipal night registered nurses' (RNs) experiences of the meaning of caring in nursing. The research context involved all night duty RNs working in municipal care of older people in a medium-sized municipality located in central Sweden. The meaning of caring in nursing was experienced as: caring for by advocacy, superior responsibility in caring, and consultative nursing service. The municipal night RNs' experience of caring is interpreted as meanings in paradoxes: 'being close at distance', the condition of 'being responsible with insignificant control', and 'being interdependently independent'. The RNs' experience of the meaning of caring involves focusing on the care recipient by advocating their perspectives. The meaning of caring in this context is an endeavour to grasp an overall caring responsibility by responding to vocational and personal demands regarding the issue of being a RN, in guaranteeing ethical, qualitative and competent care for older people.

Article 28 of the ICC Statute: Mode of Liability and/or Separate Offense?

Article 28 of the ICC Statute encapsulates the concept of command or superior responsibility. This is a complex and multilayered concept of liability. It is, on the one hand, a mode of liability, and, on the other hand, a separate offense. It is noteworthy that certain national laws recognize the various "layers" of superior responsibility in that they criminalize these different concepts of superior responsibility in separate provisions. In that sense a "conceptual distinction" is made. Article 28 of the ICC Statute does not provide for such a distinction. The distinction the provision does make, however, is that between military and nonmilitary superiors. To this author's opinion that distinction should be removed and replaced by a conceptual distinction.

Some considerations on command responsibility and criminal liability

AbstractUnder international humanitarian law commanders have been entrusted with the task of ensuring respect for that body of law by their subordinates. This responsibility includes not only the training in IHL of those under their command, but also the taking of necessary measures to prevent or punish subordinates committing violations of IHL. Failure by a commander to do so will give rise to criminal liability, often termed superior responsibility. The following article reviews some of the issues arising from the application and development of this form of responsibility, from both a practical and a legal perspective.

The International Criminal Tribunal for the Former Yugoslavia in 2007: Key Developments in International Humanitarian and Criminal Law

The year 2007 was again a very productive year for The International Criminal Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991. This article examines the judgements rendered by the Tribunal in 2007 and highlights the principal developments in international humanitarian and criminal law at the Tribunal. Among many other issues, the Tribunal's 2007 jurisprudence clarified important aspects of three forms of individual criminal responsibility, namely, aiding and abetting (“by omission”), superior responsibility and the joint criminal enterprise doctrine.

Halilović on Appeal: The Intricate Concept of ‘Effective Control’

Superior responsibility is an important concept in international humanitarian and criminal law. It conveys the concern that those who engage in a risky and dangerous enterprise like waging war should be governed by responsible command which should prevent the commission of atrocities and punish the culpable whenever things have gone astray. Superiors will be held accountable if they fail to take those measures.

The Oddity that is the Hariri Tribunal

This article analyzes the nascent Special Tribunal for Lebanon, recently established by the UN Security Council to try those responsible for the assassination of the former Lebanese Prime Minister, Mr. Rafik Hariri. This Tribunal is deserving of scrutiny not simply because it is new, but also because it is rather unique among its siblings, the other international criminal courts and tribunals, in several respects. First, the circumstances of the Hariri Tribunal's creation are, to put it mildly, somewhat out of the ordinary. It has been established to try the perpetrators of a single murder (and certain related crimes), while all other international criminal tribunals were created to try perpetrators of mass atrocities. Furthermore, even though the Tribunal was originally meant to be an 'internationalized', hybrid criminal court, akin to the Special Court for Sierra Leone (SCSL) or the Extraordinary Chambers in the Courts of Cambodia (ECCC), it was in fact created by the Security Council by a resolution passed under Chapter VII of the UN Charter, due to the inability of the Lebanese government to ratify the treaty establishing the Tribunal for internal political reasons. Probably acting out of a desire to maintain appearances, however, the Council decided to promulgate into force that same unratified treaty by its resolution, instead of opting for a somewhat clearer solution of a UN court as the Council's subsidiary organ, as it did in the cases of the tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR). In Section 2, this article tries to ascertain how the Council's decision fits within the framework of the UN Charter, and analyzes the issue of the Tribunal's legality, which will undoubtedly be raised by defence counsel in a future case. The second distinctively odd thing about the Hariri Tribunal is the untidy assortment of substantive and procedural law that it will be applying. First of all, even though the Report on the creation of the Tribunal by the UN Secretary-General, prepared by the UN Legal Counsel, entertained the possibility that the assassination of Mr. Hariri satisfied the customary requirements for a crime against humanity, making it therefore a crime against international law, the final Statute of the Tribunal as adopted by the Council does not make that qualification. Consequently, the Tribunal is the first international criminal court which will try persons who are accused solely of violating domestic, not international criminal law. Indeed, Article 2 of the Tribunal's Statute prescribes that the source of substantive criminal law that the Tribunal will be applying is the Lebanese Criminal Code. In another odd development, however, Article 3 of the Statute applies to these crimes forms of individual criminal responsibility which are almost uniquely international in character, such as common purpose liability (joint criminal enterprise) and superior (command) responsibility. In Section 3, this paper attempts to establish whether this poses any nullum crimen sine lege problems for the Tribunal's operation. The Tribunal, moreover, introduces some significant features of civil law systems, most notably trials in absentia, for the first time in international judicial practice. These are also addressed in Section 3, while Section 4 provides some concluding remarks. Note: Paper presented at the annual AHRI/COST conference held in Belgrade in September 2007. A revised version of section 3 of this paper is forthcoming in a symposium edition of the Journal of International Criminal Justice (Vol. 5, 2007, published by Oxford University Press).

Superior Responsibility under Article 28 ICC Statute: For What Exactly is the Superior Held Responsible?

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.

Imputed Criminal Liability and the Goals of International Justice

This article considers the suitability of employing particular modes of imputed criminal liability in trials before international criminal tribunals. It focuses specifically on the doctrines of joint criminal enterprise and superior responsibility, two forms of liability which are central to many contemporary international criminal proceedings. Both doctrines can involve a broad form of criminal liability which may not be entirely appropriate when one considers the context in which such trials take place and the significance which often attaches to them. Proponents of international justice have contended that the contribution of these trials goes beyond basic accountability and providing justice for victims, extending also to peacemaking, reconciliation, deterrence, and the creation of a historical record. This article queries whether aspects of joint criminal enterprise liability and superior responsibility are appropriate when international justice is viewed in this light.

Defenses to War Crimes: A Conceptual Overview

As international criminal law continues to grow in importance, defenses to charges of war crimes are taking on a generic standardization that covers prosecutions in national courts as well as in international tribunals. This paper briefly discusses the most important defenses and their theoretical interconnections. Substantive defenses include superior orders, command responsibility, tu quoque, military necessity, proportionality, and reprisals. Jurisdictional defenses applicable in national tribunals include personal jurisdiction, subject-matter jurisdiction, and double jeopardy.

The Transposition of Superior Responsibility onto Guerrilla Warfare under the Laws of the International Criminal Tribunals

AbstractThis article deals with the question whether and how to assess superior responsibility within irregular (guerrilla) warfare; based on the principles developed by the international criminal tribunals on the area of superior responsibility for regular forces. In particular the article examines whether those criteria are useful to apply to guerrilla warfare. Specific problems, typical for guerrilla warfare, are analyzed such as the organizational level, the exercise of effective command and control, the assessment of the mens rea criterion within a complex situation of guerrilla warfare. Additionally, the material ability to prevent or punish crimes within guerrilla forces seems a point of concern in view of the absence of proper disciplinary systems within this type of warfare. Recent case law of the ICTY is taken into account in order to arrive at an answer to the main research question.

Reflections on the Treatment of the Notions of Control of the Crime and Joint Criminal Enterprise in the Stakić Appeal Judgement

One of the areas of international criminal law that has experienced a deeper evolution in the last decade is that of the applicable modes of liability other than superior responsibility. This evolution has been, to an important extent, the result of moving away from cases where the accused is a physical or low-level perpetrator, such as the Tadic case in the International Criminal Tribunal for the former Yugoslavia (“ICTY”) or the Akayesu case in the International Criminal Tribunal for Rwanda (“ICTR”). In this context, the Stakic Trial Judgement constituted a landmark decision insofar as it resorted for the first time in the jurisprudence of the ICTY to the notion of control of the crime. It did so with the aim to overcome some of the shortcomings of the traditional notion of joint criminal enterprise in cases against high ranking politicians and military leaders. Hence, the judgement of the Appeals Chamber in the Stakic case was very much expected insofar as it was supposed to deal with the issue of whether the notion of control of the crime is part of the applicable law before the ICTY.

Holding Leaders Accountable in the International Criminal Court (ICC) for Gender Crimes Committed in Darfur

This article discusses how rape and other forms of sexual violence have been prominent features of the ongoing attacks (from 2003 to the present) committed by government of Sudan (GoS) troops and the Janjaweed (Arab militia) in Darfur, Sudan. It first provides a historical overview of wartime rape in law and society, then discusses some of the many reports (including the UN's Commission of Inquiry on Darfur) that have documented the perpetration of rape and other forms of sexual violence in Darfur by GoS troops and Janjaweed. Following a discussion of specific cases of rape and other sexual crimes committed in Darfur, the author discusses how such crimes can be and have been prosecuted as war crimes, crimes against humanity, and genocide. Among the other issues discussed in the essay are the concepts of individual and superior responsibility, as they relate to prosecuting those responsible for sexual violence, and the critical need to hold leaders accountable for sex crimes.

Liability for Omission in International Criminal Law

AbstractWhile deliberately excluding from its scope the issue of superior responsibility, this article considers whether there is a general rule of international law providing for liability for omission on which to base a concept of "improper crimes of omission" or "commission by omission".By analyzing international law sources, the article finds that treaty law contains a provision of only limited scope. A customary law rule, it argues, could not come into existence due to the lack of opinio iuris. Turning to general principles of law, the article studies various legal systems, concluding that there is a general principle of law, which for the purposes of criminal law equates the human conduct of omission with action, if a legal duty to act exists.Based on this finding, the article argues that the International Criminal Court is in a position to apply the concept of commission by omission despite the lack of such a general provision on omission in the Rome Statute.

Bridging the Conceptual Chasm: Superior Responsibility as the Missing Link between State and Individual Responsibility under International Law

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.