Rajiv Gandhi National University

of Law Punjab

TOPIC: MODE OF PARTICPATION OF ICL

SUB TOPIC: COMMAND RESPONSIBILITY

THIS DOCUMENT IS THE FULLFILLMENT OF THE

PROJECT
SUBMISSION OF INTERNATIONAL CRIMINAL
LAW OF BA.LLB. (HONS.) FOR THE EIGHTH
SEMESTER

Submitted to: Submitted By:

Dr. Sangeeta Taak Rajesh Mehla

(Asst. Prof. of Law) Roll No. 15201
Group No. 18

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Contents
INTRODUCTION ........................................................................................................ 3

COMMAND RESPONSIBILITY .............................................................................. 5

ORIGIN OF THE CONCEPT .................................................................................... 6

• Developing accountability ................................................................................ 6

• Introducing responsibility for an omission ..................................................... 8

• Codification ....................................................................................................... 9

APPLICATION .......................................................................................................... 10

• International Criminal Tribunal for the former Yugoslavia ...................... 10

• International Criminal Tribunal for Rwanda.............................................. 10

• International Criminal Court ........................................................................ 11

• Zimbabwe ........................................................................................................ 12

CONCLUSION........................................................................................................... 13

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INTRODUCTION

Subjects of international law were, originally, merely the states. The first
international criminal law instruments were limited to certain crimes (e.g., piracy)
and did not create supranational crimes but only imposed on states the obligation to
penalize the respective conduct. The rules concerning individual criminal
responsibility, including the modes of participation, were not included in these
international sources. Such rules existed only in the national legal systems.
International criminal law operated only on a horizontal level— that is, between
states. With the establishment of the International Criminal Tribunals in Nuremberg
and Tokyo, individuals were for the first time tried at the inter- and supranational
level for breaches of international law. Thus, international criminal law started to
operate on a vertical level. Yet, at that time, international criminal law provided very
few provisions concerning individual criminal responsibility. The development of
more detailed rules was—on purpose—left to the judges, and even today the
jurisprudence is refining the elements of individual criminal responsibility. In this
process, domestic legislation and doctrine has proven to be an important source of
inspiration. International criminal law deals with macro or system-criminality, which
differs considerably in its nature from ordinary criminality because its main focus is
or at least should be on the “system” or organization behind the criminal acts. Given
limited personal and other resources, the prosecution policy of international tribunals
focuses on the “most responsible” for international crimes (i.e., the senior political
and military leaders). Most defendants—given their status and rank—do not commit
the crimes by themselves and therefore cannot be considered direct perpetrators in a
physical sense. As a consequence, international criminal law must put a special
emphasis on modes of participation that include the leaders and other high-level
perpetrators who normally act in the background. These modes of participation are
co-perpetration/joint criminal enterprise, indirect perpetration/perpetration by means,
and command responsibility.
Given the fragmentation in international criminal law and justice, in terms of the
great number of different courts and codifications, there is no uniform approach with
respect to the modes of participation. Broadly speaking, as concisely outlined in van
Sliedregt 2012, one can distinguish two approaches: One is based on the Rome
Statute of the International Criminal Court (ICC Statue) and another on the Statutes

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of the UN Ad Hoc Tribunals established by the UN Security Council, in particular
the Statute of the International Criminal Tribunal for the Former Yugoslavia (ICTY
Statute), analyzed in Boas, et al. 2007. Article 25(3) of the ICC Statute contains
different modes of participation in paragraphs (a) to (d): committing a crime
individually, jointly, or through another person; ordering, soliciting, or inducing a
crime; aiding, abetting, and otherwise assisting a crime; and contributing to a group
crime. Article 7(1) of the ICTY Statute provides criminal responsibility for planning,
instigating, ordering, committing, or otherwise aiding and abetting in the planning,
preparation, or execution of a crime. Following Olásolo 2009, it is clear from these
statutory approaches that the ICC Statute overcomes the unitarian approach of the
ICTY Statute and replaces it by a (at least terminologically) differentiated approach.
The ICC case law has so far accepted the control over/domination of the act theory
as the fundamental conceptual tool to distinguish between perpetration (participation
as a principal) and complicity (secondary, derivative participation). The following
text starts from Article 25(3) of the ICC Statute as the basis of the analysis of the
modes of responsibility and adds a section of joint criminal enterprise as a
particularly relevant form of responsibility not (explicitly) provided for by Article
25. Subparagraph (a) refers to three forms of perpetration as forms of principal
responsibility: perpetration on one’s own, as a co-perpetrator, or through another
person. Subparagraphs (b) and (d) provide forms of secondary participation,
employing different terms that can be best captured by the umbrella terms
Encouragement, Assistance, and Contribution to a Group Crime. A special form of
participation (command responsibility) in crime is provided for in Article 28 of the
ICC Statute.

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COMMAND RESPONSIBILITY
Command responsibility, sometimes referred to as the Yamashita standard or the
Medina standard, and also known as superior responsibility, is the legal doctrine of
hierarchical accountability for war crimes.1
The term may also be used more broadly to refer to the duty to supervise
subordinates, and liability for the failure to do so, both in government, military law,
and with regard to corporations and trusts.
The doctrine of "command responsibility" was established by the Hague
Conventions of 1899 and 1907, partly based on the American Lieber code, a war
manual for the Union forces signed by President Abraham Lincoln in 1863, and was
applied for the first time by the German Supreme Court at the Leipzig War Crimes
Trials after World War I, in the 1921 trial of Emil Müller.2
he United States of America confirmed and incorporated the mentioned 1899 and
1907 Hague Conventions on "command responsibility" into United States federal
law through the precedent set by the United States Supreme Court (called the
"Yamashita standard") in the case of Japanese General Tomoyuki Yamashita. He
was prosecuted in 1945 for atrocities committed by troops under his command in the
Philippines, in the Pacific Theater during World War II. Yamashita was charged with
"unlawfully disregarding and failing to discharge his duty as a commander to control
the acts of members of his command by permitting them to commit war crimes."3
Furthermore, the so-called "Medina standard" clarified the U.S. law to clearly also
encompass U.S officers, so that those as well as foreign officers such as General
Yamashita can be prosecuted in the United States. The "Medina standard" is based
upon the 1971 prosecution of U.S. Army Captain Ernest Medina in connection with
the My Lai Massacre during the Vietnam War.[11] It holds that a U.S. commanding
officer, being aware of a human rights violation or a war crime, will be held
criminally liable if he does not take action. However, Medina was acquitted of all
charges.4

1
Command, superior and ministerial responsibility by Robin Rowland, CBC News Online,
May 6, 2004
2
Command Responsibility: The Contemporary Law at the Wayback Machine (archive index)
by Iavor Rangelov and Jovan Nicic, Humanitarian Law Center, February 23, 2004
3
The Yamashita Standard by Anne E. Mahle, PBS
4
Command Responsibility and Superior Orders in the Twentieth Century - A Century of
Evolution by, Stuart E Hendin, Murdoch University Electronic Journal of Law
5
ORIGIN OF THE CONCEPT
• Developing accountability
In the Art of War, written during the 6th century BC, Sun Tzu argued that it
was a commander's duty to ensure that his subordinates conducted
themselves in a civilised manner during an armed conflict. Similarly, in the
Bible (Kings 1: Chapter 21), within the story of Ahab and the killing of
Naboth, King Ahab was blamed for the killing of Naboth on orders from
Queen Jezebel, because Ahab (as king) is responsible for everyone in his
kingdom.
The trial of Peter von Hagenbach by an ad hoc tribunal of the Holy Roman
Empire in 1474, was the first "international" recognition of commanders'
obligations to act lawfully.5 Hagenbach was put on trial for atrocities
committed during the occupation of Breisach, found guilty of war crimes and
beheaded.6 Since he was convicted for crimes "he as a knight was deemed to
have a duty to prevent" Hagenbach defended himself by arguing that he was
only following orders[17][18] from the Duke of Burgundy, Charles the Bold,
to whom the Holy Roman Empire had given Breisach.[19] Despite the fact
there was no explicit use of a doctrine of "command responsibility" it is seen
as the first trial based on this principle.7
During the American Civil War, the concept developed further, as is seen in
the "Lieber Code". This regulated accountability by imposing criminal
responsibility on commanders for ordering or encouraging soldiers to wound
or kill already disabled enemies.8
The Hague Convention of 1899 was the first attempt at codifying the
principle of command responsibility on a multinational level and was
reaffirmed and updated entirely by the Hague Convention of 1907. The
doctrine was specifically found within "Laws and Customs of War on Land"
(Hague IV); October 18, 1907: "Section I on Belligerents: Chapter I The
Qualifications of Belligerents", "Section III Military Authority over the

5
Exhibit highlights the first international war crimes tribunal by Linda Grant, Harvard Law
Bulletin.
6
An Introduction to the International Criminal Court William A. Schabas, Cambridge
University Press, Third Edition
7
Ibid
8
Command Responsibility The Mens Rea Requirement, By Eugenia Levine, Global Policy
Forum, February 2005
6
territory of the hostile State", and "Adaptation to Maritime War of the
Principles of the Geneva Convention" (Hague X); October 18, 19079.Article
1 of Section I of the 1907 Hague IV stated that:
The laws, rights, and duties of war apply not only to armies, but also to
militia and volunteer corps fulfilling the following conditions:
1. To be commanded by a person responsible for his subordinates;
2. To have a fixed distinctive emblem recognizable at a distance;
3. To carry arms openly; and
4. To conduct their operations in accordance with the laws and customs
of war.
While the Hague Conventions of 1899 and 1907 does not explicitly create a
doctrine of command responsibility, it does uphold a notion that a superior
must account for their actions of his subordinates. It also suggests that
military superiors have a duty to ensure that their troops act in accordance
with international law and if they fail to command them lawfully, their
respective states may be held criminally liable. In turn, those states may
choose to punish their commanders. At such, the Hague Conventions of 1899
and 1907 has been viewed as a foundational root of modern doctrine of
command responsibility.10 After World War I, the Allied Powers'
Commission on the Responsibility of the Authors of the War and on the
Enforcement of Penalties recommended the establishment of an international
tribunal, which would try individuals for "order[ing], or, with knowledge
thereof and with power to intervene, abstain[ing] from preventing or taking
measures to prevent, putting an end to or repressing, violations of the laws or
customs of war."11
Since the end of the Cold War, private contractors have become more
prevalent in zones of conflict. Both political and legal scholars highlight the
multiple challenges this has introduced when tracing the responsibility of
crimes in the field. Some, such as Martha Lizabeth Phelps, go as far to claim

9
"Adaptation to Maritime War of the Principles of the Geneva Convention (Hague X); October
18, 1907". International Committee of the Red Cross.
10
Antonio Cassese (April 30, 2008). International Criminal Law. Oxford University Press. p.
184. ISBN 978-0-19-920310-9.
11
Command Responsibility The Mens Rea Requirement, By Eugenia Levine, Global Policy
Forum, February 2005
7
 that if hired contractors are indistinguishable from national troops, the
contractors borrow the state's legitimacy. The command responsibility of
actions in warfare become increasingly unclear when actors are viewed as
being part of a state's force, but are, in truth, private actors.
• Introducing responsibility for an omission
Command responsibility is an omission mode of individual criminal liability:
the superior is responsible for crimes committed by his subordinates and for
failing to prevent or punish (as opposed to crimes he ordered). In re
Yamashita before a United States military commission in 1945, General
Yamashita became the first to be charged solely on the basis of responsibility
for an omission. He was commanding the 14th Area Army of Japan in the
Philippines during the Pacific Theater of World War II when some of the
Japanese troops engaged in atrocities against thousands of civilians and
prisoners of war. As commanding officer, he was charged with "unlawfully
disregarding and failing to discharge his duty as a commander to control the
acts of members of his command by permitting them to commit war crimes."
By finding Yamashita guilty, the Commission adopted a new standard,
stating that where "vengeful actions are widespread offenses and there is no
effective attempt by a commander to discover and control the criminal acts,
such a commander may be held responsible, even criminally liable."
However, the ambiguous wording resulted in a long-standing debate about
the amount of knowledge required to establish command responsibility. The
matter was appealed, and was affirmed by the United States Supreme Court
in 1946.12
In the High Command Case (1947–8), the U.S. military tribunal argued that
in order for a commander to be criminally liable for the actions of his
subordinates "there must be a personal dereliction" which "can only occur
where the act is directly traceable to him or where his failure to properly
supervise his subordinates constitutes criminal negligence on his part" based

12
U.S. Supreme Court (4 February 1946), APPLICATION OF YAMASHITA, 327 U.S. 1
(1946) [Full text of the opinion]
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 upon "a wanton, immoral disregard of the action of his subordinates
amounting to acquiescence".13
In the Hostage Case (1947–8), the U.S. military tribunal seemed to limit the
situations where a commander has a duty to know to instances where he has
already had some information regarding subordinates' unlawful actions.14
• Codification
The first international treaty to comprehensively codify the doctrine of
command responsibility was the Additional Protocol I ("AP I") of 1977 to the
Geneva Conventions of 1949. Article 86(2) states that:
the fact that a breach of the Conventions or of this Protocol was committed by
a subordinate does not absolve his superiors from ... responsibility ... if they
knew, or had information which should have enabled them to conclude in the
circumstances at the time, that he was committing or about to commit such a
breach and if they did not take all feasible measures within their power to
prevent or repress the breach.
Article 87 obliges a commander to "prevent and, where necessary, to suppress
and report to competent authorities" any violation of the Conventions and of
AP I.

13
Command Responsibility The Mens Rea Requirement, By Eugenia Levine, Global Policy
Forum, February 2005
14
ibid
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APPLICATION
• International Criminal Tribunal for the former Yugoslavia
The ICTY statute article 7 (3) establishes that the fact that crimes "were
committed by a subordinate does not relieve his superior of criminal
responsibility if he knew or had reason to know that the subordinate was about
to commit such acts or had done so and the superior failed to take the necessary
and reasonable measures to prevent such acts or to punish the perpetrators."15
In The Prosecutor v. Delalić et al. ("the Čelebići case") first considered the
scope of command responsibility by concluding that "had reason to know"
(article 7(3)) means that a commander must have "had in his possession
information of a nature, which at the least, would put him on notice of the
risk of ... offences by indicating the need for additional investigation in order
to ascertain whether ... crimes were committed or were about to be committed
by his subordinates."
In The Prosecutor v. Blaškić ("the Blaškić case") this view was corroborated.
However, it differed regarding mens rea required by AP I. The Blaškić Trial
Chamber concluded that "had reason to know", as defined by the ICTY
Statute, also imposes a stricter "should have known" standard of mens rea.
The conflicting views of both cases were addressed by the Appeals Chambers
in Čelebići and in a separate decision in Blaškić. Both rulings hold that some
information of unlawful acts by subordinates must be available to the
commander following which he did not, or inadequately, discipline the pThe
concept of command responsibility has developed significantly in the
jurisprudence of the ICTY. One of the most recent judgements that
extensively deals with the subject is the Halilović judgement16 of 16
November 2005.
• International Criminal Tribunal for Rwanda
The United Nations Security Council Resolution 955 (1994) set up an
international criminal tribunal to judge people responsible for the Rwandan
Genocide and other serious violations of international law in Rwanda, or by

15
Command Responsibility The Mens Rea Requirement, By Eugenia Levine, Global Policy
Forum, February 2005
16
"International Criminal Tribunal for the former Yugoslavia | United Nations
International Criminal Tribunal for the former Yugoslavia".
10
 Rwandan citizens in nearby states, between 1 January and 31 December
1994;17 additional later resolutions expanded the scope and timeline of the
tribunal. The tribunal has jurisdiction over genocide, crimes against
humanity, and war crimes.
The judgement against Jean-Paul Akayesu established rape as a war crime.
Rape was placed in line with "other acts of serious bodily and mental harm"
rather than the historical view of rape as "a trophy of war."Akayesu was held
responsible for his actions and non-actions as mayor and police commander
of a commune in which many Tutsis were killed, raped, tortured, and
otherwise persecuted.
Another case prosecuted person in charge of a radio station and a newspaper
that incited and then encouraged the Rwandan genocide. The defendants were
charged with genocide, incitement to genocide, and crimes against humanity
for their positions of control and command in the "hate media," although they
physically had not committed the acts.
• International Criminal Court
Following several ad hoc tribunals, the international community decided on a
comprehensive court of justice for future crimes against humanity. This
resulted in the International Criminal Court, which identified four categories.
1. Genocide
2. Crimes against humanity
3. War crimes
4. Crimes of aggression
Article 28 of the Rome Statute of the International Criminal Court codified
the doctrine of command responsibility.18 With Article 28(a) military
commanders are imposed with individual responsibility for crimes committed
by forces under their effective command and control if they:
either knew or, owing to the circumstances at the time, should have known
that the forces were committing or about to commit such crimes.

17
United Nations Security Council Resolution 955. S/RES/955(1994) 8 November 1994.
Retrieved 2008-07-23.
18
Command Responsibility and Superior Orders in the Twentieth Century - A Century of
Evolution by, Stuart E Hendin, Murdoch University Electronic Journal of Law
11
 It uses the stricter "should have known" standard of mens rea, instead of "had
reason to know," as defined by the ICTY Statute
• Zimbabwe
For his conduct as President of Zimbabwe, including allegations of torture
and murder of political opponents, it is suggested Robert Mugabe may be
prosecuted using this doctrine. Because Zimbabwe has not subscribed to the
International Criminal Court's jurisdiction it may be authorised by the United
Nations Security Council. The precedent for this was set by its referral to
bring indictments relating to the crimes committed in Darfur.Otherwise, a
Zimbabwean regime following Mugabe's would have jurisdiction over his
alleged crimes (in the absence of any amnesty law) as would the numerous
countries with universal jurisdiction over torture, including the UK.

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CONCLUSION
The ascription of imputed criminal liability through command responsibility
under the “should have known” standard appears, to be iniquitous and unduly harsh.
It is also not in keeping the ground realities of war situations. Therefore, the
following suggestions are advanced 60 by the present researcher to remedy the
anomalies created by the “should have known” standard:
• Command responsibility under the “should have known” standard should
isnvolve criminal liability for failing to supervise the subordinates properly,
and not for the crimes committed by the subordinates.
• The role of the commander in causing or encouraging the subordinates’
criminal conduct is always to be evaluated separately. It is not to be assumed
solely relying on the “should have known” criterion.
• A differentiated model for ascribing responsibility based on degree of mens
rea is to be arrived at
• The perceived legitimacy of ICL must not be eroded by indiscriminate
imputation of liability under the “should have known” standard.
• The imposition of non-criminal sanctions for command responsibility under
the “should have known” standard is well-worth exploring as this liability is
almost a kind of vicarious liability rather than criminal liability in its classic
form.

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