LING 530 Lecture Notes - Lecture 11: Genocide Convention, Homicide, Affix
27 Jun 2018
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March 13, 2018
Attribution of Individual Criminal Responsibility: Omission Liability and
Superior Responsibility
Review
JCE in the last class
Today, command responsibility
In the next class, we will look at other modes of responsibility
Omission
Failure to act gives rise to criminal liability
For the most part, criminal law is about commission of acts.
Omission is limited to narrow set of circumstances
oCriminal law does not have a good Samaritan rule, where failure to act gives rise
to liability – unless there is a specific provision.
Command Responsibility
Some parallels with domestic criminal law but mostly particular to international law –
war fare and hierarchical nature of military command
In Nuremberg and Tokyo Tribunal, some of the cases revolved around the failure of
commanders to take steps to prevent or punish crimes.
In principle, all crimes within the subject matter jurisdiction of the ICC or ICTY requires
mens rea. There is no strict liability. No one should be held responsible unless they had
at least knowledge or intention.
oIn domestic criminal law: No one should serve a lengthy term of imprisonment or
suffer from the stigma of being called a criminal unless they had knowledge or
intention.
oA fortiori, this should apply to international crimes.
Humanitarian law isn’t applied in courts. Only a small fraction of those who committed
crimes will be prosecuted. So, for the most part, we want to have a preventative
function – it becomes part of the culture of warfare, i.e. taking precautions to avoid
harm being inflicted on civilians.
Tension: command responsibility vs. holding perpetrator of CAH based on negligence
oCommand responsibility: built on the assumption that military’s have strit
hierarchy and we need to hold military commanders responsible so that their
military force do not commit crimes. Otherwise, the whole structure of discipline
required to respect IHL would unravel.
oWe cannot hold people responsible for CAH simply based on negligence. There
has to be something more – a subjective mens rea. Negligence isn’t enough to
have the military commanders liable. There has to be intention, knowledge,
recklessness or at the very least wilful blindness.
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ICTY Statute
Article 7(3): The fact that any of the acts referred to in articles 2 to 5 of the present
Statute was committed by a subordinate does not relieve his superior of criminal
responsibility if he knew or had reason to know that the subordinate was about to
commit such acts or had done so and the superior failed to take the necessary and
reasonable measures to prevent such acts or to punish the perpetrators thereof.
Three elements:
o(1) Superior-subordinate relationship
Generally, obedience in the military is important. Someone is issuing
orders that someone else has to obey. By virtue of that power comes a
certain responsibility.
Is it limited only to military commands? What about a bureaucrat or
someone working in a corporation and takes orders from the CEO?
In the military, there is a clarity about hierarchy and superior-subordinate
relationships.
Effective control: The relationship has to be effective. It is not just
conceptual. It has to exist de facto.
A defence lawyer would invoke the effective control. Think about an
improper army that is put together in the middle of a war. They are not
professionals.
Although a superior subordinate relationship can be prima facie
evidence, it is not necessary conclusive. There has to be a relationship
where a superior can issue orders to the subordinate.
o(3) Knowledge
The ICTY statute says “knew or had reason to know”. “Had reason to
know” is that you should have know. This makes it an objective standard.
How do we feel about holding someone responsible for CAH on an
objective standard? Not so great; it is problematic.
In practice, “had reason to know” has been interpreted as a subjective
standard.
“Knew”: is straight forward. Ex: your soldiers say out loud that they will
burn the homes and loot them. So, you knew. Or, you knew after the
fact. Ex: UN told you that your soldiers did all that but you did nothing.
“Had reason to know”: what do we really mean? You had at your disposal
facts that upon further inquire, it would have fixed you with knowledge.
This resembles “willful blindness” or “deliberate ignorance”. You
should have inquired further but shut your eyes.
In the context of command responsibility, what a commander
should have inquired about is complex.
Ex: you are a lazy military commander. Soldiers will think that they
can do whatever they want. It is the job of the military
commander to know what his subordinates are doing. For that,
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you have a reporting system. A commander may not be there at
every battle but receives reports form his subordinates. What if
the reports omit the crimes that were committed.
The ICC statute requires intention and knowledge. But, on the
other side, we can’t say that a military commander can ignore
reports.
It has to be willful blindness but in the context where you must
receive reports.
It is not as simple as we think. Military commander of a platoon
(50 soldiers). There is an immediate proximity. The commander is
probably in the field – not in the Ministry headquarters. If you are
5-star general in a modern army, there may be 10 levels of
hierarchy between you and a soldier fighting the war. You are not
getting every report going up the chain of command. Those
reports are being sifted as they make their way up the chain of
command.
You can’t always impute knowledge.
Difference between an operational and occupational commander:
not all commands are the same. An operational commander is in
charge of combat operations. There are different areas of law.
There is the means and methods of warfare (about how you fight
war) and once you occupy the territory and peoples are in your
hands, there is a different legal regime of IHL that applies.
Under the Hague of 1907, occupation brings with it certain
responsibilities – one of those is to maintain law and order. There
is this requirement because you displaced the govt. If you allow
even locals who hate a particular group and want to massacre
them. Your failure to act (failure to maintain law and order) can
affix you with responsibility.
In combat operations (e.g. Gaza), you want to take a territory.
There are different methods – some lawful some unlawful. If you
are the operational commander, there is a campaign of
indiscriminate firing of weapons, if you are the commander and
issued orders, you can be held liable.
Let’s say that a territory is captures and you hand the authority
over to an occupational commander (whose job is to maintain law
and order), you don’t become responsible as the operational
commander because you are no longer in command.
Point: look at who is effectively in command. The duty of a
commander as defined by the regulations of armed forces.
Back to “knew or had reason to know”: commander not held liable for
range of crimes that had nothing to do with what his responsibility was.
o(3) Failure to prevent or punish
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Attribution of individual criminal responsibility: omission liability and. In the next class, we will look at other modes of responsibility. Failure to act gives rise to criminal liability. For the most part, criminal law is about commission of acts. Omission is limited to narrow set of circumstances: criminal law does not have a good samaritan rule, where failure to act gives rise to liability unless there is a specific provision. Some parallels with domestic criminal law but mostly particular to international law war fare and hierarchical nature of military command. In nuremberg and tokyo tribunal, some of the cases revolved around the failure of commanders to take steps to prevent or punish crimes. In principle, all crimes within the subject matter jurisdiction of the icc or icty requires mens rea. Only a small fraction of those who committed crimes will be prosecuted.
