MJIL Symposium: A Response to Ilias Bantekas and Jens Ohlin by Darryl Robinson

[Darryl Robinson is an Assistant Professor at Queen’s University, Faculty of Law]

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

I am delighted to participate in this online symposium, this time at the receiving end. The emergence of online symposia is a commendable innovation which I am eager to support. When academic conversation is carried out through journal articles, the rhythm is glacially slow. Years pass between argument, counterargument and response. Online symposia provide a rapid cycle of appraisal, critique, response and clarification, both accelerating and deepening our understanding.

In this instance I am doubly delighted, as I literally cannot imagine a more qualified group of reviewers on this topic. Ilias Bantekas is one of the most prominent authorities on command responsibility. I relied considerably on his insightful and thoughtful works on command responsibility as well as his valuable treatise on international criminal law (ICL).  Jens Ohlin and James Stewart are both bringing the rigour of criminal law theory to ICL, and doing so in an ambitious, exciting, open-minded way that does not simply export national concepts.  I will address the comments by Professor Bantekas and Professor Ohlin here, and address James’ comments separately.

My argument — that the discourse on command responsibility has slowly tied itself into unnecessary knots — was not necessarily one that was guaranteed a warm reception in the ICL community. I am therefore triply delighted, in that both Professor Bantekas and Professor Ohlin seem largely convinced about my central points: that an early misstep in Tribunal jurisprudence led to an internal contradiction, and that later efforts to deny or, subsequently, to solve the contradiction, have led to increasingly elusive or complex assertions about the nature of command responsibility (eg, it’s a mode of liability, a separate offence, it’s both, it’s neither, etc).

In my article, my prescription is that by reversing the first misstep and accepting a causal contribution requirement, we can reconcile the law with the culpability principle. The existing general category of accessory liability accurately conveys the commander’s responsibility, and we don’t need to invent obscure, vague, hybrid or variegated descriptions of the nature of command responsibility. Professor Ohlin and Professor Bantekas both move to the next question, which is a normative assessment from a legislator’s perspective – what we might do with a blank canvass.

Before proceeding, I should clarify a minor terminological detail. Readers could potentially be puzzled that Professor Ohlin says he agrees with me that command responsibility is a form of vicarious liability, whereas my article emphasises that it is not vicarious liability. I think Professor Ohlin and I are actually on the same page on the substance; we are simply using the term ‘vicarious liability’ differently. I use the term to mean liability based only on a relationship, without personal culpability in relation to the crime. On this usage, ‘vicarious liability’ has a negative sense, as it is liability without meeting even the more elastic objective and subjective requirements for accessory liability. It appears that Professor Ohlin uses the term ‘vicarious’ to mean any liability for acts of another, including where culpability can be traced back to the accused (what others might call ‘imputed’ or ‘derivative’ or ‘indirect’ liability). This usage can be seen inter alia in his quite brilliant work on second-order linking principles, where ‘vicarious’ does not necessarily carry the same negative conclusion about an absence of culpability. So, I believe we are on the same page but just using this term differently. I think command responsibility can be saved from being ‘vicarious liability’ (in the negative sense), but it is indeed an indirect liability based on one’s contribution with requisite fault to a crime.

Professor Ohlin and Professor Bantekas move on to the normative question of what command responsibility ought to look like, if we were legislators unconstrained by prior texts. Both Professor Ohlin and Professor Bantekas contemplate whether, in addition to command responsibility as a mode of liability (where the dereliction facilitates or encourages the crime), we might in addition legislate a dereliction offence to deal with derelictions that do not contribute in any way to core crimes.

I like Professor Ohlin’s ‘thought experiment’; my answer to his suggestion is a ‘yes’ in national systems and a ‘maybe’ for an international court. To fill in the background, my objection to the ‘separate offence’ approach was that the applicable law for the Tribunals and the ICC does not seem to support it. Thus, I think that some advocates of that approach are escaping the ‘frying pan’ of a culpability problem by leaping into the ‘fire’ of a legality problem. Nor can we can suggest that command responsibility is already a ‘cluster’ concept, such that, for example, art 28 of the Rome Statute already has a separate offence hidden in it alongside a mode of liability. Such an interpretation encounters too many problems.[1] I noted, however, that adding a new dereliction offence through a law-making authority would avoid the legality problem and may be commendable.

For a national legislator, I would warmly endorse the ‘everyone wins’, ‘let’s have it both ways’ solution favoured by Professor Ohlin. Indeed I emphasised my praise for the ‘commendable’ German model, which does precisely this.[2] The ‘mode’ approach conveys the responsibility for the harms flowing from the dereliction, whereas the ‘separate offence’ approach can respond to non-contributory derelictions in a principled way.

I would have a few preliminary questions before adopting the same approach in an international tribunal statute. Professor Bantekas rightly alludes to some of these difficulties.  My most important question would be about mandate. I would have to ask the creators, ‘You say that you want this tribunal to focus on the persons most responsible for the most serious international crimes.  Are you sure you want to include a commander’s failure to punish even in circumstances where there is not even a possibility that the failure contributed to a single war crime?’. This is why I wonder whether the current fixation with non-contributory derelictions is really a suitable preoccupation for ICL. I understand the expressive and deterrent arguments for clamping down on non-contributory failures to punish. I wonder if international institutions would do be better to focus our efforts on persons who might have actually directly or indirectly contributed to at least one core crime.  But that is a mandate question. It is certainly feasible in principle to adopt Professor Ohlin’s compromise/the German model at the international level.