MJIL Symposium: A Response to Darryl Robinson by Jens Ohlin

[Jens David Ohlin is an Associate Professor of Law at Cornell Law School; he blogs at LieberCode.]

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

Professor Darryl Robinson is to be commended for untangling what has to be one of the most tangled webs in international criminal law theory. The settled jurisprudence on command responsibility is anything but settled; it is contradictory, confusing, and full of conclusory statements and pronouncements that don’t hold water.

With Professor Robinson, I’ve viewed with suspicion the recent trend toward arguing that command responsibility is a form of omission liability, or even a separate offence. Regardless of whether one goes the full route and declare it a separate offence, this basic idea is the same: that command responsibility represents a conviction for dereliction of duty, for failing to live up to the demands of the law on the part of the commander, such as punishing subordinates. Under this argument, command responsibility is not a form of vicarious liability for the actions of subordinates who commit atrocities.

Like Professor Robinson, I have always found this view difficult to square with both the history and contemporary practice of command responsibility. In particular, Re Yamashita certainly reads like a case of vicarious responsibility, in that the military commission charged him with the full force of the atrocities — and executed him for it. If it was just an omission offence, then it is hard to square that with both the rhetoric and result in re Yamashita.

At this point in the analysis, though, I might have some small disagreements with Professor Robinson.

Professor Robinson’s suggestion is that we return command responsibility to the vicarious liability arena with the causation requirement back in place. I don’t disagree with this, but Professor Robinson’s argument is based mostly on getting a coherent result that accords with both criminal law theory and the statutes of the international tribunals.

From a purely normative perspective unconstrained by the statutes of the ad hoc tribunals, Professor Robinson professes agnosticism and does not address the question of what command responsibility ought to look like. Consider the following thought experiment. A new ad hoc or hybrid tribunal has hired Professor Robinson, or the readers of OJ, to draft a new statute to govern its cases. How should this hypothetical statute treat command responsibility?

One tantalising possibility is to recognise that command responsibility can be both a separate offence for dereliction of duty and a mode of liability generating vicarious responsibility for atrocities performed by underlings. As a normative matter going forward, this revisionary account would recognise that command responsibility has been operating as a cluster concept for years: part of the problem is that we have diverse and sometimes competing intuitions about command responsibility that track two separate doctrines that have been needlessly conflated. Like conspiracy — both a substantive inchoate offence and a mode of liability — command responsibility is really a cluster concept composed of two discrete notions, one a dereliction of duty offence for failure to punish, and the other a mode of liability yielding vicarious responsibility for the atrocities themselves. The former does not require causation and would be punished at a lower level, while the latter would require full causation and would also yield punishment at the highest end of the spectrum (depending on the nature of the atrocity). Essentially, we’ve been victimised by cross-talking because we are working with two different versions of the doctrine.

Personally, this strikes me as the most compelling avenue out of this mess, though it would require doctrinal and statutory amendments to codified law — a possibility that Professor Robinson understandably wanted to avoid discussing. Amending the Rome Statute is no easy to task and judges have no authority to do. But depending on whether ad hoc and hybrid tribunals continue to be created in the near future, this ‘ideal theory’ exercise could be relevant in important ways. And the virtue of this revisionary but inclusive project is that it could gain wide acceptance because it would effectively tell both camps that they got command responsibility right in their own way: everybody is right; nobody is wrong; let’s make a deal.