15 Nov MJIL Symposium: How Command Responsiblity Got So Complicated
[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.
Many readers will emphatically deny the contradiction I just described, raising one or more of a host of arguments. The contradiction has been obscured in discourse by several arguments. In my article, I carefully examine the major arguments to demonstrate that the contradiction does indeed exist. My inquiry includes, of course, the popular argument that command responsibility is not a mode of liability but a separate offence. That solution was advanced by Judge Shahabuddeen as an excellent technique to avoid the culpability contradiction. The ‘separate offence’ characterization has merits and is available to national systems. However, it is not available to the Tribunals or the ICC, given their applicable law, and given their actual practice, as they demonstrably do in fact charge, convict and sentence the commanders as parties to the underlying core crimes. Hence the culpability problem remains.
Happily, if we revisit the first misstep, a simple and elegant solution is available. Command responsibility is a mode of accessory liability. What Tribunal jurisprudence seems to struggle to describe — liability in relation to the crimes but not amounting to ‘committing’ the crime — is perfectly captured in the already-existing concept of accessory liability. Command responsibility requires causal contribution, i.e. that the dereliction encouraged or facilitated crimes. This approach is perfectly workable and raises no incompatibility with the ‘failure to punish’ branch. A failure to punish early crimes can encourage or facilitate subsequent crimes and hence ground liability in the later crimes. Thus, there is no incompatibility requiring us to reject a requirement of the culpability principle. Where a commander fails to punish past crimes, and the failure did not facilitate any later crimes, the commander is guilty of dereliction but should not be labelled a party to core crimes.
I draw on criminal law theory to explore the parameters of the contribution requirement. The ‘risk aggravation’ approach adopted in Bemba seems consistent with principle. I also explore more innovative suggestions to reconstruct the culpability principle to imagine culpability without contribution.
The proposed solution instantly reconciles the Rome Statute, early case law and fundamental principles of criminal justice. No vague claims or complex regimes are required. The causal contribution requirement in the Rome Statute is arguably to be commended rather than condemned. Conversely, popular arguments to hold successor commanders liable for crimes prior to their command are shown to be problematic and in need of careful deontological justification.
The full article may be accessed here.
 Orić Appeal (ICTY, Appeals Chamber, Case No IT-03-68-A, 3 July 2008)  (Judge Shahabuddeen).