Command Responsibility in International and Domestic Criminal Law

2/24 ZBORNIK ZNANSTVENIH RAZPRAV – LXVIII. LETNIK, 2008 Command Responsibility in International and Domestic Criminal Law

Summary

The principle of command responsibility establishes the responsibility of military commanders and non-military superiors for unlawful actions committed by their subordinates or other persons subject to their control. This legal institution was invented by the international criminal law, which initially developed it as an institution of customary international criminal law. Later it also found its way into positive law. The paper discusses command responsibility stricto sensu, also known as indirect command responsibility. This type of command responsibility is based on the culpable omission of adequate supervision over subordinate persons who commit international crimes. It should be distinguished from direct command responsibility, i.e. international crimes committed on superiors’ order. In the latter case, superiors are hold responsible according to general rules (as instigators or indirect perpetra- tors), in which case a specific institution of command responsibility is not required. International criminal court practice, International Criminal Tribunal for the former Yugoslavia (the ICTY) in particular, proves that it is much harder to obtain evidence of direct command responsibility (i.e. that a crime has been committed pursuant to an superior’s order), while it is less difficult to prove omission of adequate supervision over subordinate persons. This is the reason why in practice command responsibility stricto sensu became an extremely frequently used »backup« or »safety device« to prevent superior persons from escaping unpunished. This solution raised numer- ous questions among interpreters whether international criminal law went too far in its endeavours to create an institution that would enable a more apt conviction of superiors, and that in doing so, it came too close to strict liability. This discussion analyses suppositions of command responsibility as defined by Article 28 of Rome Statute of the International Criminal Court (the regulation in Rome Statute represents the crest in the development of this principle). These suppositions, stated cumulatively, establish command responsibility: (1) the person must have a status of a military commander or a civilian superior; (2) he or she must fail in duly supervision over subordinate persons; (3) subordinates must commit crimes under the jurisdiction of the International Criminal Court (ICC) and (4) an adequate level of the supervisor’s culpability must be established. The regulation of command responsibility in the Rome Statute raised many dilemmas among legal publishers. Particularly critical were the authors of the continental legal circles when they realised that the institution of command responsibility cannot simply be transferred into familiar doctrines on omissions, causality, partici-

62 DR. MATJAŽ AMBROŽ – POVELJNIŠKA ODGOVORNOST V MEDNARODNEM IN DOMAČEM … 2/25 pation and guilt. There are several reasons why the institute of command responsibility does not fit into the Continental legal theories. Primarily, one should not overlook the fact that international criminal law combines and merges concepts of Anglo-Saxon and Continental law and it would therefore be rather naive to expect that international criminal law would remain as domestic as one might anticipate. Further on, it is fairly known that many lawyers who participated in creating the international criminal law were often not penal lawyers. It has also frequently been commented that customary institutions of criminal law are intended for customary life situations, while military reality demands stricter solutions that will be able to effectively prevent superiors from overlooking crimes committed by their subordinates. And finally, one should not forget the difficulties of proving, which are undisputedly one of the reasons that the threshold of command responsibility is set so lowly. After the first wave of criticism a Solomon solution appeared, suggesting that the principle of command responsibility could be harmonised with rules and principles of domestic theory, if not on international level, then at least when transposed to national legal orders. The international criminal law theory formulated a relatively uniform standpoint that, in implementing the Rome Statute, an individual state can adapt the principle of command responsibility to a certain degree, as long as it still follows the »spirit« of the Rome Statute. Whatever the case may be, the ultimate word on whether the state has remained true to the Rome Statute is to be said by the International Criminal Court, which can take over a certain case, if it is established that the state is not willing or able to handle prosecution properly. Germany played an important role in finding appropriate solutions for incor- porating command responsibility into national legislations. The German Code of International Criminal Offences (Völkerstrafgesetzbuch) from June 26, 2002 broke command responsibility into several articles with various types of penal frames and thus followed the idea that conceptually different situations need separate handling. The present discussion stands on the position that similar approach based on the principle of differentiation would also be compatible with the Slovenian criminal law. Command responsibility was incorporated into the Slovenian legal order only recently; the new Penal Cone (KZ-1) will come in force on November 1, 2008. The new penal Code regulates command responsibility in a special section (article 104), whereat it partly followed the principle of differentiation (various penal frames de- pending on the superior’s guilt). A particular problem opens in the first paragraph of Article 104, in the section part, which refers to situations when a military commander intentionally failed to prevent his or her subordinated from committing international crimes. In accordance with rules on omissive criminal offences a superior who consciously fails to prevent commission of a crime, should in principle be held responsible as a perpetrator. The new Penal Code foresees a considerably milder penal regime for them compared to penal regime for subordinates who commit such a

63 2/26 ZBORNIK ZNANSTVENIH RAZPRAV – LXVIII. LETNIK, 2008 crime. Pursuant to the Penal Code, the superior who intentionally failed to prevent a crime being committed by subordinates is equally responsible as a superior who can only be accused that he ex post failed to submit the matter to the competent authorities for investigation and prosecution. The present discussion stands on the position that such a resolution equals two forms of command responsibility that do not belong together and therefore the solutions in the new Penal Code can not be regarded as optimal.