“Command or superior responsibility” is often misunderstood. First, it is not a form of objective liability whereby a superior could be held criminally responsible for crimes committed by subordinates of the accused regardless of his conduct and regardless of what his knowledge of these crimes. Nor is it a form of complicity whereby the superior is held criminally responsible for some sort of assistance that he has given to the principal perpetrators. Instead, superior responsibility is a form of responsibility for omission to act: a superior may be held criminally responsible under that doctrine where, despite his awareness of the crimes of subordinates, he culpably fails to fulfill his duties to prevent and punish these crimes.
The commission of one or more crimes attributable to a subordinate is a pre-requisite for the application of that doctrine. In addition, the following requirements have been identified as forming part of the doctrine of superior responsibility under customary international law:
(i) A relationship of superior-subordinate linking the accused and those who committed the underlying offences at the time of the commission of the crime;
(ii) The knowledge on the part of the superior that his subordinates have committed or taken a culpable part in the commission of a crime or are about to do so; and
(iii) A failure on the part of the superior to take necessary and reasonable measures to prevent or to punish those crimes.
This doctrine might apply, in principle, to military commander (at whatever level in the military structure), civilian officials (regardless of the nature of their function, including heads of state or ministers) or paramilitary leaders. Whilst, under customary international law, the elements of the doctrine are the same as a matter of law (though not necessarily at the evidential level) regardless of the nature of the authority which the superior exercised, the ICC Statute is drawing certain differences between military and non-military superiors.
The person to whom the doctrine is relevant must be superior, hierarchically, to those who have committed the crimes in the sense that there must have existed between them a hierarchical relationship within a common chain of authority or command. That relationship may be de jure (i.e., it is recognised and sanctioned in the relevant – internal or domestic – legal regime) or de facto (where the relationship of authority is one based, not on legal regulations, but on a state of affair). There is contradictory jurisprudence as to the time that is relevant to establishing the existence of such a link (the time when the crimes were committed or the time when the superior is said to have failed in his duty).
“Superior responsibility” could apply, in theory, to any person who is able to exercise “effective control” over one or more people. The requirement of “effective control”, which must be met in relation to all and any sort of superior means that he must have had the material ability, at the time relevant to the charges, to prevent or punish the crimes of subordinates. Mere influence or charisma, even if significant, would not meet that standard. In all cases, there must be an expectation of obedience to orders on the part of the superior and a parallel expectation of subjection to his authority on the part of those who are under his authority.
The superior must also have been sufficiently aware of the commission of a crime by subordinates and/or of the real and concrete likelihood that a crime was about to be committed. Under customary law, the superior must be shown to have “known” (i.e., he actually knew) or “had reason to know” (i.e. the superior possessed some general information putting him on notice of the commission of crimes of his subordinates or that such information as was available to him put him on notice of the strong likelihood that they were about to be committed) of the underlying crimes. The ICC Statute has added one form of culpable mens rea (“owing to the circumstances at the time, should have known”) for military or military-like superiors, whereby a superior might be liable where he might not have known of the crimes (whether in actual or “had reason to know” form) but should have known of those. The exact scope of this new form of mens rea is uncertain and has been subject to serious criticism, although it could be constructed in such a way as to reduce the risks involved with this form of mens rea.
To be liable under that doctrine, the superior must also have failed to prevent or punish crimes committed by subordinates. A failure to fulfil either or both of these separate obligations (“duty to prevent” and “duty to punish”) could render a superior liable. Not every sort of failure would trigger his superior liability. To meet his obligations, a superior is required to adopt “necessary and reasonable” measures. The dereliction of duty attributable to the superior must be gross so that not any kind of failure to fulfil his duty would automatically render a superior responsible under that doctrine. There is some doubt in the literature and jurisprudence as to whether the dereliction must be causally linked in some ways with the crimes of the subordinates. The text of the ICC Statute makes it clear, however, that liability would be engaged where the crimes have been committed “as a result” of the superior’s failure.
In sum, the doctrine of superior or command responsibility could be defined as follows: A superior, whether de jure or de facto, may be held criminally responsible under that doctrine in relation to crimes committed by subordinates where, at the time relevant to the charges, he was in a relationship of superior-subordinate with the perpetrators, knew or had reason to know (or, in the case of military superiors at the ICC, “should have known”) that these crimes had been committed or were about to be committed and, with and despite that knowledge, wilfully and culpably failed to prevent or punish these crimes.
This article was written by Guenael Mettraux. He can be reached at guenael.mettraux@peaceandjusticeinitiative.org.
Suggested reading
- K. Ambos, “Superior Responsibility”, in A. Cassese et al., The Rome Statute of the International Criminal Court: A Commentary, Volume 1, (Oxford: Oxford University Press, 2002), 823.
- I. Bantekas, “The Contemporary Law of Superior Responsibility”, 93(3) American Journal of International Law, 573 (1999).
- L. C. Green, “Command Responsibility in International Humanitarian Law”, 5 Transnational Law & Contemporary Problems, 319 (1995).
- K. Howard, “Command Responsibility for War Crimes”, 21 Journal of Public Law, 7 (1972).
- G. Mettraux, The Law of Command Responsibility (Oxford: Oxford University Press, 2009).
- W. Parks, “Command Responsibility for War Crimes”, 62 Military Law Review, 1 (1973).