Justice in Extreme Cases Symposium: The Harms of the Derelict Commander

[Saira Mohamed is Professor of Law at the UC Berkeley School of Law.]

Darryl Robinson’s Justice in Extreme Cases: Criminal Law Theory Meets International Criminal Law offers a detailed and convincing argument for a mutually beneficial relationship between international criminal law and criminal law theory: just as criminal law theory can clarify and improve international criminal law, international criminal law can clarify and improve criminal law theory.  Based in part on earlier published work, the book offers much to dig into, from a defense of deontic reasoning in international criminal law (Chapter 2) to an explanation for why command responsibility should require a causal contribution to the subordinate’s crime and how that requirement should be interpreted (Chapters 6 and 7).  In this short comment, I focus on Chapter 8, titled “The Genius of Command Responsibility.”  The chapter focuses on the mental state requirement for command responsibility and argues that the “should have known” standard of Article 28(a)(i) of the Rome Statute “should be embraced, rather than shunned” (194).

Robinson opens the chapter by discussing scholarship articulating concerns about negligence in command responsibility that has “rightly pressed beyond” those arguments that have defended negligence primarily through claims about precedent and consequentialist rationales.  He then advances his own argument, providing a deontic justification for a negligence standard that argues that the “should have known” standard is “less arbitrary” than the test developed by the Tribunals and “reflects a more consistent, meaningful standard of criminal culpability” (198).  The deontic approach refers to “normative reasoning that focuses on our duties and obligations to others” (11), and the chapter builds upon the book’s earlier defense of a causal contribution required for command responsibility, such that at a minimum the commander “at least elevated the risk of the crimes” (194) through their misconduct.

Robinson’s argument in the chapter proceeds in three parts.  First, he explains that criminal negligence involves not an absence of a mental state, but rather the affirmative disregard for the lives and safety of others.  Second, Robinson emphasizes that command responsibility is a mode of accessory liability, not principal liability, a fact that justifies the negligence standard, for accessories need not share the mens rea of the principal.  Third, Robinson characterizes command responsibility as a “justified extension of aiding and abetting by omission” because it reveals “staggering disregard for the lives and legal interests that [the commander] was entrusted to protect” (197).  Throughout, Robinson’s approach is, as he describes, “thoroughly humanistic,” reflecting empathy and considering experience, rather than solely focusing on precedent or teleological reasoning. 

I am deeply sympathetic to the argument and appreciate the careful analysis and celebration of negligence liability in this context.  Robinson’s past work in this area already has contributed significantly to the field, and the book is sure to heighten our understanding even further.  Moreover, the chapter provides an exciting foundation for further investigation of additional questions.  I raise two points here.

First, in the course of the defense of negligence, Robinson helpfully considers examples of hypothetical commanders who do not know of the risk of their subordinates carrying out crimes.  He compares Commander A, who “requires proper reporting” and consequently learns of a “strong risk that crimes will occur,” but ultimately “decides to run that risk and hopes it will not materialize.”  Commander B, by contrast, “does not care at all about possible crimes,” and so does not set up a reporting system and does not learn of the risk of possible crimes.  Robinson argues persuasively, in my view, that Commander B “shows even greater disdain for protected persons” (217) and should be held accountable for the harms within the risk she created.  I agree with Robinson’s point that subjective foresight is not always more blameworthy than a lack of foresight; the domestic prohibition of negligent and reckless homicide within the single category of involuntary manslaughter provides another example of the point. 

But we might also shift our gaze to Commander C, who does not bother to set up a reporting system not because she does not care about possible crimes, but because she is positively inclined toward that outcome.  That person might even know of a risk of the commission of those crimes.  In such a case, does negligence adequately capture Commander C’s state of mind?  Consider the example of torture committed by U.S. persons in the early 2000s.  When neither the United States Central Command nor the Joint Staff responded to a memo describing interrogation methods being used in Afghanistan in early 2003, the military command in Afghanistan “interpreted this silence to mean that the techniques then in use . . . were unobjectionable to higher headquarters and therefore could be considered approved policy,” in the words of the Church Report.   If we imagine that superiors never looked at the memo, perhaps they were engaging in negligent failures to restrain, as long as they were truly unaware of the risk of torture and other abuses occurring; but we should not overlook the possibility that they may have been aware of the risk of the embrace of these abusive methods.  The point is not to dismiss the importance of Robinson’s elegant defense of the “should have known” standard, but rather to point out that in some cases, negligence may be too generous of a characterization to apply to the choices of superiors to neglect their responsibilities of command, and to not let the centrality of the negligence standard in command responsibility detract from our willingness to identify culpable awareness of risk where it exists.

Second, I wish to build upon Robinson’s argument that command responsibility is justified because of the “horrific dangers for vulnerable civilians” (197) that results from inadequate oversight of armed forces.  As Robinson notes, the “toxic mix of dehumanization, groupthink, vengeance, and habituation to violence” (215) in the military can be criminogenic and “breed[] a highly obvious danger of pathological organizational behavior” (216); and I have explored in earlier work how leaders contribute to wrongdoing not only through coercive control, but also by creating the environment in which crime is perceived as tolerable, necessary, or right.  Failing to prevent crime can encourage crime to take place; the refusal of a leader to step in can indicate the leader’s approval of what is bound to happen.  The consequences of commanders’ negligence, however, fall not only on civilians; they also pose risks of harm to the subordinates themselves.  As I have urged and am continuing to develop in forthcoming work, a commander is culpable not only in failing to attend to the dangers to civilians, but also in failing her own duty to subordinates.  The duty of restraint of course constitutes a component of responsible command because of a need to protect the ultimate victims of the crimes committed by the derelict commander’s subordinates; but this focus should not prevent acknowledgement that the individuals who commit the crimes also are damaged by those crimes. 

And the consequences can be devastating.  Studies of moral injury document the suffering of soldiers who committed crimes thinking they were doing the right thing, the sense of betrayal by those who were supposed to guide them, the experience of being unmoored from the moral and ethical frameworks they thought governed their lives.  As Robinson writes,  “roles matter.”  And he is right that “[t]he commander who criminally neglects [the duty of vigilance] . . . shows a staggering disregard for the lives and legal interests that she was entrusted to protect” (197).  But those lives and legal interests are not limited to civilians; we should also be paying more attention to the commander’s obligations to their subordinates. 

These points are offered as a way of applauding the generative nature of Justice in Extreme Cases.  I have touched on only a small part of the book, but even that small part, like the rest of the work, offers a set of rigorous arguments and elucidating examples that ultimately demonstrate the fruitful relationship between international criminal law and criminal theory and open up avenues for continued exploration and opportunities for reform.  Both fields are enriched by this important book.