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Unravelling the Confusion Concerning Successor Superior Responsibility in the ICTY Jurisprudence

Published online by Cambridge University Press:  02 February 2010

BARRIE SANDER
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Abstract

The recent jurisprudence of the ICTY concerning the proper interpretation of the doctrine of superior responsibility under Article 7(3) of the ICTY Statute has been stifled by division and uncertainty. In particular, the question of the responsibility of successor superiors for crimes committed by their subordinates prior to taking command has led to a number of 3–2 majority decisions. This paper seeks to reconcile the divergent judicial opinions by moving away from a narrow analysis of successor superior responsibility, instead focusing on the determination of the underlying nature of the doctrine of superior responsibility. While a polarity of opinions also exists in relation to the nature of the doctrine of superior responsibility, this paper argues that the opinions can be reconciled by adopting a more principled approach to customary international law, an approach justified by the international criminal law context. Such an approach involves two elements: first, ensuring that a clear distinction is drawn between international humanitarian and international criminal legal concepts; and, second, the invocation of the principle of individual culpability as a standard against which the weight to be attributed to authorities evidencing custom ought to be assessed. A principled approach would enable the identification of the nature of the doctrine of superior responsibility while ensuring that the doctrine reinforces international criminal law principles rather than acts as an exception to them; in addition, by determining the nature of the doctrine of superior responsibility, the principled approach would unravel the confusion concerning successor superior responsibility in the ICTY jurisprudence.

Keywords

International Criminal Tribunal for the former Yugoslavia (ICTY)successor superiorssuperior responsibility
Type
HAGUE INTERNATIONAL TRIBUNALS: International Criminal Court and Tribunals
Information
Leiden Journal of International Law , Volume 23 , Issue 1 , March 2010 , pp. 105 - 135
Copyright
Copyright © Foundation of the Leiden Journal of International Law 2010

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References

1 D. MacArthur, Reminiscences (1964), 298.

2 Sun Tzu, The Art of War, trans. S. Griffith (1963), 125, cited in Parks, W. H., ‘Command Responsibility for War Crimes’, (1973) 62 Military Law Review 1Google Scholar, at 3: ‘when troops flee, are insubordinate, distressed, collapse in disorder, or are routed, it is the fault of the general. None of these disorders can be attributed to natural causes’; H. Grotius, De Jure Belli ac Pacis: Libri Tres (1625), cited in G. Boas, J. L. Bischoff, and N. L. Reid, Forms of Responsibility in International Criminal Law (2007), 145: ‘[C]ommunity, or its rulers, may be held responsible for the crime of a subject if they know of it and do not prevent it when they could and should prevent it’.

3 It is widely recognized that the doctrine of superior responsibility is rooted in the principle of responsible command, first codified in Art. 1 of the Regulations annexed to the Regulations Concerning the Laws and Customs of War on Land annexed to the Fourth Hague Convention Respecting the Laws and Customs of War on Land (1907). See Prosecutor v. Zejnil Delalić, Zdravko Mucić, Hazim Delić and Esad Landžo, Judgement, Case No. IT-96-21-T, T.Ch., 16 November 1998 (hereinafter Čelebići Trial Chamber Judgement), para. 335; Prosecutor v. Enver Hadžihasanović and Amir Kubura, Case No. IT-01-47-AR72, Decision on Interlocutory Appeal Challenging Jurisdiction in Relation to Command Responsibility, 16 July 2003 (hereinafter Hadžihasanović Interlocutory Appeal Decision), para. 14.

4 Parks, supra note 2, at 19; E. van Sliedregt, The Criminal Responsibility of Individuals for Violations of International Humanitarian Law (2003), 120.

5 Based on its military origins the doctrine was formerly known as ‘command responsibility’. It will be referred to in this paper as the doctrine of ‘superior responsibility’, in line with the terminology used in the Statutes of the ICTY and the ICTR. See J. D. Levine, ‘The Doctrine of Command Responsibility and its Application to Superior Civilian Leadership: Does the International Criminal Court have the Correct Standard?’, (2007) 193 Military Law Review 52, at 53, n. 8, for a description of the development of this broader terminology.

6 There exists an extensive literature on the history and customary-law development of the principle of superior responsibility; see Parks, supra note 2; Green, L. C., ‘Command Responsibility in International Humanitarian Law’, (1995) 5 Transnational Law & Contemporary Problems 319Google Scholar; Lippman, M., ‘Humanitarian Law: The Uncertain Contours of Command Responsibility’, (2001–2) 9 Tulsa Journal of Comparative & International Law 1Google Scholar; K. Ambos, ‘Superior Responsibility’, in A. Cassese, P. Gaeta, and J. R. W. D. Jones (eds.), The Rome Statute of the International Criminal Court (2002), I; Van Sliedregt, supra note 4; A. P. V. Rogers, Law on the Battlefield (2004); Levine, supra note 5; Boas et al., supra note 2; R. Arnold and W. Triffterer, ‘Responsibility of Commanders and Other Superiors’, in O. Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court (2008); A. Cassese, International Criminal Law (2008); and G. Mettraux, The Law of Command Responsibility (2009). The customary status of the doctrine has been recognized by both the ICTY and ICTR. See Prosecutor v. Zejnil Delalić, Zdravko Mucić, Hazim Delić and Esad Landžo, Judgement, Case No. IT-96–21-A, A.Ch., 20 February 2001 (hereinafter Čelebići Appeals Chamber Judgement), para. 195; see also Boas et al., supra note 2, at 175, n.179, citing all relevant jurisprudence to similar effect. See also J.-M. Henckaerts and L. Doswald-Beck (eds.), Customary International Humanitarian Law: Volume 1, Rules (2005), 558–9, setting out Rule 153.

7 The seminal case recognizing superior responsibility under Art. 7(3) of the ICTY Statute is the Čelebići Appeals Chamber Judgement, in particular at paras. 182 ff. For confirmation that superior responsibility falls within the jurisdiction of the ICTY see also Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808, UN Doc. S/25704, (1993) (hereinafter Report of the Secretary-General), para. 56; Final Report of the Commission of Experts Established pursuant to Security Council Resolution 780 (1992), UN Doc. S/1994/674 (1994) (hereinafter Final Report of the Commission of Experts).

8 Prosecutor v. Naser Orić, Judgement, Case No. IT-03-68-A, A.Ch., 3 July 2008 (hereinafter Orić Appeals Chamber Judgement), para. 18. See generally Boas et al., supra note 2, at 181, n. 206, citing all relevant jurisprudence to similar effect. See also Van Sliedregt, supra note 4, at 135, who refers to these elements as the functional, cognitive, and operational aspects.

9 For a recent extensive overview of the development of the jurisprudence of the ICTY, see generally Boas et al., supra note 2, at 174–252.

10 Hadžihasanović Interlocutory Appeal Decision, supra note 3, at para. 51.

11 Orić Appeals Chamber Judgement, supra note 8, at para. 167.

12 Ibid., Partially Dissenting Opinion and Declaration of Judge Liu, at paras. 11–34, and Separate and Partially Dissenting Opinion of Judge Schomburg, at paras. 5–29.

13 Ibid., Declaration of Judge Shahabuddeen, at para. 3.

14 Ibid., Separate and Partially Dissenting Opinion of Judge Schomburg, at para. 33.

15 For commentary in support of the majority position in the Hadžihasanović Interlocutory Appeal Decision, see generally Van Sliedregt, supra note 4, at 167–75, criticizing the prior Trial Chamber decision in Prosecutor v. Enver Hadžihasanović and Amir Kubura, Decision on Joint Challenge to Jurisdiction, Case No. IT-01–47-PT, T.Ch., 12 November 2002; Greenwood, C., ‘Command Responsibility and the Hadzihasanovic Decision’, (2004) 2 Journal of International Criminal Justice 598CrossRefGoogle Scholar; and T. Meron, ‘Revival of Customary Humanitarian Law’, (2005) 99 AJIL 817. For commentary in support of the minority position in the Hadžihasanović Interlocutory Appeal Decision, see generally Shahabuddeen, M., ‘Does the Principle of Legality Stand in the Way of Progressive Development of Law?’, (2004), 2 Journal of International Criminal Justice 1007CrossRefGoogle Scholar; Fox, C. T., ‘Closing a Loophole in Accountability for War Crimes: Successor Commanders’ Duty to Punish Known Past Offences’, (2004) 55 Case Western Law Review 443Google Scholar; Boas et al., supra note 2, at 233–7; and Cassese, supra note 6, at 246–7.

16 Hadžihasanović Interlocutory Appeal Decision, supra note 3, at paras. 45 and 53.

17 Ibid., at para. 54.

18 Ibid., at para. 50 and n.65 (emphasis in original).

19 Ibid., at para. 46.

20 Ibid., at para. 49.

21 Ibid., at para. 47.

22 Ibid., Separate and Partly Dissenting Opinion of Judge Shahabuddeen, at para. 10 (emphasis added).

23 Ibid., Separate and Partly Dissenting Opinion of Judge Hunt, at para. 8.

24 See ibid., Separate and Partly Dissenting Opinion of Judge Shahabuddeen, at para. 32, arguing that under the doctrine of superior responsibility a superior is responsible ‘for failing in his supervisory capacity to take the necessary corrective action . . . [The doctrine] could not have been designed to make the commander a party to the particular crime committed by his subordinate’; Hadžihasanović Interlocutory Appeal Decision, supra note 3, Separate and Partly Dissenting Opinion of Judge Hunt, at para. 9, arguing that under the doctrine of superior responsibility a superior is responsible ‘for his own acts (or, rather, omissions) in failing to prevent or punish the subordinate when he knew or had reason to know that he was about to commit acts amounting to a war crime or had done so’. See also Orić Appeals Chamber Judgement, supra note 8, Declaration of Judge Shahabuddeen, at para. 19, arguing that ‘where superior responsibility is concerned, an accused is not charged with the crimes of his subordinates but with his failure to carry out his duty as a superior to exercise control’; and Orić Appeals Chamber Judgement, supra note 8, Separate and Partially Dissenting Opinion of Judge Schomburg, at para. 12, concurring with Judge Shahabuddeen.

25 See Hadžihasanović Interlocutory Appeal Decision, supra note 3, Separate and Partly Dissenting Opinion of Judge Shahabuddeen, at paras. 20–21; ibid., Separate and Partly Dissenting Opinion of Judge Hunt, at paras. 25–34; Orić Appeals Chamber Judgement, supra note 8, Partially Dissenting Opinion and Declaration of Judge Liu, at paras. 22–26; ibid., Separate and Partially Dissenting Opinion of Judge Schomburg, at para. 20.

26 See Hadžihasanović Interlocutory Appeal Decision, supra note 3, Separate and Partly Dissenting Opinion of Judge Shahabuddeen, at paras. 22–25; ibid., Separate and Partly Dissenting Opinion of Judge Hunt, at paras. 20–24 and 43; Orić Appeals Chamber Judgement, supra note 8, Partially Dissenting Opinion and Declaration of Judge Liu, at paras. 16–21; ibid., Separate and Partially Dissenting Opinion of Judge Schomburg, at para. 19. For further discussion of the relevance of this issue, see infra note 132 and accompanying text.

27 See Hadžihasanović Interlocutory Appeal Decision, supra note 3, Separate and Partly Dissenting Opinion of Judge Shahabuddeen, at paras. 27–31; Orić Appeals Chamber Judgement, supra note 8, Partially Dissenting Opinion and Declaration of Judge Liu, at para. 29; ibid., Separate and Partially Dissenting Opinion of Judge Schomburg, at para. 13.

28 See Hadžihasanović Interlocutory Appeal Decision, supra note 3, Separate and Partly Dissenting Opinion of Judge Hunt, at paras. 15–19; Orić Appeals Chamber Judgement, supra note 8, Partially Dissenting Opinion and Declaration of Judge Liu, at para. 27.

29 In particular, there appears to be a fear that if successor superior responsibility were not recognized, it would leave ‘a gap in the line of responsibilities’. See Hadžihasanović Interlocutory Appeal Decision, supra note 3, Partially Dissenting Opinion of Judge Shahabuddeen, at paras. 14–15, 24; ibid., Separate and Partially Dissenting Opinion of Judge Hunt, at para. 22; and Orić Appeals Chamber Judgement, supra note 8, Partially Dissenting Opinion and Declaration of Judge Liu, at para. 30.

30 To date only one ICTY Appeals Chamber has given any indication of the nature of superior responsibility, in what seemed to be a passing reference. See Prosecutor v. Milorad Krnojelac, Judgement, Case No. IT-97-25-A, A.Ch, 17 September 2003 (hereinafter Krnojelac Appeals Chamber Judgement), para. 171: ‘It cannot be overemphasized that, where superior responsibility is concerned, an accused is not charged with the crimes of his subordinate but with his failure to carry out his duty as a superior to exercise control.’ See also Orić Appeals Chamber Judgement, supra note 8, Declaration of Judge Shahabuddeen, at paras. 18–26. A more extensive analysis has been provided by one ICTY Trial Chamber: see Prosecutor v. Sefer Halilović, Judgement, Case No. IT-01-48-T, T.Ch., 16 November 2005 (hereinafter Halilović Trial Chamber Judgement), paras. 42–54. This analysis has been reaffirmed by other trial chambers; see Prosecutor v. Enver Hadžihasanović and Amir Kubura, Judgement, Case No. IT-01-47-T, T.Ch., 15 March 2006 (hereinafter Hadžihasanović Trial Chamber Judgement), para. 75; and Prosecutor v. Naser Orić, Judgement, Case No. IT-03-68-T, T.Ch., 30 June 2006 (hereinafter Orić Trial Chamber Judgement), para. 293.

31 The responsibility of successor superiors for crimes committed by their subordinates prior to taking command can only involve a failure to punish, since the superior, by definition, takes command after the fact of the crimes.

32 Cassese, supra note 6, at 243.

33 Boas et al., supra note 2, at 275.

34 Hadžihasanović Trial Chamber Judgement, supra note 30, para. 68 (emphasis added). See also Halilović Trial Chamber Judgement, supra note 30, para. 42.

35 See T. Henquet, ‘Convictions for Command Responsibility under Articles 7(1) and 7(3) of the Statute of the International Criminal Tribunal for the Former Yugoslavia’, (2002) 15 LJIL 805, at 827; V. Hansen, ‘What's Good for the Goose is Good for the Gander: Lessons from Abu Ghraib – Time for the United States to Adopt a Standard of Command Responsibility towards its Own’, (2006–7) 42 Gonzaga Law Review 335, at 348. See also Prosecutor v. Naser Orić, Prosecution's Appeal Brief, Case No. IT-03–68-A, 16 October 2006 (hereinafter Orić Prosecution's Appeal Brief), paras. 152–204.

36 See Arnold and Triffterer, supra note 6, at 837, where Arnold makes the point succinctly: ‘a link must be established, in that the commander shall not be subject to strict liability and should incur responsibility only where he/she had power to intervene and failed to do so’. See also Van Sliedregt, supra note 4, at 168 and 172; Meron, supra note 15, at 825; and Prosecutor v. Naser Orić, Defence Respondent's Brief, Case No. IT-03-68-A, 27 November 2006 (hereinafter Orić Defence Respondent's Brief), paras. 402–410.

37 Meron, supra note 15, at 825.

38 See Hansen, supra note 35, at 348; and Arnold and Triffterer, supra note 6, at 837.

39 See C. Eboe-Osuji, ‘Superior or Command Responsibility: A Doubtful Theory of Criminal Responsibility at the Ad Hoc Tribunals‘, in E. Decaux, A. Dieng, and M. Sow (eds.), From Human Rights to International Criminal Law: Des droits de l'homme au droit international penal, (2007), 322, n.27, noting that ‘[i]f responsibility under article 7(3) is a unique brand of responsibility . . . the superior is not being punished for the culpability of his subordinates, but for his own failings.’ See also B. B. Jia, ‘The Doctrine of Command Responsibility: Current Problems’, (2000) 3 Yearbook of International Humanitarian Law 131, at 162; Orić Defence Respondent's Brief, supra note 36, at paras. 438–452.

40 See Eboe-Osuji, supra note 39, at 322, n.27; Orić Prosecution's Appeal Brief, supra note 35, at paras. 102–120.

41 Eboe-Osuji, supra note 39, at 322–3.

42 It is interesting to note that the prosecution and defence briefs for the Orić Appeals Chamber Judgement both fail to identify this connection between the nature of superior responsibility and the issue of successor superior responsibility. Consequently, their arguments appear somewhat incoherent; for instance, the prosecution argues that superior responsibility is a mode of liability but also that a successor superior is responsible for crimes committed by his subordinates prior to taking command, even though these conclusions are inherently incompatible (see Orić Prosecution's Appeal Brief, supra notes 35 and 40 and accompanying text).

43 For a clear illustration of this see Orić Trial Chamber Judgement, supra note 30, at para. 293, where the doctrine of superior responsibility is characterized as a separate dereliction of duty offence. As a consequence, Naser Orić was convicted of the offence of ‘[f]ailure to discharge his duty as a superior to take necessary and reasonable measures to prevent the occurrence of murder [and cruel treatment]’, rather than the offences of murder and cruel treatment themselves, which had been committed by his subordinates (see Orić Trial Chamber Judgement, supra note 30, at para. 782 (Disposition)). In addition, the accused's sentence was limited to two years’ imprisonment (see Orić Trial Chamber Judgement, supra note 30, at para. 783 (Disposition)), a term described by the prosecution on appeal as ‘manifestly inadequate’ (see Orić Prosecution's Appeal Brief, supra note 35, at para. 226).

44 S. Darcy, ‘Imputed Criminal Liability and the Goals of International Justice’, (2007) 20 LJIL 377, at 377. See also Danner, A. M. and Martinez, J. S., ‘Guilty Associations: Joint Criminal Enterprise, Command Responsibility, and the Development of International Criminal Law’, (2005) 93 California Law Review 75Google Scholar, at 102, noting how modes of liability function as ‘the central doctrinal device through which . . . normative questions relating to the proper attribution of responsibility, guilt, and wrongdoing are mediated’.

45 See Report of the Secretary-General, supra note 7, at para. 56; M. C. Bassiouni, The Law of the International Criminal Tribunal for the Former Yugoslavia (1996), 345; Damaška, M., ‘The Shadow Side of Command Responsibility’, (2001) 49 American Journal of Comparative Law 455, at 461CrossRefGoogle Scholar; I. Bantekas, Principles of Direct and Superior Responsibility in International Humanitarian Law (2002), 98; Hansen, supra note 35, at 348; S. Darcy, ‘The Doctrine of Superior Responsibility’, in O. Olusanya (ed.), Rethinking International Criminal Law: The Substantive Part (2007), 142.

46 Robinson, P. H., ‘Imputed Criminal Liability’, (1983–4) 93 Yale Law Journal 609, at 611CrossRefGoogle Scholar.

47 See Nersessian, D. L., ‘Whoops I Committed Genocide! The Anomaly of Constructive Liability for Serious International Crimes’, (2006) 30 Fletcher Forum of World Affairs 81, at 89Google Scholar, noting that a superior is held responsible for the actual crimes of his subordinates ‘not because his conduct falls within its definition, but because he failed to prevent its commission by others’.

48 Čelebići Appeals Chamber Judgement, supra note 6, at para. 254, referring to Čelebići Trial Chamber Judgement, supra note 3, at para. 647.

49 See Čelebići Appeals Chamber Judgement, supra note 6, at para. 256, where the Appeals Chamber held that ‘[t]he concept of effective control over a subordinate . . . is the threshold to be reached in establishing a superior–subordinate relationship for the purpose of Article 7(3) of the Statute’. See also Prosecutor v. Tihomir Blaškić, Judgement, Case No. IT-95–14-A, A.Ch., 29 July 2004 (hereinafter Blaškić Appeals Chamber Judgement), para. 375; Prosecutor v. Sefer Halilović, Judgement, Case No. IT-01–48-A, A.Ch., 16 October 2007 (hereinafter Halilović Appeals Chamber Judgement), para. 59; and Orić Appeals Chamber Judgement, supra note 8, at para. 20. See generally Boas et al., supra note 2, at 152, and Bassiouni, supra note 45, at 349, who refer to the concept of effective control as the ‘touchstone’ of the superior–subordinate relationship. See also Y. Sandoz, C. Swinarski, and B. Zimmerman (eds.), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (1987), para. 3544 (hereinafter ICRC Commentary on the Additional Protocols), noting that ‘we are concerned only with the superior who has a personal responsibility with regard to the perpetrator of the acts concerned because the latter, being his subordinate, is under his control’.

50 Prosecutor v. Pavle Strugar, Judgement, Case No. IT-01–42-T, T. Ch., 31 January 2005 (hereinafter Strugar Trial Chamber Judgement), para. 359. See also Čelebići Trial Chamber Judgement, supra note 3, at para. 377 (‘The doctrine of command responsibility is ultimately predicated upon the power of the superior to control the acts of his subordinates’); Prosecutor v. Aleksovski, Judgement, Case No. IT-95-14/1-A, A.Ch., 30 May 2001 (hereinafter Aleksovski Appeals Chamber Judgement), para. 76; Prosecutor v. Limaj et al., Judgement, Case No. IT-03-66-T, T.Ch., 30 November 2005 (hereinafter Limaj Trial Chamber Judgement), para. 521; Halilović Trial Chamber Judgement, supra note 30, at para. 57.

51 See van Sliedregt, supra note 4, at 151, noting that ‘it is this relationship, governed by authority and obedience, which justifies holding a superior liable for subordinate behaviour’; R. Dixon, ‘Prosecuting the Leaders: The Application of the Doctrine of Superior Responsibility before the United Nations ICTs for the former Yugoslavia and Rwanda’, in P. J. van Krieken (ed.), Refugee Law in Context: The Exclusion Clause (1999), 127, referring to the superior–subordinate relationship as the ‘fundamental premise . . . for imposing criminal sanctions on superiors’.

52 For support of this approach among scholars see Vetter, G. R., ‘Command Responsibility of Non-military Superiors in the International Criminal Court (ICC)’, (2000) 25 Yale Journal of International Law 89, at 99Google Scholar; Shany, Y. and Michaeli, K. R., ‘The Case against Ariel Sharon: Revisiting the Doctrine of Command Responsibility’, (2002) 34 NYU Journal of International Law and Politics 797, at 803, 831–2Google Scholar; and Darcy, supra note 45, at 145.

53 Robinson, supra note 46, at 618, n. 26. See also A. P. Simester and G. R. Sullivan, Criminal Law Theory and Doctrine (2003), 243: ‘Vicarious liability involves the attribution to . . . [the accused] of conduct and states of mind possessed by another’.

54 Van Sliedregt, supra note 4, at 219.

55 Ambos, supra note 6, at 851.

56 Čelebići Appeals Chamber Judgement, supra note 6, at para. 239. See also Wu, T. and Kang, J.Y.-S., ‘Criminal Liability for the Actions of Subordinates: The Doctrine of Command Responsibility and Its Analogues in United States Law’, (1997) 38 Harvard International Law Journal 272, at 279–82Google Scholar, who argue persuasively that it would only be appropriate to characterize superior responsibility as a strict liability offence if the subordinate crimes were also strict liability offences.

57 See supra note 8 and accompanying text outlining the three elements of the doctrine of superior responsibility under Art. 7(3) of the ICTY Statute.

58 See Aleksovski Appeals Chamber Judgement, supra note 50, at para. 77 (conviction of superior for outrages upon personal dignity); Čelebići Appeals Chamber Judgement, supra note 6, at para. 214 (conviction of superior for violations of the laws and customs of war; see also Čelebići Trial Chamber Judgement, supra note 3, at paras. 1240 and 1285); Blaškić Appeals Chamber Judgement, supra note 49, at para. 633 (conviction of superior for the crime of inhuman treatment); Krnojelac Appeals Chamber Judgement, supra note 30, at 113–15, Disposition (conviction of superior for torture, murder, and persecution); Prosecutor v. Mladen Naletilić and Vinko Martinović, Judgement, Case No. IT-98-34-A, A.Ch., 3 May 2006 (hereinafter Naletilić Appeals Chamber Judgement), para. 156 and pp. 207–8, Disposition (conviction of superior for unlawful labour, cruel treatment, unlawful transfer, plunder and persecution); and Prosecutor v. Pavle Strugar, Judgement, Case No. IT-01-42-A, A.Ch., 17 July 2008 (hereinafter Strugar Appeals Chamber Judgement), at 146, Disposition (conviction of superior for attacks on civilians, destruction or wilful damage, devastation not justified by military necessity, and unlawful attacks on civilian objects; see also Strugar Trial Chamber Judgement, supra note 50, at para. 478). See also Orić Prosecution's Appeal Brief, supra note 35, at paras. 159–62; and Halilović Trial Chamber Judgement, supra note 30, at para. 53, confirming that ‘the consistent jurisprudence of the Tribunal has found that a commander is responsible for the crimes of his subordinates under Article 7(3)’.

59 See Prosecutor v. Jean Kambanda, Judgement, Case No. ICTR-97–23-S, T.Ch., 4 September 1998, para. 40 (conviction of superior for genocide, direct and public incitement to genocide, complicity in genocide, and murder and extermination as crimes against humanity; see also Jean Kambanda v. Prosecutor, Judgement, Case No. ICTR-97–23-A, A.Ch., 19 October 2000, upholding this conviction); Prosecutor v. Omar Serushago, Judgement, Case No. ICTR-98–39-S, T.Ch., February 1999, paras. 26–29 (conviction of superior for genocide and murder, extermination and torture as crimes against humanity; see also Prosecutor v. Omar Serushago, Judgement, Case No. ICTR-98–39-A, A.Ch., 6 April 2000, upholding this conviction); Prosecutor v. Clemént Kayishema, Judgement, Case No. ICTR-95–1-T, T.Ch., 21 May 1999, paras. 555, 559, 563, and 569 (conviction of superior for genocide; see also Prosecutor v. Clemént Kayishema and Obed Ruzindana, Judgement, Case No. ICTR-95–1-A, A.Ch., 1 June 2001, para. 372, upholding this conviction); Prosecutor v. Alfred Musema, Judgement, Case No. ICTR-96-13-A, T.Ch., 27 January 2000, paras. 936 and 951 (conviction of superior for genocide and extermination as a crime against humanity; see also Prosecutor v. Alfred Musema, Judgement, Case No. ICTR-96–13-A, A.Ch., 16 November 2001, upholding this conviction); and Prosecutor v. Nahimana et al., Judgement, Case No. ICTR-99-52-A, A.Ch., 28 November 2007, at 346, Disposition (conviction of superiors for direct and public incitement to genocide, and persecution as a crime against humanity). See also Orić Prosecution's Appeal Brief, supra note 35, at para. 163.

60 Orić Prosecution's Appeal Brief, supra note 35, at para. 165.

61 Čelebići Trial Chamber Judgement, supra note 3, at paras. 331 and 333. See also Čelebići Appeals Chamber Judgement, supra note 6, at para. 198; Prosecutor v. Kordić and Čerkez, Judgement, Case No. IT-95–14/2-T, T.Ch., 26 February 2001 (hereinafter Kordić Trial Chamber Judgement), para. 364; Krnojelac Appeals Chamber Judgement, supra note 30, at para. 93; Prosecutor v. Mladen Naletilić and Vinko Martinović, Judgement, Case No. IT-98–34-T, T.Ch., 31 March 2003 (hereinafter Naletilić Trial Chamber Judgement), para. 163; Prosecutor v. Milomir Stakić, Judgement, Case No. IT-97–24, T.Ch., 21 July 2003 (hereinafter Stakić Trial Chamber Judgement), para. 462; Hadžihasanović Interlocutory Appeal Decision, supra note 3, at para. 18; Prosecutor v. Radoslav Brđanin, Judgement, Case No. IT-99–36-T, T.Ch., 1 September 2004 (hereinafter Brđanin Trial Chamber Judgement), para. 720.

62 In the context of the ICTY, the general position regarding customary international law has been set out by the Appeals Chamber in Tadić: ‘In appraising the formation of customary rules . . . one should . . . be aware that, on account of the inherent nature of this subject, reliance must be placed on such elements as official pronouncements of States, military manuals and judicial decisions’ (Prosecutor v. Duško Tadić, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Case No. IT-94–1-AR-72, 2 October 1995, para. 99). A further insight into the tribunal's approach was revealed by the Trial Chamber in Krstić, which in effect set out a model procedure for examining the customary nature of an international criminal norm: first, a review of codification work carried out by international bodies; second, a review of international case law, International Law Commission drafts, the work of other international law committees, and the Elements of Crimes of the ICC Statute; and, finally, a review of the legislation and practice of states, in particular judicial interpretations and their decisions (Prosecutor v. Radislav Krstić, Judgement, Case No. IT-98–33-T, T.Ch., 2 August 2001, para. 541).

63 See supra note 6.

64 Halilović Trial Chamber Judgement, supra note 30, at para. 48.

65 Hansen, supra note 35, at 373; Meloni, C., ‘Command Responsibility: Mode of Liability for the Crimes of Subordinates or Separate Offence of the Superior?’, (2007) 5 Journal of International Criminal Justice 619, at 621, 623CrossRefGoogle Scholar. See In Re Yamashita, 327 US 1, 13–14 (1946); U.S. v. Hermann Goring (Nuremberg Judgement) (1946), Trial of the Major War Criminals before the International Military Tribunal (1948), Vol. XXII, 411, 546–7; United States v. von Leeb (High Command) (1948), United States Military Tribunal, LRTWC, UNWCC, Vol. XII (1949), 76 and 94–5; United States v. Wilhelm List et al. (Hostages) (1948), United States Military Tribunal, LRTWC, UNWCC, Vol. VIII (1949), 71 and 75–6; Pohl, Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law No. 10 (TWC), Vol. V (1950), 1011 (defendant Tschentscher), 1052–3 (defendant Mummenthey); Medical, TWC, Vol. II (1950), 193–4 (defendant Brandt), 207 (defendant Handloser), 212 (defendant Schroeder); Flick, TWC, Vol. VI (1952), 1202; Roechling, TWC, Vol. XIV, Appendix B (1952), 1136; Tokyo Trials (1948), International Military Tribunal for the Far East, repr. in L. Friedman (ed.), The Law of War: A Documentary History (1972), II, 1039; Toyoda, Official Transcript of Record of Trial, 5005–6, cited in Parks, supra note 2, at 72.

66 American military judge Kenneth Howard, in the Medina case, held that a superior is only responsible if he has ‘actual knowledge plus a wrongful failure to act . . . mere presence at the scene without knowledge will not suffice. . . the commander–subordinate relationship alone will not allow an inference of knowledge’ (K. Howard, ‘Command Responsibility for War Crimes’, (1972) 21 Journal of Public Law 7, at 11). This restrictive interpretation of the knowledge standard is inconsistent with customary international law and the provisions found in the US Army's Field Manual, which provides that a superior may be responsible if ‘he has actual knowledge, or should have knowledge, through reports received by him or through other means’ (US Department of the Army, Field Manual, 27–10: The Law of Land Warfare, at para. 501 (1956)). To this effect see Bassiouni, supra note 45, at 363; Lippman, supra note 6, at 39; Shany and Michaeli, supra note 52, at 859; Van Sliedregt, supra note 4, at 133; and Boas et al., supra note 2, at 167. See also Ambos, supra note 6, at 842, noting that the US Army's Field Manual has no legally binding effect, merely providing ‘authoritative guidance’.

67 Langston, E., ‘The Superior Responsibility Doctrine in International Law: Historical Continuities, Innovation and Criminality: Can East Timor's Special Panels Bring Militia Leaders to Justice?’, (2004) 4 International Criminal Law Review 141, at 157CrossRefGoogle Scholar.

68 Final Report of the Commission of Inquiry into the Events at the Refugee Camp in Beirut, (1983), repr. in 22 ILM 473 (1983) (hereinafter Kahan Report). See Boas et al., supra note 2, at 168–9, noting that although the Kahan commission was not a criminal court, in the light of the fact that it was composed of several eminent judges, the final report that followed has been considered ‘a relevant contribution to the development of customary law on superior responsibility’. See also Van Sliedregt, supra note 4, at 134.

69 For a factual background and discussion of the substantive points of the Kahan Report, see generally Green, supra note 6, at 356–68; Lippman, supra note 6, at 44–51; Shany and Michaeli, supra note 52, at 806–16; Van Sliedregt, supra note 4, at 133–4; and Boas et al., supra note 2, at 168–9.

70 Kahan Report, supra note 68, at 496.

71 Ibid., at 503.

72 See Hansen, supra note 35, at 387.

73 See Meloni, supra note 65, at 623.

74 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflict (1977), 1125 UNTS 3 (hereinafter Additional Protocol I), Art. 86(2).

75 See Damaška, supra note 45, at 486; Darcy, supra note 44, at 391; Eboe-Osuji, supra note 39, at 325; Meloni, supra note 65, at 624; Halilović Trial Chamber Judgement, supra note 30, at para. 49. See also ICRC Commentary on the Additional Protocols, supra note 49, at para. 3524, which is equally elusive, merely referring to ‘the special responsibility of a superior’. However, see also Hansen, supra note 35, at 379, noting that the language of Art. 86(2) is ‘certainly broad enough to impute liability on to the commander for the crimes committed by his subordinates’; Orić Prosecution's Appeal Brief, supra note 35, at para. 169, arguing that ‘[i]f Article 7(3) was a separate dereliction of duty offence that did not involve the attribution of conduct committed by subordinates to a superior, the notion of a superior being “relieved” of responsibility would be inapposite. To be “relieved” from a separate crime of dereliction of duty there would have to be some prior reference in the provision to such a crime. The only prior reference is to the crimes in Article 2–5.’ Such interpretations are in line with the travaux préparatoires, in which a number of delegations expressed the view that the principles expressed in Art. 86 were not intended to change existing customary international law; see Čelebići, Trial Chamber Judgement, supra note 3, at para. 304.

76 Statute of the International Criminal Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, UN Doc. S/25704 (1993), Art. 7(3).

77 Halilović Trial Chamber Judgement, supra note 30, at para. 50. See also Statute of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and other such Violations Committed in the Territory of Neighbouring States, between 1 January and 31 December 1994, SC Res. 955, Annex (1994), Art. 6(3); Draft Code of Crimes against the Peace and Security of Mankind (1991), in Report of the International Law Commission on the Work of Its Forty-Third Session, UN Doc. A/46/10 (1991), Art. 12; Statute of the Special Court for Sierra Leone, UN Doc. S/2002/246, 2178 UNTS 138, Appendix II, (2002), Art. 6(3); and United Nations Transitional Administration in East Timor Regulation No. 2000/15, UNTAET/REG/2000/15, (2000), s. 16, which also refer to ‘criminal responsibility’ without elaboration. See also Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the Period of Democratic Kampuchea, NS/RKM/1004/006 (2004), Art. 29, which refers to ‘personal criminal responsibility’, without elaboration. However, see W. J. Fenrick, ‘Some International Law Problems Related to Prosecutions before the International Criminal Tribunal for the Former Yugoslavia’, (1995–6) 6 Duke Journal of Comparative and International Law 103, at 112, who argues that ‘a superior who is held liable under Article 7(3) is a party to the main offence and is liable for the commission of the applicable offence under Articles 2 through 5 of the Statute’; and Van Sliedregt, supra note 4, at 173, noting that ‘[t]he close connection between a culpable subordinate and a culpable superior as a result of the same crime, suggests that the superior is responsible for the crime and should be punished for it.’

78 Report of the Secretary-General, supra note 7, at para. 56. The Secretary-General's Report may be relied on as a supplementary means of interpreting the ICTY Statute (Čelebići Trial Chamber Judgement, supra note 3, at para. 131).The Trial Chamber in Čelebići relied upon this report to find that superiors are held ‘criminally responsible for the unlawful conduct of their subordinates’ under Art. 7(3) (Čelebići Trial Chamber Judgement, supra note 3, at para. 333; see also Halilović Trial Chamber Judgement, supra note 30, at para. 51, n. 117).

79 Final Report of the Commission of Experts, supra note 7, at 16.

80 Ibid., at 16.

81 Draft Code of Crimes against the Peace and Security of Mankind, (1996), in Report of the International Law Commission on the Work of its Forty-Eighth Session, UN Doc. A/51/10, (1996), Art. 2(c). For criticism of reliance on the ILC Draft Code before the ICTY, see Hadžihasanović Interlocutory Appeal Decision, supra note 3, Partially Dissenting Opinion of Judge Shahabuddeen, at para. 21; ibid., Separate and Partially Dissenting Opinion of Judge Hunt, at para. 26; Orić Appeals Chamber Judgement, supra note 8, Partially Dissenting Opinion and Declaration of Judge Liu, at paras. 22 and 26; and ibid., Separate and Partially Dissenting Opinion of Judge Schomburg, at para. 20.

82 Commentary to Draft Code of Crimes against the Peace and Security of Mankind, (1996), in Report of the International Law Commission on the Work of its Forty-Eighth Session, UN Doc. A/51/10 (1996) (hereinafter ILC Commentary to the 1996 ILC Draft Code of Crimes), at 26.

83 See Henquet, supra note 35, at 828; Hansen, supra note 35, at 386; Meloni, supra note 65, at 633; and Arnold and Triffterer, supra note 6, at 827. See also Law of the Supreme Iraqi Criminal Tribunal, Number 10 of 2005, translated by the International Center for Transitional Justice, (2006) (available at www.ictj.org/static/MENA/Iraq/iraq.statute.engtrans.pdf), s. 15(4), which similarly refers to the fact that ‘[a] superior is not relieved of the criminal responsibility for crimes committed by his subordinates’. However, for the opposite view, see infra note 166 ff. and accompanying text.

84 See D. Robinson, ‘The Identity Crisis of International Criminal Law’, (2008) 21 LJIL 925, 952, submitting that ‘a cursory review of the Tribunal statutes and practice shows unmistakably that the commanders are in fact charged with, and convicted for, the war crimes or crimes against humanity committed by subordinates’ (emphasis in original); and Sepinwall, A. J., ‘Failures to Punish: Command Responsibility in Domestic and International Law’, (2009) 30 Michigan Journal of International Law 251, at 269Google Scholar, submitting that ‘the weight of history and precedent lies on the side of the mode of liability view’.

85 For support of the dereliction of duty approach among scholars see Jia, B. B., ‘The Doctrine of Command Responsibility Revisited’, (2004) 3 Chinese Journal of International Law 1, at 31–3CrossRefGoogle Scholar; Fox, supra note 15, at 491; and Boas et al., supra note 2, at 178.

86 Only one Appeals Chamber has explicitly endorsed the dereliction of duty approach: see Krnojelac Appeals Chamber Judgement, supra note 30, at para. 171: ‘It cannot be overemphasized that, where superior responsibility is concerned, an accused is not charged with the crimes of his subordinate but with his failure to carry out his duty as a superior to exercise control’. Several dissenting and separate opinions of Appellate Judges have offered support for the dereliction of duty approach: see Hadžihasanović Interlocutory Appeal Decision, supra note 3, Separate and Partially Dissenting Opinion of Judge Shahabuddeen, at para. 32; ibid., Separate and Partially Dissenting Opinion of Judge Hunt, at para. 9; Orić Appeals Chamber Judgement, supra note 8, Separate Opinion of Judge Shahabuddeen, at para. 25; ibid., Partially Dissenting Opinion and Declaration of Judge Liu, at paras. 31–32; and ibid., Separate and Partially Dissenting Opinion of Judge Schomburg, at para. 12. Several trial chambers have endorsed the dereliction of duty approach: see Halilović Trial Chamber Judgement, supra note 30, at para. 54; Hadžihasanović Trial Chamber Judgement, supra note 30, at para. 75; Orić Trial Chamber Judgement, supra note 30, at para. 293.

87 Orić Trial Chamber Judgement, supra note 30, at para. 782 (Disposition); Prosecutor v. Enver Hadžihasanović and Amir Kubura, Judgement, Case No. IT-01–47-A, A.Ch., 22 April 2008 (hereinafter Hadžihasanović Appeals Chamber Judgement), Disposition.

88 See Jia, supra note 85, at 31–3; Fox, supra note 15, at 491; Boas et al., supra note 2, at 178.

89 Halilović Trial Chamber Judgement, supra note 30, at paras. 42–54.

90 Ibid., at para. 48.

91 Ibid., at paras. 53–54.

92 Despite the flaws in the Halilović Trial Chamber's analysis, it has been explicitly reaffirmed: see Hadžihasanović Trial Chamber Judgement, supra note 30, at para. 75, and Orić Trial Chamber Judgement, supra note 30, at para. 293. For further criticism of the Trial Chamber's analysis in Halilović, see Sepinwall, supra note 84, at 264–7.

93 Hadžihasanović Interlocutory Appeal Decision, supra note 3, Separate and Partially Dissenting Opinion of Judge Shahabuddeen, at para. 32; Orić Appeals Chamber Judgement, supra note 8, Separate Opinion of Judge Shahabuddeen, at para. 25.

94 Hadžihasanović Interlocutory Appeal Decision, supra note 3, Separate and Partially Dissenting Opinion of Judge Shahabuddeen, at para. 32: ‘Article 7(3) of the Statute has the effect . . . of making the commander guilty of an offence committed by others . . . No doubt, arguments can be made in support of that reading’; Orić Appeals Chamber Judgement, supra note 8, Separate Opinion of Judge Shahabuddeen, at para. 25: ‘[T]he language of several cases does suggest that the commander himself committed the crime of the subordinate.’

95 Hadžihasanović Interlocutory Appeal Decision, supra note 3, Separate and Partially Dissenting Opinion of Judge Shahabuddeen, at para. 32.

96 Ibid., at para. 33.

97 Orić Appeals Chamber Judgement, supra note 8, Separate Opinion of Judge Shahabuddeen, at paras. 19–23.

98 Ibid., at para. 25.

99 Ibid., at para. 25. In a similar vein, Mettraux has recently tried to explain that ‘superior responsibility is not a case of the superior being held “responsible for the crimes of” subordinates, but responsibility “in respect of” crimes committed by subordinates’ (Mettraux, supra note 6, at 81, citing, inter alia, Čelebići Appeals Chamber Judgement, supra note 6, at para. 225).

100 See supra note 78 and accompanying text.

101 See supra notes 90–92 and accompanying text.

102 Orić Appeals Chamber Judgement, supra note 8, Separate Opinion of Judge Shahabuddeen, at para. 25.

103 Meron, supra note 15, at 825.

104 See Greenwood, supra note 15, at 604; C. H. B. Garraway, ‘Responsibility of Command – A Poisoned Chalice?’, in R. Arnold and P.A. Hildbrand (eds.), International Humanitarian Law and the 21st Century's Conflicts: Changes and Challenges (2005), 135; Darcy, supra note 45, at 144; Robinson, supra note 84, at 952; Sepinwall, supra note 84, at 269.

105 Eboe-Osuji, supra note 39, at 321. See also Robinson, supra note 84, at 952, noting that ‘the tribunals have no jurisdiction over any crime of “failure to exercise control”. They only have jurisdiction over genocide, crimes against humanity, and war crimes, and those are the crimes of which they find people guilty and enter convictions’.

106 See Orić Appeals Chamber Judgement, supra note 8, Separate Opinion of Judge Shahabuddeen, at para 25.

107 The principle of personal culpability has been recognized as a general principle of international criminal law: see Prosecutor v. Duško Tadić, Case No. IT-94–1-A, Judgement, A.Ch., 15 July 1999 (hereinafter Tadić Appeals Chamber Judgement), para. 186, where it was held that ‘[t]he basic assumption must be that in international law as much as in national systems, the foundation of criminal responsibility is the principle of personal culpability’; Kordić Trial Chamber Judgement, supra note 61, at para. 364; Damaška, supra note 45, at 470, noting that ‘if one were to catalog general principles of law so widely recognized by the community of nations that they constitute a subsidiary source of public international law, the culpability principle would be one of the most serious candidates for inclusion in the list’; Ambos, supra note 6, at 847, noting that ‘[f]rom the perspective of an international criminal law compatible with general principles of human rights and criminal law, respect for this principle is of the utmost importance and cannot be underestimated’; Danner and Martinez, supra note 44, at 82, noting that the principle ensures that ‘individual wrongdoing’ is a ‘necessary prerequisite’ for the imposition of criminal sanctions; and Cassese, supra note 6, at 33, noting that ‘[i]n ICL the general principle applies that no one may be held accountable for an act he has not performed or in the commission of which he has not in some way participated, or for an omission that cannot be attributed to him’. A related domestic notion is the principle of fair labelling, which, although not a general principle of international criminal law, may be considered a useful principle of justice (Williams, G., ‘Convictions and Fair Labelling’, (1983) 42 Cambridge Law Journal 85, at 86CrossRefGoogle Scholar). The principle is, in essence, an aspect of the principle of personal culpability, ensuring that the law is defined with precision and communicating to both the wrongdoer and society the precise nature and gravity of the transgression (Simester and Sullivan, supra note 53, at 45; Nersessian, supra note 47, at 16–18).

108 Tadić Appeals Chamber Judgement, supra note 107, at para. 186.

109 Damaška, supra note 45, at 468. See also Čelebići Trial Chamber Judgement, supra note 3, at para. 397, referring to the necessary lack of a causal nexus between a superior's failure to punish and the crimes of his subordinates: ‘[A] causation requirement would undermine the “failure to punish” component of superior responsibility, which . . . can only arise after the commission of the offence . . . as a matter of logic a superior could not be held responsible for prior violations committed by subordinates if a causal nexus was required between such violations and the superior's failure to punish those who committed them.’

110 Nersessian, supra note 47, at 94. See also Damaška, supra note 45, at 480; Cassese, supra note 6, at 245–6, characterizing such cases as instances of the specific crime of failure to report.

111 Damaška, supra note 45, at 479.

112 Darcy, supra note 44, at 391.

113 See Damaška, supra note 45, at 464; Shany and Michaeli, supra note 52, at 829–30; Eboe-Osuji, supra note 39, at 317; and Prosecutor v. Jean Mpambara, Judgement, Case No. ICTR-01–65-T, T.Ch., 11 September 2006, para. 26.

114 Arnold, R., ‘Command Responsibility: A Case Study of Alleged Violations of the Laws of War at Khiam Detention Centre’, (2002) 7 Journal of Conflict & Security Law 191, at 208CrossRefGoogle Scholar, comparing this head of superior responsibility with the analogous Swiss doctrine of the abstrakte Gefahrdungsdelikte according to which ‘there are some acts which need not effectively result in injury, harm, death or damage in order to imply liability, since they are prosecutable for the mere fact of creating a danger (inchoate endangerment)’. See also Hessler, C. A., ‘Command Responsibility for War Crimes’, (1973) 82 Yale Law Journal 1274, at 1283Google Scholar, arguing that the military commission and Supreme Court in Yamashita held that ‘[a superior's] total ignorance, and the complete delegation of authority associated with it, themselves raised unacceptable general risks of future subordinate criminality’; and Langston, supra note 67, at 146, portraying superior responsibility as ‘an exercise in risk management’.

115 Hadžihasanović Appeals Chamber Judgement, supra note 87, at para. 30. See also Shany and Michaeli, supra note 52, at 830–1, noting that ‘where the commander wilfully refused to punish the offender, it can be said that she in effect has embraced the criminal conduct and thereby has encouraged the commission of additional crimes in the future’.

116 Prosecutor v. Tihomir Blaškić, Judgement, Case No. IT-95–14-T, T.Ch., 3 March 2000 (hereinafter Blaškić Trial Chamber Judgement), para. 337 (cited by Blaškić Appeals Chamber Judgement, supra note 49, at para. 89); Kordić Trial Chamber Judgement, supra note 61, at para. 371. See also Van Sliedregt, supra note 4, at 172–3.

117 Greenwood, supra note 15, at 603.

118 Greenwood even admits that to do so is a ‘harsh rule’. Ibid., at 603.

119 Wu and Kang, supra note 56, at 18. For an alternative view, see Sepinwall, supra note 84, at 298 ff.

120 See Bonafé, B. I., ‘Finding a Proper Role for Command Responsibility’, (2007) 5 Journal of International Criminal Justice 599CrossRefGoogle Scholar, at 600: ‘International criminal law is characterized by the dilemma of being an individual-oriented body of law, which, however, must generally deal with collective – if not state – criminal phenomena.’

121 Tadić Appeals Chamber Judgement, supra note 107, at para. 191.

122 Bogdan, A., ‘Individual Criminal Responsibility in the Execution of a “Joint Criminal Enterprise” in the Jurisprudence of the Ad Hoc International Tribunal for the Former Yugoslavia’, (2006) 6 International Criminal Law Review 63, at 64CrossRefGoogle Scholar.

123 N. L. Reid, ‘Bridging the Conceptual Chasm: Superior Responsibility as the Missing Link between State and Individual Responsibility under International Law’, (2005) 18 LJIL 795, at 824. See also L. S. Sunga, ‘The Celebici Case: A Comment on the Main Legal Issues in the ICTY's Trial Chamber Judgement’, (2000) 13 LJIL 105, at 122: ‘In the Nuremberg Charter, the dilemma between the unfairness of collective responsibility, and the unfairness for direct perpetrators only, finds resolution in the doctrine of . . . superior responsibility’.

124 M. A. Drumbl, Atrocity, Punishment, and International Law (2007), 5. See also Fletcher, L. E., ‘From Indifference to Engagement: Bystanders and International Criminal Justice’, (2005) 26 Michigan Journal of International Law 1013, at 1031Google Scholar, noting international criminal law's tendency to ‘locate the individual as the central unit of analysis for purposes of sanctioning violations’; Fletcher, G. P., ‘Collective Guilt and Collective Punishment’, (2004) 5 Theoretical Inquiries Law 163, at 163CrossRefGoogle Scholar, noting ‘the liberal idea that the only true units of action in the world are individuals, not groups’.

125 Drumbl, supra note 124, at 9.

126 Ibid., at 9 (emphasis in original).

127 Ibid., at 21.

128 Danner and Martinez, supra note 44, at 139.

129 On the legitimacy of international criminal law, see generally ibid., at 96–102, noting that ‘[a]t this point in the development of the field, establishing the legitimacy of international criminal proceedings poses the most critical challenge for international tribunals’.

130 In Re Yamashita, 327 US 1, 28–9 (1946). See also Darcy, supra note 44, at 392, explaining how ‘[t]he potential achievement of goals such as the maintenance of peace or contributing to reconciliation may be jeopardized’ by the employment of imputed modes of liability which undermine the principle of personal culpability.

131 For an overview of scholars who fear such lacunae in the law see Robinson, supra note 84, at 955, n. 176. See also Garraway, supra note 104, at 132, noting that attempts to fill purported gaps in the law may have the opposite effect and in fact lead to the creation of new gaps. In respect of the question of successor superior responsibility, Garraway asks, ‘What of the case where the commander knows of the crimes before he takes command, but then takes no action when he is in a position to do so? Should his position be any different from the commander who only discovers the crimes after he has taken command?’

132 Robinson, supra note 84, at 953.

133 Additional Protocol I, supra note 74, Art. 87(3).

134 Ibid.

135 For scholars who argue that the provisions should be interpreted together see, e.g., Lippman, supra note 6, at 54; and Fox, supra note 15, at 466. For judicial opinions which support the provisions being interpreted together see Hadžihasanović Interlocutory Appeal Decision, supra note 3, Partially Dissenting Opinion of Judge Shahabuddeen, at para. 25; ibid., Separate and Partially Dissenting Opinion of Judge Hunt, at para. 43; Orić Appeals Chamber Judgement, supra note 8, Partially Dissenting Opinion and Declaration of Judge Liu, at para. 16; ibid., Separate and Partially Dissenting Opinion of Judge Schomburg, at para. 19. For scholars who argue that the provisions should be kept distinct see, e.g., Shany and Michaeli, supra note 52, at 840–1; Garraway, supra note 104, at 134; and Robinson, supra note 84, at 953–4. For judicial opinions which support the provisions being interpreted together see Hadžihasanović Interlocutory Appeal Decision, supra note 3, at para. 53.

136 Hadžihasanović Interlocutory Appeal Decision, supra note 3, Partial Dissenting Opinion of Judge Shahabuddeen, at para. 25; ibid., Separate and Partially Dissenting Opinion of Judge Hunt, at para. 43; Orić Appeals Chamber Judgement, supra note 8, Partially Dissenting Opinion and Declaration of Judge Liu, at para. 16; and ibid., Separate and Partially Dissenting Opinion of Judge Schomburg, at para. 19.

137 ICRC Commentary on the Additional Protocols, supra note 49, at para. 3541.

138 Hadžihasanović Interlocutory Appeal Decision, supra note 3, Partially Dissenting Opinion of Judge Shahabuddeen, at para. 14; ibid., Separate and Partially Dissenting Opinion of Judge Hunt, at para. 22; and Orić Appeals Chamber Judgement, supra note 8, Partially Dissenting Opinion and Declaration of Judge Liu, at para. 30.

139 Orić Appeals Chamber Judgement, supra note 8, Partially Dissenting Opinion and Declaration of Judge Liu, at para. 17.

140 ILC Commentary to the 1996 ILC Draft Code of Crimes, supra note 82, at 25.

141 See Orić Appeals Chamber Judgement, supra note 8, Partially Dissenting Opinion and Declaration of Judge Liu, at para. 20.

142 On this point see Greenwood, supra note 15, at 604, noting that ‘[u]ntil the establishment of the ICTY in the early 1990s, the enforcement of the law through criminal liability was the exception rather than the rule. The changes brought about by the creation of the ad hoc criminal tribunals . . . should not lead to the conclusion that a proper system of enforcement must always be dependent upon the criminal liability of an individual’. See also Damaška, supra note 45, at 475; Van Sliedregt, supra note 4, at 173; and Darcy, supra note 44, at 392.

143 Additional Protocol I, supra note 74, Art. 86(2).

144 ILC Commentary to the 1996 ILC Draft Code of Crimes, supra note 82, at 25.

145 Čelebići Appeals Chamber Judgement, supra note 6, at para. 237.

146 Garraway, supra note 104, at 134.

147 Robinson, supra note 84, at 953.

148 See Damaška, supra note 45, at 489, criticizing the ICTY for ‘stop[ping] deferentially before each decision as if it were a station in a pilgrimage, and treat[ing] each rule discerned in the decision as if it were unarguable as a papal bull’. See also Darcy, supra note 44, at 392–5.

149 See supra note 58 ff. and accompanying text.

150 Damaška, supra note 45, at 487.

151 See Olasolo, H., ‘A Note on the Evolution of the Principle of Legality in International Criminal Law’, (2007) 18 Criminal Law Forum 301, at 318CrossRefGoogle Scholar, hoping that the ICTY jurisprudence marks ‘the final tremors of a traditional conception of international criminal law preoccupied with the central role played by international customary law as a source of international criminal law’.

152 ‘Judgment of the Nuremberg International Military Tribunal’ (Goering), (1946) 41 AJIL 172, at 221.

153 Report of the Secretary-General, supra note 7, at para. 34.

154 Robinson, supra note 84, at 953.

155 Tadić Appeals Chamber Judgement, supra note 107, at para. 186.

156 See Vienna Convention on the Law of Treaties (23 May 1969), 1155 UNTS 331, Art. 31: ‘A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose’. For an example of the ICTY relying on Art. 31 of the Vienna Convention on the Law of Treaties 1969 in interpreting Art. 86(2), see Blaškić Trial Chamber Judgement, supra note 116, at para. 327.

157 See, among the many authorities, ECHR, Cossey v. UK, Case No. 16/1989/176/232, 29 August 1990, para. 35.

158 See supra note 93 and accompanying text.

159 Orić Appeals Chamber Judgement, supra note 8, Separate Opinion of Judge Shahabuddeen, at para. 25.

160 The nullum crimen principle aims to protect individuals against arbitrary interference by state or inter-state authorities, principally by ensuring that criminal law doctrines are defined with sufficient specificity and not applied retroactively. See Schabas, W. A., ‘The General Principles of the Rome Statute’, (1998) 6 European Journal for Crime, Criminal Law, and Criminal Justice 84, at 90CrossRefGoogle Scholar; S. Lamb, ‘Nullum Crimen, Nulla Poena Sine Lege in International Criminal Law’, in Cassese, Gaeta, and Jones, supra note 6, at 734; M. Catenacci, ‘The Principle of Legality’, in F. Lattanzi and W. A. Schabas (eds.), Essays on the Rome Statute of the International Criminal Court (2004), 85, at 86–7; G. Werle, Principles of International Criminal Law (2005), at 33; J. Nilsson, ‘The Principle Nullum Crimen Sine Lege’, in O. Olusanya (ed.), Rethinking International Criminal Law: the Substantive Part (2007), 35, at 40–1 and 62; Olasolo, supra note 151, at 301; Cassese, supra note 6, at 38 and 41–51.

161 See Olasolo, supra note 151, at 318, arguing that ‘the more generic and less demanding the requirements of the legality principle are, the less protective of the individual such principle becomes and the less effective the preventive function of criminal norms is’.

162 Hadžihasanović Interlocutory Appeal Decision, supra note 3, at para. 12. See also ibid., Separate and Partly Dissenting Opinion of Judge Shahabuddeen, at para. 10; ibid., Separate and Partly Dissenting Opinion of Judge Hunt, at para. 8.

163 See Arnold and Triffterer, supra note 6, at 843 (‘following . . . the ICC Statute command responsibility is conceived as a form of participation into the crimes enlisted under article 5, and not as a crime per se’); O. Triffterer, ‘“Command Responsibility” – crimen sui generis or participation as “otherwise provided” in Article 28 Rome Statute?’, in J. Arnold, B. Burkhardt, W. Gropp, G. Heine, H.-G. Koch, O. Lagodny, W. Perron, and S. Walther (eds.), Menschengerechtes Strafrecht: Festschrift fur Albin Eser (2005), at 905 (‘Command responsibility is one of the modes of individual criminal responsibility . . . and not a definition of a crime, separate of [sic] and additional to those listed in Article 5 and defined and acknowledged in Articles 6–8’).

164 O. Triffterer, ‘Causality, a Separate Element of the Doctrine of Superior Responsibility as Expressed in Article 28 Rome Statute?’, (2002) 15 LJIL 179, at 186.

165 Triffterer, supra note 163, at 907–8; Arnold and Triffterer, supra note 6, at 827.

166 Ambos, supra note 6, at 851 (‘Article 28 can be characterized as a genuine offence or separate crime of omission . . . since it makes the superior liable only for a failure of proper supervision and control of his or her subordinates, but not, at least not “directly”, for crimes they commit’); Van Sliedregt, supra note 4, at 190–1 (‘Article 28 . . . qualifies, more clearly than any of its codified predecessors, as a genuine offence, or separate crime of omission’); Meloni, supra note 65, at 637 (‘The nature of superior responsibility in these cases should thus be more conveniently found in the mere failure to act under a duty to do so’); Nerlich, V., ‘Superior Responsibility under Article 28 ICC Statute: For What Exactly Is the Superior Held Responsible?’, (2007) 5 Journal of International Criminal Justice 665CrossRefGoogle Scholar, at 682 (‘Structurally, the superior can be blamed only for the wrongful consequence that was caused by the base crime, but not for the criminal conduct of his or her subordinates that constituted the base crime’).

167 Van Sliedregt, supra note 4, at 190–1.

168 Ibid., at 190.

169 Ibid., at 191.

170 Ambos, supra note 6, at 851.

171 The approach was first advocated by Otto Triffterer, on which see generally Triffterer, supra notes 163 and 164. See also Nerlich, supra note 166, at 678.

172 Triffterer, supra note 163, at 912; Triffterer, supra note 164, at 191 ff.; Nerlich, supra note 166, at 678.

173 See supra note 109.

174 This causation requirement has recently been upheld by Pre-Trial Chamber II of the ICC: see Situation in the Central African Republic in the Case of the Prosecutor v. Jean-Pierre Bemba Gombo, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor against Jean-Pierre Bemba Gombo, Case No. ICC-01/05–01/08, P.T.Ch. II (hereinafter Bemba Pre-Trial Chamber Decision), 15 June 2009, at para. 420, stating that ‘[t]he third element to be satisfied for the purpose of article 28(a) of the Statute is to prove that crimes committed by the suspect's forces resulted from his failure to exercise control properly over them’. For the opposite view, see the amicus curiae brief of Amnesty International: Situation in the Central African Republic in the Case of the Prosecutor v. Jean-Pierre Bemba Gombo, Case No. ICC-01/05–01/08, Amnesty International, Amicus Curiae Observations on Superior Responsibility Submitted Pursuant to Rule 103 of the Rules of Procedure and Evidence, 20 April 2009, at paras. 38–44, approved by the Prosecutor of the ICC in Situation in the Central African Republic in the Case of the Prosecutor v. Jean-Pierre Bemba Gombo, Case No. ICC-01/05-01/08, Office of the Prosecutor, Prosecution's Position Statement re: Amnesty International's Amicus Curiae Observations on Superior Responsibility filed on 27 April 2009, at para. 4.

175 Nerlich, supra note 166, at 678, n. 62.

176 See Bemba Pre-Trial Chamber Decision, supra note 174, at para. 419; Triffterer, supra note 163, at 912; and Nerlich, supra note 166, at 678.

177 Bemba Pre-Trial Chamber Decision, supra note 174, at para. 419, stating that ‘the Chamber is of the view that according to article 28(a) of the Statute, the suspect must have had effective control at least when the crimes were about to be committed’ (emphasis in original).