1. Introduction
Soldiers of an army invariably reflect the attitude of their general. The leader is the essence . . . Resultant liability is commensurate with resultant crime. To hold otherwise would be to prevaricate the fundamental nature of the command function. This imposes no new hazard on a commander, no new limitation on his power. He has always, and properly, been subject to due process of law. Powerful as he may become in time of a war, he still is not an autocratic or absolute, he still remains responsible before the bar of universal justice.Footnote 1
The sentiment of General MacArthur's conviction that commanders are ‘subject to due process of law’ was identifiable as early as the writings of Sun Tzu and Grotius.Footnote 2 While command has always imposed responsibility,Footnote 3 it was not until the end of the Second World War that such responsibility became more consistently criminal and international in nature,Footnote 4 finding expression in the doctrine of superior responsibility.Footnote 5 This doctrine, now a well-established principle of customary international law,Footnote 6 has recently been developed and clarified by the jurisprudence of the International Criminal Tribunal for the former Yugoslavia (ICTY) under Article 7(3) of its Statute.Footnote 7 From this jurisprudence it is clear that for a superior to incur international criminal responsibility, in addition to establishing that his subordinate is criminally responsible, the following three elements must be established beyond reasonable doubt:
1. the existence of a superior–subordinate relationship;
2. that the superior knew or had reason to know that his subordinate was about to commit a crime or had done so; and
3. that the superior had failed to take the necessary and reasonable measures to prevent his subordinate's criminal conduct or punish his subordinate.Footnote 8
While the substance of these elements has gradually been clarified by the ICTY,Footnote 9 one question has recently caused particular confusion, dividing judges and scholars alike. The question concerns what may be termed ‘successor superior responsibility’, namely whether a superior can be held responsible for failing to punish the crimes of his subordinates committed prior to his taking command. This paper seeks to reconcile this judicial division by moving away from the overly narrow analysis often adopted by the judges of the ICTY to a broader assessment of the nature of the doctrine of superior responsibility itself.
This paper begins by summarizing the arguments put forward by different judges of the ICTY to support their competing views on the question of successor superior responsibility. It will be shown that the judges of the ICTY are united by their failure to deal with the fundamental problem that underlies the issue of successor superior responsibility, namely the confusion which exists concerning the nature of the doctrine of superior responsibility. Against this background, the paper then focuses on determining the underlying nature of the doctrine of superior responsibility. In this regard, two competing conceptions of the doctrine of superior responsibility are identified: the ‘mode of liability’ approach and the ‘dereliction of duty’ approach. By analysing the different justifications for each conception, this paper proposes that the different approaches 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 also resolves the debate concerning successor superior responsibility in the ICTY jurisprudence.
2. Successor superior responsibility: confusion at the ICTY
The issue of successor superior responsibility has been the cause of great division at the appellate level of the ICTY. In the Hadžihasanović Interlocutory Appeal Decision, a 3–2 majority of the Appeals Chamber held that a successor superior is not responsible for crimes committed by his subordinates prior to his taking command.Footnote 10 In Orić, the Appeals Chamber was again divided, with a 3–2 majority declining to address the ratio decidendi of the Hadžihasanović Interlocutory Appeal Decision;Footnote 11 however, two dissenting judges not only supported addressing the issue but also supported the minority approach in Hadžihasanović.Footnote 12 Curiously, Judge Shahabuddeen, supporting the majority on the issue of whether to address the ratio decidendi, but supporting the minority (and his previous position in Hadžihasanović) on the approach he would take had the issue been relevant for discussion, concluded that consequently ‘there is [now] a new majority of appellate thought’.Footnote 13 Such statements are unhelpful. A Trial Chamber is now bound to follow the original Hadžihasanović Interlocutory Appeal Decision in the knowledge that a new appellate majority may exist (depending on the composition of the chamber) leaning towards the opposite conclusion. As Judge Schomburg succinctly stated, ‘the Appeals Chamber . . . has not only missed the unique opportunity to spell out the correct interpretation of command responsibility as laid down in Article 7(3) of the Statute of this International Tribunal, it [has] failed to fully carry out its mandate.’Footnote 14
While it is not the purpose of this article to provide an extensive analysis of the arguments set forth by the Appeal Chambers of the ICTY, especially since such analyses have already been covered elsewhere,Footnote 15 this section sets out some of the arguments put forward in favour of and against successor superior responsibility to illustrate the types of issue covered. The important point to note is that the judges have tended to narrow their focus on the specific issue of successor superior responsibility, rather than broadening their perspectives to consider the underlying nature of the doctrine of superior responsibility.
2.1. Arguments against successor superior responsibility
The principal arguments against holding successor superiors responsible for failing to punish crimes committed by their subordinates prior to taking command have been set out by the majority in the Hadžihasanović Interlocutory Appeal Decision. The arguments can be grouped under three themes.
First, the majority held that they could find neither state practice nor any evidence of opinio juris that supports the proposition that a superior can be held responsible for crimes committed by a subordinate prior to the superior's assumption of command over that subordinate.Footnote 16 The majority further submitted that even if no authority could be found directly confirming that successors should not be responsible for failing to punish the previous crimes of their subordinates, ‘absence of authority . . . does not establish the conclusion that such criminal responsibility does exist’.Footnote 17
Second, the majority utilized case law to support their position. In particular, the majority relied on the Kuntze case before the Nuremberg Military Tribunals, placing emphasis on the fact that
While it is clear that this judgment recognizes a responsibility for failing to prevent the recurrence of killings after an accused has assumed command, it contains no reference whatsoever to a responsibility for crimes committed prior to the accused's assumption of command.Footnote 18
Finally, the majority pointed to various treaties and other texts in support of their position. In particular, the majority emphasized that the natural language of Article 28 of the Rome Statute of the International Criminal Court (ICC Statute),Footnote 19 Article 6 of the International Law Commission (ILC) Draft Code of Crimes against the Peace and Security of Mankind,Footnote 20 and Article 86(2) of Additional Protocol I to the Geneva ConventionsFootnote 21 all lean towards the conclusion that the superior–subordinate relationship must exist at the time the subordinate was committing or was going to commit a crime. In this way, these texts do not allow for the responsibility of superiors for crimes committed by their subordinates prior to taking command.
What is clear from this brief overview is that all the arguments of the majority analyse the relevant case law, treaties, state practice, and opinio juris in relation to the specific question of successor superior responsibility, failing to comment on the nature of the superior responsibility doctrine.
2.2. Arguments supporting successor superior responsibility
The principal arguments in favour of holding successor superiors responsible for failing to punish crimes committed by their subordinates prior to taking command have been set out in the various separate and dissenting opinions in the Hadžihasanović Interlocutory Appeal Decision and the Orić Appeals Chamber Judgement. Again, the arguments focus on the narrow issue of successor superior responsibility, without recognizing the need to deal with the broader issue of the underlying nature of superior responsibility.
Judge Shahabuddeen comes closest to framing the debate in terms of requiring an assessment of the nature of the doctrine of superior responsibility, arguing that, in the absence of any particular prior case dealing directly with the issue of successor superior responsibility, the relevant question is whether successor superior responsibility ‘is capable of being governed by the established principle [of superior responsibility]’.Footnote 22 Equally, Judge Hunt argues that the relevant question is whether successor superior responsibility ‘reasonably falls within the application of the [doctrine of superior responsibility]’.Footnote 23 In order to answer these questions, the exact nature of the underlying doctrine of superior responsibility must first be determined. However, while some of the judges expressed their opinions on the nature of the doctrine of superior responsibility,Footnote 24 they all failed to provide any extensive analysis of the issue. Instead, all the judges resorted to analysing the following narrower issues: the weight to be accorded to texts such as Article 28 of the ICC Statute and Article 6 of the ILC Draft Code of Crimes against the Peace and Security of Mankind, both of which were adopted subsequent to the dates on which the alleged acts of the subordinates took place;Footnote 25 whether Article 86(2) of Additional Protocol I to the Geneva Conventions should be read in isolation or together with Article 87(3);Footnote 26 the correct interpretation of Article 7(3) of the ICTY Statute;Footnote 27 the correct interpretation of relevant case law concerning successor superior responsibility;Footnote 28 and the policy arguments in favour of successor superior responsibility.Footnote 29 The common thread of these issues is that they all focus on analysing the relevant cases and texts in respect of successor superior responsibility, rather than dealing with the more fundamental question of the underlying nature of the doctrine of superior responsibility.
3. Shifting the focus: the elusive nature of superior responsibility
3.1. The relationship between the successor superior responsibility debate and the underlying nature of the doctrine of superior responsibility
The debate concerning successor superior responsibility highlights a deeper confusion concerning the nature of the doctrine of superior responsibility. In fact, this paper submits that it is the ICTY's failure to make an authoritative determination as to the nature of superior responsibility that is the root cause of the recent uncertainty over successor superior responsibility.Footnote 30
Before examining the nature of the doctrine of superior responsibility, it is necessary to recognize that the doctrine has two different forms: the duty to prevent form and the duty to punish form. Since this paper is focused on the issue of successor superior responsibility, it is only necessary to consider the nature of the duty to punish form of the doctrine.Footnote 31 However, it must be emphasized that part of the confusion over the nature of the doctrine of superior responsibility in general has been caused by the practice of international rules and judicial findings tending to ‘lump together’ different classes and forms of superior responsibility,Footnote 32 often ‘obscur[ing] the fundamental principles of the doctrine and complicat[ing] its translations into the context of criminal law’.Footnote 33
Having identified the task of determining the nature of the duty to punish form of superior responsibility, it is useful to turn to the pertinent question put forward by the Trial Chamber in Hadžihasanović:
[T]he question arises as to whether a commander who has failed in his obligation to ensure that his troops respect international humanitarian law is held criminally responsible for his own omissions or rather for the crimes resulting from them.Footnote 34
From this passage, two conceptions of the duty to punish form of superior responsibility are readily identifiable. On the one hand, it is possible to argue that the doctrine of superior responsibility is a mode of liability, under which a superior is responsible for the same crimes as those committed by his subordinates (‘mode of liability approach’). On the other hand, it is possible to argue that the doctrine is a separate dereliction of duty offence, under which a superior is responsible merely for his own omissions and not the crimes that result from them (‘dereliction of duty approach’).
The polar views in relation to the successor superior responsibility debate should be seen as extensions of the above two conceptions of the doctrine of superior responsibility. If superior responsibility were characterized as a mode of liability, a superior's criminal liability would be derivative of his subordinates’ crimes, the superior being liable for his participation in the actual crimes through his subordinates.Footnote 35 Consequently, successor superiors could not be responsible for crimes committed by their subordinates prior to assuming command because the existence of a superior–subordinate relationship would need to coincide with the timing of the commission of his subordinates’ crimes. Under this formulation of the superior responsibility doctrine, it is this coincidence that provides one of the very justifications for imposing liability on the superior.Footnote 36 As Meron has argued, under this conception of the superior responsibility doctrine, ‘a commander cannot fairly be held responsible for crimes not occurring on his watch’.Footnote 37 Since a superior derives his responsibility from his relationship to his subordinates and the link between his omission and the crimes committed by his subordinates, he can only be held responsible to the extent that he had the power to intervene but failed to do so.Footnote 38
By contrast, if superior responsibility were characterized as a separate dereliction of duty offence, a superior's criminal liability would not be derivative of his subordinates’ crimes, the superior being liable for his own conduct in relation to his subordinates.Footnote 39 Consequently, successor superiors could be responsible for crimes committed by their subordinates prior to assuming command. Under this formulation, coincidence between the existence of a superior–subordinate relationship and the timing of the commission of his subordinates’ crimes would not be a precondition of superior responsibility.Footnote 40 Since the superior is being punished for his own failure to punish rather than for the crimes of his subordinates, and since punishment is something that necessarily arises after the commission of the subordinate crimes, ‘there is no justification for excusing a post facto commander for failing to exercise his punitive functions at the same time that any commander, in a position to punish, would have done the same’.Footnote 41 The unwillingness of the ICTY Appeals Chamber to grapple directly with this issue has left the law uncertain, confused, and unsound.Footnote 42
Whenever a division exists as to the interpretation of a doctrine in any legal system, it is necessary to determine which interpretation should be adopted so that the law is made certain; in the context of international criminal law, this requirement of legal certainty is particularly relevant since there are significant fair labelling and sentencing repercussions for the accused.Footnote 43 In an effort to unravel the nature of the doctrine of superior responsibility, and consequently resolve the debate in relation to successor superior responsibility, the following subsections outline the arguments used to justify each of the mode of liability and dereliction of duty approaches respectively so as to gain a better understanding of each approach.
3.2. The mode of liability approach
3.2.1. Defining the mode of liability approach
Before explaining the justifications put forward in support of the mode of liability approach, it is first necessary to define with sufficient precision what is meant by ‘mode of liability’. Since several modes of liability exist in international criminal law,Footnote 44 the starting point for defining the mode of liability approach is to identify which mode accurately describes the doctrine of superior responsibility. In this regard, it is clear that those advocating this approach regard the superior responsibility doctrine as a mode of imputed liability:Footnote 45 a superior is held liable for the crimes of his subordinates notwithstanding the fact that he has not satisfied ‘the paradigm’ of the underlying offences,Footnote 46 in the sense that one or more of the offences’ definitional elements have not been fulfilled.Footnote 47 In this way, liability for the crimes of his subordinates is said to be ‘imputed’ to the superior. The basis for this imputation of liability lies in the concept of the superior–subordinate relationship. The ICTY has consistently held that the doctrine of superior responsibility is ‘clearly articulated and anchored on the relationship between superior and subordinate’,Footnote 48 a relationship which itself is premised on the concept of effective control.Footnote 49 The Trial Chamber in Strugar makes the point succinctly:
The superior–subordinate relationship lies in the very heart of the doctrine of a commander's liability for the crimes of his subordinates . . . [because it] is the position of command over the perpetrator which forms the legal basis for a superior's duty to act, and for his corollary liability for a failure to so.Footnote 50
In this way, it is the superior–subordinate relationship which provides the very justification and legal basis for imputing liability to the superior.Footnote 51
Merely asserting that superior responsibility is a form of imputed liability does not go far enough. The question naturally arises as to whether the imputed liability is vicarious,Footnote 52 understood as the imputation of liability ‘where the defendant lacked the culpability required for the offense and did not satisfy the objective elements of the offense’,Footnote 53 or derivative, in the sense that the imputation of liability ‘is linked to the acts of subordinates’,Footnote 54 whose crimes ‘constitute the point of reference of the superior's failure of supervision’.Footnote 55 In this regard, the ICTY Appeals Chamber has clearly concluded that it ‘would not describe superior responsibility as a vicarious liability doctrine, insofar as vicarious liability may suggest a form of strict imputed liability’.Footnote 56 Instead, the ICTY has clearly favoured the characterization of the superior responsibility doctrine as a form of derivative imputed liability. This is evident in its emphasis not only on the need to identify a superior–subordinate relationship, but also on the need for the superior to possess the requisite mens rea in order for liability to be imputed.Footnote 57 Unlike the concept of vicarious liability, derivative liability reinforces the significance of the superior–subordinate relationship without erroneously insisting that it acts as the sole condition that must be met for responsibility to be imputed to the superior.
3.2.2. Justifying the mode of liability approach
Turning to the justifications put forward in support of the mode of liability approach, a quick perusal of the ICTY jurisprudence reveals that the vast majority of case law favours this approach. This is most clearly illustrated by the fact that the Appeals Chamber of the ICTY has consistently entered and affirmed the convictions of superiors for the crimes proscribed in Articles 2–5 of the Statute committed by their subordinates rather than for separate crimes of omission.Footnote 58 Such an approach has also been followed by the International Criminal Tribunal for Rwanda (ICTR).Footnote 59 In addition, a review conducted by the ICTY Office of the Prosecutor reveals that both the ICTY and ICTR have consistently confirmed indictments that uniformly charge superior responsibility as a mode of liability.Footnote 60 These convictions and confirmed indictments are in line with more general statements issued by the ICTY to the effect that superior responsibility is a ‘type of individual criminal responsibility for the illegal acts of subordinates’ under which superiors ‘may be held criminally responsible for the unlawful conduct of their subordinates’.Footnote 61
The overriding justification for construing the superior responsibility doctrine as a mode of liability is that it is in conformity with customary international law as presently formulated by the ICTY.Footnote 62 While it is not the purpose of this article to set out a full historical account of the development of the superior responsibility doctrine, especially since extensive analysis has been carried out elsewhere,Footnote 63 a brief summary is still useful.
Turning first to case law, and in particular the military tribunals established in the aftermath of the Second World War, it is clear that, although the resulting case law was ‘not uniform in its determination as to the nature of . . . [superior] responsibility’,Footnote 64 the doctrine was generally interpreted as a mode of liability under which superiors were held accountable for the crimes of their subordinates.Footnote 65 Support for the mode of liability approach can also be ascertained from the Medina case in relation to the Vietnam conflict, in particular from the restrictive actual knowledge mens rea standard adopted by the court in disregard of the internationally recognized mens rea standard at the time.Footnote 66 It can be argued that a restricted formulation of the superior responsibility doctrine emerged precisely because the doctrine was characterized as a mode of liability through which superiors could be held responsible for the same crimes committed by their subordinates. Langston notes that this case offers a striking example of the extent to which ‘a domestic “unsafe” tribunal will devise a restricted formulation of the superior responsibility doctrine in order to avoid a prosecution of its own nationals’.Footnote 67 Had the doctrine been considered merely a dereliction of duty offence, such a restricted formulation would have been unnecessary, since, although the nationals would still have been prosecuted, their convictions would have been far less grave: the nationals would have been held responsible for derelictions of duty rather than for the same crimes committed by their subordinates. The issue of superior responsibility also arose in the Kahan Report,Footnote 68 written in response to the massacres in the Palestinian Sabra and Shatila refugee camps in Lebanon in 1982. Leaving aside the substantive findings of the commission of inquiry,Footnote 69 it is important to note that the commission determined that the doctrine of superior responsibility is a form of ‘indirect responsibility’,Footnote 70 under which ‘responsibility [for the acts of subordinates] is to be imputed’ to the superior.Footnote 71 Such findings clearly support the mode of liability approach.
The doctrine of superior responsibility has also been codified in both treaty and statutory form. However, while such codifications have helped to clarify the substantive elements of the doctrine,Footnote 72 they have remained elusive as to its precise nature. Article 86(2) of Additional Protocol I to the Geneva Conventions, the first international instrument expressly to codify the doctrine of superior responsibility,Footnote 73 merely stipulates that ‘the fact that a breach of the Conventions or of this Protocol was committed by a subordinate, does not absolve his superiors from penal or disciplinary responsibility’.Footnote 74 The more specific determination of the precise nature of this responsibility – penal or disciplinary, dereliction of duty offence or mode of liability for the crimes of subordinates – was left to domestic law.Footnote 75 A similar approach is adopted in Article 7(3) of the Statute of the ICTY, which refers to superiors being subject to ‘criminal responsibility’,Footnote 76 without elaboration.Footnote 77
Despite such ambiguity, other documents are of more assistance in identifying the nature of responsibility intended by these treaty and statutory provisions. First, the Secretary-General's report concerning Article 7(3) refers to superior responsibility as a form of imputed responsibility.Footnote 78 Second, the Final Report of the Commission of Experts concerning Article 7(3) refers approvingly to a passage in its first interim report in which it stated that, under the superior responsibility doctrine, superiors are ‘individually responsible for a war crime or crime against humanity committed by a subordinate’;Footnote 79 the Commission concludes that ‘Article 7 of the statute of the international tribunal uses an essentially similar formulation’.Footnote 80 Third, Article 2 of the 1996 ILC Draft Code of Crimes provides that a superior ‘shall be responsible for a crime set out in article 17, 18, 19, or 20 if that individual: . . . (c) fails to prevent or repress the commission of such a crime’.Footnote 81 Fourth, the Commentary to the 1996 ILC Draft Code of Crimes confirms that under the superior responsibility doctrine, a superior is ‘held criminally responsible for the wrongful conduct of a subordinate’.Footnote 82 Finally, some argue that Article 28 of the ICC Statute supports the mode of liability approach by holding superiors ‘criminally responsible for crimes within the jurisdiction of the Court committed by subordinates’.Footnote 83 Taken together, these authorities strongly support the characterization of superior responsibility as a mode of liability for the crimes of subordinates.
From the preceding brief analysis, it can be concluded that, from the perspective of customary international law as presently formulated by the ICTY, the vast majority of authorities support the characterization of the doctrine of superior responsibility as a mode of derivative imputed liability.Footnote 84
3.3. The dereliction of duty approach
Unlike the mode of liability approach, the dereliction of duty approach is relatively simple to explain:Footnote 85 a superior is responsible not for the same crimes of his subordinates, but for a separate crime of omission. In this way, the level of a superior's culpability is matched to the extent of his conduct.
3.3.1. Justifying the dereliction of duty approach under customary international law
While simple to explain, the dereliction of duty approach is far more difficult to justify under customary international law as presently formulated by the ICTY. Yet despite the strength of the evidence pointing towards the mode of liability approach, several chambers and individual judges have nonetheless attempted to justify the doctrine of superior responsibility as a crime of omission under customary international law.Footnote 86 For instance, the superiors before the Trial Chamber in Orić and the Appeals Chamber in Hadžihasanović were convicted and acquitted of various charges of dereliction of duty rather than for the crimes of their subordinates.Footnote 87 Such an approach has also been endorsed by several scholars.Footnote 88 Yet only twice in the jurisprudence has any attempt been made to substantiate the assertions made in support of the dereliction of duty approach and in each case the analysis does not withstand scrutiny.
First, the Trial Chamber in Halilović carried out an extensive review of the superior responsibility jurisprudence since the Second World War.Footnote 89 Yet the conclusions which the Trial Chamber drew from its analysis are highly dubious: first, the Trial Chamber found that the Second World War jurisprudence was ‘not uniform in its determination as to the nature of the responsibility arising from the concept of command responsibility’, despite finding only one case unequivocally in support of the dereliction of duty approach (the Toyoda case);Footnote 90 and, second, the Trial Chamber found that ‘the consistent jurisprudence of the Tribunal has found that a commander is responsible for the crimes of his subordinates under Article 7(3)’, but then placed undue weight on the Aleksovski Trial Chamber and the Partially Dissenting Opinion of Judge Shahabuddeen in the Hadžihasanović Interlocutory Appeal Decision to conclude that ‘the commander should bear responsibility for his failure to act [. . . and] not as though he had committed the crime himself’.Footnote 91 In this light, the conclusions of the Halilović Trial Chamber should be discarded, given that the analysis used to reach them points in the opposite direction, in fact supporting the characterization of superior responsibility as a mode of liability.Footnote 92
A subsequent analysis of the dereliction of duty approach can be found in the Separate Opinions of Judge Shahabuddeen in the Appeals Chambers in Hadžihasanović and Orić.Footnote 93 On each occasion, Judge Shahabuddeen acknowledges that Article 7(3) of the ICTY Statute can be construed as a mode of liability.Footnote 94 However, he ‘prefer[s]’ to interpret the provision as a separate dereliction of duty offence:Footnote 95 first, on the basis of the Secretary-General's report concerning Article 7(3);Footnote 96 second, on the basis of prior ICTY jurisprudence, including the Halilović Trial Chamber judgment;Footnote 97 and, finally, on the basis that any case which has previously suggested that the superior himself committed the crime of the subordinate must be construed ‘so as to reconcile it . . . with common sense’.Footnote 98 In this latter regard, Judge Shahabuddeen argues that the punishment rendered in these cases is ‘only the measure of punishment of the commander for his failure to control the subordinate’ rather than punishment for the actual crimes committed by a superior's subordinates.Footnote 99
Each of these arguments is unconvincing. First, the Secretary-General's report merely distinguishes Article 7(1) and Article 7(3), avoiding any definitive statement as to the nature of responsibility under Article 7(3). In fact, to the extent that the report does give an indication as to the nature of superior responsibility, it refers to Article 7(3) as a form of ‘imputed’ responsibility rather than as a distinct dereliction of duty offence.Footnote 100 Second, Judge Shahabuddeen's reliance on the conclusions in Halilović is misplaced in the light of the Trial Chamber's dubious analysis of the jurisprudence;Footnote 101 all other cases relied on by Judge Shahabuddeen merely assert the conclusion that superior responsibility is a dereliction of duty offence without substantiation. Third, Judge Shahabuddeen's attempt to interpret past cases, which in their natural meaning indicate that superiors are responsible for the same crimes as their subordinates, as instead supporting the dereliction of duty approach is a manipulation of what the law is to suit his own preference as to what the law should be. While Judge Shahabuddeen asserts that his interpretation accords with ‘common sense’,Footnote 102 it is in fact better characterized by Meron as ‘a proposition characteristic of the common law in its early development, when the criminal law was essentially judge-made law’.Footnote 103 Judges can no longer change the law at will, but must substantiate their claims in accordance with the nullum crimen sine lege principle. As analysed above, the dereliction of duty offence is not reflected in the international criminal law jurisprudence and no attempt has been made to bring such an offence within it.Footnote 104 Indeed, it could be argued that Judge Shahabuddeen's approach is in fact illogical in the context of the ICTY Statute. When read in its context, Article 7(3) cannot be intended to create a new offence since it sits under the heading to Article 7 as a whole, ‘Individual Responsibility’, which deals exclusively with modes of liability and denials of defences.Footnote 105
3.3.2. Justifying the dereliction of duty approach using rudimentary notions of justice
Given the difficulties in finding a customary international law basis for the dereliction of duty approach, advocates of this approach usually resort to pleas to common sense and to what they consider reasonable to achieve justice.Footnote 106 In fact, it is far easier to justify the dereliction of duty approach by attacking the harshness of the mode of liability approach, in particular by highlighting its incompatibility with the principle of personal culpability.Footnote 107 This principle stands for the proposition that ‘nobody may be held criminally responsible for acts or transactions in which he has not personally engaged or in some other way participated’.Footnote 108 In this light, compatibility with the principle of personal culpability depends on the degree to which a nexus exists between a superior's omission and the crimes of his subordinates. In the context of the duty to punish form of the doctrine of superior responsibility relevant to our discussion, it is clear that the nexus between a superior's inaction and the underlying crimes of his subordinates is extremely tenuous. Applying the mode of liability approach, a superior is held responsible for the same crimes as his subordinates for the sole reason of failing to punish them after the fact; the superior is held responsible for the criminal conduct of others committed in the past, to which he has in no way contributed.Footnote 109 A superior's failure to punish the commission of crimes by his subordinates, of which he had no knowledge until after the fact, is equated in terms of personal fault with the commission of the offences themselves.Footnote 110 In this way, the weak causal nexus between a superior's inaction and the crimes of his subordinates results in ‘a huge disproportion . . . on the one hand, between the stigmatization to which [. . . a superior] is subjected, and, on the other, the conduct in which he actually engaged and the blame he really deserves’.Footnote 111 The superior's responsibility and personal fault are spread so widely apart that the mode of liability approach not only tests the basic tenets of the principle of personal culpability,Footnote 112 it effectively acts as an exception to it.Footnote 113
Against such criticism, several attempts have been made to defend the application of the mode of liability approach. First, it has been pointed out that this head of superior responsibility is similar to a form of aiding and abetting by a superior under Article 7(1) of the ICTY Statute, the only significant difference being that ‘the failure to punish does not need the coming into effect of a “result”’.Footnote 114 This has effectively been acknowledged by the Appeals Chamber in Hadžihasanović, which stressed the following:
[A] superior's failure to punish a crime of which he has actual knowledge is likely to be understood by his subordinates at least as acceptance, if not encouragement, of such conduct with the effect of increasing the risk of new crimes being committed.Footnote 115
In addition, in several cases the failure of a superior to punish the past crimes of his subordinates has been interpreted under Article 7(1) as a basis for aiding and abetting or instigating new crimes.Footnote 116 While these observations are undoubtedly true, they fail to support the mode of liability approach in this context. The nexus between a superior's failure to punish and (potential) future crimes supports the imposition of some form of responsibility but cannot be used to justify the imposition of the same label on the superior as the past crimes of his subordinates. It is the nexus between the superior's inaction and the past crimes of his subordinates that is important for assessing the appropriateness of imputing liability on a superior for those same past crimes. Viewed from this perspective, it is clear that only a very weak nexus exists, since the failure to punish is necessarily after the fact.
Second, the mode of liability approach has been defended by Greenwood on the basis that, although a superior lacks knowledge of the crimes of his subordinate at the time of their commission,
it can be argued that, had he run his command properly, the members of that command would not have behaved in this way. In such a case, there is a causal connection (albeit, perhaps a tenuous one) between the commander's actions and inaction, and the commission of the offences by his subordinates.Footnote 117
Again, while this argument may justify the imposition of some responsibility, it does not justify the imposition of responsibility for the same crimes as his subordinates,Footnote 118 especially since the causal connection between the superior's inaction and the subordinate crimes is merely ‘a tenuous one’.
Against this background, the dereliction of duty approach is clearly preferable, since it ensures that the crime of the superior is defined by reference to his omission rather than the consequences of his omission. By interpreting the doctrine of superior responsibility as a separate crime of omission, the problems associated with the mode of liability approach are effectively side-stepped.Footnote 119 The superior is charged with a specific offence that clearly matches the level of his wrongdoing, thereby reinforcing the principle of personal culpability rather than acting as an exception to it.
4. Reconciling the approaches
The preceding analysis has revealed two distinct approaches to the doctrine of superior responsibility: the mode of liability approach and the dereliction of duty approach. While the mode of liability approach has been justified by recourse to customary international law, advocates of the dereliction of duty approach have tended to rely on appeals to common sense and justice. The difference between the justifications of the two approaches is illustrative of the inherent dilemma that underlies international criminal law: the need to apply individualized notions of criminal law to the collective context of public international law.Footnote 120 While crimes of an international nature normally ‘constitute manifestations of collective criminality’,Footnote 121 it is the aim of criminal law ‘to individualize responsibility associated with [their] commission’.Footnote 122 This dichotomy between the collective international crime and the individual defendant is particularly problematic in respect of the doctrine of superior responsibility, which, in essence, acts as ‘a conceptual and practical bridge between state and individual responsibility [regimes]’.Footnote 123 Against this background it is clear that the mode of liability approach emphasizes the public international law aspect of international criminal law, relying on traditional notions of customary international law for justification. By contrast, the dereliction of duty approach emphasizes the criminal law aspect of international criminal law, relying on traditional criminal law principles for justification.
An interesting analysis of this dilemma has recently been provided by Drumbl, who challenges ‘the suitability’ of applying domestic criminal law principles such as the principle of personal culpability, which are ‘premised on the construction of the individual as the central unit of action’,Footnote 124 to the context of international crimes.Footnote 125 In particular, Drumbl finds it paradoxical that ‘even though international criminal law responds to conduct that is much more collective in nature than that faced by ordinary criminal law, it evokes a similar rhetorical archetype of individual agency’.Footnote 126 While Drumbl offers an insightful critique of international criminal law, even he concedes that there is still a place for international criminal law ‘within the justice matrix’.Footnote 127 In this light, this paper disagrees with Professor Drumbl's dismissal of domestic criminal law principles and instead argues that ‘[o]nce a criminal court like the ICTY, ICTR, or ICC has been established, the culpability principle is necessarily implicated’.Footnote 128 Such a view is supported by the dissenting opinion of Justice Murphy, in the Yamashita proceedings before the US Supreme Court, who emphasized the importance of the culpability principle to the future legitimacy of international criminal law:Footnote 129
[H]atred and ill-will . . . [have] been the inevitable effect of every method of punishment disregarding the element of personal culpability. The effect in this instance, unfortunately, will be magnified infinitely, for here we are dealing with the rights of man on an international level. To subject an enemy belligerent to an unfair trial, to charge him with an unrecognized crime, or to vent on him our retributive emotions only antagonizes the enemy nation and hinders the reconciliation necessary to a peaceful world.Footnote 130
Against this background, this paper takes the view that the mode of liability approach is overly reliant on traditional notions of customary international law. Recourse to principles of criminal law ought to be prioritized in the context of international criminal law to ensure the protection of the individuals subjected to it. International criminal law should be viewed as the application of criminal law to an international law context rather than the application of international law to a criminal law context. In this light, the ICTY's methodology for determining the precise content of customary international law is questionable. In particular, the tribunal has become preoccupied with expanding the scope of international criminal law to fill purported legal loopholes and gaps.Footnote 131 This has resulted in two consequences, both of which have negatively impacted on the tribunal's interpretation of the superior responsibility doctrine.
4.1. The conflation of international humanitarian and international criminal legal concepts
First, the ICTY has conflated international humanitarian law and international criminal law concepts when determining the duties of superiors under customary international law.Footnote 132 This can be clearly illustrated by the interpretation accorded to Additional Protocol I to the Geneva Conventions. Article 86(2) of Additional Protocol I is limited to imposing on commanders a duty to prevent or repress crimes, encompassing only present or future crimes of subordinates. By contrast, Article 87(3) additionally imposes on commanders a duty to punish crimes that ‘have [been] committed’, encompassing past crimes of subordinates.Footnote 133 Crucially, whereas Article 86(2) refers to the responsibility of superiors, Article 87(3) is addressed to the ‘High Contracting Parties and Parties to the conflict’.Footnote 134 The question that has divided both the ICTY and scholars is whether Article 86(2) and Article 87(3) of Additional Protocol I ought to be interpreted in conjunction.Footnote 135
Proponents of interpreting the provisions together argue that the direction of Article 87(3) towards states should not affect the admissibility of using it to interpret the scope of Article 86(2).Footnote 136 In particular, five arguments have been put forward in support of this position. First, the ICRC Commentary to Article 86(2) states that Article 86(2) ‘should be read in conjunction with . . . Article 87 (Duties of commanders)’.Footnote 137 Second, a failure to read the two provisions together would leave a ‘gaping hole’ in the protection accorded to victims of armed conflict.Footnote 138 Third, even if Article 87(3) relates to the obligations of states, the ‘imperative tone’ provides evidence in support of state practice.Footnote 139 Fourth, the ILC Commentary to its 1996 Draft Code of Crimes declares that ‘[t]he duty of commanders with respect to the conduct of their subordinates is set forth in article 87 of Additional Protocol I’.Footnote 140 Finally, in the practice of the ICTY, Article 87 has been relied on for the purpose of interpreting superior responsibility, not the obligations of states.Footnote 141
Despite the above arguments, the stronger conclusion is that Article 86(2) and Article 87(3) should be kept separate. None of the arguments raised by proponents of interpreting the provisions together are able to withstand scrutiny. First, the ICRC Commentary to Article 86(2) merely refers to the need to take note of both provisions since they are related, rather than supporting any argument that the substantive content of Article 86(2) ought to be interpreted in line with Article 87(3). Second, the fear of leaving a legal loophole should be discarded, since it is still possible, under the principle of complementarity, for a superior to be held responsible for a failure to punish under national military law;Footnote 142 indeed, this appears to be the intention of Additional Protocol I, since Article 87(3) directs states ‘to initiate such steps as are necessary’ and ‘where appropriate, to initiate disciplinary or penal action’ against superiors in breach of their duties.Footnote 143 Third, if Article 87(3) represents state practice, it merely evidences state deference to domestic legal systems to determine the appropriate measures for punishing superiors who breach their duty to punish. Fourth, the ILC Commentary to its 1996 Draft Code of Crimes merely states that the duties of commanders are set out in Article 87; it does not go further and state that the scope of Article 86(2) ought to be interpreted in line with Article 87. In fact the ILC specifically notes that ‘[t]he principle of individual criminal responsibility [under the superior responsibility doctrine] is elaborated in article 86 of Protocol I’.Footnote 144 Finally, while it is true that some ICTY judgments support interpreting Articles 86 and 87 in conjunction, a more accurate observation is that the ICTY is divided on this question; for example, in Čelebići, the Appeals Chamber held that the ‘criminal offence based on command responsibility is defined in Article 86(2) only’.Footnote 145
In the light of these arguments, the safer conclusion is that there is a clear distinction between Article 86(2), which imposes a form of international criminal responsibility on superiors, and Article 87(3), which imposes a form of responsibility to be determined under domestic law, most likely for a separate crime of dereliction of duty to punish.Footnote 146 Robinson has summarized the failure of the ICTY to distinguish these provisions as a misguided conflation ‘between the humanitarian law procedural duties of commanders and the distinct question of assigning criminal liability for the acts of another’.Footnote 147
4.2. An uncritical approach to past case law and treaties
The second negative consequence of the ICTY's preoccupation with expanding the scope of international criminal law has been its uncritical reliance on judicial decisions, most notably those rendered by the post-Second World War military courts, regardless of the standards they put forth.Footnote 148 While the vast majority of past jurisprudence indicates that the doctrine of superior responsibility is a mode of derivative imputed liability,Footnote 149 as Damaška has forcefully argued, the legitimacy of this proposition is undermined by the fact that the legal standards set out in such decisions have generally been regarded as ‘deficient in terms of our current understanding of criminal law with humanitarian aspirations’.Footnote 150 The ICTY's preoccupation with finding authorities to fill perceived lacunae in the law has allowed the doctrine of superior responsibility to be defined regardless of its compatibility with general principles of international criminal law.Footnote 151
Against this background, the ICTY must remember that its mandate is to hold individuals, and not states, responsible. As the Nuremberg Tribunal once declared, ‘Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced’.Footnote 152 Although the Report of the Secretary-General requires the ICTY to apply only those rules of international humanitarian law which are ‘beyond any doubt part of customary law’,Footnote 153 custom as a source of law was never intended to govern the relationship between the state and individuals; moreover, custom was never intended to govern criminal responsibility at the international level in any form, whether for states or for individuals.
4.3. A new, principled approach to customary international law
In the light of the preceding analysis, a new approach to customary international law in the context of the ICTY is justified. Such an approach should entail two aspects. First, a clear distinction must be made between international humanitarian law and international criminal law concepts. Second, when interpreting a doctrine under customary international law in the context of ascribing international criminal responsibility to an individual, the uniqueness of the international criminal law context justifies the ICTY placing a heightened emphasis on the general principles of international criminal law, and in particular the principle of individual culpability: before personal guilt may be assigned, criminal law demands conformity with its fundamental principles.Footnote 154 In this regard, the ICTY should use the culpability principle as a tool with which to scrutinize previous judicial decisions and as a standard against which to interpret ambiguous treaty provisions. Applying such an approach to the doctrine of superior responsibility would have the effect of minimizing the relevance of the (at times) deficient standards set forth by the post-Second World War tribunals, as well as interpreting the relevant provisions in Additional Protocol I and the Statute of the ICTY in accordance with the culpability principle.
The basis for the ICTY utilizing the culpability principle as a scrutinizing tool is threefold. First, the ICTY could simply invoke its own statute, the principle of individual culpability being enshrined in Article 7(1), as well as the vast jurisprudence of the tribunal which has upheld the principle as ‘the foundation of criminal responsibility’.Footnote 155 Second, in relation to treaties, the ICTY could invoke Article 31 of the Vienna Convention on the Law of Treaties 1969.Footnote 156 It could be argued that the object and purpose of international criminal law provisions in relevant international treaties would always implicitly include ensuring that the principle of individual culpability is upheld in the determination of any duties and responsibilities set out therein. Finally, recourse could also be had to the approach adopted by the European Court of Human Rights in its interpretation of the European Convention on Human Rights: the Convention is considered a ‘living instrument’ which should be interpreted so as to reflect ‘societal changes and to remain in line with present-day conditions’.Footnote 157 Such an approach is justified by the unique context of human rights law. In a similar vein, the unique context of international criminal law could be used to justify the ICTY interpreting the doctrines set out in the ICTY Statute in conformity with modern-day notions of the culpability principle.
Earlier in this paper,Footnote 158 criticism was made of Judge Shahabuddeen's recent attempt to justify the dereliction of duty approach to the superior responsibility doctrine on the basis of a subjective appeal to his own preferences as to what the law should be: his aim was simply to reconcile the law with ‘common sense’.Footnote 159 By appealing instead to general principles of international criminal law, the ICTY can reconcile the law with the fundamental principle of individual culpability and thereby achieve a similar result but by a more objective route. Such an approach also has the further advantage of satisfying the ICTY's need to reconcile customary international law with the nullum crimen sine lege principle.Footnote 160 By relying on general principles in its scrutiny of authorities evidencing custom, the ICTY is able to offer individuals a further layer of protection against arbitrary interference by inter-state authorities.Footnote 161
4.4. Resolving the question of successor superior responsibility under Article 7(3) of the ICTY Statute
It has been a fundamental premise of this paper that by identifying the underlying nature of the doctrine of superior responsibility in its duty to punish form, the issue of whether a successor superior can be held responsible for the crimes committed by his subordinates prior to taking command would be resolved. Since Article 7(3) of the ICTY Statute provides no indication as to whether successor superiors may be held responsible, and in the light of the lack of state practice and opinio juris on this issue, the pertinent question in the context of the ICTY becomes whether the ‘situation’ of successor superiors falls within the wider ‘principle’ of superior responsibility. As the ICTY Appeals Chamber has confirmed,
[W]here a principle can be shown to have been . . . established, it is not an objection to the application of the principle to a particular situation to say that the situation is new if it reasonably falls within the application of the principle.Footnote 162
In order to determine whether the responsibility of successor superiors (the new situation) reasonably falls within the application of the doctrine of superior responsibility (the established principle), this paper has submitted that the underlying nature of that doctrine had to be identified. In this regard, it will be recalled that if the mode of liability approach were adopted, successor superior responsibility would not be possible since such an approach demands coincidence between the timing of a superior's effective control and the timing of the commission of crimes by his subordinates; by contrast, if the dereliction of duty approach were adopted, successor superior responsibility would be possible since such an approach does not demand coincidence between the timing of a superior's effective control and the timing of his subordinates’ crimes.
In this light, if the dereliction of duty approach were adopted by the ICTY on the basis of the principled approach to customary international law advocated above, it is likely that successor superior responsibility would be held to fall reasonably within the application of the doctrine of superior responsibility. It must be emphasized that, following the principled approach outlined above, this would be perfectly in line with traditional criminal law principles, since the superior would be held responsible only for his own omissions and not the crimes that result from them.
4.5. Beyond the ICTY: Article 28 of the ICC Statute
Looking beyond the context of the ICTY, it is interesting to note that scholars are equally divided over the question of the nature of the doctrine of superior responsibility under Article 28 of the ICC Statute.
Some scholars argue that a literal interpretation of Article 28 indicates that the doctrine of superior responsibility is a mode of liability.Footnote 163 Two arguments have been advanced in support of this view. First, as observed by Otto Triffterer,
The common chapeau for all alternatives contained in Article 28, explicitly mentions that superior responsibility for acts of their subordinates should be ‘[i]n addition to other grounds of criminal responsibility under the Statute’. It, therefore, does not substitute, but supplements all forms of participation as listed in Article 25(3) sub a–f. Article 28 thus extends the scope of individual criminal responsibility for perpetrators in the position of superiors.Footnote 164
Second, it is argued that the doctrine of superior responsibility is a principle contained in Part III of the ICC Statute on ‘general principles of criminal law’ under Article 28, and not in Part II on ‘Jurisdiction, Admissibility and Applicable Law’ under Article 5, which effectively limits the jurisdiction of the Court to genocide, crimes against humanity, war crimes, and the crime of aggression. From this perspective, Article 28 cannot extend the number of crimes within the jurisdiction of the Court, since to do so is incompatible with the structure of the ICC Statute.Footnote 165
By contrast, other scholars have submitted that the nature of superior responsibility is better characterized as a separate dereliction of duty offence.Footnote 166 Again, two arguments are made in support of this view. First, it is submitted that the text of Article 28 indicates that a superior is liable for ‘the failure to exercise control properly over such forces’ or ‘subordinates’.Footnote 167 As van Sliedregt has argued,
In the end, superior responsibility is about a dereliction of duty. This is clear in the structure of Article 28, in which the cognitive and operational elements are formulated as conditions of a superior's failure to control. Even if a superior has failed to control properly and his failure has resulted in the commission of a crime, he cannot be punished unless these two conditions are met.Footnote 168
In this way, Article 28 generates direct criminal responsibility of a superior because of his failure to act, rather than imputed criminal responsibility for the crimes of his subordinates.Footnote 169 Second, in response to the alleged limitation on the jurisdiction of the Court under Article 5 of the ICC Statute, a close textual reading of Article 5 reveals that the Court has jurisdiction ‘with respect to’ the crimes listed therein. Therefore the dereliction of duty approach is reconcilable with the jurisdiction of the Court since the offence of dereliction of duty may be interpreted as an offence ‘with respect to’ the crimes listed in Article 5; as Ambos has pointed out, under a dereliction of duty offence, the crimes listed in Article 5 always act as a ‘point of reference of the superior's failure of supervision’.Footnote 170
It is not the purpose of this paper to reconcile these opposing views. However, what is most striking about Article 28 of the ICC Statute is that, in complete contrast to the ICTY, it is unnecessary to identify the underlying nature of the doctrine of superior responsibility in order to determine whether a successor superior may be held responsible for the crimes of his subordinates committed prior to his taking command. Unlike Article 7(3) of the ICTY Statute, Article 28 of the ICC Statute specifically excludes the possibility of successor superior responsibility by adopting what may be termed the ‘double omission’ approach.Footnote 171 Under Article 28, there are two omissions which must be established for a superior to be held responsible for failing to punish the crimes of his subordinates: first, his failure to exercise control properly and, second, his failure to punish the underlying crimes of his subordinates.Footnote 172 Like the approach under the ICTY, the second omission does not demand a causal connection between the omission and the underlying subordinate crime, since by definition a superior's failure to punish occurs after the commission of the crimes of his subordinates.Footnote 173 However, in respect of the first omission, according to the wording of Article 28, a superior will only be responsible for the crimes of his subordinates which have been committed ‘as a result of his or her failure to exercise control properly over such subordinates’.Footnote 174 This requirement of a causal connection between a superior's failure to exercise control properly and his subordinates’ underlying crimes excludes the possibility of successor superior responsibility:Footnote 175 under Article 28, a superior cannot be responsible for failing to punish the crimes of his subordinates unless it can also be established that his prior failure to exercise effective control caused the subordinate crimes in question.Footnote 176 In this way, as has been confirmed by the Pre-Trial Chamber at the ICC itself,Footnote 177 the question of successor superior responsibility is incompatible with the wording of Article 28 of the ICC Statute.
5. Conclusion: successor superior responsibility clarified
This paper has sought to show that the current division of judicial opinion concerning successor superior responsibility is rooted in the failure of the ICTY Appeals Chamber to provide an authoritative determination of the underlying nature of the doctrine of superior responsibility. By identifying the relationship between successor superior responsibility and the different conceptions of the failure to punish form of the doctrine of superior responsibility, this paper has sought to broaden the scope of the ICTY's analysis. While the mode of liability approach inherently denies any conception of successor superior responsibility, the dereliction of duty approach is permissive.
In order to gain a better understanding of the relative strengths and weaknesses of the mode of liability and dereliction of duty approaches, this paper conducted an assessment of each approach. Despite the attractiveness of the dereliction of duty approach in terms of its conformity with international criminal law principles, only the mode of liability approach appears to be rooted in customary international law as traditionally formulated.
In an effort to reconcile the dereliction of duty approach with customary international law, this paper has suggested a more principled approach to the determination of custom, an approach justified by the context of international criminal law. By distinguishing international humanitarian and international criminal legal concepts as well as utilizing the principle of culpability as a standard against which to scrutinize previous judicial decisions and treaty texts, it is hoped that it will be possible for judges to justify the dereliction of duty approach in more objective terms rather than appealing to subjective opinions as to what they would prefer the law to be.
Should the ICTY adopt the dereliction of duty approach in the terms advocated by this paper, it has been illustrated that the issue of successor superior responsibility would be resolved: a superior could be held responsible for failing to punish crimes committed by his subordinates prior to taking command, however he would only be charged with a separate dereliction of duty offence rather than for the same crimes committed by his subordinates.
