MJIL Symposium: A Response to Darryl Robinson by Ilias Bantekas

[Ilias Bantekas is Professor of Law at Brunel University in London.]

This post is part of the MJIL 13(1) Symposium. Other posts in this series can be found in the related posts below.

Causality is central in the operation of criminal attribution in all legal systems. It makes sense of course that liability for particular conduct exists where it is proven that it caused the harmful outcome which constitutes the actus reus of an offence. Causation is the fundamental link between conduct and outcome and is as a result the basis of liability. One would have thought that since the doctrine of causation emerged from domestic criminal justice systems, its transplantation to the various forms of liability under international law would have followed this rationale. Instead, as Professor Robinson aptly points out, it has been disregarded as irreconcilable with certain contours of the command responsibility doctrine. It is thus claimed by those opposed to its application that a commander who fails to punish his subordinates incurs command responsibility not because his failure to repress caused the commission of crimes by his subordinates. Rather, a commander’s pre-existing duty to punish suffices to hold him criminally liable irrespective of any direct or even indirect harm caused as a result of his inaction.

I have to admit that although I did give the matter some consideration in chapter 4 of my international criminal law textbook, I failed to give it the attention it desperately required. Logic dictates that a commander who fails to punish subordinates that committed a serious crime can only incur liability under two distinct strands: a) for his omission as such; and b) for subsequent harm directly caused by his omission. The first strand does not constitute a crime under international law nor an independent form of international criminal liability. It is no doubt a dereliction of duty under national military law and may conceivably be upheld as an aggravating circumstance in respect of another international crime. The second strand in my opinion is the one found in all those provisions dealing with command responsibility, from art 7(3) of the ICTY Statute to art 28 of the ICC Statute. If causality is not required for failing to punish subordinate criminality, then what exactly is the offence for which the commander is liable? It is inconceivable that the doctrine of command responsibility emerged one evening wholly disassociated from the criminal law theory of the civil law and common law traditions, both of which require causality for the attribution of liability. This does not mean that a commander who fails to punish is absolved from all liability. We have already stated that he may incur liability for dereliction of duty under national law. Moreover, his international liability may be engaged if as a result of his failure his subordinates are encouraged to commit further crimes and in fact do so. Finally, the international community may, if it views this to be a significant issue, discuss the possibility of establishing a new failure to punish offence under international law that does not require a causal link to further crimes. This, however, will open up a plethora of issues that no one is keen to touch, including a reappraisal of the foundations of command responsibility itself.