MJIL Symposium: A Response to James Stewart by Darryl Robinson

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 very grateful for James Stewart’s comments on “How Command Responsibility Got So Complicated”. Professor Stewart and I are engaged in similar projects (criminal law theory and international criminal law (‘ICL’)) and immersed in similar literature, so our discussions are always very helpful to me, even though we at times reach different conclusions. Professor Stewart raises several interesting points, and I cannot quite do justice to all of them. I offer the following thoughts on the main points.

As a preliminary point, Professor Stewart rightly notes that people at the Tribunal had done a frenzied review of the relevant literature and so were at least aware of these issues. I take that point very much. Academics are often quick to criticise courts and institutions for their alleged failures to consider this or that issue, when perhaps the relevant actors were in fact deeply aware of it but chose not to elaborate on it given the hundred other priorities they had to attend to. I also sympathise with judges, who are either criticised for failure to elaborate on theoretical underpinnings, or alternatively are criticised for their wordy, theoretical decisions. For precisely these reasons, I ‘emphatically acknowledged’ that the Tribunals were operating in a pioneering phase, dealing with countless questions and constructing doctrinal rules from diverse authorities, and hence could not give detailed consideration to every fine point.[1]

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

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.

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MJIL Symposium: A Response to Darryl Robinson by James Stewart

by James G. Stewart

[James Stewart is an Assistant Professor at the University of British Columbia, Faculty of Law. He is currently undertaking a Global Hauser Fellowship at New York University School 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.

It is a pleasure to be invited to comment on Professor Darryl Robinson’s excellent new article How Command Responsibility Got So Complicated. His meticulous research has, once again, advanced our understanding considerably. Indeed, this particular article is but the most recent manifestation of Professor Robinson’s groundbreaking commitment to marrying criminal theory and international criminal doctrine in ways that shed new light on dilemmas that have plagued scholars and practitioners for too long. In this piece, he focuses on the much-disputed physical contribution of the failure to punish limb of superior responsibility. Some say that a superior can be convicted of genocide, for example, for failing to punish acts of her subordinates who perpetrated the crime, but Professor Robinson joins others who protest that this violates the principle of culpability. How can you be held responsible for a crime to which you did not contribute? Conversely, those who argue that failures to punish can be re-imagined as a separate conduct-type crime stripped of consequences to overcome the participation problem ignore that international law does not support that reading. Instead, Professor Robinson concludes that subsuming superior responsibility within everyday notions of accessorial liability offers a more elegant solution.

I feel compelled to start my review of the piece with a confession of sorts. In my former incarnation as an Appeals Counsel at the International Criminal Tribunal for the former Yugoslavia (‘ICTY’), I had a hand in formulating the Prosecution’s position on superior responsibility in a range of the cases that are key to Professor Robinson’s argument (Hadžihasanović, Orić, and Halilović). In part, I admit this in order to disclose a potential impurity in my views on the topic (although, for balance, my own views were different from the position ultimately adopted by the Prosecution in these cases, contrary to the conclusion ultimately reached by the Appeals Chamber that ruled on them, and I may have changed them again since reading Professor Robinson’s provocative article). For present purposes, though, this experience is also germane since it leads me to think that Professor Robinson might be too quick in arguing that the ICTY has not wrestled with these issues; to the contrary, all sides were engaged in a frenzied review of much of the literature Professor Robinson cites in an attempt to deal with precisely these problems, although no one came close to addressing the topic with anything approaching the sophistication Professor Robinson now offers. Sometimes an absence of judicial reasoning just conceals issues too complex to articulate.

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MJIL Symposium: A Response to Darryl Robinson by Jens Ohlin

by Jens David 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.

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MJIL Symposium: A Response to Darryl Robinson by Ilias Bantekas

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.

MJIL Symposium: How Command Responsiblity Got So Complicated

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.

Much has been written about command responsibility. In my article, I argue that views on the nature of command responsibility have become unnecessarily obscure and convoluted, and that the problem flows from an early misstep in the jurisprudence. If we revisit the first misstep, a simple and elegant solution is available.

Famously, early Tribunal jurisprudence concluded that the ‘failure to punish’ branch of command responsibility is irreconcilable with a contribution requirement. It therefore rejected any requirement that the commander’s dereliction contributed to core crimes. This however generated a contradiction, because Tribunal jurisprudence (1) recognizes the culpability principle, whereby causal contribution is necessary to share in liability for a crime and yet (2) uses command responsibility to convict commanders of core crimes without causal contribution.

Subsequent efforts to deny the resulting contradiction, and later efforts to avoid the contradiction, have spawned many inconsistent, complex and convoluted claims about command responsibility. These include the descriptions of command responsibility as responsibility for-the-acts-but-not-for-the-acts, as a ‘sui generis’ hybrid whose nature has not been explained, as neither-mode-nor-offence, or as sometimes-mode-sometimes-offence. Many such descriptions are elusively vague, and necessarily so, because clarity would reveal the contradiction.

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