Justice in Extreme Cases Symposium: Some Observations on the ‘Genius of Command Responsibility’, As Understood by Darryl Robinson

[Harmen van der Wilt is professor in International Criminal law at the University of Amsterdam.]

In the lingering debate whether superior responsibility should be considered as a mode of accessorial liability or rather should qualify as a separate offence of dereliction of duty, Darryl Robinson has defended the former position. For the sake of brevity, a summary of the discussion should suffice. Scholars and practitioners who advocate the separate offence-construction argue that the ‘lean’ mens rea requirement for superior responsibility is incommensurable with the  serious crimes for which the superior is held responsible. After all, the ‘ should have known’ standard in the Rome Statute that applies to military commanders implies that a commander can incur criminal responsibility, even if he/she was oblivious of his/her subordinates’ engaging in war crimes.

In an elegant and sophisticated discourse, Darryl retorts that inadvertent negligence is not so innocent as often is presumed, especially not in the inherently dangerous context of combat. It should certainly not be conflated with ‘strict liability’. Moreover, so he continues, criminal law doctrine generally accepts that  the mens reae  of main perpetrators and accessories may diverge, which is one of the reasons why the latter bear a lesser moral and legal stigma than the former. And finally he argues that culpable negligence can be an adequate and sufficient ‘ building block’ in the doctrine of superior responsibility, precisely because the inflammatory context of armed conflict demands heightened diligence and attention on the part of the commander.

I do not take issue with the first two arguments, but still find the last one difficult to digest. (To his credit, Darryl himself qualifies it as ‘ the hardest question’). Basically, Darryl aims to sustain his position with two further arguments. First, he confronts the reader with the malicious commander who intentionally omits to establish any reporting system about the course of combat or even exhorts his subordinates that he is not to be bothered. It is reminiscent of the mental state of ‘willful blindness’ that features in case law as an appropriate mens rea for superior responsibility. It is questionable whether such an extreme situation would be sufficient to support the introduction of a diluted subjective element in the doctrine. It is not difficult to imagine situations in which the commander has put a (rudimentary) reporting procedure in place, but still is left in the dark of his subordinates committing atrocities, due to the fog of war. Would he be likely to incur criminal responsibility under the should have known standard? The question is pertinent in view of the fact that disciplining or punishing the culprits does not compensate for a prior omission to prevent those crimes. Darryl attempts to allay our concerns by pointing out that mere negligence does not suffice. ‘Gross’ negligence, id est a considerable deviation from the standard of duty of care, is required. However, at this point Darryl’s second argument obfuscates the discussion. He contends that the conduct and performance of military commanders should be measured against a higher standard, because they engage in a very risky and dangerous enterprise in which human lives are at stake and they possess special skills and have received special training to cope with such situations. This implies that an inadvertency that in normal, peaceful times would count as culpa levis, falls considerably short of the yardstick that behooves his position and is the standard in the trade.

Now I do not deny that military commanders should be gauged by more demanding standards, even to the point that they may incur criminal responsibility for failing to live up to those exigencies.  The familiar concept of Garantenstellung is predicated on that assumption.  I simply wish to point out that the concept of ‘gross negligence’ in the context of superior responsibility is likely to expand. It may easily cover – beyond the configuration of the commander acting in bad faith – less culpable conduct that may be attributed to exhaustion, stress, ‘black outs’, in short: the frailty of the human condition.  In that situation the gap between the mens rea and the seriousness of the crimes widens and the problem is aggravated. 

Are there any alternative options to resolve the conundrum? The qualification of ‘ dereliction of duty’ as a separate offence finds (relative) favour in the eyes of Darryl, because it  at least acknowledges the culpability principle. He indicates, however,  that neither the Rome Statute, nor the statutes of the ad hoc tribunals provide for such a solution, which implies that it’s introduction would militate against the legality principle. That is undoubtedly true, but the Rome Statute is not cast in stone. If the ‘ separate offence’ option is more in conformity with deontic principles, states parties should be encouraged to amend it. Of course that possibility is not available (retroactively) in respect of the statutes of the tribunals, but for these tribunals the issue did not arise, because they harboured the stricter mens rea standard of ‘had reason to know’. At the end of his discourse, Darryl advances another objection against the ‘separate offence’ construction where he argues that it ‘understates the harm unleashed and the indirect liability for the crimes facilitated by one’s dereliction.’ Well, here I beg to differ. This notion precisely captures the essence of the culpable failure of the responsible superior. Obviously, the degree of dereliction can vary, covering both negligent behaviour, for instance the underestimation of a risk that subordinates will commit war crimes, and graver culpa in causa configurations in which the commander contrives to remain ‘ignorant’. Sentencing can express the differences in ‘blameworthiness’.

If Darryl would still have problems with the malicious ‘willfully blind’ commander being only charged with a dereliction of duty, one could argue that the latter probably falls within the parameters of the ‘had reason to know’ standard. After all, deliberate ignorance and positive knowledge are equally culpable. (In that sense, Timothy Wu and Johnathan Kang, ‘Criminal Liability for the Actions of Subordinates – The Doctrine of Command Responsibility and its Analogues in United States Law’ 38 Harvard International Law Journal (1997). 272. 284. See also the searching observations of Kai Ambos, Treatise on International Criminal Law, Vol. I: Foundations and General Part, OUP: Oxford, 2013, 222-227). In short, a combination of a reasonable interpretation of the ‘had reason to know’ standard and dereliction of duty as a separate offence would perfectly be able to address the problem.

These critical comments on Darryl’s analysis do not detract from my opinion that Darryl has made the best possible defence for a position that I still cannot accept. It has challenged me at least to reconsider and sharpen my arguments.