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Published online by Cambridge University Press: 27 May 2022
It has been widely evidenced that international crimes are collective in nature and involve individuals acting through an organized structure. Thus, besides punishing the physical perpetrators, an important task for international criminal law is to develop the proper doctrines to attribute responsibility to those on top of such organizations. In this direction, the concept of superior responsibility becomes highly relevant, attributing liability to military or civilian superiors for their failure to prevent the crimes of their subordinates. Nevertheless, international criminal law has not yet developed a concrete approach to the nature and application of the superior responsibility doctrine. To overcome this shortcoming, this article identifies the links between the superior responsibility doctrine and the theoretical framework of attributing criminal responsibility to the individual for the commission of international crimes. Developing on omission theory, it suggests an alternative theoretical approach to the superior responsibility doctrine, which combines the theory of control already applied in the case law of the International Criminal Court (ICC) with the mens rea requirements of the ICC Statute.
I would like to thank the anonymous reviewers for carefully reading and thoughtfully commenting on previous versions of this article.
1 For a discussion on the responsibility of superiors over their subordinates from the 1439 Charles VII of France’s Ordinance at Orleans to the Napoleonian wars of the nineteenth century see L. C. Green, ‘Command Responsibility in International Humanitarian Law’, (1995) 5 Transnational Law & Contemporary Problems 319, at 320–2.
2 Prosecutor v. Delalić and others, Appeals Judgement, Case No IT-96-21-A, A. Ch., 20 February 2001, para. 198; Prosecutor v. Aleksovski, Judgement, Case No. IT-95-14/1-T, T. Ch., 25 June 1999, para. 67; Prosecutor v. Blaškić, Judgement, Case No. IT-95-14-T, T. Ch., 3 March 2000, para. 322; Prosecutor v. Orić, Judgement, Case No. IT-03-68-T, T. Ch. II, 30 June 2006, para. 292. The International Criminal Tribunal for Rwanda (ICTR) case law is not particularly concerned with the nature of superior responsibility but, by contrasting it with the ‘basic principles of individual criminal liability’, it can be argued that the ICTR judges approach it as a separate offence rather than a mode of participation to the underlying crime: see Prosecutor v. Akayesu, Judgement, Case No. ICTR-96-4-T, T. Ch. I, 2 September 1998, para. 471; Prosecutor v. Kayishema and Ruzindana, Judgement, Case No. ICTR-95-1-T, T. Ch. II, 21 May 1999, para. 210.
3 Prosecutor v. Halilović, Judgement, Case No. IT-01-48-T, T. Ch. I, 16 November 2005, paras. 54, 78. Similarly, in Prosecutor v. Krnojelac, Judgement, Case No. IT-97-25-A, A. Ch., 17 September 2003, para. 171; Prosecutor v. Hadžihasanović and Kubura, Judgement, Case No. IT-01-47-T, T. Ch., 15 March 2006, paras. 75, 2075.
4 Prosecutor v. Jean-Pierre Bemba Gombo, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, ICC-01/05-01/08, Pre-Tr. Ch. II, 15 June 2009, para. 405.
5 Prosecutor v. Jean-Pierre Bemba Gombo, Judgment Pursuant to Article 74 of the Statute, ICC-01/05-01/08, Tr. Ch. III, 21 March 2016, paras. 173–174.
6 See also Separate Opinion of Judge Kuniko Ozaki, ibid., paras. 9, 19–23.
7 Prosecutor v. Jean-Pierre Bemba Gombo, Judgment Pursuant to Article 74 of the Statute, supra note 5, para. 213.
8 Ibid., para. 174.
9 See C. Kreß, ‘Nulla Poena Nullum Crimen sine Lege’, Max Planck Encyclopedia of Public International Law (2010), para. 29: ‘The certainty requirement is addressed to the originator of criminal provisions. It postulates that the criminal conduct be defined in such a manner that the individual, if need be with the assistance of pre-existing judicial interpretations of the law … and/or the aid of legal counselling, and taking into account possible specific qualifications of the typical addressee … may see from the wording of the definition of the criminal conduct which acts or omissions are prohibited.’, available at opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e854?rskey=haO82f&result=1&prd=MPIL.
10 This distinct (from Art. 25) mode of responsibly incorporated in Art. 28 is discussed in Section 3.
11 Prosecutor v. Germain Katanga, Judgment pursuant to Article 74 of the Statute, ICC-01/04-01/07, Tr. Ch. II, 7 March 2014, paras. 767, 786, 1627; Prosecutor v. Bosco Ntaganda, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Bosco Ntaganda, ICC-01/04-02/06, Pre-Tr. Ch. II, 9 June 2014, paras. 145, 153. The ICC case law has not yet discussed aiding and abetting through omission, but the ad hoc tribunals have repeatedly argued in their case law that assistance to the crime may be provided by either an act or an omission, see Prosecutor v. Brđanin, Judgement, Case No. IT-99-36-T, Tr. Ch. II, 1 September 2004, para. 271; Prosecutor v. Rutaganda, Judgement, ICTR-96-3-T, Tr. Ch. I, 6 December 1999, para. 41.
12 K. Ambos, Treatise on International Criminal Law, Vol I: Foundations and General Part (2013), 180–1.
13 G. P. Fletcher, Basic Concepts of Criminal Law (1998), 51 (emphasis in original).
14 See the relevant discussion on the sources of international criminal law in M. C. Bassiouni, Introduction to International Criminal Law (2013), 10–15.
15 Ambos, supra note 12, at 186.
16 Regarding English case law see, for example, R v. Miller [1983] 3 All ER 978, HL; R. v. Gibbins & Procter [1918] 13 Cr App Rep. 134. Relevant is also the case of R. v. Stone & Dobinson [1977] QB 354, on undertaking a duty of care towards another. For a detailed discussion on omission liability in common law see J. C. Smith, ‘Liability for Omissions in the Criminal Law’, (1984) 4 Legal Studies 88.
17 This is the concept of unechtes Unterlassung in German criminal law, see, for example, sec 13 of the German Penal Code (Strafgesetzbuch, StGB).
18 See also V. Nerlich, ‘Superior Responsibility under Article 28 ICC Statute: For What exactly is the superior held responsible?’, (2007) 5 Journal of International Criminal Justice 665, at 672–3.
19 Ambos, supra note 12, at 183–4.
20 See, for example, S. Freeman, ‘Criminal Liability and the Duty to Aid the Distressed’, (1994) 142 University of Pennsylvania Law Review 1455, at 1456.
21 This kind of duties are called the duties of a guarantor in continental criminal law jurisdictions (Garantenpflichten in German law). A guarantor is a person who has the legal obligation to protect another individual because of a special legal relation or because they themselves have originated a source of danger and are, thus, required to protect others against it (Garantenstellung, Schutz-/Obhutspflicht, Überwachungs-/Sicherungspflicht), Ambos, supra note 12, at 183–4.
22 Ambos explains that in common law jurisdictions the duty to act is based in statute, contract, special status, voluntary assumption of care, previous dangerous act/creation of peril, ibid., at 184.
23 Fletcher, supra note 13, at 48.
24 See also Art. 11(2) of the 1948 Universal Declaration of Human Rights and Art. 15 International Covenant on Civil and Political Rights 1966, 999 UNTS 171.
25 In terms of the US law for example, Fletcher notes that ‘[t]he Model Penal Code provides that ‘liability for the commission of an offence may not be based on an omission … unless a duty to perform the omitted act is imposed by law. “Law” in this context means case law. Not statutory law. Therefore, the punishment of commission by omission raises serious problems under the principle nulla poena sine lege [no punishment without a prior statutory prohibition]’, Fletcher, supra note 13, at 48 (emphasis in original).
26 G. Werle and F. Jessberger, Principles of International Criminal Law (2014), at 39.
27 K. Ambos, ‘General Principles of Criminal Law in the Rome Statute’, (1999) 10 Criminal Law Forum 1, at 4: ‘The principle of nullum crimen (sine lege scripta, praevia, certa and stricta) is explicitly laid down in its four different forms (arts. 22, 24): A person can only be punished for an act which was codified in the Statute at the time of its commission (lex scripta), was committed after its entry into force (lex praevia), was defined with sufficient clarity (lex certa) and was not extended by analogy (lex stricta)’, citing C. Roxin, Strafrecht-Allgemeiner Teil (1997), 97–9.
28 Cf. Ambos, supra note 12, at 184: ‘While the philosophical or theoretical foundation of such a duty to act is arguably the most difficult and controversial issue of the whole general part of criminal law, it is widely accepted that it must exist in order to compensate for the act/omission distinction. Only then can the normative equivalence between the active causation of harm and the failure to prevent harm be justified and the latter amount to a punishable omission. Otherwise, in the absence of such a duty, mere inaction cannot even constitute a legally relevant omission.’
29 See Prosecutor v. Thomas Lubanga Dyilo, Judgment Pursuant to Article 74 of the Statute, ICC-01/04-01/06, Tr. Ch. I, 14 March 2012; Prosecutor v. Germain Katanga, Judgment Pursuant to Article 74 of the Statute, supra note 11.
30 Despite this reasoning, national criminal law – in both common and continental law jurisdictions – still requires the perpetrators and accessories of omission crimes to be linked to a corresponding duty to act which has been violated, see Ambos, supra note 12, at 183–4.
31 For a discussion on the features of human dignity in criminal law see T. Hörnle and M. Kremnitzer, ‘Human Dignity as a Protected Interest in Criminal Law’, (2012) 44 Israel Law Review 143.
32 This is the ‘classic’ understanding of commission by omission establishing the responsibility of an individual who – irrespectively of being a superior or not – omits to act. However, it can also include a superior’s omission to order their subordinates to act, in the odd case of a crime having been committed because the subordinates did not know how to act in order to prevent it and the superior refrained from providing these orders, e.g., in connection to making relief supplies available as per Art. 8(2)(b)(xxv). However, this is a rare case, and it can be also covered by indirect inauthentic omission (failure to prevent the crime of the subordinates).
33 See, for example, Prosecutor v. Germain Katanga, Judgment pursuant to Article 74 of the Statute, supra note 11, para. 1396.
34 See, for example, Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, Decision on the Confirmation of Charges, ICC-01/04-01/07, Pre-Tr. Ch. I, 30 September 2008, paras. 540–1, 546, 549, 557, 575. The Court confirmed Katanga’s and Chui’s charges of committing war crimes within the meaning of Art. 25(3)(a) of the ICC Statute by establishing that, while in control of their organizations, they have given the order to attack the civilian population of the Bogoro village, kill the Hema population and destroy their properties.
35 P. Kotzamani, ‘Corporate Criminality and Individual Criminal Responsibility in International Law: Removing the Hurdles from the International Criminal Court’s Approach to Perpetration through Control of a Collective Entity’, (2020) 20(5) International Criminal Law Review 1, at 21–3.
36 Ibid.
37 According to Triffterer, ‘[i]ntentionally omitting an act presupposes that the person has the factual possibility and is aware that he can step out of his or her passivity and become active in a way demanded by the situation as the case may be’, O. Triffterer, ‘“Command responsibility” – crime sui generis or participation “as otherwise provided” in Art. 28 Rome Statute’, in J. Arnold et al. (eds.), Menschengerechtes Strafrecht: Festschrift für Albin Eser zum 70 Geburtstag (2005), 902, at 911.
38 For the sake of clarity, it has to be noted that the common law notion of recklessness does not fully correspond to the continental law notion of dolus eventualis. While dolus eventualis requires knowledge and acceptance of a criminal outcome, recklessness is being defined as awareness of a high probability that a crime will happen and acceptance of this probability. This means that recklessness includes not only cases of dolus eventualis but also cases continental law approaches under (advertent) negligence, see M. E. Badar, The Concept of Mens Rea in International Criminal Law: The Case for a Unified Approach (2013), 54.
39 It is reminded here that negligence can be either (i) advertent, where the individual realizes that their conduct could lead to a crime, but they believe that this will not happen in the end; or (ii) inadvertent, where the individual does not even realize that their conduct could lead to a criminal outcome.
40 In the infamous case of Pinkerton v. US 328 US 640 (1946), the accused was found (vicariously) liable as a perpetrator even though they had no participation in nor knowledge of the objective elements of the crime. For a critique of the case see W. R. LaFave and A. W. Scott Jr., Criminal Law (1972), 513–15; see also the Amicus Curiae Brief submitted by the Centre for Human Rights and Legal Pluralism, McGill University, before the Pre-Trial Chamber at the Extraordinary Chambers in the Courts of Cambodia in the matter of the Co-Prosecutors’ Appeal of the Closing Order Against Kaing Guek Eav “Duch” Dated 8 August 2008 (001/18-07-2007-ECCC/OCIJ (PTC 02), para. 33.
41 Whether inadvertent negligence should be an acceptable mens rea requirement for any substantial crime (irrespectively of it being an ‘active’ act crime or an omission crime), is an issue that has always concerned criminal law scholars, see, for example, A. Ashworth and J. Horder, Principles of Criminal Law (2013), 182: ‘One reason for the opposition of many English text-writers to criminal liability by [inadvertent] negligence is that it derogates from the subjective principles … To have negligence as a standard of liability would … move away from advertence as the foundation of criminal responsibility, and in doing so might show insufficient respect for the principle of autonomy’.
42 For international criminal law purposes, the attribution of responsibility to the individual is closely linked to personal culpability, see, for example, V. Militello, ‘The Personal Nature of Individual Criminal Responsibility and the ICC Statute’, (2007) 5 Journal of International Criminal Justice 941.
43 See Lord Millet’s reasoning in the UK case of Twinsectra before the House of Lords: ‘[i]t is dishonest for a man deliberately to shut his eyes to facts which he would prefer not to know. If he does so, he is taken to have actual knowledge of the facts to which he shut his eyes. Such knowledge has been described as “Nelsonian knowledge”, meaning knowledge which is attributed to a person as a consequence of his “wilfulblindness” or (as American lawyers describe it) “contrived ignorance”’, Twinsectra Ltd v. Yardley and Others [2002] UKHL 12; [2002] 2 AC 164, para. 194.
44 Prosecutor v. Tadić, Judgement, Case No. IT-94-1-T, Tr. Ch., 7 May 1997, para. 657, citing the Canadian case of R. v. Finta [1994] 1 RCS 701. In terms of the ICC Statute, Ambos remarks the high relevance of the Art. 28 mens rea standard for civilian superior responsibility to the concept of wilful blindness, Ambos, supra note 27, at 18.
45 Triffterer derives to the same conclusion, regarding, however, the whole Art. 28(b) ICCSt and not just the prevention of the crime provision, Triffterer, supra note 37, at 904–55: ‘Acts and omissions of superiors may trigger Article 25§3 litera a-e, as with regard to all natural persons fulfilling the requirements established there. But 28 provides, in addition, a well-balanced responsibility of superiors only for an unusual, but in practice rather frequent passive “involvement”. Such an “involvement” by a failure to control properly is a form of participation by abusing power through an omission and, therefore, ought to be prevented by all means, including criminal sanctions as ultima ratio’. Nerlich also admits that, regarding aiding and abetting, ‘knowledge superior responsibility before the fact and assistance in the commission of the crime of another person pursuant to Article 25(3)(c) ICCSt have striking similarities’, Nerlich, supra note 18, at 673.
46 It is not clear whether the term ‘repress’ falls within the category of preventing the crime or punishing the perpetrators after the crime has been committed. The Pre-Trial Chamber in Bemba, approached ‘repress’ as belonging to both categories, owing to the circumstances, see Prosecutor v. Jean-Pierre Bemba Gombo, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, supra note 4, paras. 439–42. Considered as ‘prevent’, it is covered by the commission by omission argument of this section; considered as ‘punish’, it is covered by the dereliction of duty argument of Section 3.
47 Contra, Prosecutor v. Jean-Pierre Bemba Gombo, Judgment pursuant to Article 74 of the Statute, supra note 5, paras. 173-174: ‘[t]he plain text of Article 28 – “[i]n addition to other grounds of criminal responsibility” – and its placement in Part 3 of the Statute indicate that Article 28 is intended to provide a distinct mode of liability from those found under Article 25 … Consequently, Article 28 must be viewed as a form of sui generis liability’.
48 Similarly, Meloni argues that in case of an intentional failure to prevent ‘the superior can be held criminally responsible and punished for those crimes pursuant to general criminal law principles on attribution. In relation to these types of cases, in fact, Art. 28 does not extend liability for the crime committed by the subordinates beyond what would have already been punishable pursuant to the general rules of complicity and responsibility for omission’, C. Meloni, Command Responsibility in International Criminal Law (2010), 197–219. However, she limits the responsibility of the superior in such a case to accomplice liability and excludes principal liability (in the form of indirect participation), at 198.
49 It could be possible, though, for their contribution through omission, rather than action, to be considered as a mitigating factor in terms of sentence.
50 The author is mindful of the current debate on the ‘purpose of facilitating the commission of the crime’ clause of aiding and abetting in Art. 25(3)(c) ICC Statute but further analysis on this issue exceeds the scope of this article.
51 Prosecutor v. Jean-Pierre Bemba Gombo, Judgment Pursuant to Article 74 of the Statute, supra note 5, para. 183.
52 Ibid., para. 213: In the sense that ‘the crimes would not have been committed, in the circumstances in which they were, had the commander exercised control properly, or the commander exercising control properly would have prevented the crimes’.
53 Prosecutor v. Jean-Pierre Bemba Gombo, Separate Opinion of Judge Sylvia Steiner, supra note 5, para. 24. See also Prosecutor v. Jean-Pierre Bemba Gombo, Dissenting Opinion of Judge Sanji Mmasenono Monageng and Judge Piotr Hofmański in Judgment on the Appeal of Mr Jean-Pierre Bemba Gombo against Trial Chamber III’s “Judgment pursuant to Article 74 of the Statute”, ICC-01/05-01/08 A, A. Ch., 8 June 2018.
54 Prosecutor v. Jean-Pierre Bemba Gombo, Separate Opinion of Judge Christine Van den Wyngaert and Judge Howard Morrison, in Judgment on the Appeal of Mr Jean-Pierre Bemba Gombo against Trial Chamber III’s “Judgment pursuant to Article 74 of the Statute”, supra note 53, paras. 55–56.
55 Prosecutor v. Jean-Pierre Bemba Gombo, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, supra note 4, para. 418.
56 Prosecutor v. Jean-Pierre Bemba Gombo, Judgment Pursuant to Article 74 of the Statute, supra note 5, paras. 184, 190.
57 Ambos, supra note 12, at 231; K. Ambos, ‘Superior Responsibility’, in A. Cassese et al. (eds.), The Rome Statute of the International Criminal Court: A Commentary (2002), 823, at 851. Similarly, Tsagourias argues that ‘Command responsibility is not responsibility for the crimes committed by the commander’s subordinates. Such an approach to responsibility would flout the principle of individual criminal responsibility by unwarrantedly attributing to the commander crimes in which he was not in any way involved … If, on the other hand, the commander participates in any way in the crimes committed by his subordinates, for example by ordering, aiding or abetting them, he will incur responsibility as a perpetrator or an accomplice … Instead, command responsibility is a distinct type of liability for omission. What is criminalised is the commander’s failure to prevent or punish crimes … The duty to punish and the duty to prevent are part and parcel of the duty to control subordinates, which part of the duty of responsible command …’, N. Tsagourias, ‘Command Responsibility and the Principle of Individual Criminal Responsibility: A Critical Analysis of International Jurisprudence’, in C. Eboe-Osuji (ed.), Protecting Humanity: Essays in International Law and Policy in Honour of Navanethem Pillay (2010), 817, at 828–9.
58 Art 25(3)(a) in combination with Art. 30; Art. 28(b)(i)
59 M. L. Nybondas, Command Responsibility and its Applicability to Civilian Superiors (2010), 136. However, she also argues that ‘command responsibility in cases of simultaneous applicability leads to its being subsumed under the individual criminal responsibility conviction [of Art. 25 ICCSt]’, at 155.
60 See also K. Ambos, ‘Omissions’, in K. Ambos et al. (eds.), Core Concepts in Criminal Law and Criminal Justice, Volume 1: Anglo-German Dialogues (2020), 20–1.
61 See, for example, Art. 223 of the French Penal Code; Sec 323(c) of the German Penal Code. Continental law jurisdictions endorse the concept of authentic omission based on a ‘social responsibility’ understanding of crime prevention according to which citizens should be under obligations to assist other individuals in certain circumstances to maintain social co-operation. On the other hand, common law jurisdictions usually follow an individualistic approach, arguing that individual autonomy and liberty should be cherished, as long as there is no infliction of harm to others, meaning that whether to stop and offer assistance or not should be a choice rather than a duty. However, as Ashworth correctly points out, ‘[this approach’s] proclaimed principle of individual autonomy is itself unsatisfactory. If individual autonomy is truly a supreme value, then it requires social principles rather than this kind of isolationist individualism in order to secure its fulfilment. Individuals tend to place a high value on interpersonal contacts, relationships, mutual support and the fulfilment of obligations, and a society which values collective goals and collective goods may therefore provide a wider range of worthwhile opportunities for individual development’, A. Ashworth, ‘The Scope of Criminal Liability for Omissions’, (1989) 105 Law Quarterly Review 424, at 430–1.
62 In the Greek Penal Code for example, failure to save an endangered person, which is an authentic crime of omission, is charged with imprisonment of up to one year (Art. 307), while killing someone by omission (commission by omission), as an inauthentic crime of omission, bears the same penalty range as active killing, which is from five years to life imprisonment (Art. 14, 52(1), 299, 302).
63 In Anglo-American common law, for example, under the concept of respondeat superior, a company director can be criminally responsible for the crime of an employee under a strict liability/‘should have known’ regime, due to the duties of supervision the law attaches to the former in furtherance to the employer-employee relationship between them. Nevertheless, the courts seem to approach this type of responsibility not in relation to the dereliction of duty rationale but, rather, as participation to the underlying crime of the employer – even in excess of proof of due care in some situations – without offering a plausible justification for this choice. For a critic on respondeat superior and strict liability in this context in the US jurisdiction see R. Luskin, ‘Caring About Corporate “Due Care”: Why Criminal Respondeat Superior Liability Outreaches Its Justification’, (2020) 57 American Criminal Law Review 303.
64 Regarding the expected reaction of the military commander to prevent the crimes of the subordinates, the ICC Appeals Chamber adopted a rather flexible reasonableness approach: ‘However, it is not the case that a commander must take each and every possible measure at his or her disposal. Despite the link between the material ability of a commander to take measures (which is directly connected to his or her level of authority) and what he or she might reasonably have been expected to do, it is not the case that a commander is required to employ every single conceivable measure within his or her arsenal, irrespective of considerations of proportionality and feasibility. Article 28 only requires commanders to do what is necessary and reasonable under the circumstances’, Prosecutor v. Jean-Pierre Bemba Gombo, Judgment on the appeal of Mr Jean-Pierre Bemba Gombo against Trial Chamber III’s “Judgment pursuant to Article 74 of the Statute”, supra note 53, para. 169 (emphasis in original).
65 As explained by Wu and Kang, ‘… because military and civilian leaders are in a position of great public trust and responsibility, it is not unreasonable to impose some kind of legal duty on those who are in position to prevent atrocities. In this regard it should be remembered that military and civilian leaders voluntarily assume their positions and may therefore be presumed to have knowingly acquiesced to the duties under international law that are a corollary of such positions. From a regulatory standpoint, it is often a military or civil leader who is the only, or at least best-situated, person to prevent the commission of atrocities-society’s last line of defense. Under this analysis, the burden of the duty must be placed where it will make a difference’, T. Wu and Y-S. Kang, ‘Criminal Liability for the Actions of Subordinates –The Doctrine of Command Responsibility and Its Analogues in United States Law’, (1997) 38 Harvard International Law Journal 272, at 290.
66 See Sutradhar v. Natural Environment Research Council [2006] UKHL 33, paras. 38, 48 (Lord Hoffmann and Lord Brown of Eaton-under-Heywood, respectively).
67 In this sense, the same evidence used to identify the control element of the individual’s/superior’s omission as participation to the crime (overall control approach) will be also used to identify efficient supervision in terms of the superior’s responsibility for dereliction of duty. In the latter case however, the focus is on the superior-subordinate relationship and its contents/effects rather than to the control element itself.
68 See also Wu and Kang, supra note 65, at 291.
69 Prosecutor v. Jean-Pierre Bemba Gombo, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, supra note 4, paras. 439–441.
70 See also Meloni, supra note 48, at 202–7, 221. Some common law jurisdictions establish liability also for an ‘accessory after the fact’, see, for example, 18 U.S. Code § 3. Despite the misleading title, however, the accessory after the fact is responsible not for the underlying crime but for another crime, e.g., obstruction of justice, see Bollenbach v. United States, 326 U.S. 607 (1946), para. 611: ‘Under the Criminal Code, one who aids or abets the commission of a federal offense is punishable as a principal; the offense of an accessory after the fact is distinct, and differently punishable.’
71 See also I. Bantekas, ‘The Contemporary Law of Superior Responsibility’, (1999) 93 American Journal of International Law 573, at 590, 592–3.
72 Prosecutor v. Kordić and Čerkez, Judgement, Case No. ICTY-95-14/2-T, Tr. Ch., 26 February 2001, para. 446.
73 Prosecutor v. Aleksovski, Judgement, supra note 2, para. 78.
74 Ibid.; Prosecutor v. Blaškić, Judgement, para. 302, supra note 2; Prosecutor v. Kvočka and others, Judgement, Case No. ICTY-98-30/1-T, Tr. Ch., 2 November 2001, para. 316. See also Prosecutor v. Kordić and Čerkez, Judgement, supra note 72, para. 446: ‘Civilian superiors would be under similar obligations [to those of the military commanders], depending upon the effective powers exercised and whether they include an ability to require the competent authorities to take action’.
75 The Trial Chamber in Halilović recognized that ‘[t]he duty to punish is a separate form of liability, distinct from the failure to prevent …’, Prosecutor v. Halilović, Judgement, supra note 3, para. 94.
76 Ambos (2002), supra note 57, at 851.
77 G. Mettraux, The Law of Command Responsibility (2009), 37–95.
78 Ibid., at 74.
79 According to Ambos, superior responsibility entails ‘negligence liability [to the superior] for intentional acts [of the subordinates]’, Ambos, supra note 12, at 231 (emphasis in original).
80 It has to be noted that the commander’s responsibility for their negligent failure to fulfil their duty to know (that their subordinates were about to commit a crime) before the crime commission is, to a certain extent, a form of strict liability. The military commander is being punished in the absence of a mens rea, based on ‘the average responsible person’ standard. However, (strict) liability in this case can be justified under the argument that the attribution of criminal responsibility refers to a special crime of a dereliction of duty and not to a (more severe) substantial crime, see also the discussion on culpability in Section 4.
81 See Prosecutor v. Halilović, Judgement, supra note 3, para. 97.
82 Similarly, Vetter argues that ‘[g]iven that the ICC statue makes criminal only the most egregious of crimes, a weaker civilian command responsibility doctrine undercuts the court’s goal of strong, individual deterrence. Individual accountability was the watershed development arising from the Nuremberg trials, and individual accountability is what will enable the ICC to meet its aspirations of deterring human rights abuses and vindicating the rule of law’, G. R. Vetter, ‘Command Responsibility of Non-Military Superiors in the International Criminal Court (ICC)’, (2000) 25 Yale Journal of International Law 89, at 94.
83 E. van Sliedregt, ‘Article 28 of the ICC Statute: Mode of Liability and/or Separate Offense’, (2009) 12(3) New Criminal Law Review 420: ‘If I were in the position to amend Article 28 of the ICC Statute … I would provide for a “conceptual distinction” – that between superior responsibility as a(n intentional) mode of liability and superior responsibility as a separate crime of negligence’, at 431.
84 See his analysis of this issue in D. Robinson, ‘How Command Responsibility Got So Complicated: A Culpability Contradiction, its Obfuscation, and a Simple Solution’, (2012) 13 Melbourne Journal of International Law 1.
85 Prosecutor v. Delalić and others, Judgement, Case No. IT-96-21-T, Tr. Ch., 16 November 1998, paras. 398–400; see also Prosecutor v. Blaškić, Appeal Judgement, Case No. IT-95-14-A, A. Ch., 29 July 2004, para. 76.
86 Prosecutor v. Delalić and others, ibid., para. 398, reference omitted.
87 Prosecutor v. Blaškić, supra note 85, para. 83.
88 Robinson, supra note 84, at 17; similarly, Mettraux, supra note 77, at 263.
89 Robinson, ibid., at 18–19.
90 See also Damaška, who highlights the serious implications of the superior responsibility doctrine as participation for criminal law principles in both the Anglo-American and continental legal traditions, M. Damaška, ‘The Shadow Side of Command Responsibility’, (2001) 49 American Journal of Comparative Law 455, at 458–71.
91 Robinson, supra note 84, at 33.
92 The ‘should have known’ standard should, in any case, be an integral part of the superior responsibility doctrine, as highlighted in Section 3 of this article.
93 See Section 2.2 of this article.
94 O. Triffterer, ‘Causality, a Separate Element of the Doctrine of Superior Responsibility as Expressed in Article 28 Rome Statute?’, (2002) 15 Leiden Journal of International Law 179, at 197. However, in order to find the superior responsible for participation to the underlying crime of the subordinates he requires ‘a second causal connection to be established, to prove that the superiors did not take all necessary measures within their power, to prevent crimes when they were about to be committed or already attempted’, at 203. On a similar reasoning, when it comes to participation, Section 2 of this article approaches the failure to control as the causal link to the crime of the subordinates: the superior is responsible for participation to the underlying crime when they knew that the subordinates where about to commit this crime and decided not to (failed to) prevent them upon their ability to exercise control over them.
95 See also the provisions of Art. 22(1) and (2) ICCSt.
96 The ‘umbrella’ term has been employed by Damaška in his classic article ‘The Shadow Side of Command Responsibility’ (supra note 90) to discuss the broad nature of command responsibility. See also A. Cassese, International Criminal Law (2003), at 206–7, 210–11.
97 R. Arnold and O. Triffterer, ‘Article 28: Responsibility of Commanders and Other Superiors’, in O. Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article, (2008), 795, at 1060.
98 Contra Ambos who argues that there are not two distinct types of responsibility for the superior, but the superior is simultaneously responsible for both participation and dereliction of duty: ‘[w]hile in structural terms the superior is to be blamed for his improper supervision, he is not only punished for this but also for the actual crimes of his subordinates. As a result, the concept creates on the one hand direct liability for the lack of supervision and on the other, indirect liability for the criminal acts of others (the subordinates) …’, Ambos, supra note 12, at 206.