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Article 28 Responsibility of commanders and other superiors

In addition to other grounds of criminal responsibility under this Statute for crimes within the jurisdiction of the Court:

(a) A military commander or person effectively acting as a military commander shall be criminally responsible for crimes within the jurisdiction of the Court committed by forces under his or her effective command and control, or effective authority and control as the case may be, as a result of his or her failure to exercise control properly over such forces, where:

(i) That military commander or person either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes; and (ii) That military commander or person failed to take the necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution. (b) With respect to superior and subordinate relationships not described in paragraph (a), a superior shall be criminally responsible for crimes within the jurisdiction of the Court committed by subordinates under his or her effective authority and control, as a result of his or her failure to exercise control properly over such subordinates, where:

(i) The superior either knew, or consciously disregarded information which clearly indicated, that the subordinates were committing or about to commit such crimes; (ii) The crimes concerned activities that were within the effective responsibility and control of the superior; and (iii) 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 competent authorities for investigation and prosecution.

Literature:

Kai Ambos, DER ALLGEMEINE TEIL DES VÖLKERSTRAFRECHTS 666 et seq. (2002); id., INTERNATIONALES STRAFRECHT: STRAFANWENDUNGSRECHT, VÖLKERSTRAFRECHT, EUROPÄISCHE STRAFRECHT (2006); id., Superior

Responsibility, in: Antonio Cassese/Paola Gaeta/John R. W. D. Jones (eds), THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT: A COMMENTARY 823, Vol. I (2002); Roberta Arnold, Command Responsibility: A Case Study of Alleged Violations of the Laws of War at Khiam Detention Centre, 7 J. OF

CONFLICT AND SECURITY L. 2, 191 (2002); id., The ‘Means Rea’ of genocide under the Statute of the International Criminal Court, 14 CRIM. L.F. 2, 127 (2003); Jean-François Aubert, La question de l'ordre supérieur et la responsabilité des commandants dans le Protocole additionnel aux Conventions de Genève du 12 août 1949 relatif

à la protection des victimes des conflits armés internationaux (Protocole I) du 8 juin 1977, 770 REVUE

INTERNATIONALE DE LA CROIX-ROUGE 109 (2000); Ilias Bantekas, Contemporary Law of Superior Responsibility, 93 AM. J. INTL L. 3, 577 (1999); id., L'intérêt des États par rapport à la doctrine de la responsabilité des

supérieurs, 838 REVUE INTERNATIONALE DE LA CROIX-ROUGE 391 (2000); M. Cherif Bassiouni, CRIMES AGAINST

HUMANITY IN INTERNATIONAL LAW 368 et seq. (1992); id., THE LAW OF THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA 350 et seq. (1996); id., THE LEGISLATIVE HISTORY OF THE

INTERNATIONAL CRIMINAL COURT, Vol. II (2005); Jia Bing Bing, The Doctrine of Command Responsibility Revisited, 3 CHINESE J. INT'L L. 1 (2004); Michael Bothe/Karl J. Partsch/Waldemar A. Solf, NEW RULES FOR VICTIMS OF ARMED CONFLICTS (1982); Weston D. Burnett, Command Responsibility of Israeli Military Commanders for the Pogrom at Shatila and Sabra, 107 MIL. L. REV. 71 (1985); Antonio Cassese, INTERNATIONAL CRIMINAL LAW 200 et seq. (2003); Ann B. Ching, Evolution of the command responsibility doctrine in light of the Celebici decision of the International Criminal Tribunal for the Former Yugoslavia, 25 N. CAROLINA J. INTL L. C. R. 167 (1999); Roger S. Clark, The Mental Element in International Criminal Law: The Rome Statute of the International Criminal Court and the Elements of Offences, 12 CRIM. L.F. 291 (2001); Christopher N. Crowe, Command Responsibility in the Former Yugoslavia: The Chances of Successful Prosecution, 29 U. RICH. L. REV. 191 (1994); William G. Eckhardt, Command Criminal Responsibility: A Plea for a Workable Standard, 97 MIL. L. REV. 1 (1982); Mohamed Elewa Badar, Mens rea – Mistake of Law & Mistake of Fact in German Criminal Law:

A Survey for International Criminal Tribunal, 5 INT'L C. L. REV. 203 (2005); Kirsten M. F. Feith, The Mens Rea of

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superior responsibility as developed by ICTY jurisprudence, 14 LEIDEN J. INT'L L. 617 (2001); Final Report of the Commission of Inquiry Into the Events at the Refugee Camps in Beirut, 22 I.L.M. 473 (1983); Monica Feria Tinta, Commanders on Trial: the Blayéskic' case and the doctrine of Command Responsibility under International Law, 47 NETH. INT'L L. REV. 3, 293 (2000); Charles H. B. Garraway, Command Responsibility: Victors' Justice or just Desserts?, in: Richard Burchill et. al. (eds.), INTERNATIONAL CONFLICT AND SECURITY LAW (2005); id. Responsibility of command: a poisoned chalice?, in: Roberta Arnold/Pierre A. Hildbrand (ed.), INTERNATIONAL

HUMANITARIAN LAW AND THE 21 ST CENTURYS CONFLICTS: CHANGES AND CHALLENGES (2005); Leslie C. Green,

Command Responsibility in International Humanitarian Law, 5 TRANSNATL L. & CONTEMP. PROBS. 320 (1995); id., War Crimes, Crimes Against Humanity and Command Responsibility, 50 NAV. WAR COLLEGE REV. 26 (1997); Christopher Greenwood, Command Responsibility and the Hadzihasanovic Decision, 2 J. INT'L CRIM. JUST. 2 (2004); Franklin A. Hart, Yamashita, Nuremberg and Vietnam: Command Responsibility Reappraised, 25 NAV. WAR COLLEGE REV. 19 (1972); Stuart E. Hendin, Command Responsibility and Superior Orders in the Twentieth Century – A Century of Evolution, 10 MURDOCH ELECTRONIC J. L. 1 (March 2003); Robert Herde, COMMAND

RESPONSIBILITY: DIE VERFOLGUNG DER "ZWEITEN GARDE" DEUTSCHER UND JAPANISCHER GENERÄLE IM

(2001); Kenneth A. Howard, Command

Responsibility for War Crimes, 21 J. PUB. L. 7 (1972); ICRC (ed.), COMMENTARY ON THE ADDITIONAL PROTOCOLS OF 8 JUNE 1977 TO THE GENEVA CONVENTIONS OF 12 AUGUST 1949 (1987); Keith Kirsten, Superior responsibility applied before the ICTY, 14 HUM. VÖLKERRECHT (2001); Kriangsak, Kittichaisaree, INTERNATIONAL CRIMINAL LAW (2001); Bruce D. Landrum, The Yamashita War Crimes Trial: command responsibility then and now, MIL. L. REV. 149 (1995); Roy S. Lee, THE INTERNATIONAL CRIMINAL COURT, THE

MAKING OF THE ROME STATUTE: ISSUES, NEGOTIATIONS, RESULTS (1999); Howard S. Levie, Command

Responsibility, 8 J. LEGAL STUDIES 1 ((1997/1998); Matthew Lippmann, The evolution and scope of command responsibility, 13 LEIDEN J. INT'L 139 (2000); id., Humanitarian law: the development and scope of the superior orders defense, 20 PENN STATE INTL L. REV. 1 (2001); Peter Noll/Stefan Trechsel, SCHWEIZERISCHES

ALLIERTEN

PROZEßPROGRAMM

NACH

DEM

ZWEITEN WELTKRIEG

STRAFRECHT, ALLGEMEINER TEIL I, ALLGEMEINE VORAUSSETZUNG DER STRAFBARKEIT (6 th Ed., 2004), Maria

Nybondas, Civilian Superior Responsibility in the Kordić Case, 59 NETH. INTL L. REV. 1 (2003); William H. Parks, Command Responsibility for War Crimes, 62 MIL. L. REV. 1 (1973); Sarah Perkins, THE FAILURE TO

PROTECT: EXPANDING THE SCOPE OF COMMAND RESPONSIBILITY TO THE UNITED NATIONS AT SREBRENICA (2004); Claude Pilloud et. al., COMMENTARY ON THE ADDITIONAL PROTOCOLS OF 8 JUNE 1977 TO THE GENEVA

CONVENTIONS OF 12 AUGUST 1949 (1987); Anthony P.V. Rogers, Law on the battlefield (1996); Bert Röling/C.F. Ruter (eds.), The Tokyo JuDGMENT (1977); Danesh Sarooshi, Command responsibility and the Blaskic case, 50 INTL & COMP. L.Q. 2 (2001); Hina Shamsi/Deborah Pearlstein, COMMAND´S RESPONSIBILITY: DETAINEE

DEATHS IN U.S. CUSTODY IN IRAQ AND AFGHANISTAN (2006); Elies von Sliedregt, THE CRIMINAL RESPONSIBILITY OF INDIVIDUALS FOR VIOLATIONS OF INTERNATIONAL HUMANITARIAN LAW (2003); Michael L.

Smidt, Yamashita, Medina, and beyond: command responsibility in contemporary military operations, 164 MIL. L.

Ed., 1998); Otto

Triffterer, Causality, a Separate Element of the Doctrine of Superior Responsibility as Expressed in Article 28 Rome Statute? 15 LEIDEN J. INT'L L 179 (2002); id., "Command Responsibility" – Grundstrukturen und Anwendungsbereiche von Art. 28 des Rom Statutes Eignung auch zur Bekämpfung des internationalen Terrorismus?, in: Cornelius Prittwitz et. al. (eds.), FESTSCHRIFT FÜR KLAUS LÜDERSEN 437 (2002); id., Command Responsibility, Article 28 Rome Statute, an Extension of Individual Criminal Responsibility for Crimes Within the Jurisdiction of the Court – Compatible with Article 22, nullum crimen sine lege?, in: O. Triffterer (ed.), GEDÄCHTNISSCHRIFT FÜR THEO VOGLER 213 (2004); id., "Command Responsibility" – crimen sui generis or participation as "otherwise provided"?, in: Otto Lagodny et. al. (eds.), FESTSCHRIFT FÜR ALBIN ESER 901 (2005); Greg. R. Vetter, Command responsibility of non-military superiors in the International Criminal Court (ICC), 25 YALE J. INTL L. 1 (2000); Timothy Wu/Yong-Sung Kang, Criminal liability for the actions of subordinates – the doctrine of command responsibility and its analogues in United States law, 38 HARV. INTL L. J. (1997); Thomas Weigend, Bemerkungen zur Vorgesetztenverantwortlichkeit im Völkerstrafrecht, 116 ZSTW (2004); Zhu Wenqi, The doctrine of Command Responsibility as applied to civilian leaders: the ICTR and the "Kayishema" case, INT'L

L. IN THE POST-COLD WAR WORLD (2001); Alexander Zahar, Command Responsibility of civilian superiors for genocide, 14 LEIDEN J. INT'L L. 3 (2001); Trial of Josef Kramer and 44 others (The Belsen Trial), 2 LAW REPORTS OF TRIALS OF WAR CRIMINALS (1947); Trial of Wilhelm von Leeb and 13 others (The German High Command Trial), 7 LAW REPORTS OF TRIALS OF WAR CRIMINALS (1949); Trial of Wilhelm List and others (The Hostages Trial), 8 LAW REPORTS OF TRIALS OF WAR CRIMINALS (1949); Trial of S.S. Brigadeführer Kurt Meyer (The Abbaye Ardenne Case), 4 LAW REPORTS OF TRIALS OF WAR CRIMINALS (1948); Trial of Takashi Sakai, 3 LAW REPORTS OF TRIALS OF WAR CRIMINALS (1948), Trial of General Tomoyuki Yamashita, 4 LAW REPORTS OF

REV. (2000); Günter Stratenwerth, SCHWEIZERISCHES STRAFRECHT, ALLGEMEINER TEIL I (2

nd

TRIALS OF WAR CRIMINALS (1946);

Jurisdiction ICTY:

Prosecutor v. Tadic, "Prijedor", Case No. IT-1-94-1- , Judgement, Chamber, Prosecutor v. Blaskic, "Lasva Valley", Case No. IT-95-14 T, Judgement, Trial Chamber, 3. Mar. 2000; Prosecutor v. Blaskic, "Lasva Valley", Case No. IT-95-14-A, Judgement, Appeals Chamber, 29 Jul. 2004; Prosecutor v. Aleksovski, "Lasva Valley", Case No. IT-95-14/1-T, Judgement, Trial Chamber, 25. Jun. 1999; Prosecutor v. Aleksovski, "Lasva Valley", Case No. IT-95-14/1-A, Judgement, Appeals Chamber, 24. Mar. 2000; Prosecutor v. Kordic and Cerkez, "Lasva Valley", Case No. IT-95-14/2- T, Judgement, Trial Chamber, 26. Feb. 2001; Prosecutor v. Kordic and Cerkez, "Lasva Valley", Case No. IT-95-14/2-A, Judgement, Appeals Chamber, 17 Dec. 2004; Prosecutor v. Delalic et al., "Celebici", Case No. IT-96-21-T, Judgement, Trial Chamber, 16. Nov. 1998; Prosecutor v. Delalic et al., "Celebici", Case No. IT-96-21-A, Judgement, Appeals Chamber, 20. Feb. 2001; Prosecutor v. Kunarac et. al., "Foca", Case No. IT-96-23&23/1-T, Judgement, Trial Chamber, 22. Feb. 2001; Prosecutor v. Krnojelac, "Foca", Case No. IT-97-25-T, Judgement, Trial Chamber,15 Mar. 2002; Prosecutor v. Krnojelac, Case No. IT-97-25-A,

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Judgement, Appeals Chamber, 17 Sep. 2003; Prosecutor v. Galic, "Sarajevo", Case No. IT-98-29-T, Judgement, Trial Chamber, 5. Dec. 2003; Prosecutor v. Kvocka et. al., "Omarska, Keraterm and Trnopolje Camps", Case No. IT-98-30/1-T, Judgement, Trial Chamber, 2 Nov. 2001; Prosecutor v. Hadzihanovic, Alagic and Kubura, Case No. IT-01-47-PT, Decision, Appeals Chamber, Interlocutory Appeal on Decision on Joint Challenge to Jurisdiction, 27. Nov. 2002; Prosecutor v. Hadzihanovic, Alagic and Kubura, Case No. IT-01-47-AR72d, Decision, Appeals Chamber, Interlocutory Appeal Challenging Jurisdiction in Relation to Command Responsibility, 16. Jul. 2003;

Jurisdiction ICTR:

Prosecutor v. Kayishema and Ruzindana, Case No. ICTR-95-1-T, Judgement, Trial Chamber, 21. May 1999; Prosecutor v. Ntakirutimana et al., "Mugonero", Case No. ICTR-96-10-T, Judgement, Trial Chamber, 21. Feb. 2003; Prosecutor v. Musema, Case No. ICTR-96-13-A, Judgement, Trial Chamber, 27. Jan. 2000; Prosecutor v. Semanza, Case No. ICTR-97-20-T, Judgement, Trial Chamber, 15. May 2003; Prosecutor v. Nahimana et. al., Case No. ICTR-99-52-T, Judgement, Trial Chamber, 3. Dec. 2003.

Contents:

margin No.

 

A. Introduction/General Remarks (Otto Triffterer)

1

I. Development/Overview

4

1. Changing paradigms: superiors, established and protected authorities gradually called to criminal responsibility also for violations committed by their subordinates

5

II.

2. Silent toleration and failure to influence and interfere two differently structured appearances and approaches

8

3. Slowly towards comprehensive

 

definitions, in particular articles 86 and 87, Additional Protocol I 1977 and to article 28 Rome Statute

10

II. Practical importance

25

1. Nuremberg, Tokyo and "follow up proceedings" (Nachfolgeprozesse)

29

2. Continuing to focus primarily on commanders increased the acknowledgement of an inherent superior responsibility, but did not crystallise elements "strictly

 

construed"

39

3. Command responsibility dominating the international and the transitional justice regimes up to the top of hierarchically based authorities requiring more legal guarantees

45

III. Guidelines for investigating and prosecuting superior responsibility

76

B. Analysis and interpretation of elements (Roberta Arnold)

I.

Two alternatives with only a few deviating elements

85

1. Military command or other "superior and subordinate relationships"

86

2. Any of the crimes within the

 

jurisdiction of the Court when

"committed by forces under … effective control … or …

authority and control", litera (a), or when

concerning "activities that were

within the effective responsibility and control of the superior", litera (b) (ii)

90

3. Minimum mental element for the second failure:

 

"should have known", or

– "consciously disregarded information which clearly indicated that the subordinates were committing or about to commit such crimes"

95

Paragraph (a)

 

1.

Qualification:"military commander or person effectively acting as a military commander"

98

2.

Commanders and subordinates

a)

Structure of "forces"

101

b)

"[E]ffective command and control"

102

c)

"[E]ffective authority and control"

103

3.

"[F]ailure to exercise control properly"

104

a)

Passivity and duty to become active. 105

b)

"Crimes committed" as a result

 

aa)

Completed or attempted crimes

106

bb)Committed in which modality of article 25 para. 3 ever

107

cc)

Causality

109

dd)Accountability

112

c)

Mental element:

intent and knowledge

114

4.

Failure "to take all necessary and reasonable measures"

a) "[K]new or should have known that the forces were committing or about to

commit such crimes"

117

b) Dereliction of duty and power to react

118

c) Measures needed to avoid or to compensate the result caused by the "failure to exercise control properly"

aa)

Dependence on the stage

of the commission bb)"[T]o prevent or repress

119

 

… or to submit" (1) ex post or ex ante

120

evaluation? – The objective comparable commander "in the situation at the time", article 87 (2)

Additional Protocol I

121

(2) Hypothetical causation?

122

 

d) Threshold of unreasonable demands?

123

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III. Paragraph (b)

 

c) The objective comparable superior "in the situation at the time"

 

1. "[S]uperior and subordinate relationships not described in paragraph (a)"

 

130

124

d) Threshold of reasonable demands?

2. Subsidiarity based on a different notion of "relationship" and "effective authority and control"

131

125

C.

Special Remarks

I. Assisting in Command Responsibility, a participation in the crime committed by subordinates?

3. "[F]ailure to exercise control properly"

127

132

4. Failure "to take all necessary and reasonable measures"

a) "[K]new or consciously disregarded information which clearly indicated, that the

subordinates were committing or about to commit such crimes"

II. Attempted Command Responsibility, an attempted crime

within the jurisdiction of the Court? III. Concurring Responsibility?

134

128

1. Authorities in a hierarchical chain all failing to fulfil their duties

2. Command Responsibility and participation according to article 25 para. 3?

137

b) Crimes concerning "activities that were within the effective responsibility and control of the superior"

129

138

A. Introduction/General Remarks

1 Article 28 contains the longest definition of a single modality concerning individual criminal responsibility under international law, even if the two alternatives, (a) and (b), are looked at separately. Already this and its extremely complicated, unusual and interlocked wording demand an extensive introduction and several "general remarks", helpful for the interpretation of its structure and its major aspects concerning the application of this article by national and international courts. In addition, ever since international criminal law started to develop, cases dealt with on an international level and even those handled by national jurisdictions, demonstrate that only very few crimes were committed by subordinated members of armed forces on their own initiative. More often such atrocities show some "involvement" of superiors like silent toleration or lack of sufficient supervision. This picture and, in particular, the omissions that could be observed, led to the conclusion that at least most of these crimes were predictable or recognizable for military superiors, keeping a "sharp eye" on the factual and the psychological situations of their subordinates. This is in particular true with regard to (legal or illegal) warfare resulting in war crimes. Commanders may have other concerns like protecting their subordinates, gaining military advantages or even winning the battle. But this does not relieve them from the duty to observe their subordinates before and on the spot with regard to whether they obey international humanitarian law. This law takes due care of possible conflicts of interest, for instance by including into definitions of war crimes the element "not justified by military necessity and carried out unlawfully and wantonly", article 8 para. 2 (a) (iv).

2 The majority of cases reported after the Second World War and those, up till now pending before the ICTY, the ICTR and the ICC, concern superior/subordinate relationships, in which either the communication top down or bottom up is dealing with criminal behaviour or should have been (more) concerned about such issues. This is true, both from the point of view of the prosecution as well as from the defence. The prosecution may claim that though not committed in the sense of executed by the superior, in particular a military commander has the responsibility for certain crimes of subordinates under his effective authority and control. On the other side the defence may claim, that certain crimes, though and just because they are committed not by himself, but by his subordinates, are not accountable to the commander, who

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is quite often far removed from the place of the events and, in particular, because he was de facto unable to control all forces under his authority at the same time 1 . These and similar aspects play an important role in the genesis of article 28, showing a rather curved way of development 2 , and, consequently, a highly disputed jurisprudence 3 . Both, genesis and jurisprudence have to be recalled, since they are equally needed for interpreting article 28 when to be applied on a national or the international level; because quite a few formulations of its wording still have to be clarified with regard to establish whether all elements are "strictly construed" in the sense of article 22 4 . Clarity is, in particular, requested in politically highly "explosive" cases; for instance when the chain of command reaches up to the top of military or government representatives still in power positions in their respective State. Because since their "official capacity" is irrelevant for the "criminal responsibility under this Statute", article 27, every single one of them can be held, in principle, responsible according to article 28. But in practice such persons still in power or having their supporters still in power positions, may be able to prevent an adequate criminal investigation and prosecution before national, and, sometimes, even before international or "internationalized" courts, for example when surrender to the ICTY is requested and de facto refused, as since years with regard to Karadzic and Mladic. This raises the issue of political accountability as overlapping with criminal responsibility, in particular with regard to such appearances as in Guantanamo and Abu Ghraib, of which only the criminal responsibility will be dealt with here 5 .

I. Development/Overview

Superior responsibility, "in addition to other grounds of criminal responsibility under this Statute", raises not only general questions of whether the individual is a subject under international law and, as such, shaped the concept and notion of penal guilt as a requirement for criminal responsibility under international law 6 . It also demonstrates, how early in history of international humanitarian law a responsibility "for crimes committed by others" started to develop. This new and independent modality of individual responsibility surprises, because it partly neglects and reaches beyond the traditional concept of criminal liability and personal guilt, the well accepted and acknowledged, indispensable basis of criminal law and responsibility for centuries in all major legal systems of the world.

3

4

1 See, for instance G. Werle, PRINCIPLES OF INTERNATIONAL CRIMINAL LAW 375 et seq. (2005).

2 See e.g. K. Ambos, Superior Responsibility, in: A. Cassese et. al. (eds.), THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT 824 et seq. (2002), O. Triffterer, Causality, a Separate Element of the Doctrine of Superior Responsibility as Expressed in Article 28 Rome Statute?, 15 LEIDEN J. INT'L L. 179 et seq. (2002) and for the difference between articles 27 para. 1 and 28 Rome Statute id., "Command Responsibility" – crimen sui generic or participation as "otherwise provided" in Article 28 Rome Statute?, in:

O. Lagodny et. al. (eds.), FESTSCHRIFT FÜR ALBIN ESER 901 et seq. (2005).

3 See, in particular, the controversial interpretation of customary law by the ICTY on the absence of a causal element within the doctrine of command responsibility, Prosecutor v. Delalic et al., "Celebici", Case No. IT- 96-21-T, Judgement, Trial Chamber, 16. Nov. 1998, pp. 396 et seq., infra margin No. 1159 et seq. and supra note 2, O. Triffterer, Causality 179 et seq.

4 More to these aspects O. Triffterer, Command Responsibility, article 28 Rome Statute, an Extension of Individual Criminal Responsibility for Crimes within the Jurisdiction of the Court – Compatible with article 22, nullum crimen sine lege?, in: id. (ed.), GEDÄCHTNISSCHRIFT FÜR THEO VOGLER 215 et seq. (2004) and supra note 2, id., "Command Responsibility" 901 et seq.

5 Note the difference between Bosnia-Herzegovina 2005 (Celebici), Croatia and the torture in the prison of Abu Ghraib/Iraq 2004, for which U.S. Secretary of Defence Donald H. Rumsfeld took over full responsibility, but only in a political and not in a legal sense (http://www.washingtonpost.com: Rumsfeld testifies before Senate Armed Services Committee (printout: 03.04.2006)).

6 On this aspect e.g. O. Triffterer, DOGMATISCHE UNTERSUCHUNGEN ZUR ENTWICKLUNG DES MATERIELLEN VÖLKERSTRAFRECHTS SEIT NÜRNBERG 141 et seq. (1966); H. Kelsen, PEACE THROUGH LAW 71 et seq.

(1944).

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1. Changing paradigms: superiors, established and protected authorities gradually called to criminal responsibility also for violations committed by their subordinates

5 Before the individual was accepted as a subject of international law, a comprehensive responsibility of superiors for their subordinates was well known in national military law, but also in other social institutions, called "besondere Gewaltverhältnisse" (subordination dominated by hierarchical power positions), where subordinates received a high amount of protection, but enjoyed only a limited amount of personal freedom and are obliged to strict obedience, like in some boarding schools and, in particular, in prison 7 . For a long time, an unrestricted general responsibility of superiors was accepted, based on authority granted to such superiors and on their protection against any or at least against unjustified disobedience. The American Francis Lieber Code (1863), for instance, expressed such a model of granting authority over suspects by giving military commanders the right to shoot subordinates on the spot, when not stopping to commit crimes though expressly ordered to do so 8 .

6 From this starting point it was only a small step to hold commanders responsible for not effectively informing, educating, or, if necessary, ordering their subordinates in advance to obey the laws and customs of war, or for not stopping them at least to continue when the slightest sign for the commission of such crimes became discernable. In order to contribute to the prevention of crimes by calling superiors to responsibility, it was indispensable to establish their duties by law. Accordingly, superiors should, in particular, "ensure that members of armed forces under their control are aware of their obligations under the Conventions and this Protocol", article 87 para. 2, Add. Prot. I. At that time, an almost unlimited authority was combined with their duty to report to higher ranks in the military hierarchy

"if they knew, or had information which should have enabled them to conclude, in the circumstances at the time, that he (the subordinate) was committing or was going to commit such a breach and if they did not take all feasible measures within their power to prevent or repress the breach",

article 86 para. 2, Add. Prot. I. This duty was the consequence of the generally acknowledged experience, that grave breaches could "result from a failure to act when under a (legal) duty to do so", article 86 para. 1 Add. Prot. I. Mainly these aspects developed the general principle, that the commission of certain crimes "by a subordinate does not absolve his superiors from penal or disciplinary responsibility, as the case may be", article 86 para. 2 Add. Prot. I. A long time before it was defined and acknowledged in 1977, this principle was the basis for the installation of a legal institution called Command Responsibility, though, at the beginning, it was not yet concentrating on and only partly established as a criminal responsibility 9 .

7 It was a rather parallel appearance in the general concept of criminal law, developed and accepted in major legal systems of the world and international humanitarian law, that everybody who sets a condition for the commission of a certain crime, causes the crime and should be held individually responsible, if the resulting crime appears because of this contribution, though, perhaps in combination with others, in particular for the part of the principal perpetrator, as "his

7 O. Triffterer, Zur Einschränkbarkeit der Menschenrechte und zur Anwendbarkeit von Verfahrensgrundsätzen bei freiheitsbeschränkenden Disziplinarmaßnahmen in "besonderen Gewaltverhältnissen", EUGRZ 363 et seq. (1976).

8 See IV Hague Convention 1907, Article I of the annexed rules of warfare. For an example on the national level see the 1863 Lieber Code where article 44 states "A soldier, officer, or private, in the act of committing such violence, and disobeying a superior ordering him to abstain from it, may be lawfully killed on the spot by such superior" and article 71 states, "[w]hoever intentionally inflicts additional wounds on an enemy already wholly disabled, or kills such an enemy, or who orders or encourages soldiers to do so, shall suffer death, if duly convicted, …"(brackets added).

9 Supra note 8.

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product" 10 . At the same time, the theory of participation in crimes became more and more sophisticated and developed to a system, in which everybody, who initiated, supported or otherwise contributed in the commission of a crime, could be held himself responsible for committing the crime 11 . This is up till now independent of whether his contribution was an act or an omission and of the responsibility of the principal offender or other accomplices 12 .

2. Silent toleration and failures to influence and interfere – two differently structured appearances and approaches

This variety of cooperation to commit crimes demonstrates the need to clearly define by "strictly construed" elements concerning the borderline between punishable and non punishable cooperation as well as between the principal perpetrator and participation in a specific crime as an accomplice. Such a demand is independent of the fact, whether cooperation in the commission is evaluated as an independent commission of the crime ("Einheitstäterschaft") or as a mere cooperation in the crime of other persons 13 . Independent of this theoretical basis, the differentiation by merely what behaviour should be made punishable, was in particular difficult with regard to persons, who had the duty to prevent crimes because of their authority and power over subordinates and failed to prevent such crimes committed by their subordinates. Were they principal perpetrators by merely "letting it happen", what they ought to have prevented or only when they directly supported crimes of subordinates? A general, well accepted differentiation was made possible by separating and demarcating against each other two criminological appearances: First, superiors who tolerate the commission of crimes by their subordinates in a way that could be interpreted by their subordinates as a tacit consent to the commission. Such a behaviour is supporting crimes of subordinates not expressly, however by conclusive behaviour, which obviously demonstrates the tendency not to interfere. It is participation in the crime, for instance by "twinkling eyes". This was the reason, why "toleration" of crimes committed by subordinates was the first pillar to base command responsibility upon 14 , though with another scope and notion as expressed now in article 28. To a second group belong those superiors who fail to inform, educate or control their subordinates about the law and, in particular, about legal and illegal warfare; they do not support crimes of their subordinates by an active behaviour. But by remaining passive they do not intervene and thus indirectly support what they should have prevented. A crime may well result not only from silent toleration which can correctly be understood as consensus or even psychological support. It may equally "result from a failure to act", as expressed in article 86 para. 1 Add. Prot. I. There the words "when under a duty to do so", do not question the causality of omissions. They rather limit criminal responsibility to those failures, which by violating a (legal) duty of the perpetrators to act in a specific situation let crimes come to the mind of subordinates and develop, in particular from mere planning or preparation to an attempt or a completed crime.

10 See e.g. O. Triffterer, Versuch und Rücktritt bei Beteiligung mehrerer an der Straftat, in: LANDESBERICHT

ÖSTERREICH ZUM XII. INTERNATIONALE

KONGRESS FÜR RECHTSVERGLEICHUNG, SYDNEY 1986, 2 ZfRV

105 et seq. (1986).

11 See, for instance, K. Ambos, DER ALLGEMEINE TEIL DES VÖLKERSTRAFRECHTS 543 et seq. (2002); E. van

Sliedregt, THE CRIMINAL RESPONSIBILITY OF INDIVIDUALS FOR VIOLATIONS OF INTERNATIONAL HUMANITARIAN LAW 41 et seq. (2003); O. Triffterer, Die ÖSTERREICHISCHE BETEILIGUNGSLEHRE, EINE REGELUNG ZWISCHEN EINHEITSTÄTER- UND TEILNAHMESYSTEMEN? (1983).

12 On the equivalence of acts and omissions see for instance the jurisdiction of the ad hoc Tribunals Prosecutor v. Tadic, Case No. IT-94-1-A, Judgement, Appeals Chamber, 15. Jul. 1999, pp. 104 et seq., infra margin No. 228 and supra note 3, Celebici, p. 160 infra margin No. 437, M. Elewa Badar/N. Karsten, Current Developments at the International Criminal Tribunals, 7 INTL CRIM. L. REV. 157 et seq. under chapter 3.3 Command Responsibility.

13 Supra note 11, O. Triffterer, BETEILIGUNGSLEHRE (1983).

14 See for example A. Cassese, INTERNATIONAL CRIMINAL LAW 200 et seq. (2003) and supra note 1, G. Werle, PRINCIPLES, margin No. 503 et seq.

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9

10

11

The main difference of the above grouping therefore is: Silent toleration is active behaviour for which everybody, including superiors, can be held responsible, even if he or she has no special legal duty to react in specific situations in order to prevent crimes. A failure to educate, guide and control, on the opposite, is an omission for which everybody (and, in particular, superiors) can only be held responsible when there is a pre-established legal duty to do precisely what was needed to prevent (further) harm and what by being omitted resulted in the commission of a crime.

3. Slowly towards comprehensive definitions, in particular articles 86 and 87 Additional Protocol I 1977 and 28 Rome Statute

Though articles 86 and 87 have already been briefly referred to when demonstrating under 1. above changing paradigms and the latest development before the Rome Statute, we have to keep in mind that there are earlier steps also important for shaping the concept and notion of command responsibility. They started already with article 8 of the 1864 Geneva Convention which demanded that "[t]he implementing of the present Convention shall be arranged by the Commanders-in-Chief of the belligerent armies following the instructions of their respective Governments and in accordance with the general principles set forth in this Convention" 15 . By assigning the arrangements for the implementation to "Commanders-in-Chief", the Convention obliges this group of persons to ensure, though according to pre-established guidelines of their "superior", that their subordinates know the (new) law and how to obey accordingly. The further elaboration of the codification of the ius in bello, culminated 1907 in the Hague Conventions. Of these, No. IV, requires in the annexed Rules of Warfare as the decisive criteria for the acknowledgement as "armies, but also militia and volunteer corps" to be "commanded by a person responsible for his subordinate" 16 . This rule implies that superiors could be held responsible for crimes of their subordinates. Responsible at that time indicated accountability according to national law and before its jurisdiction, thus covering disciplinary as well as criminal responsibility under national military law. The most effective political impetus for the development of superior responsibility came shortly thereafter from the Investigating Committee installed by the International Carnegie Foundation for Peace 1913. The Committee was assigned the task, "to inquire into the causes and conduct" of the Balkan Wars 1912/1913, and the atrocities committed during these wars. The Committee reported in detail and presented, not as an obiter dictum, but as one of its major findings, that it would have needed only one word of those in power, and all belligerent struggles as well as the atrocities committed along with them would have stopped immediately. This finding was confirmed by the Report of the Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties presented to the Preliminary Peace Conference, March 29, 1919 17 .

Partly as a result of these two well based and balanced statements, the Versailles Peace Treaty after the First World War provided in articles 227 and 228 that the German Emperor should be held responsible for "a supreme offence against international morality and the sanctity of treaties". Though charged personally for his ordering to commit certain crime, the accusation also included responsibility for all other crimes committed by his subordinates. It, therefore, was a fallback to international criminal law that the Emperor could not be brought to trial because

15 Convention for the Amelioration of the Condition of the Wounded in Armies in the Field. Geneva, article 8, 22 August 1864.

16 See supra note 8, the IV Hague Convention 1907.

17 See Carnegie Endowment for International Peace, REPORT OF THE INTERNATIONAL COMMISSION, TO

INQUIRE INTO THE CAUSES AND CONDUCT OF THE BALKAN WARS (1914) and see also the Commission on the

Responsibility of the Authors of the War and on Enforcement of Penalties, Report presented to the Preliminary Peace Conference, 29. Mar. 1919, reprinted in 14 AM. J. INTL L. 1920, 95 et seq. (further on 1919 Commission Report, p. 117).

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the Netherlands refused to extradite him. In addition, the (new) German government finally convinced the Allied not to prosecute about 800 German suspects, which Germany was obliged to extradite, but to accept for all these cases the competence of the Reichsgericht in Leipzig 18 . There, however, under the aspect of international criminal law and the interest of justice the cases were not handled to the credit of post-war German jurisdiction. Command responsibility, in whatever broad concept and notion, though in theory started to reach persons on the top of the hierarchy, was thus not yet put into practice after the First World War 19 . The time between the two World Wars did not show any significant new development for command responsibility on the international level. Merely the 1929 Geneva Convention provided that: "[t]he Commanders-in-Chief of belligerent armies shall arrange the details for carrying out the preceding articles…" 20 . It thus continued the line of the above mentioned 1864 Convention by increasing the specification of the duties of commanders though not yet in a manner sufficiently "strictly construed" in the sense of article 22 para. 2 to base criminal responsibility on. But parallel, though highly disputed in its concept and notion, indirect individual responsibility of superiors was slowly accepted and more and more extended by national penal systems, thus preparing the possibility to also hold superiors responsible for crimes of their subordinates under international criminal law 21 . According to this background, not well balanced theoretical considerations nor political compromises for drafting regulations led to a break through after the Second World War. Decisive were criminological appearances during and after this war, which made it necessary to handle with more care the different modalities of individual criminal responsibility, to avoid impunity of those persons, who by their own abuse of power and through their subordinates were responsible for all "core crimes", committed again and again all over the world without being sufficiently investigated and prosecuted. However, though proving the need to call superiors independent of the traditional scope of participation with an additional inherent new theoretical institution to criminal responsibility, no agreement could be achieved about how to "strictly construe" such responsibility, in order to avoid criticism raised against cases like Yamashita and High Command 22 . Consequently, a definition or even hints in one or the other direction on the basic structures of command responsibility are missing in the Nuremberg Statute as well as in the Nuremberg Principles 1948, in the Genocide Convention 1948 and in the four Geneva Convention 1949. Though all confirm individual criminal responsibility directly under international law, and partly expressly even acknowledge criminal responsibility of all persons independent of their different official positions 23 , no special modality for commanders concerning crimes committed by their subordinates could be agreed upon. Consequently the Special Rapporteur of the ILC on a Draft Code devoted considerable effort on summarizing the status quo in the national legislation and the jurisprudence at that time. He, in particular, pointed out, like in a puzzle or a mosaic with uneven pieces, what aspects and issues had to be taken into consideration for establishing a generally accepted definition of

12

13

18 G. Hankel, DIE LEIPZIGER PROZESSE, DEUTSCHE KRIEGSVERBRECHEN UND IHRE STRAFRECHLICHE VERFOLGUNG NACH DEM ERSTEN WELTKRIEG (2003) und H. Wiggenhorn, VERLIERERJUSTIZ, DIE LEIPZIGER KRIEGSVERBRECHERPOZESSE NACH DEM ERSTEN WELTKRIEG (2005).

19 See, in particular, supra note 17, Commission Report 1919, p. 117 and critical thereto the Memorandum of the U.S. Delegation, ibid. 127 (135 et seq., 143 et seq.).

20 Supra note 15, article 26.

21 YB ILC 1950, Vol. II, Draft Code of Offences Against the Peace and Security of Mankind – Report by J. Spiropoulos, Special Rapporteur 268 et seq., (A/CN.4/25), and the C. Pillaud et al. (eds.), COMMENTARY ON

THE ADDITIONAL PROTOCOLS OF 8 JUNE 1977 TO THE GENEVA CONVENTION OF 12 AUGUST 1949 and 1977

Report ILC; See also below II 1.

22 See for a compulsive survey on the different regulations and jurisprudence emphasizing more or less aspects to base command responsibility on, supra note 21 Y.B. ILC 1950, 269, para. 97 and 1977 Report ILC

23 See Nuremberg Trial Proceedings, Charter of the International Military Tribunal, article 7.

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command responsibility. In this context he emphasized in detail the historical importance of the responsibility of superiors for omissions resulting in crimes committed by their subordinates till 1950, a clear theoretical structure and the political need for such a possibility, to hold superiors responsible under international law, dealing with available alternatives and drafting definitions. His proposals, though with regard to the elements mentioned similar to the elements contained in article 28, deviated mainly in so far as he did not separate between a failure to control and supervise subordinates and the failure to interfere in an already ongoing process 24 . However, even independent of this aspect, the ILC could not achieve a consensus on what elements in which definition should be the indispensable requirement to justify and apply responsibility of superiors for crimes of their subordinates. Consequently, the same lacuna characterizes not only the 1951 Draft Code but also the 1951 Draft Statute as well as the 1953/1954 Drafts 25 .

14 It were those divergent opinions which led quite a few legal scholars like Hans Kelsen and Hans-Heinrich Jescheck to deal with this issue on a scientific basis, more in order to establish its theoretical basis than to decide in detail its requirements for a broadly accepted definition 26 . Their qualified analysis led, for example, and in accordance with the statements of the 1919 War Crimes Commission, to the unavoidable conclusion that the Act-of-State-doctrine did no longer prevent responsibility of persons in official positions, acting on behalf of the State, at least in so far, as they committed grave violations of the "laws and customs of war and the laws of humanity" 27 which were established as crimes under international law. This general acknowledgement of a rather comprehensive limitation of the Act-of-State- doctrine was the breakthrough for establishing the criminal responsibility of military and civilian superiors failing to arrange the implementation and obedience to these laws, and, thus violating their already in 1864, 1907 and 1929 established duty to prevent by all means, in particular by information and supervision, that their subordinates violate such regulations by committing such crimes. Both authors, like some others, opened the way for a more scientific and theoretically structured approach. This may well be the reason, why in the 1954 Draft Code and Draft Statute also not yet a relevant provision was included. In addition, unfortunately, the endeavours to codify international criminal law within the United Nations, came to a preliminary stop at the beginning of the Cold War; this delay was officially scheduled till there was an agreement on the definition of aggression in 1974 28 .

15 However, before this aim was, at least partly, achieved the international community formally acknowledged in the 1968 Convention on non-statutory limitations of war crimes and crimes against humanity, the criminal responsibility of "representatives of the State authority … who, as principals or accomplices, participate in or who directly incite others to the commission of" war crimes and crimes against humanity. Besides these traditional modalities, a responsibility for "representatives of the State authority was established …. who merely tolerate" the commission of war crimes and crimes against humanity, thereby accepting responsibility not only for conclusive behaviour (= acts) but also for omissions 29 .

24 Supra note 21, YB ILC 1950, 268 et seq.

25 Report ILC, but the Rapporteur had – 1950 already at that time, devoted a broad section of his report to this new institution, supra note 21, Y.B. ILC 1950, 268 et seq.

26 See e.g. O. Triffterer, Hans Kelsens Bedeutung für die Entwicklung des Völkerstrafrechts und einer Völkerstrafgerichtsbarkeit, in: R. Walter et al. (eds.), HANS KELSEN UND DAS VÖLKERRECHT 139 et seq

(2004).

27 Peace treaty of Versailles, 28. Jun. 1919 (http://www.lib.byu.edu/~rdh/wwi/versailles.htm.).

28 See UN Res. 29 th Sess., Supp. No. 19, A/3314 (1974).

29 See article II of the 1968 Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity of 26. Nov. 1968:

"If any of the crimes mentioned in article I is committed, the provisions of this Convention shall apply to representatives of the State authority and private individuals who, as principals or accomplices, participate in or who directly incite others to the commission of any of those crimes, or who conspire to commit them,

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When finally a definition of aggression was agreed upon by consensus of the G.A. in 1974, the time appeared favourable to work again on establishing command responsibility as an inherent, well accepted legal modality of accountability, which should "contribute to the prevention of such crimes", Preamble paragraph 5. It should extend individual criminal responsibility by holding those accountable, who failed to fulfil their duty to prevent subordinates from committing war crimes and those crimes, which since Nuremberg are more and more punishable directly under international law 30 . This tendency was supported by the ICRC, which, always acting as an independent

16

organization, was from its beginning strongly concerned to codify the ius in bello. It, therefore, started after 1974 again where it stopped or failed 1949, and afterwards all endeavours within the UN, with only the above under (b) mentioned small exception in 1968, which emphasized in the discussion the additional modality of responsibility for (silent) toleration. Thus, a practical implementation of superior responsibility, its permanent consideration and partly application of one and/or the other aspect of this new modality in quite a few international and national criminal proceedings after the Second World War, shaped the discussion. All aspects together turned the issue favourable towards the creation of a sophisticated modality of responsibility for staying passive, letting an event occur or continue and, thus, causing and/or by not interfering at least objectively otherwise supporting crimes, committed by other persons, in this case their subordinates. The background in its complexity was demanding a comprehensive regulation in the interest of the rule of law, and, thus, favourable for drafting articles 86 and 87 Add. Prot. I. This Article 86 para. 1 creates the basis for anchoring a general responsibility of everybody

17

for breaches, "which result from the failure to act when under a duty to do so". It, thus, in addition presupposes causality by passive behaviour and a legal pre-established duty, not to stay passive in a certain situation, but to become active in order to prevent harm. Of course, paragraph 1 presupposes also that harm can be caused by active behaviour, though this alternative is not expressly mentioned. This is the first express international, general acknowledgement of criminal responsibility for omissions, a modality of human behaviour, which, in particular after the Second World War, was generally discussed and more and more "strictly construed", also on the national level and finally accepted in its present notion in almost all major legal systems of the world 31 . It is based on the realisation that harm to legally protected values may be caused by and thus "result" equally from acts and omissions, the punishability of the latter however appearing justified and necessary only when the perpetrator by the omission violated a pre-established legal duty to react in a way which would have prevented the result: the omission, thus, by not preventing it, is one of the conditions for and thus causes the harm. Paragraph 2 of article 86 Add. Prot. I specifies for a qualified group (superiors) in their

18

relation to their subordinates, a particular failure to act. It clarifies that a commission of a crime by a subordinate "does not absolve his superiors from penal and disciplinary responsibility, … if they knew or had information which should have enabled them to conclude … that he (the

subordinate) was committing or was going to commit such a breach

accountability should be triggered only, if the superiors "did not take all feasible measures within their power to prevent or repress the breach". Article 86 para. 2 Add. Prot. I thus establishes responsibility of superiors under certain conditions, for failures to prevent or to

However this

".

irrespective of the degree of completion, and to representatives of the State authority who tolerate their commission". See also below III.

30 This modality is not a crimen sui generis but extending expressly and in a way "strictly construed" the modalities for participation amending those mentioned in article 25. See for details supra note 2, O. Triffterer, "Command Responsibility" 901 et seq.

31 A. Kaufmann, DIE DOGMATIK DER UNTERLASSUNGDELIKTE 23 et seq (2nd. Ed. 1988) and the 6th International Congress on Penal Law, Conference proceedings, AIDP, Rome (1953).

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repress breaches of the Conventions and Add. Prot. I. In this paragraph 2 not the duty of superiors to interfere in order to prevent or repress is based, but merely the criminal responsibility as a consequence of the violation of an otherwise pre-established legal duty to do exactly what is necessary to hinder or suppress in this specific situation. Therefore, it was necessary to define and clarify in article 87 Add. Prot. I the "duty of commanders", defined in all paragraphs, partly as an enumerative list, partly as alternatives. While paragraph 1 obliges the Parties to "require military commanders, … to prevent and, where necessary, to suppress and to report …", paragraph 2 clarifies that "[i]n order to prevent and suppress breaches", superiors shall "ensure that members of the armed forces under their command are aware of their obligations under the Conventions and this Protocol". This means, that they have to guaranty by all necessary measures such an awareness, in particular by information, education and also by supervision and control. Paragraph 3 defines, in addition, obligations of a superior in cases where he "is aware that subordinates or other persons under his control are going to commit or have committed a breach". He then is obliged "to initiate such steps as are necessary to prevent such violations of the Conventions or this Protocol, and, where appropriate, to initiate disciplinary or penal action against violators thereof".

19 None of these regulations gives a clear indication how to interpret prevention, suppression and repression respectively the adjectives of this three subjective words. As I have considered in detail on another occasion, they describe a progressing situation, starting with proper control in order to avoid that anything like criminal activities comes to the mind of subordinates and ending with direct or indirect interferences in action, to avoid an attempt or the completion of an attempt 32 . At the same time, there is no indication in articles 86 and 87 Add. Prot. I with regard to the issue, whether a none interference described in articles 86 para. 2 and 87 para. 3 Add. Prot. I triggers superiors responsibility by itself or whether the failure to properly educate, control or supervise is merely one condition, but triggers criminal responsibility only in cases, where, in addition, the commander is aware of the results of his failure or he should and could have known them and nevertheless does not interfere in the necessary modality. The latest international regulation is contained in article 28, but it deviates, at least by the wording, from articles 7 para. 3 Yugoslavian and 6 para. 3 Rwanda Statute. This difference surprises, because all three regulations take over, mainly verbally, formulations contained in articles 86 and 87 Add. Prot. I, though without giving any explanation in the preparatory work. With regard to article 28 Rome Statute this "copying" of articles 86 and 87 Add. Prot. I is the most comprehensive, since two different behaviours are defined in detail:

failing to properly control and failing to interfere. The relationship between the two relevant regulations for the ad hoc Tribunals and article 28 Rome Statute needs to be clarified. At present, after the Rome Statute entered into force 1 July 2002, a double competence is still possible, since no time limit is provided in article 1 ICTY Statute. However, the Security Council "endorsed the ICTY´s strategy for completing investigations by the end of 2004, all trial activities at first instance by the end of 2008, and all of its work in 2010, by concentrating on the prosecution and trial of the most senior leaders suspected of being most responsible for crimes within the ICTY´s jurisdiction and transferring cases involving those who may not bear this level of responsibility to competent national jurisdictions, as appropriate, as well as the strengthening of the capacity of such jurisdictions" 33 .

20 Summarizing, articles 86 and 87 Add. Prot. I could be interpreted that only if a commander fails to make his "subordinates or other persons under his control" sufficiently aware of their

32 See for details supra note 4, O. Triffterer, Command Responsibility, Article 28 Rome Statute 213 et seq.

(2004).

33 See for more details S/RES/1503 (2003).

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obligations so that, as a "result" from this dereliction of duties, they "are going to commit or have committed a breach of the Conventions or of this Protocol", the superior can be held responsible. Consequently, the Parties "shall require any commander who is aware" of such appearances, because he "knew" or had reasons to know, to initiate the necessary steps "to prevent such violations … and, where appropriate, to initiate … action against the violators" 34 . In practice these elements of command responsibility for a "failure to act" are based on the laws and customs of war and have shaped since then all further definitions up to the Consolidated Draft, which was presented at the Rome Conference as a basis for the discussion "with a view to finalizing and adopting a convention on the establishment of an International Criminal Court" 35 . The Diplomatic Conference of Plenipotentiaries met five weeks in Rome, in June and July 1998 36 . Its important, relevant result was to have combined "the failure to act" (to control) in the sense of article 86 para. 1 Add. Prot. I and the several "duties of commanders", as defined in article 87 Add. Prot. I, to serve as a "strictly construed" definition of criminal responsibility, which clearly expresses the triggering basis upon and the framework within which prosecution of superior responsibility is admissible before the ICC 37 . Only the combination of a (first) failure to control, resulting in criminal activities of subordinates with a (second) failure of the superior, to take the necessary measures, averts strict liability for not preventing what occurs, but could have already been avoided by a correct fulfillment of the first obligation of commanders, namely, to take responsibility for their subordinates by, in particular, informing, educating, supervising and controlling them as much as necessary, in order to ensure that they act in conformity with the laws and customs of wars and the laws of humanity. It were the highly disputed precedents after the Second World War which raised the need, to avoid further criticism by lifting the threshold of responsibility in the interest of justice by establishing more and precisely detailed requirements in the interest of the rule of law. To meet the demands of article 22 in the sense of "strictly construed" definitions, was not only necessary for the crimes as such, but also for all modalities listed in articles 25 para. 3 or 28, to hold superiors individually responsible for crimes under international law, committed by their subordinates. Therefore, it is not surprising, that the structure of article 28 is far more complicated and interwoven than those of earlier comparable regulations like article 7 para 3 ICTY Statute, drafted five years before. These different formulations demonstrate also the difficulties of the major legal systems of the world, to define superior responsibility in accordance with their usual

21

22

34 Article 87 para. 2 Add. Prot. I

35 Final Act para. 1.

36 Already in 1981 the Implementation of the Draft Convention of Apartheid provided for the responsibility of a "person in authority in a State, group or organization, if he knew or could have reasonably foresee the commission of such crime and remain a member thereof". See E/CN.4/1426 (1981), articles 21 para. 5 and 20 paras. 10 and 11. Command responsibility subsequently made it into the Draft Code of Crimes then discussed within the ILC. The 1988 ILC Report relies on the Add. Prot. I and extends its scope to (all) crimes against the peace and security of mankind (see 1988 ILC Report, article 10); The regulation was then included as article 12 in the 1991 ILC Draft Code and remained with minor changes as article 6 in the 1996 ILC Draft Code. 1996 the Preparatory Committee II in its article C already contained a provision that included all relevant parts of article 28. As alternatives though the separation of military and other superiors was not yet formally established. This regulation including its brackets remained unchanged up till the Consolidated Draft. A more detailed discussion and a decision only took place during the Rome Conference. See also 1996 Preparatory Committee I, paras. 202 and 203, Preparatory Committee Decisions Feb. 1997 article C, Zutphen Draft article 19 (C) and Consolidated Draft article 25.

37 The Statutes of the ICTY and the ICTR have already combined these two aspects, but there the regulation does not apply to the standards of "strictly construed".

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theoretical structures for definitions of crimes and in a way satisfying the needs of the principle nullum crimen sine lege 38 .

23 This legal situation raises the question, whether article 28 defines with regard to superior responsibility in the same binding way as all other definitions of crimes and modalities of individual criminal responsibility in the Rome Statute, the minimum requirements of what is the existing law, or whether articles 7 para. 3 ICTY and 6 para. 3 ICTR-Statute, describe the laws and customs of war "beyond any doubt", but differently.

24 Before I can deal with this question in more detail (below II. 3.), can a legal situation with separate, differently phrased regulations, be characterised as a case of ambiguity? Is the ambiguity rule applicable though the regulations to be compared are not only different from each other and are not defined in one, but in two separate contexts, which, in addition, belong to different codes, though both deal with the same substantive law issue concerning crimes under international law committed in a certain modality? In case this principle is applicable, does not the notion of article 28 deserve priority, not only as lex posterior, but because its application requires prove of more elements and, thus, is more favourable to the suspect? Can the question of ambiguity be answered by interpreting article 7 para. 3 ICTY Statute in the sense, that the mere fact that crimes were committed by subordinates in a context where such persons are under the authority and influence of their superiors, implies a failure of the superior to control properly? This conclusion does not have to be drawn expressly or precisely proven, but can be assumed by circumstantial evidence. It, therefore, can be denied by the defence by presenting relevant evidence. If the ambiguity rule implies also with regard to different regulations and even in cases, when those regulations are contained in different statutes, article 28 prevails; because it is more favourable for suspects, demanding two failures, a lack of control and a lack of interference, while the ad hoc Statutes, at least according to the wording, require only a failure to interfere.

II. Practical Importance

25 The fact that in the history of international humanitarian and criminal law so much attention and energy concentrated rather early on command and superior responsibility is due to the observations that its practical importance for ensuring respect and obedience to humanitarian law and, thereby, its contribution to the prevention of crimes under international law, was obvious right from the beginning. It, therefore, does not surprise, that already in the fifteenth century a definition of command responsibility was issued which L. C. Green described as "almost foreshadowing" Add. Prot. I 1977. The relevant Ordinance of Charles VII of Orleans provides that:

"Each Captain or Lieutenant be held responsible for the abuses, ills and offences committed by members of his company and that as soon as he receives any complaint concerning any such misdeed or abuse, he

If he fails to do so or covers up the misdeed or delays taking action, or if,

because of his negligence or otherwise, the offender escapes and thus evades punishment, the Captain shall be deemed responsible for the offence as if he had committed it himself and be punished in the same way as the offender would have been" 39 .

bring the offender to justice

This definition contains mainly objective requirements but at least mentions also on the mental side negligence as one cause for letting the subordinates escape and, thus "supporting" the perpetrator after the crime has been committed.

38 O. Triffterer, Command Responsibility – Grundstrukturen und Anwendungsbereiche von Art. 28 des Rom Statutes, Eignung auch zur Bekämpfung des internationalen Terrorismus?, in: C. Prittwitz et. al. (eds.), FESTSCHRIFT FÜR KLAUS LÜDERSSEN 437 et seq. (2002). See also the new German "Völkerstrafgesetzbuch", 30.06.2002, which uses there different matters of fact to catch all alternatives contained in article 28.

39 Emphasis added; quoted from L. C. Green, War Crimes, Crimes against Humanity, and Command Responsibility, 1 NAVAL WAR COL. REV. 26 et seq. (1997) with further references in footnote 2 there.

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Ever since then, even though this definition does not mention expressly failures to control, supervise or to prevent, but only refers to "bring the offender to justice", commanders, because of their hierarchically established position appeared with regard to subordinates as the multiplying factor. Such an influence could be either in favor or against committing grave and other breaches of the laws and customs of war, depending on the visible attitude of the superior towards such violations. At the same time, their criminal responsibility appeared as a deterrent effect, not only with regard to their own future behaviour and to other superiors, but also for subordinates; because when realizing that their superiors are called to criminal responsibility, they could not expect or rely on going unpunished for their own commission of or contribution to such crimes. On the opposite, impunity of superiors may promote violations of humanitarian law by subordinates; because when such a lack of legal reactions on serious failures of superiors can be observed, subordinates may expect and count on equally not to be held responsible. It was this diversity of de facto and mental dependency and the practically unlimited power and influence of superiors over "forces", as experienced, in particular, during the already above mentioned Balkan Wars 1912/1913, which had demonstrated that silent toleration or failures of superiors to educate, prohibit, interfere or to stop criminal activities were decisive factors, resulting in or otherwise supporting violations of international humanitarian law. Nevertheless, their responsibility was, despite of the above mentioned excellent historical example, at the beginning not yet shaped in a way, required by principles like nullum crimen, nulla poena sine lege. But as criminal sanctions appeared more and more indispensable as ultima ratio, also for international criminal law, such basic pillars to install criminal responsibility were needed more precisely defined and, therefore stronger founded according to the rule of law. The experience, that crimes under international law were mainly committed because of conclusive (= active) behaviour of superiors, for instance, "silent toleration" 40 , or, at least, by omitting to supervise properly or to stop the subordinates, was ever since it has been articulated at the beginning of the last century in the context with the Peace Treaty of Versailles, discussed in connection with the protection of international peace and security of mankind. The debacle of international criminal justice after the First World War and in between the two World Wars, therefore, led to increased endeavours to call those to criminal responsibility, who beyond traditional pattern of participation merely by their position appeared equally responsible for unlawful harm. The experience had demonstrated that superiors by an indifferent attitude may cause crimes by simply letting them appear through the hands of others. Thus, by abusing their political, military and/or de facto power, they violated basic rules of the international community as a whole in a way, as if they had themselves committed such crimes. The need to call superiors to responsibility for such passive behaviour had already been promoted and accepted in the 15th century, as mentioned above. It, therefore, surprises that not more of this definition had been acknowledged before it partly appeared 1977 in Add. Prot. I. In particular, its concept and notion "as if he had committed it himself", has since than nowhere else been expressed in any other definition, not even in a comparable way.

1. Nuremberg, Tokyo and "follow up proceedings" (Nachfolgeprozesse)

The Nazi Regime demonstrated worldwide by the dimension of its crimes, committed to establish and maintain its domination in one way or the other, how much the abuse of political, military and administrative power of superiors up to top State levels could violate legally protected values and, in addition, endanger peace and the world legal order 41 . This experience made it rather easy to unite the world opinion for the prosecution of superiors as major war

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40 See also above I. 2.

41 See for instance O. Triffterer, Preliminary Remarks, margin No. 20 et seq.

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criminals in Nuremberg and Tokyo. Responsibility of commanders and other superiors, therefore, predominated in all criminal proceedings after the Second World War. Though command responsibility was not expressly mentioned in either of the Statutes, it was acknowledged that official positions of perpetrators should be irrelevant and that the fact, the crime had been committed by subordinates, should not free their superiors from criminal responsibility and liability to punishment. The Tribunals prosecuted however commanders on the basis of article 1 Hague Convention IV 1907, which (merely) provides that armed forces must "be commanded by a person responsible for his subordinates" 42 . There was no definition comparable to the one issued 1439 to which I just have referred to. Convictions in Nuremberg and Tokyo did not need such a reference. They were anyhow rather easy to achieve; because commanders there were mainly charged with active participation in one of the traditional modalities, quite often for ordering or otherwise "aiding and abetting" the execution of violations of international humanitarian law by their subordinates 43 .

30 Only a few cases dealt with responsibility for omissions; and of those none strictly separated between failures of superiors to control their subordinates properly, resulting in the commission of one of the core crimes, and failures to take the necessary measures to prevent what was already on its way to violate legally protected values. But there were careful tendencies towards requiring such a failure as the starting point and also towards a mental element 44 . This at that time still rather unspecified notion of command or superior responsibility demanded, for instance, a failure to take steps "as were within their power to prevent the commission of such crimes", if the superior, in addition, "had knowledge that such crimes were being committed" or, as an alternative to knowledge, the "fault in having failed to acquire knowledge" 45 .

31 While the Nuremberg-Trial against civilians like Krupp did not call on superior responsibility, the IMTFE addressed military and civilian superiors 46 . Subsequent trials conducted by the "Besatzungsgerichte" in Germany and by the US Military Commission of the Far East, though mainly concerned about the responsibility of military commanders, confirmed this tendency to differentiate between military and civilian superiors. In addition, they emphasized, almost equally for both, two slightly different basic pillars:

First, a failure to control subordinates properly. This could be required, because it was generally accepted that those commanders were responsible under international and disciplinary military law and had the duty to control their "forces" properly. But the final step towards the present notion of superior responsibility was not yet done 47 . The failure of a commander to control properly was not established on a subjective, a mental, but on an objective basis, proven by "the extensive and widespread atrocities specified" 48 . The Tribunal took, for instance, as prima facie evidence, that, by the mere appearance of such crimes, frequently in different areas and widespread, it was proven that the commander must have omitted to fulfill his duties. Thus, it was assumed that such an omission had, most probably, caused the crimes of the subordinates.

42 See supra note 8, the IV Hague Convention 1907, Article I of the annexed rules of warfare and see also ICRC, COMMENTARY ON THE ADD. PROT. I, para 3531.

43 See supra note 39 on General Tomoyuki Yamashita, L. C. Green, War Crimes; supra note 21, Report by J. Spiropoulous, Special Rapporteur with Reference to Trial of War Criminals IX margin No. 71 et seq. and 1950 YB ILC Vol. II, see also below supra note 44

44 Yamashita, UNWCC, XXI LAW REPORTS OF TRIALS OF WAR CRIMINALS, Part I, (viii), p. 12 (1948).

45 Quoted from supra note 21, Report of Special Rapporteur J. Spiropoulous, margin No. 98.

46 W. J. Fenrick in the First Edition of this Commentary, article 28, margin No. 3 (1999). See also B. Röling/C.F. Ruter, THE TOKYO JUDGMENT 446 et seq. (1977); The Government Commissioner of the General Tribunal for the French Zone of Occupation in Germany v. Directions of the Roechling Enterprises, XIV

LAW REPORTS OF TRIALS OF WAR CRIMINALS 1116 (1949).

47 Yamashita would have needed further reasoning to avoid the criticism of vicarious criminal responsibility , see for further information R. Herde, COMMAND RESPONSIBILITY 325 et seq. (2001) and E. Levine, Command Responsibility, The Mens Rea Requirement, GLOBAL POLICY FORUM 3 et seq. (2005).

48 Supra note 44, Yamashita, Part IV, (v), p. 43.

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For the defence, denying such a causal connection, the burden of proof thus was shifted to the accused 49 . There was however, already at that time, a slowly but more precisely developing second element, concerning the mens rea. It established responsibility for not reacting properly though there was information to conclude that something should happen to avoid or to prevent the commission of crimes by subordinates. It was called "negligent" behaviour and as such had to be confirmed by the evidence presented at trial 50 . Already this argumentation shows that responsibility exclusively based on "strict liability" was rejected 51 . This requirement, through which the Tribunal refused "strict liability", demands an element of personal guilt on the side of the commander. He could only be held responsible if he knew or should have known about the commission of crimes by his subordinates and, nevertheless, did not interfere with the criminal appearances of a certain behaviour of his subordinates which was on the way to be realized or already producing criminal harm 52 . It this context, up and on a few additional arguments were presented in order to more and more shape superior responsibility as a separate and independent modality of individual criminal responsibility: In the case of Yamashita, for instance, the perpetrator had neither committed nor directed acts that were subject of the judgment. The US Supreme Court based its decision on the sentence: "[t]he gist of the charge was that he had committed an unlawful breach of his duty as an army commander to control the operations of the members of his command by 'permitting them to commit' the extensive and widespread atrocities specified" 53 . Describing the relevant behaviour as "permitting", the Supreme Court presupposes a causal link between the passivity of Yamashita and the crimes committed by his subordinates, though, this conclusion was not expressly mentioned anywhere. However, such an interpretation may well be the reason, why the defence argued that Yamashita did not commit a specific violation of a particular duty nor any specific act or omission which could be interpreted as "permitting" the crimes of the troops 54 . The defence, thus, denied any conclusive and express behaviour and thereby not only a causal link, but also any mental attitude of Yamashita with regard to the crimes committed by his subordinates. The mental side was, however, emphasized by the prosecution, who blamed Yamashita "that he did not make an adequate effort to find out. It was his duty to know what was being done by his troops under his orders" 55 . It was this substitution of knowledge or awareness by the failure to access or collect information to conclude that crimes were committed, which according to the prosecution should be sufficient for personal guilt. But again, the US Supreme Court refers to a causal connection when it argues "for his failure to take such measures when violations result" 56 and thus using once more an objective standard.

32

33

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49 Trial of S.S. Brigadeführer Kurt Meyer (The Abbaye Ardenne Case), UNWCC, XXII LAW REPORTS OF TRIALS OF WAR CRIMINALS, Part IV, see under headline 9. Summing up of the Judge advocate, p. 108

(1948).

50 In this regard the judge advocate in the Belsen Trial, pointed out that it did not matter "whether he [Kramer] acted wilfully or merely with culpable neglect: the question was whether the Prosecution had proved that Kramer did not carry out his duties as far as he was able to do so and that he had caused at any rate physical suffering …" See Trial of Josef Kramer and 44 others (The Belsen trial), UNWCC, X LAW REPORTS OF TRIALS OF WAR CRIMINALS, Vol. II, Part XI, see under headline K. The summing up of the Judge advocate, p. 120 (1947).

51 See for instance M. Elewa Badar, Mens rea – Mistake of Law & Mistake of Fact in German Criminal Law: A Survey for International Criminal Tribunals, 5 INT'L CRIM. L. REV. 213 et seq. (2005) and R. Clark, The Mental Element in International Criminal Law, 12 CRIM. L. REV. 301 et seq (2001) on the issue of strict liability compared with dolus eventualis.

52 See for instance supra note 51, R. Clark, The Mental Element 205 et seq.

53 See supra note 44, Yamashita, Part IV, (v), p. 43.

54 Supra note 44, Yamashita, Part III, under the headline 12. The Verdict and Sentence, pp. 34 et seq.

55 Supra note 44, Yamashita, Part III, under the headline: 11. The closing address for the Prosecution, p. 30.

56 Supra note 44, Yamashita, Part IV, pp. 43 and 86 et seq.

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35 Also in the Abbaye Ardenne Case (= Kurt Meyer) the shifting of the burden of proof was confirmed. The prosecution had already charged the evidence that "the accused ordered the commission of war crimes, or verbally or tacitly acquiesced in its commission, or knowingly failed to prevent its commission" 57 . In addition, the court emphasized the intentional failure to control properly. It mentions "willfully failed in his duty" and thus practically gives a hint with regard to the first alternative of article 28 Rome Statute, which implies an intentional failure to control; because according to article 30 non-intentional behaviour is only sufficient when mentioned expressly, as later on in article 28 in the context with the failure to take the necessary measures by the wording "knew or should have known" 58 .

36 The "Hostages Case" equally refers to such an alternative by requiring that the commander "knew or ought to have known about" the criminal behaviour of his subordinates. The Tribunal further emphasized that commanders must in such a situation "be held responsible for the acts of his subordinatecommanders in carrying out his orders" 59 . The German High Command Tribunal refuses also expressly strict liability by finding that criminal responsibility can "not automatically attach to him for all acts of his subordinates. There must be an unlawful act on his part or a failure to supervise his subordinates constituting criminal negligence on his part". The Tribunal, thus, diminishes the threshold of intent and knowledge, by demanding merely that the mental side must be "amounting to a wanton, immoral disregard of the action of his subordinates amounting to acquiescence" 60 .

37 At the Trial of Takashi Sakai, the Tribunal thought "it was inconceivable that he [the commander] should not have been aware of the acts of atrocity committed by his subordinates …" 61 . This argument, however, is not convincing. It comes close to charging the accused with "strict liability"; because it assumes the mental element without proving it. What is conceivable for the judges may nevertheless not have come to the mind of the accused. The Court could and should have argued, for instance, that it has not been convinced by the argument of the defence that the superior has not been aware of what the subordinates committed; because such a neglecting of obvious evidence appears inconceivable and, therefore, the Court believes, that the accused has in fact been aware 62 . In the later trial of Kurt Student this argumentation was expressed by the statement that "the repeated occurrence of offences by troops under one command [is] … prima facie evidence of responsibility of the commander for those offences". But this wording still does not point out clearly enough the differentiation between what everybody would and should have known and why the Court does believe that the defendant has had the same awareness as everybody would have had in the same situation, even though the perpetrator denies any such awareness 63 .

38 Looking at this small survey on post war decisions presented here, the diversity in describing elements required for an inherent responsibility of commanders surprises 64 . In addition, though many aspects expressed in the regulation of 1439 except "as if he had committed it himself" – show up in the later discussion, no element of command responsibility was finally sufficiently clear formulated and, consequently, no "strictly construed" definitions became available. It

57 See supra note 49, The Abbaye Ardenne Case.

58 See supra note 49, The Abbaye Ardenne Case.

59 Trial of Wilhelm List et. al

(Hostages Trial) UNWCC, VII LAW REPORTS OF TRIALS OF WAR CRIMINALS,

Part VI, under the headline 2. The extent of the Responsibility of commanding Generals, p. 89 (1949).

60 Supra note 21, Report of Special Rapporteur J. Spiropoulous, margin No. 97 and Trial of Wilhelm von Leeb et al. (The German High Command Trial),UNWCC, XII LAW REPORTS OF TRIALS OF WAR CRIMINALS, pp. 76 et seq.(1948).

61 Trial of Takashi Sakai (Nanking), UNWCC, LAW REPORTS OF TRIALS OF WAR CRIMINALS, under the headline 4. The accused's guilt as to War Crimes and Crimes against Humanity, p. 7 (1948).

62 O. Triffterer, ÖSTERREICHISCHES STRAFRECHT ALLGEMEINER TEIL, 94 et seq. (2nd ed.1994).

63 Supra note 44, Yamashita, Part VI, (v), p. 85 (brackets added).

64 See also T. Weigend, Bemerkungen zur Vorgesetztenverantwortlichkeit im Völkerstrafrecht, 4 ZSTW 1001

(2004).

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obviously needed more theoretical work and practical experience to come to a satisfying agreement.

2. Continuing to focus primarily on commanders increased the acknowledgement of an inherent superior responsibility, but did not crystallise elements "strictly construed"

The relevant comprehensive jurisprudence in the context with the crimes committed during the Second World War reminds us on a puzzle with tiny little mosaic pieces: when you see them isolated, you know they ought to be filled into "the picture" of requirements for superior responsibility, though together with others not yet known. It, therefore, is not so easy to deposit them in the right place; because they are not only shaped very individually, but are also of different size, colour and importance for a "strictly construed" definition of an independent modality for individual criminal responsibility of superiors under international law, which characterizes all its specifities in comparison with the traditional modes of participation. The relevant but rather small development on the national level after the "Nuremberg-era" did not contribute much to solve the task, to define and structure the minimum requirements for command responsibility as an additional mode of criminal liability beyond traditional boundaries. The main common approach was to also or even mainly address commanders when crimes were committed by their "forces". Therefore it was not surprising that, whenever spectacular war crimes or crimes against humanity were committed after Nuremberg, the public opinion demanded individual criminal responsibility of those commanders, who were "in charge" of the persons, suspected for committing such crimes and, therefore, had to have the responsibility for their behaviour. But they were primarily accused of direct participation in the execution of such crimes, together with ordering or at least "permitting the commission" in the sense of "tolerating them" by not fulfilling their duty to supervise and guarantee that their subordinates obey to the law. Thus all these alternatives were subsumed under one of the traditional modalities of supporting crimes and therefore, required intentional acts or omissions. This rather neutral attitude towards a missing definition became, for instance, obvious in the context with the massacre in My Lai, Vietnam, 1968. The commanding Lieutenant was charged with killing the victims as principal perpetrator. He claimed as a defence to have acted on superior orders 65 . His superior also was charged with a traditional mode, namely to have ordered the massacre. He argued, to have "only subsequently learned of the outrage" but confessed that he "decided to hush it up instead of taking steps to report its perpetration or punish those responsible" 66 . On this occasion the presiding judge gave guidelines to the jury, emphasizing that even after "issuing an order a commander must remain alert and make timely adjustments as required by a changing situation". The judge demanded further "actual knowledge plus a wrongful failure to act", and continues, "[t]hus mere presence at [the] scene will not suffice. That is, the commandersubordinate relationship alone will not allow an inference of knowledge" 67 . Green points out in this context: "It might even be felt that lack of knowledge in such circumstances amounts to criminal indifference equivalent to a failure to exercise proper command". In general, the superior "has actual knowledge, or should have knowledge, through reports received by him or through other means". The four elements Green mentions from the information of the presiding judge to the jury are an attempt to structure the charge, however by giving more consideration to the facts than to the legal approaches. He requires as the first element, "[t]hat [the] deaths resulted from the omission of the accused in failing to exercise control", but "after having gained knowledge that

39

40

41

65 See supra note 39, L. C. Green, with further references in footnote 44.

66 Supra note 39, id., with further references in footnote 46.

67 Supra note 39, id., with further references in footnote 45.

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his subordinate were killing noncombatants". In addition, "this omission must constitute culpable negligence and an unknown number of victims must have been killed by subordinates under his control" 68 . Green further reports in the context with the My Lai massacre of a Major General who has been held responsible, though he "may not have deliberately allowed an inadequate investigation to occur, but he let it happen, and he had ample resources to prevent it from happening" 69 . Green refers in this context also to the demand that "the military commander who acts to prevent future war crimes … is criminally liable only if he did not act promptly enough when he learned of subordinates' crimes" 70 .

42 The case of Eichmann is sometimes reported in this context. But Eichmann was a superior giving orders to organize the transportation of Jews to the concentration camps and thus was one of the principles. He claimed not to have known what happened there to the detainees but the circumstantial evidence obviously appeared to be beyond reasonable doubt sufficient to sentence him 71 .

43 The Kafr Qassem "incident" also is an example for traditional responsibility of commanders, but not for a new independent modality. The Court states, for instance, that "[t]here is no doubt that the death of all victims who fell at Kafr Qassem was the probable result of M's order, even though as regards some of them, and perhaps most of them, there was no intention of murder in the sense of [the Criminal Code]. For these reasons we must uphold the conviction for murder" 72 . Besides emphasizing the recklessness of the order, the Kahan Report on the massacre in the refugee camps Sabra and Shatila in Lebanon points out "that the Israeli military authorities were aware of the killings that were taking place, but took no step to order the Israeli troops to stop the massacre, nor was any action taken by the Minister of Defence to this end". The requirement of these two elements comes closer to the regulations of an inherent responsibility for commanders. This assessment is confirmed by the further statement: Finally, "no attempt was made to seek out or punish any of those responsible for what happened" 73 .

44 Though most of the reported regulations, statements and decisions refer to one or more singular aspects which later have been defined in articles 86 and 87 Add. Prot. I 1977, (and in article 28 Rome Statute) none of them offers not even an approximately comprehensive scope and notion of a consistent definition for command responsibility. However, this small outline (under 2.) confirms in a similar manner as those presented before (under 1. and I. 3.), how strong the theoretical and the practical development, in particular after the Second World War, concentrated to hold superiors more and more responsible, in particular for ordering, committing or participating in the commission of one of the classical Nuremberg Crimes. But on these occasions it quite often became equally obvious, that the cases for the indictments did not catch the complete spectrum of responsibility of superiors. The investigators obviously could get hold of situations, in which superiors merely silently tolerate or "letting such crimes just happen" through their subordinates. Command responsibility as an independent, additional responsibility therefore becomes more and more important, in particular, when none of the traditional modalities of participation could be proven by sufficient evidence. Starting to develop its scope and notion out of this case to case experience, Add. Prot. I finally represents the main results of this development. Articles 86 and 87 define an accepted number of elements in order to have them "strictly construed". They contain a political

68 For all these quotations see L. C. Green, Command Responsibility in International Humanitarian Law, 3 TRANSNATL L. & CONTEMP. PROBS 354 with other references in footnotes 110 et seq. (1995).

69 Id. supra note 58, 355 with further references in fn. 114.

70 Id. supra note 58, 356 with further references in fn. 116.

71 Id. supra note 58, 356 with further references in footnotes 119 and 120.

72 Quoted according to supra note 58, 360 with further references in fn. 130.

73 Supra note 58, id., 363 et seq. with further references in fn. 137.

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compromise which did not clearly differentiate command responsibility from traditional modalities of participation, in which superiors are involved together with their subordinates. This task was therefore left, with all due respect to the value of Add. Prot. I, to future developments by international Tribunals and their jurisprudence.

3. Command responsibility, dominating the international and the transitional justice regimes up to the top of hierarchically based authorities, requiring more legal guaranties

Keeping this background in mind, it does not surprise, that since 1977, more than fifteen

45

years not much has been changed or moved in one or the other direction: There were actually no new cases brought before the judiciary to promote solutions for the open questions. It therefore was practically the result of a delayed development, when the Statutes for the ICTY and the ICTR, adopted under time pressure in 1993 and 1994, included some, though not all, of the formulations contained in articles 86 and 87 of Add. Prot. I, as a definition of an additional responsibility for superiors. Concept and notion appeared broadly accepted and quickly available, because provisions were needed, according to which higher ranking superiors could be held responsible even beyond the limits of traditional ordering or other participation, and which by its acceptance through the Security Council received an additional worldwide approval. The situation on the territory of Former Yugoslavia had demonstrated since 1991, what everybody knew since the Balkan Wars 1912/13 and the World Wars, namely that commanders as well as other superiors play the most important role for ongoing atrocities and for stopping them immediately. They, therefore, should be targeted with regard to end their impunity and thus to contribute to the prevention of crimes committed by their subordinates. The relevant provisions in articles 7 para. 3 and 6 para. 3 ICTY and ICTR Statutes try to

46

achieve this aim, together with paragraphs 1 and 2, defining all traditional modalities. They were at that time the only binding international definitions applicable in a "direct enforcement model". Even after article 28 Rome Statute had defined in 1998 a more comprehensive regulation for all superiors who could by their political, military, legal, administrative and de facto power contribute in various ways to one of the core crimes, those new regulations were not yet available, because the Rome Statute came into force only on 1. July 2002 and even then it took more than 3 years before the first cases, from which till now only one is in the trial phase, were pending at the ICC. Therefore the ad hoc Statutes and the jurisprudence of the Tribunals dominated the situation for more than one decade. In addition, the Tribunals had clearly confirmed again and demonstrated the practical importance of an institution like command responsibility for those persons, not on the spot but pulling the strings from behind and thus taking responsibility for what was beyond the traditional modalities of participation. I recall only the indictments against Milosevic, Mladic and Karadzic as well as the relevant final jurisprudence of the ICTY and, after the first case of Akayesu was pending, also before the ICTR. These decisions are listed above together with the literature and other jurisprudence. But it was not only the shortness of the formulations in these Statutes which make them preferable in comparison with article 28 Rome Statute, which is much more extensive. States in transition need worldwide accepted regulations and jurisprudence when looking for an international legal basis upon which to create Special Courts or Commissions to deal with past atrocities (post-conflict justice). They, therefore, rather prefer and copy articles 7 or 6 of the ad hoc Statutes instead of article 28 Rome Statute. This preference was further backed by the fact, that the decisions of the Security Counsel to accept these regulations represented the legal opinion of all members of the UN, while the Rome Statute is up till now only in force for 105 States.

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48 It is self evidence, that relevant decisions of the ad hoc Tribunals will play an important role for the cases pending and coming up to the ICC. According to article 21 para. 2 Rome Statute the previous decisions of the Court and even more those of other courts or the Tribunals are not binding. But they will play an important role for the interpretation and application of the Rome Statute. It, therefore, is necessary, shortly to deal with the scope and notion of the relevant provisions in the Statutes of the ad hoc Tribunals that cover command responsibility.

49 When for the first time in history two ("really") international ad hoc Tribunals were established to prosecute genocide, war crimes and crimes against humanity, it became quite obvious that the Security Council, when referring to the laws and customs of war, used, partly verbally, the concept and notion of articles 86 and 87 Add. Prot. I to define criminal responsibility of superiors in articles 7 para. 3 ICTY and 6 para. 3 ICTR Statute 74 . The Secretary-General in his Report of 23 May 1993 to the Security Council expresses the opinion, that "the application of the principle nullum crimen sine lege requires that the international Tribunal should apply rules of international humanitarian law, which are beyond any doubt part of customary law" 75 . He further emphasizes that "virtually all of the written comments received … draw upon the precedents following the Second World War", and confirm "the irrelevance of official capacities" 76 . Therefore, not only the "unlawful order to commit a crime" should trigger superior responsibility, but also a "failure to prevent a crime or to deter the unlawful behaviour of the 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" 77 .

50 According to the interpretation suggested above (under I. 3.) two failures are listed in the just mentioned quotations, namely "to prevent a crime or to deter …" on the one side, and "failure to take … steps to prevent or repress" on the other side. These two omissions should be separated, at least in theory 78 though they may be interwoven in praxis. This dependency is needed to establish personal guilt, the indispensable element for all modes of criminal responsibility. Because only when a "failure to prevent a crime or to deter the unlawful behaviour" results in an action, where "subordinates were about to commit or had committed crimes", liability can be triggered. It is further based on the fact that the superior, though he knew or had reasons to know about it, "yet failed to take the necessary and reasonable steps to prevent or repress the commission", which he had not prevented and thus caused, for instance by not ensuring that his subordinates were sufficiently informed and motivated to obey the law. This passive behaviour of the superior appears as a whole to be of sufficient gravity to trigger his responsibility for the crime committed by the subordinates 79 .

51 However, it has to be admitted that article 7 para. 3 ICTY Statute, as well as 6 para. 3 ICTR Statute, do not express this underlying structure by requiring a link between the failure to exercise control properly and the crimes of the subordinates. Both regulations, therefore, may be interpreted, at first sight, in a way, that the failure to take the necessary and reasonable measures … or to punish”, may by itself trigger superior responsibility even if the superior has not caused these criminal actions of his subordinates.

74 For further information see Res. 808 (1993) and Res. 955 (1994) of the SC.

75 Rep. of the Secretary General pursuant to para. 2 of SC Res. 808, para. 34 (1993)

76 Supra note 75, para. 55.

77 Supra note 75, para. 55.

78 See supra note 38, O. Triffterer, Command Responsibility – Grundstrukturen und Anwendungsbereiche 448 et seq.

79 See supra note 2, O. Triffterer, "Command Responsibility" 912 et seq. and supra note 4, O. Triffterer, Command Responsibility, article 28 Rome Statute 228 et seq.

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To investigate whether such an interpretation is admissible and acceptable under the aspect, that the Secretary-General intended to define "laws which are beyond any doubt part of customary law", is the purpose of the following considerations. They therefore have to deal, for instance, with the issue, whether article 28 Rome Statute also defines what is accepted "beyond any doubt", even though its requirements establish a much higher threshold for superior responsibility which has to prevail. This priority is justified because article 28 is more favourable to the accused than article 7 para. 3 ICTY Statute, at least when both regulations express what is acknowledged in international customary law and only defined in Add. Prot. I as well in the ad hoc Statutes and the Rome Statute. For answering this question and with regard to the general notion of command responsibility in its historical context it has to be kept in mind that the competence of the ICTY and of the ICTR is created by the Security Council. But the law "to prosecute persons responsible for serious violations of international humanitarian law, … in accordance with the provisions of the present Statute", article 1, is statutory and customary international law, as far as such regulations are generally accepted and acknowledged by the international community as a whole 80 , as referred to above. It is not created by the Security Council because this organ is not the legislative body of the UN. The Security Council merely accepted what has been proposed by the Secretary-General as the already existing law and accepted his formulation. Created has the Security Council only the ad hoc Tribunals and their competence with those regulations to guarantee the getting into operation and the functioning of the Tribunals. While article 2 ICTY Statute establishes the right and duty of the Tribunal "to prosecute persons committing or ordering to be committed grave breaches", article 3 defines liability for all persons, violating the laws or customs of war. Genocide, article 4, mentions expressly for these crimes besides committing, conspiracy, complicity as well as direct and public incitement, while article 5 (as 3) does not refer to any mode of participation for crimes against humanity. All these definitions describe either the direct commission or presuppose personal activities, which have at least material contact with or some psychological influence on the commission of the crime, a context, which characterizes participation and complicity in most of the legal systems of the world. The enumeration of the crimes in articles 2 to 5 ICTY Statutes puts the main emphasize on describing material elements. A general statement concerning the mental element is missing. This justifies according to general principles of law recognized by all major legal systems the conclusion that, as far as nothing else is otherwise provided in the Statute, these crimes and all their appearances expressly mentioned in the Statutes have to be committed intentionally. Such an interpretation is confirmed by some definitions, using expressly words like "wilful" or "wanton", which exclude negligent behaviour, or tacitly by formulations like "compelling" or "plunder". With regard to genocide the requirement of an intentional act becomes evident by the additionally required special mental element, namely the "intent to destroy in whole or in part, a national, ethnical, racial or religious group, as such". Such an intent presupposes that the act as such needs to be committed intentionally; because who kills negligently, cannot intent to destroy a protected group just by his negligent behaviour. Negligent behaviour, therefore, is in principle excluded as basis for international criminal responsibility under these Statutes, equally for committing and for participation, unless "otherwise provided". This principle is clearly expressed also in article 30 Rome Statute. With regard to omissions, the situation is similar, though in the outcome different. Omissions are not mentioned either expressly in articles 2–5 ICTY Statute. But the consequences described there, like "causing great suffering or serious injury to body or health", respectively, "seriously bodily or mental harm" can be equally – without difference to the

body or health", respectively, "seriously bodily or mental harm" can be equally – without difference to
body or health", respectively, "seriously bodily or mental harm" can be equally – without difference to
body or health", respectively, "seriously bodily or mental harm" can be equally – without difference to

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80 See supra note 75, para. 32.

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victims – achieved by an act or by an omission; for instance, by denying access to food or information about further cruel treatment by the guards or an execution without any proceeding according to the rule of law.

56 The requirement of a legal duty for holding somebody responsible for a failure to act, is acknowledged expressly already in article 86 para. 1 Add. Prot. I. Such an element serves the purpose to establish and to guarantee equality of crimes committed by active or passive behaviour. They have to be comparable not only with regard to the consequences they may trigger. But since an active violation of the law needs a decision to step out of passivity, while an omission is the continuance of an already existing status quo, not all passivity is comparable with an aimed action. To compensate this deficit, a violation of a pre-established legal duty is required, to equalize an omission with active behaviour.

57 Article 7 para. 1 ICTY Statute describes, partly repeating or including modalities already mentioned in articles 2-5, all relevant appearances of committing crimes or participating in crimes as accomplices. For all of them the above statements with regard to intent and omission are applicable, as far as, for instance, like with regard to ordering or planning, a commission by omission does not appear per se impossible, because the definition describes an actus reus and thus, exclude omissions.

58 Article 7 para. 2 ICTY Statute only clarifies, that "the official position of any accused person … shall not relieve such a person of criminal responsibility …". This means, all modalities listed in the definitions of the crimes or in article 7 para. 1, are equally applicable on persons with any "official position", thus including superiors as well on the military as on the administrative level.

59 Article 7 para. 3 ICTY Statute presupposes and is based on these principles, which provide responsibility for different modalities, when committed intentionally and individually, whether by an act or an omission and independent of the official position. None of these regulations, however, is recalled by article 7 para. 3. It, on the opposite, deviates partly from these principles and establishes an additional (new) criminal responsibility for superiors 81 , though under certain conditions, which deviate from what is the basis for a general criminal responsibility otherwise provided with regard to all perpetrators in these Statutes. For instance, article 7 para. 1 establishes that "a person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in articles 2 to 5 of the present Statute, shall be individually responsible for the crime". Individual criminal responsibility means to be personally responsible for his own behaviour and the caused harm. It does not mean responsibility for behaviour of others, unless someone supports the principle perpetrator through, for instance, "otherwise aiding or abetting" in the commission of the crime 82 .

60 According to these basic rules, the mere fact that any of the crimes referred to in articles 2–5 of the present Statute was committed by a subordinate, does, in principle, "relieve his superior of criminal responsibility". This is true, however, only as long as he does not himself fulfil the requirements of article 7 para. 1 by participating in one of the modalities provided for in this regulation or in articles 2–5 ICTY Statute. In addition, in its second half article 7 para. 3 ICTY Statute expresses a further exception:

Responsibility of a superior for crimes of other persons, his subordinates, if the superior "knew or had reason to know" about their criminal activities and, nevertheless, "failed to take the necessary and reasonable measures" to effectively interfere. Article 7 para. 3, thereby, establishes an additional individual criminal responsibility beyond the traditional modalities mentioned in articles 7 para. 1 or 2–5 ICTY Statute.

81 See supra note 2, O. Triffterer, "Command Responsibility" 902 et seq. and supra note 4, O. Triffterer, Command Responsibility, article 28 Rome Statute 230 et seq.

82 Instead of "and" in the original text, there must be "or", see for further K. Ambos, Article 25, margin Nos. 17 et seq.

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Such an extension, transgressing traditional boundaries, creates practically a "new crime" in the sense of an additional modality of the crime committed by the subordinate 83 . It, therefore, needs to meet the requirements of nullum crimen, nulla poena sine lege, as established by customary international law and expressed in article 22 Rome Statute. The ICTY, therefore, had and has to face the question whether this additional modality of criminal responsibility is "strictly construed" in the sense of article 22 Rome Statute. Does article 7 para. 3 ICTY Statute mirrors the law "beyond any doubt" – as it was defined in 1993? Or is this law expressed in 1998, when 146 States of the world community drafted and with a great majority adopted article 28 Rome Statute, the correct definition of what is generally acknowledged? The wording of article 7 para. 3 ICTY Statute is fairly clear, though at the end of the day, finally, it may leave room for doubt. In case it does, the general rule may become applicable, that in case of ambiguity an interpretation in favour of the accused has to prevail, article 22 para. 2 Rome Statute. The basic law in both regulations, articles 7 para. 3 ICTY Statute and 28 Rome Statute, is beyond doubt: No responsibility of superiors for crimes of their subordinates in principle, but exceptionally yes, 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", article 7 para. 3 ICTY Statute. The difference constitutes an additional requirement, expressly formulated in article 28 Rome Statute, namely an additional failure to control resulting in criminal activities of subordinates, which is not mentioned in article 7 para. 3 ICTY Statute, but perhaps needs to be interpreted into this regulation, in case it is ambigious. One condition for accepting such an extension of individual criminal responsibility is in both regulations clearly formulated: "knew or had reason to know" about a concrete criminal behaviour of his subordinates. This means, that the superior must not intent to support, by what act or omission ever, such behaviour of his subordinates. Because if this is the case, one of the traditional modalities according to article 7 para. 1 ICTY Statute combined with those expressly mentioned in articles 2–5 ICTY Statute would be applicable. "Knew" or "reason to know", therefore, does not mean an intent to participate by an omission. It must be less, which it is, when interpreted as describing only the intellectual part of "intent and knowledge", namely awareness as defined in article 30 Rome Statute 84, of a criminal situation characterised by the behaviour of his subordinates. The failure to take the necessary measures, must as such, as far as concerning the passivity of the superior, be intended. But it is sufficient that the superior did not intend more than just doing nothing, though he should and could have been motivated by the triggering situation to become active. Article 7 para. 3 ICTY Statute specifies the mental approach of the superior to the criminal behaviour of the subordinate in a way, which is different from the mental element needed with regard to all other modes of individual criminal responsibility for perpetrators and accomplices as described in article 25 para. 3 Rome Statute 85 . While in so far "intent and knowledge" is required, here obviously awareness of the situation without an emotional, a voluntative decision or a negligent approach to the situation and its demands is sufficient. This means, the superior knew but – for whatever reasons – did not react to get an emotional approach, or had reason to know, but was not aware of the situation requiring "to take the necessary and available measures to prevent such acts or to punish the perpetrators thereof". His state of mind, "knew" or "reason to know", means, though he "knew" or though he had "reason to know", he did not conclude, or did not have the idea, that he could

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83 See supra note 4, O. Triffterer, Command Responsibility, article 28 Rome Statute 215 et seq.

84 See for more details supra note 2, O. Trifferer, "Command Responsibility" 909 et seq.

85 See for further information supra note 4, O. Triffterer, Command Responsibility, article 28 Rome Statute 215 et seq.

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and should take action. The situation was not motivating him to prevent or interfere with the criminal behaviour of his subordinates. Whatever this lack of a mental decision to take action in the necessary and relevant direction means, it is sufficient that the superior draws no conclusion in this direction. He is "not open" for the situation, for being addressed by the situation which triggers his duty to react, and therefore he fails to take the required measures.

65 Is this structure comparable with the one underlying "direct and public incitement" in article 4 ICTY Statute? Comparable is that with regard to incitement, the mere act, and with regard to command responsibility, the mere failure to act triggers criminal responsibility. But there is a difference, because in the second case it must be established that the superior had the power, which means, was in fact capable to take the required measures, had he "correctly" reacted on what he "knew" or "had reason to know". Incitement, on the opposite, requires only to address persons in a certain way at all, independent of whether the act has persuaded the addressee, while failures to take necessary measures implies that such actions would have caused a result, if not omitted, namely to prevent or repress the criminal activities of the subordinates.

66 Though not mentioned expressly in the definitions of crimes or in the general principles, there are such further elements tacitly included by the structure of the definitions of crimes or of the responsibility according to article 7 para. 3 ICTY Statute. Shall the superior really be responsible for the crime, which the subordinate was about to commit, though the subordinate did not yet reach the state of an attempt, a possibility not excluded in article 7 para. 3 ICTY Statute, though in article 28 Rome Statute? Such a situation may occur, if, for instance, a third person stops the criminal attempt of the subordinate by taking the necessary measures, shortly after the superior failed to do so, or if the subordinate gave up his plan to complete the crime or abandons his activities before he reached the status of a punishable attempt.

67 The situation requiring counter-actions of the superior is described in article 7 para. 3 ICTY Statute as the subordinate "was about to commit such acts or had done so", a formulation, corresponding in its first part, "about to commit" with those in article 28 Rome Statute. There it does not mean "only", but includes an attempt which is defined differently to article 25 para. 3 (f) Rome Statute 86 . For the answer it has to be taken into consideration that two different formulations in the same law cannot have the same meaning, because otherwise no two divergent expressions would have been chosen. "About to commit", therefore, does describe first a behaviour very close to the commission, for instance one second before a criminal attempt occurs, but it includes also an attempt, by which, in the ordinary course of events, a crime is about to be completed. Such an interpretation is convincing independent of whether the attempt is incomplete or finalized, as long as the crime is not yet completed. In all these intermediate, different situations, the superior has "to prevent such acts". This means, he has to prevent further activities of his subordinates, which either are already an attempt or could lead to an attempt, or which could bring an attempted crime to completion. This means, in other words, the superior has to stop all activities by which the subordinates were "about to commit" relevant crimes. Because otherwise his failure to stop the subordinates would cause either the continuance of their "criminal" behaviour and, thereby, further activities leading to an attempt, or cause an already existing criminal attempt to develop towards a completed crime. Is this the requirement of causality to be proven by the Prosecutor before criminal responsibility of superiors can be established? The answer is yes, because only when it can be established that the superior was capable to take the necessary measures and thus could have prevented, or repressed the crime or initiated criminal investigation, he can be blamed for the failure to do so and, thus, for the failure to achieve such an effect, which means for not causing it.

86 Also to the following considerations supra note 2, O. Triffterer, "Command Responsibility" 911 et seq. and supra note 4, id., Command Responsibility, article 28 Rome Statute 217 et seq.

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The alternative "or had done so" refers to "had committed" and thus comprehends a final or interrupted attempt and a completed crime. In both cases the criminal activities of the subordinate have already come to an end and the superior, therefore, can no longer by his failure to take action "support" or just "let happen" the criminal activities of the subordinates in a way, which establishes a causal connection between his failure and the perpetration of the crime. This is the reason why the superior in such cases has to take (mere) measures "to punish the perpetrator thereof". While, with regard to the first alternative, "to prevent", what was about to be committed, an action to control or an order to stop may be sufficient to reach impunity of the superior, the second situation, "or had done so", describes a rather static situation which cannot be changed anymore. It, therefore, only has to be evaluated by the superior with regard to its criminal importance in order to trigger preventive influence on future behaviour of the same or other subordinates. There is for both alternatives no word on causality in the ad hoc Statute. But this element is inherent to all omissions, because the duty to prevent presupposes and means the power to prevent, since nobody can be obliged by law to do what is for him or her ultra vires. The superior therefore must have prevented or at least taken measures which appear to be in principle adequate to achieve such a result 87 . Who fails to take the necessary measures to prevent or to punish is responsible for what occurs in a situation, in which it was his duty to hinder further developments towards the commission of the crime or the impunity of the perpetrator. This hypothetical causality has to be established; because (a) it must have been not ultra vires, what was demanded, and (b) the necessity is only proven, when the omission causes what would have been avoided by the omitted act, in case it would have been executed. Even if these considerations are accepted it remains with regard to article 7 para. 3 ICTY Statute still open, whether the superior, in addition, must have caused the departing situation, the criminal behaviour of his subordinates. Triggers merely his former omission to control, educate and inform his subordinates "properly" and its result, illegal activities of his subordinates, the duty of the superior to react, when his subordinates "commit or are about to commit crimes"? At first sight, the answer is no. In article 7 para. 3 ICTY Statute no such requirement is mentioned. But is an interpretation of the mere wording sufficient? No, because a teleological interpretation, taking into consideration the historical background and the ratio legis of this regulation may close a lacuna, and thus come to a different result. It can, for instance, be argued that article 7 para. 1 ICTY Statute extends the responsibility for committing crimes by including certain behaviour, which aids or abets the execution as an additional modality. Such an extension broadening the scope and notion of the crimes, needed to be "strictly construed"; because otherwise it would violate the principle nullum crimen sine lege. In addition, it is self evidence, that since all crimes listed within the above mentioned Statute can be committed only on the mental side intentionally, also participation as being a specific modality of such a crime, equally requires such a mental element. Article 7 para. 3 ICTY Statute contains also such an extension of the responsibility for crimes, but one applicable exclusively for superiors. This means, the superior is responsible, as "if he had committed it (the crime) himself", a formulation, already quoted in margin No. 25. It implies, in addition, that command responsibility demands as a specific modality of participation, in principle, also an intentional behaviour, unless (and as far) as not otherwise provided. Article 7 para. 3 ICTY Statute is based on articles 86 and 87 Add. Prot. I. Though not expressly referring to these regulations, some of them are quoted more or less verbally. For instance, a superior should be relieved from responsibility, except when "he knew or had reason

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To these considerations above and below see supra note 4, O. Triffterer, Command Responsibility, article 28 Rome Statute 238 et seq. and supra note 2, O. Triffterer, "Command Responsibility" 917 et seq.

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to know" about the criminal behaviour of his subordinate and nevertheless failed to react. But is such a "low" mental element really sufficient, though for all other modalities a much higher mental threshold closer to the harm, namely an intentional behaviour, mentally "dealing" with and "considering" the harm, whether caused by a failure or an actus reus, is required?

Is this special "lower" mental element, required for command responsibility, comparable

with negligence? Is it the only one and as such sufficient, while all other modalities for the commission of crimes demand a stronger mental "affiliation" of the mind of the perpetrator to

the material elements?

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Already this aspect makes it desirable and perhaps indispensable, in the interest of equality before the law, to consider at least an equally high threshold for command responsibility, which would otherwise establish a more remote relation to the harm than most of the other modalities for participation.

In

addition, a high threshold on the mental side could compensate the fact that superiors are

without exception responsible and liable for punishment beyond the traditional modalities, which means, even for such omissions, which do not fulfil the objective or mental requirements for a punishable participation. This implies that the requirement of "strictly construed" elements needs to be independently established, in particular, when command responsibility reaches the top level of the hierarchy, perhaps located far away from the actual events.

75

All these aspects have led already to a more precise definition in article 28 Rome Statute. It, therefore, seems to be necessary and justified to include the additional element demanded there, namely an "intentional failure to control properly" resulting in criminal activities of their subordinates, in favour of the superior via interpretation also in articles 7 para. 3 ICTY and 6 para. 3 ICTR Statute.

 

III. Guidelines for investigation and prosecuting superior responsibility

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The considerations above have pointed out some aspects which may serve as guidelines when dealing with situations, in which the commission of crimes, falling within the jurisdiction of the Court, is shaped by a hierarchically structured superior/subordinates relationship 88 . In order to locate whether such a relationship is involved, it is recommendable to investigate first, whether a failure of the superior to exercise control properly over his subordinates can be established.

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For the concept and notion of such a failure, a list of elements has been published in the First Edition, which still may be helpful to find out, what the commander should have done to fulfil his duties. He must, in particular,

ensure his forces are adequately trained in international humanitarian law,

ensure that due regard is paid to international humanitarian law in operational decision making,

ensure that an effective reporting system is established so that he or she is informed of incidents when violations of international humanitarian law might have occurred,

monitor the reporting system to ensure it is effective, and

take corrective action when he or she becomes aware that violations are about to occur or have occurred 89 .

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A

similar list of relevant aspects is available for finding out, whether the superior "knew" or

"should have known" about the criminal activities of his subordinates. In this context it was pointed out by W. Fenrick that "actual knowledge may be established by direct or circumstantial

88 For more details concerning basic principles for such guidelines see supra note 38, O. Triffterer, Command Responsibility – Grundstrukturen und Anwendungsbereiche 438 et seq., supra note 4, O. Triffterer, Command Responsibility, article 28 Rome Statute 229 et seq. and supra note 2, O. Triffterer, "Command Responsibility" 919 et seq. with references.

89 See supra note 46, W. Fenrick, First Edition, article 28, margin No. 9.

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means". But with regard to "determining whether or not the commander did have the requisite knowledge" a variety of indicia may be, in addition, helpful, including

the number of illegal acts,

the type of illegal acts,

the scope of illegal acts,