Superior (or Command) Responsibility
Superior (or Command) Responsibility
International law provides two primary modes of liability for holding an individual criminally responsible: (1) individual or personal criminal responsibility and (2) superior or command responsibility. The latter concept is reflected in the statutes of international criminal courts and tribunals that hear cases arising under international humanitarian law (such as Article 28 of the Statute of the International Criminal Court, Article 6 of the Statute of the International Criminal Tribunal for Rwanda and Article 7 of the Statute of the International Criminal Tribunal for the Former Yugoslavia), as well as in many nations' military and civilian criminal codes. The doctrine of superior or command responsibility (the terms will be used interchangeably in this entry) differs from other forms of criminal liability in that it is based on omissions rather than affirmative actions. Under the doctrine of superior responsibility, the accused may be convicted based on his or her failure to prevent the crime from occurring in the first place (or to punish the perpetrator) after having learned that the offense was committed. It is important to stress that superior responsibility does not cover situations where a superior (or military commander) orders persons under his or her control to commit crimes. (Under such a scenario, the superior would be responsible under a theory of individual or personal criminal responsibility.) After a brief historical discussion, the doctrine of command responsibility will be analyzed here, with particular emphasis on its application as reflected in the jurisprudence of the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR).
Historically, this doctrine was used exclusively as a basis to prosecute superior military officers for offenses committed by their subordinates. More recently the statutes of the ICTY, ICTR, and the International Criminal Court (ICC) refer to "superior responsibility," reflecting the fact that the doctrine also applies to paramilitary or irregular commanders and civilian leaders, in addition to traditional military commanders. The doctrine of command responsibility, as reflected in these statutory instruments, expresses a well-established rule of international customary law, as reflected in numerous treaties.
History and Background
Prior to World War II there are few recorded cases involving prosecutions on the basis of command responsibility, reflecting the fact that this doctrine rarely formed the basis for criminal prosecution. Although the roots of the modern doctrine of command responsibility may be found in the 1907 Hague Conventions (such as Hague Convention IV, Annex, Article 1, or Hague Convention X, Article 19), it was not until immediately after World War I that the notion of prosecuting military commanders before international tribunals on the basis of command responsibility was developed. Thus, the International Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties presented a report to the 1919 Preliminary Peace Conference, in which they recommended that an international tribunal be established to prosecute, among other matters, individuals who, "with knowledge . . . and with power to intervene, abstained from preventing or taking measures to prevent, putting an end to or repressing violations of the laws or customs of war." Similarly, Article 227 of the Treaty of Versailles envisioned the trial of Kaiser Wilhelm by an international tribunal.
After World War II several important trials involving Japanese and German war criminals were conducted, in which the doctrine of command responsibility was invoked as the grounds for establishing criminal liability, were conducted. The Charters governing both the Nuremberg and Tokyo trials were silent as to criminal liability under the doctrine of command responsibility. Likewise, Control Council Law No. 10, the basis for trials of war criminals by the Allies in Germany, did not specifically provide for this form of criminal liability. Nevertheless, command responsibility issues were raised in several post–World War II cases, including the Yamashita trial and United States v. Wilhelm von Leeb, et al., known as the High Command case and Hostages case (United States v. Wilhelm List et al.)—cases prosecuted under Control Council Law No. 10, the law governing the trials of war criminals in Germany other than those prosecuted in the large Nuremberg trial.
The trial of General Tomoyuki Yamashita stands for the proposition that military superiors may be found guilty if it can be established that they must have known offenses were being committed and failed to either halt such crimes or punish the perpetrators. The High Command and Hostages cases further developed this area of the law. Thirteen senior German officers were tried in the High Command case (reported in Volumes 10 and 11 of Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law No. 10, hereafter referred to as TWC), for a variety of offenses, including murder and mistreatment of prisoners of war (POWs), refusal of quarter, and other inhumane acts and violations of the laws or customs of war. The prosecution argued a form of strict liability should apply to commanders. The tribunal rejected this theory and held that for a commander to be criminally responsible for the acts of subordinates, the commander must breach a rule of international law and such a breach must have occurred voluntarily and with the knowledge that the act was criminal under international law. Other command responsibility issues raised during the course of the trial included: (1) the liability of a commander for actions committed by subordinates pursuant to criminal orders passed down independent of his or her command; (2) the liability of commanders for criminal orders issued by members of their staffs; and (3) the duties and responsibilities of the military commander of an occupied territory whose authority is limited.
Like the High Command Case, the Hostages Case (reported in TWC, Vol. 11, starting on p. 759) dealt with multiple accused and was prosecuted by authorities of the United States under Control Council Law No. 10. The judges dismissed the contentions of the accused that reports and orders transmitted to them were not brought to their attention by members of their staffs and addressed the issue of notice to the commander, making several important observations:
An army commander will not ordinarily be permitted to deny knowledge of reports received at his headquarters, they being sent there for his special benefit. Neither will he ordinarily be permitted to deny knowledge of happenings within the area of his command while he is present therein. It would strain the credulity of the Tribunal to believe that a high ranking military commander would permit himself to get out of touch with current happenings in the area of his command during wartime. No doubt occurrences result occasionally because of unexpected contingencies, but they are unusual (TWC, Vol. 11, p. 1260).
With respect to information contained in such reports, the tribunal went on to state that "[a]ny failure to acquaint themselves with the contents of such reports, or a failure to require additional reports where inadequacy appears on their face, constitutes a dereliction of duty which he cannot use in his own behalf" (TWC, Vol. 11, p. 1271).
Considered together, these three cases stand for the proposition that commanders could not be held to a strict liability standard with respect to offenses committed by their subordinates, although the law did impose on them a duty to stay informed with respect to the acts of such subordinates. Based on the rulings handed down on these cases at the end of World War II, the scope of the international law of command responsibility could be summed up as follows:
- There was a presumption that orders were legal, and that commanders could pass orders from higher headquarters to lower-level commands with minimal scrutiny.
- There was a presumption that commanders would be aware of the contents of reports received at their headquarters.
- In the event such reports were inadequate or unclear, commanders had a duty to request that additional reports be prepared.
- There was a presumption that commanders were aware of events (including crimes) that occurred within the geographic scope of their areas of responsibility.
- To be criminally responsible, commanders must have known that patently criminal acts were committed and they acquiesced to, participated in, or criminally neglected to interfere in their commission.
- Commanders could delegate authority, but responsibility for the conduct of the troops remained with the commander.
- In examining the alleged criminal conduct of commanders, a variety of factors could be relevant for determining whether the commander was on notice, including the scale and geographic scope of the alleged criminal acts.
Notwithstanding these cases, the four 1949 Geneva Conventions were silent as to command responsibility, with the exception of Article 39 of the third Geneva Convention, which requires POW camps to be "under the immediate authority of a responsible commissioned officer." This situation was not rectified until the adoption of Additional Protocol I Relating to the Protection of Victims of International Armed Conflicts in 1977. Consequently, state practice played an important role in the development of the concept of superior responsibility during this period. Both during and immediately after World War II many states incorporated superior responsibility provisions in their national legislation. On the basis of these statutory provisions, some states prosecuted individuals, among the most well-known are the cases of Lieutenant William Calley and Captain Ernest Medina of the United States Army for their role in the 1967 My Lai massacre in Vietnam.
The Jurisprudence of the ICTY and ICTR
The ICTY was established in 1993 and was vested with jurisdiction to prosecute superiors for offenses committed by their subordinates, as the following paragraph from the Secretary-General's Report to the Security Council on the establishment of the ICTY indicates:
A person in a position of superior authority should, therefore, be held individually responsible for giving the unlawful order to commit a crime under the present statute. But he should also be held responsible for failure to prevent a crime or to deter the unlawful behavior of his subordinates. This imputed responsibility or criminal negligence is engaged if the person in superior authority knew, or had reason to know, that his subordinates were about to commit or had committed crimes and yet failed to take the necessary and reasonable steps to prevent or repress the commission of such crimes or to punish those who had committed them (1993, para. 56).
The doctrine of superior responsibility has been applied by ICTY and ICTR trial chambers in numerous cases and has also been the subject of several Appeals Chamber decisions and judgments. These decisions have elaborated on the legal elements constituting this form of criminal liability.
In order to prevail on a command responsibility theory of criminal liability, the prosecution must establish, beyond reasonable doubt, each of the following elements:
- An offense was committed.
- There was a superior-subordinate relationship.
- The superior knew or had reason to know that the subordinate was about to commit the offense or had done so.
- The superior failed to take the necessary and reasonable measures to prevent the offense or to punish the principal offenders.
With the exception of the first element, which simply requires proof that a certain perpetrator or group(s) of perpetrators committed an offense for which the tribunal has jurisdiction, each of these elements will be analyzed.
The first requirement is the existence of a superior-subordinate relationship between the accused superior or commander and the subordinate perpetrator at the time the offense was committed. This form of liability does not apply in the event the accused and the perpetrator(s) are of the same rank; there must be a hierarchical relationship for superior responsibility to apply. This raises several issues: the test to be used in determining this relationship; whether the commander must have de jure or de facto control; whether this liability also extends to civilian superiors; and whether more than one superior in the chain of command may be held liable for acts committed by subordinates.
The term superior is not necessarily restricted to military commanders senior to the actual perpetrator in the chain of command. As long as the superior exercises effective control over subordinate(s), superior responsibility may attach. Thus, a commander may incur criminal responsibility for offenses committed by persons who are not formally his or her subordinates, provided that he or she exercises effective control over them (Prosecutor v. Zejnil Delalic et al., Čelebići Appeal Judgment, para. 196). Moreover, in the Prosecutor v. Dragoljub Kunarac et al. case, the Trial Chamber stated that there is no requirement that the person committing the offense be in a permanent or fixed relationship with the commander, so long as the commander exercised the prerequisite effective control (Kunarac Trial Judgment, para. 399).
Effective control is a prerequisite in establishing that the superior had the material ability to prevent or punish the commission of violations of international humanitarian law committed by subordinates. The conflicts in both the former Yugoslavia and Rwanda saw instances where offenses were committed by paramilitary and irregular militia forces, who often lacked de jure authority over the actual perpetrators. On the basis of their de facto control over the offenders and applying the effective control test, the leaders of such groups may be found criminally responsible for the crimes committed by subordinates.
Military and/or Civilian Leaders
Under customary international law, the doctrine of command responsibility extends to both civilian and military superiors, as well as to individuals exercising both types of functions. Article 7(3) of the ICTY Statute is consistent with this customary law, in that it does not qualify the term superior by explicitly limiting the theory to military superiors. Moreover, Article 7(2), which provides that the official position of a person "shall not relieve such person of criminal responsibility nor mitigate punishment," supports the proposition that civilian superiors may fall within the bounds of Article 7(3). This issue was dealt with by the ICTY Appeals Chamber in the Prosecutor v. Zlatko Aleksovski case, when the Court stated that "[t]he Appeals Chamber takes the view that it does not matter whether he was a civilian or a military superior, if it can be proved that within the Kaonik prison, he had the powers to prevent or to punish in terms of Article 7(3)" (Aleksovski Appeal Judgment, para. 76).
The ICC Statute takes a slightly different approach with respect to the distinctions between civilian and military superiors. Article 28(a) applies to military commanders and those "effectively acting as a military commander," while Article 28(b) limits civilian responsibility to those instances where the subordinates were under the "effective authority and control" of the civilian superior and:
- The superior either knew, or consciously disregarded information which clearly indicated, that the subordinates were committing or about to commit such crimes.
- The crimes concerned activities that were within the effective responsibility and control of the superior.
- The superior failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the appropriate authorities for investigation and prosecution.
Until the ICC has the opportunity to address this issue in an on-going case, it is unclear whether these provisions reflect newly emerging customary law.
Multiple Commanders in the Chain of Command
Because the military laws of every state require all soldiers to comply with international humanitarian law, every person in the chain of command who exercises effective control over subordinates is responsible for crimes committed by such persons, if we assume all the elements of Article 7(3) are met. This means that more than one superior may be responsible for crimes committed by the same subordinates, as long as each superior in the chain of command exercises effective control.
The Knowledge Requirement
The knowledge (or mens rea) element of superior responsibility entails two distinct components: The accused "knew" or "had reason to know" that a subordinate was about to commit a crime or had done so. The term knew means actual knowledge, which may not be presumed and may be established either through: (1) direct evidence of actual knowledge or (2) circumstantial evidence, from which it can be inferred that the commander must have had actual knowledge. Proof of actual knowledge can be established, among other things, by introducing evidence that the accused commander acknowledged receiving reports that subordinates committed crimes. In most cases, however, the prosecution will rely on circumstantial evidence to prove that a superior had actual knowledge and the following factors may constitute such evidence:
- Number of illegal acts
- Type of illegal acts
- Scope of illegal acts
- Time during which the illegal acts occurred
- Number and type of troops involved
- Logistics involved, if any
- Geographical location of the acts
- Widespread occurrence of the acts
- Tactical tempo of operations
- Modus operandi of similar illegal acts
- Officers and staff involved
- Location of the commander at the time
- Nature and scope of the particular position held by the superior
- Character traits of subordinates
- Events taking place during any temporary absences of the superior
- Level of training and instruction provided by the commander to the subordinates
The phrase "had reason to know" has proven more difficult to interpret and apply, with different courts coming to different conclusions on this issue. The fact that the ICC Statute has adopted different mens rea standards for military and nonmilitary superiors only tends to complicate this area of the law.
In the Čelebići case, the appeals chamber discussed what must be established to prove that the accused had reason to know. The judges concluded that the prosecution must demonstrate that "information of a general nature was available to the superior that would have put him or her on notice of offenses committed by subordinates" (Čelebići Appeal Judgment, para. 241). This information does not have to be conclusive that crimes were committed, but it must be specific enough to indicate the need for additional investigation to determine if crimes had been, or were about to be, committed. This places a duty on commanders to investigate once they are notified of the possibility that offenses may have been committed.
As noted above, the ICC Statute sets forth different standards for military and civilian superiors, and these differences also include different mens rea requirements. Pursuant to Article 28(a) of the ICC Statute, the mens rea for military superiors is that the accused "knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes." With respect to civilian superiors, it must be proven that the civilian superior "knew or consciously disregarded information that clearly indicated, that the subordinates were committing or about to commit such crimes."
Necessary and Reasonable Measures to Prevent or Punish
The requirement that superiors take necessary and reasonable measures to prevent or punish is the third element of superior responsibility, and overlaps with the first element, because commanders who lack effective control will not be able to satisfy this requirement. The obligation of the superior to act is triggered once he becomes aware that crimes have been or are about to be committed. In the Prosecutor v. Tihomir Blaskic case, the trial chamber concluded that the two components of this obligation must be considered together, stating, "Obviously, where the accused knew or had reason to know that subordinates were about to commit crimes and failed to prevent them, he cannot make up for the failure to act by punishing the subordinates afterwards" (Blaskic Judgment, para. 336).
However, as the judges noted in the Čelebići case, the first instance in which the ICTY dealt with superior responsibility, there are limits as to what may be expected of superiors:
International law cannot oblige a superior to perform the impossible. Hence, a superior may only be held criminally responsible for failing to take such measures that are within his powers. The question then arises of what actions are to be considered to be within the superior's powers in this sense. As the corollary to the standard adopted by the Trial Chamber with respect to the concept of superior, we conclude that a superior should be held responsible for failing to take such measures that are within his material possibility (Čelebići Trial Judgment, para. 395).
The determination of whether a superior has fulfilled this obligation is thus highly fact-specific and consequently a practical approach is required. Subsequent cases, for example, have demonstrated that a commander may meet this obligation by reporting the matter to his or her superior officer.
Responsibility for Crimes Committed before the Superior-Subordinate Relationship Exists
Until a recent decision of the ICTY Appeals Chamber in the Prosecutor v. Enver Hadzihasanovic et al. case (Decision on Interlocutory Appeal Challenging Jurisdiction in Relation to Command Responsibility), it was unclear whether such responsibility included obligations on commanders stemming from crimes committed prior to the establishment of the superior-subordinate relationship. The following hypothetical demonstrates this point. Assume that Soldier A, who is under the command of Commander A, commits an offense on January 1. On January 3, Commander A is informed of this crime, but the following day Commander A is reassigned and Commander B assumes command of the unit that includes Soldier A. May Commander B be held criminally liable for the failure to punish Soldier A for crimes committed prior to Commander B's assumption of command, assuming Commander B is aware of the allegations? The Appeals Chamber of the ICTY has held that he or she may not, based on customary international law. Two of the five judges on the appeals chamber dissented, arguing that customary international law supported the notion that commanders could be held liable for such crimes, provided that the commander had reason to know of the crimes.
Internal Armed Conflict
Historically, the doctrine of command responsibility has been applied in international armed conflicts only, as is clear from a reading of Articles 86 and 87 of Additional Protocol I and by the fact that Additional Protocol II Relating to the Protection of Victims of Non-International Armed Conflicts has no corresponding provisions. This reflects the hesitation that most states have traditionally demonstrated in entering into treaties with specific provisions governing internal armed conflict (civil wars). Nevertheless, recent developments, as illustrated in the jurisprudence of the ad hoc international criminal tribunals, indicate that the characterization of a conflict is irrelevant for purposes of holding a superior responsible for offenses committed by subordinates. It is well-established that command responsibility is part of the customary international law relating to internal armed conflict.
Relationship between Article 7(1) and Article 7(3)
An accused who exercises effective control over subordinates who commit crimes may also be held responsible as a direct participant, depending on the facts of the case, although the recent trend has been to convict the accused under only one form of liability, the one that most accurately describes his or her participation. As a result, it is not uncommon for the ICTY prosecutor, for example, to allege simultaneously that an accused is liable under both ICTY Statute Article 7(1), on a theory of joint criminal enterprise, and under Article 7(3) of the same statute, on the basis that the accused was a superior.
When used together, these forms of liability provide the prosecutor with a variety of theories on which to charge an accused in command of or exercising authority over the perpetrators of serious violations of international humanitarian law. Perhaps the best example of this practice occurred in the Prosecutor v. Radislav Krstic case, in which General Radislav Krstic was charged under both Article 7(1), including joint criminal enterprise, and Article 7(3) for his role in the genocide at Srebrenica. The judges held that a joint criminal enterprise existed in the Srebrenica enclave and the object of this common plan was, among other things, the forcible transfer of the Muslim civilian population out of Srebrenica and killing of military-aged Bosnian Muslim men. These acts were committed with the awareness that theys would lead to the annihilation of the entire Bosnian Muslim community in Srebrenica.
Before the killings many of the Bosnian Muslims living in Srebrenica had fled to Potocari, a few miles from the town of Srebrenica, but within the Srebrenica "enclave." A significant number of those who fled to Potocari were the victims of murder, rape, beatings, and other abuse. The trial chamber made the following findings:
The Trial Chamber is not, however, convinced beyond reasonable doubt that the murders, rapes, beatings and abuses committed against the refugees at Potocari were also an agreed upon objective among the members of the joint criminal enterprise. However, there is no doubt that these crimes were natural and foreseeable consequences of the ethnic cleansing campaign (Krstic Judgment, para. 616).
Thus, the crimes committed at Potocari were not part of the joint criminal enterprise "as agreed upon" by the members of that group. Although Krstic did not personally commit these crimes, he was convicted for the "incidental murders, rapes, beatings and abuses committed in the execution of this criminal enterprise at Potocari" (Krstic Judgment, para. 617).
Moreover, in light of the knowledge requirement under Article 7(3) of the ICTY Statute, it is interesting that the trial chamber stated the following in support of its conclusions:
Given the circumstances at the time the plan was formed, General Krstic must have been aware that an outbreak of these crimes would be inevitable given the lack of shelter, the density of the crowds, the vulnerable condition of the refugees, the presence of many regular and irregular military and paramilitary units in the area and the sheer lack of sufficient numbers of UN soldiers to provide protection (Krstic Judgment, para. 616).
The "must have been aware" standard should be compared with the interpretation of the "had reason to know" standard rendered in the Čelebići appeal. It seems to be the case that if it can be established that a superior was part of a joint criminal enterprise, it may be easier to convict that superior under Article 7(1) than Article 7(3). Because offenses alleged under Article 7(1) typically result in a harsher penalty on conviction than similar crimes alleged under Article 7(3), it is clear that the joint criminal enterprise theory, and superior responsibility as either complementary or alternative bases of liability, play important roles in terms of prosecutorial charging policy.
In the Prosecutor v. Milorad Krnojelac case, however, a different trial chamber focused on the relationship between joint criminal enterprise liability and aiding and abetting liability under Article 7(1) on the one hand, and criminal liability as a superior under Article 7(3) on the other hand. The prosecution established that the accused was aware both of the illegality of the detention of non-Serbs in a camp where he was the warden and that his acts and omissions contributed to this unlawful system. Nonetheless, the trial chamber concluded that it was possible that the accused was "merely carrying out the orders given to him by those who appointed him to the position of [the camp] without sharing their intent" (Krnojelac, Trial Judgment, para. 12). Consequently, the judges determined that
[T]he criminal conduct of the accused is most appropriately characterized as that of an aider and abettor to the principal offenders of the joint criminal enterprise to illegally imprison the non-Serb detainees pursuant to Article 7(1) of the Statute. As to the accused's superior responsibility for illegal imprisonment of non-Serb detainees pursuant to Article 7(3), the most which could have been done by the accused as a superior would have been to report the illegal conduct to the very persons who had ordered it. Accordingly, the Trial Chamber considers that it would not be appropriate to find him responsible as a superior (Krnojelac, Trial Judgment, paras. 127 and 173).
The theory of superior responsibility is a well-established principle of customary international law and has been developed through a variety of sources, including treaties, Security Council resolutions, and domestic and international case law. Moreover, command responsibility plays an important role in ongoing cases at the ad hoc international criminal tribunals and is likely to play a similarly important role at trials conducted before the ICC. Several important conclusions may be drawn concerning command or superior responsibility. First, the doctrine applies only to those commanders who exercise effective control over their subordinates. Second, this theory applies equally to all superiors who exercise effective control, whether military or civilian, provided that civilians exercise the type and scope of control normally associated with military commanders. Third, formal characterization of the relationship is not required and either de jure or de facto superiors may be held liable for the conduct of subordinates. Fourth, actual knowledge is difficult to establish in most cases, but there are several indicators from which inferences may be drawn that a commander had knowledge, and such circumstantial evidence may be sufficient to establish this point. Fifth, the mens rea requirement of either "knew" or "had reason to know" has not developed in a linear fashion and is likely to be influenced by developments emanating from the ICC, based on Article 28 of that court's statute. Sixth, the superior may not be held responsible for offenses committed by subordinates prior to the assumption of command by the superior. Finally, commanders must take action when they receive information that suggests a subordinate may have violated a provision of international humanitarian law.
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Daryl A. Mundis
I am setting forth the above in my personal capacity.
This article represents neither the policies of the Office of the Prosecutor of the International Criminal Tribunal for the Former Yugoslavia nor the United Nations.