1. Introduction
Attributing responsibility to a superior for the crimes of subordinates under their control has been an issue of concern to international law as early as the fifteenth century. Footnote 1 Due to the establishment of international criminal law as a distinct body of international law, a more sophisticated approach towards superior responsibility has emerged. The ‘superior responsibility doctrine’, discussed in the case law of the international criminal courts, renders the superior responsible for their omissions when these have led to the commission of a crime by their subordinates.
As the notion of omission, by definition, applies to a lack of act, it creates certain issues in criminal law, where responsibility is typically attached to the individual for their acts, accompanied by the appropriate mens rea. Indeed, the case law of the ad hoc criminal tribunals has not been consistent about the nature of the superior responsibility doctrine, with some chambers approaching it as a form of participation in the international crimes committed by the subordinates Footnote 2 and others considering it as a separate crime of dereliction of the superiors’ duties. Footnote 3 The ICC Pre-Trial Chamber, on the other hand, in Bemba Confirmation of Charges approached superior responsibility as a sui generis form of responsibility, ‘in the sense that a superior may be held responsible for the prohibited conduct of his subordinates for failing to fulfil his duty to prevent or repress their unlawful conduct or submit the matter to the competent authorities’.Footnote 4
This statement is, however, obscure. If an individual fails to fulfil a duty, are they responsible just for this failure, i.e., for a dereliction of duty offence, or are they responsible for the underlying crime of the subordinate as a participant? In addition, if they are considered a participant to the underlying crime, how exactly is their failure to fulfil their duty linked to the crime commission, i.e., how is the required causal link to establish participation to the crime determined? Trying to provide an answer to these questions, the Trial Chamber’s approach is more perplexing. The judges have argued that even though the superior is responsible for the crimes of the subordinates, they are not considered a participant to those crimes. Footnote 5 Despite not being participants, a causal link/nexus between the omission of the superior and the crime of the subordinate is still required,Footnote 6 ‘[n]onetheless … the Chamber does not consider it necessary to further elaborate on this element’.Footnote 7 At the same time, the judges recognize that ‘in certain circumstances, a commander’s conduct may be capable of satisfying a material element of one or more modes of liability’.Footnote 8
The ICC Chamber’s ambiguity on the nature of superior responsibility reflects the complexity of attributing responsibility for omissions. However, the doctrinal justification of such an attribution is vital for criminal law purposes and, as a result, for the ICC Statute’s purposes. The principle of legality, as the foundation of criminal responsibility attribution, requires that an individual brought to justice for their involvement in the commission of a crime must have a clear understanding of what exactly they are being accused of.Footnote 9 This article endeavours to clarify the superior responsibility doctrine taking into account considerations of causality, culpability and, eventually, legality. It suggests that the way to do so is through a careful consideration of the types of omission, based on national criminal law, in combination with the notion of control – employed by the ICC case law in identifying the perpetrators of international crimes – and the relevant mens rea of the superior. This proposed theoretical framework provides the links between the superior responsibility doctrine and the modes of liability towards a unified approach to participation and individual responsibility in international criminal law.
2. Perpetration through omission and the responsibility of an individual/superior who exercises control over others
This section discusses omission theory in relation to the perpetration of an international crime. Outlining the limits of the current approach in international case law and theory, it explains under which circumstances – within the ICC Statute framework – a superior’s omission can be considered as participation in the crime. Criminal law typically requires the existence of a duty to act as a prerequisite for the establishment of liability for omissions. It is argued in this section that, in terms of international criminal justice, such liability can be established, instead, through the notion of control over the criminal outcome or control over others who commit the crime on their own account. The advantages of this approach against identifying a pre-existing duty to act are also discussed. In terms of control over others, in particular, this section demonstrates how the failure of the superior to prevent the acts of their subordinates/the physical perpetrators, in Article 28 ICC Statute, can render them responsible as participants in the underlining international crime, in line with the provisions of Article 25. Identifying the overlapping between Articles 25 and 28 allows, in turn, for a clearer and more concrete understanding of those elements of Article 28 that create a distinct mode of responsibility in the ICC jurisdiction.Footnote 10
2.1 Commission by omission and the notion of control in Article 25(3)(a) ICC Statute
The ICC Statute establishes the responsibility of the perpetrator of an international crime in Article 25(3)(a). Moreover, even though not specifically stated in this Article, the ICC case law accepts that international crimes are committed not only by physical acts but also by the lack of them, i.e., by omission. Footnote 11
‘Commission by omission’, as this mode of responsibility is often called, draws from the theoretical foundations of (criminal) law: the latter is ‘not just nature’, but it is based primarily upon normative decisions. Footnote 12 Approaching acts solely in the mechanical way of wilful bodily movements ignores the complex human interaction with their environment, which goes beyond physical actions. In this direction, the concept of individual criminal responsibility is based upon the understanding that individuals commit crimes under their own will and not as passive recipients of events. This means that conscious inaction, when it results in a certain criminal outcome in the outside world, is as much a product of human agency as an ‘active’ act and, thus, should attach responsibility to the individual. As Fletcher points out,
[such a] humanistic approach towards understanding action requires that we abandon the idea of scientific explanation of action as the product of causal forces. The humanistic view stresses the way human beings understand other people to be acting when they do act. This difference is signalled in German as that between verstehen (understanding) and erklaeren (explaining). Footnote 13
In terms of the international crimes under the ICC Statute, therefore, the responsibility of a perpetrator can be attached to the individual when their omissions are identified as ‘acts’ for the purposes of the actus reus of each international crime. However, in what way/under which criteria an ‘inaction’ assimilates to an ‘action’ is not clear in terms of international criminal law. To discuss this issue, the theory of omission in national criminal law can prove useful, as international criminal law is a combination of common law and continental law approaches to criminal justice.Footnote 14
Omission as a way of committing crimes has been thoroughly discussed in national criminal law. Continental law jurisdictions usually establish a provision in the general part of their penal codes confirming that crimes of active conduct can also be committed by omission. Footnote 15 Common law jurisdictions – even though reluctant to attribute liability for omissions in the first place – acknowledge that contributing to the creation of a dangerous situation creates a duty towards its elimination and, thus, liability for an omission to act accordingly. Footnote 16 Criminal responsibility is attached to the individual, not for their failure to act per se, but because this omission is accepted as an act that contributed to the criminal outcome. As this type of omission is rather a ‘disguised’ act, accounting for an ‘active’ contribution to the crime, it is also called (in continental legal theory, mostly) ‘inauthentic omission’. Footnote 17
Inauthentic omission is justified as participation because it contributes to the commission of the crime. This means that, as is the case with all the modes of participation to the crime, there must be a causal link between the omission and the criminal outcome. However, due to the lack of physical action, this causal link is not as clear as in the case of an ‘active’ actus reus. In terms of the responsibility of a superior for their subordinates’ acts, this causal link is even more indistinct, as it is not the omission of the individual/the superior to act that leads to the commission of the crime, but the crime is committed by the ‘active’ others under the superior’s omission to exercise control and prevent them. Consequently, in order to attribute responsibility to the individual/superior for participation to the crime through inauthentic omission, it is necessary to identify the causal link between the failure to act or the failure to prevent the acts of others and the criminal outcome. Footnote 18
Omission theories in both common and continental national jurisdictions, in order to clarify the rather tenuous inauthentic omission causal link, require a pre-existing duty to act against a criminal outcome.Footnote 19 The explanation for such a requirement is that the law cannot ask of an individual to act in order toto end any wrongfulness they become aware of. As a result, their omissions to act towards a criminal outcome could be criminalized only when there is a specific legal duty of this individual to prevent the crime commission. Naturally, such a duty should pre-exist the attribution of criminal responsibility, as there is no crime without a prior legal provision. As the common law eloquently expresses this argument, there is no good Samaritan law obliging the individual because this would put a disproportionate burden on society. Footnote 20
Nevertheless, the quest for a relevant duty to act in terms of crimes of inauthentic omission is highly problematic. As inauthentic omission theory applies to general/substantive crimes with an active actus reus, there are no specific criminal law rules which create a duty to act concerning each of these crimes. Even in continental law, which is based on detailed statutes, the duties linked with commission by omission are not described in the penal code. They are rather extracted by the civil or commercial code, or they are simply justified by the existence of special social relationships, such as the relationship between a parent and a child, for example. Footnote 21 In common law, the same duties more or less are being developed by the courts, depending on the circumstances of the cases before them. Footnote 22 As Fletcher points out, ‘[t]here is no Western legal system that exhaustively regulates, by statute, the situations that generate a duty that will, in breach, support the conviction for [e.g.] criminal homicide’. Footnote 23
Under this process, however, new duties to act can be extracted from other legal documents by the courts indefinitely as new types of social relationships emerge. This approach contradicts the principle of legality, as there cannot be any crime without a previous criminal law that establishes the unlawfulness of a specific behaviour. Footnote 24 This presents a problem not only for the highly dogmatic continental jurisprudence but also for the common law scholars. Footnote 25 It has been argued that in international criminal law, the legality principle should be understood more broadly than in national jurisdictions, as the elements of international crimes and the modes of participation of individuals in them are not established as meticulously as in national law.Footnote 26 This may be true for the ad hoc tribunals’ statutes, but it is not quite so for the ICC Statute. The latter includes an elaborate description of the actus reus and mens rea of international crimes in Articles 5–8 and 30, and a detailed account of the modes of responsibility in Article 25 as well as of superior responsibility in Article 28, which is lacking from the Statutes of the ad hoc criminal tribunals. This higher level of articulation requires that the Court’s case law carefully determines how the doctrines it applies to establish the individual’s responsibility for international crimes, comply with the principle of nullum crimen sine lege scripta, praevia certa and stricta of Articles 22 and 24 ICC Statute.Footnote 27
This article suggests that, at least as far as international criminal is concerned, there is no doctrinal necessity of a certain legal duty for an inauthentic omission to be considered as participation to the crime. Footnote 28 On the contrary, the necessary causal link between the inauthentic omission and the underlying crime can be satisfied through the notion of control established in the ICC’s case law, combined with the mens rea of intent.
According to Article 25(3)(a) ICC Statute, an individual is responsible not only for committing a crime in person but also when they commit a crime through others. Interpreting this provision, the ICC’s case law introduced the notion of control over others: an individual who exercises control over the acts and will of the physical perpetrators is, in fact, in control of the criminal outcome as if they were the physical perpetrator themselves.Footnote 29 A perpetrator who controls the criminal outcome and/or their accomplices should be deemed criminally responsible irrespectively of whether they had a duty to protect the legal good they harmed or not.Footnote 30 Whether the individual in charge establishes (through others) the criminal outcome via an act or via an omission is immaterial. Some could argue that, as law in general and criminal law in particular aim to protect human dignity, Footnote 31 legal norms create an ultimate duty upon individuals against its violation, which makes the attribution of criminal responsibility justifiable. However, this is a rather generic duty, providing on an abstract theoretical level the raison d’être of individual criminal responsibility, applied in principle to both ‘active’ acts and omissions, and it is not quite the same as the existence of specific legal duties under criminal law.
It has been discussed so far how, due to the ‘elusive’ nature of omissions, criminal law associates them with specific legal duties even though, theoretically, there is no need for such a link. Thus, leaving aside the duty requirement, the following section discusses how exactly the individual in charge establishes the criminal outcome through others, what this means for the superior responsibility doctrine, and what is the role of the mental element of intent.
2.2 Control over subordinates in Article 28 ICC Statute and the superior’s participation in the crime
Considering the collective nature of international criminality, the modes of responsibility of the ICC Statute, and the general theory of omission discussed in the previous subsection, one could further distinguish inauthentic omission as either direct or indirect. In terms of the direct inauthentic omission, it is one’s own failure to act that corresponds to the commission of an international crime under the perpetration provisions of Article 25(3)(a) ICC Statute. This article will not discuss direct inauthentic omission further, as it does not concern subordinate acts, for the most part.Footnote 32 In contrast to the direct inauthentic omission, the indirect inauthentic omission is the failure to prevent the acts of other individuals who contribute to the criminal outcome. This is, for instance, the case of a commander who fails to stop their soldiers from killing war prisoners, which results in a war crime under Article 8 ICC Statute. As this is the type of omission both Article 25(3)(a) (commission through another person) and Article 28 ICC Statute refer to, it is the main focus of the superior responsibility analysis in this article.
According to Article 28 ICC Statute, subordinates must be under the superior’s ‘effective command and control, or effective authority and control’. This means that the superior should possess the ability to act against a criminal outcome, as this ability can only be possible when an individual exercises control over the physical perpetrators. As previously discussed, the ICC case law approaches control as the power to decide whether and how the crime will be committed and the individual exercising it as (indirect) perpetrator/principal of the international crime, according to Article 25(3)(a).Footnote 33 So far, the Court has considered the exercise of control as the causal link between the decisions of the superior and the crime commission in relation to acts, i.e., the superior providing instructions to the subordinates to commit a crime.Footnote 34 The analysis of inauthentic omission in the previous subsection demonstrates how the same approach to the notion of control can also be employed to link the superior’s omissions to the crime commission, including their omission to prevent those they control from committing a crime. This author has argued elsewhere that, despite its characterization as ‘effective’ control, the level of control applied in the ICC case law corresponds to the notion of overall control rather than the standard of effective control established by the International Court of Justice in terms of state responsibility.Footnote 35 This means that when the superior has the general operational control of the activities of their subordinates, the element of control is satisfied.Footnote 36 If the superior, by exercising overall control, is informed that their subordinates were about to commit a crime and did nothing to prevent them, they should be liable as indirect perpetrators.
The above conclusion also implies that the superior willingly decided against the crime prevention; in other words, that the superior intended to omit/not to act. Footnote 37 In international law, the mens rea of intent is vital to establish the responsibility of the superior as a participant to the underlying crime. This is because Article 30 ICC Statute prohibits the attribution of liability for an act or an omission based on Article 25(3)(a) for reckless or negligent behaviour. Absent this limitation, the superior could have been considered a participant to the crime also in case they refrained from preventing their subordinates from committing this crime due to recklessness/dolus eventualis;Footnote 38 or because they have unreasonably decided that the criminal outcome will not take place eventually (advertent negligence). Footnote 39
Adopting dolus eventualis for crime commission would have broadened superior responsibility’s scope of application. However, a critical appraisal of the high mens rea standard of the ICC Statute exceeds the scope of this article. When it comes to negligence, though, besides the mens rea limitations of Article 30 ICC Statute, there is also a doctrinal reason for rejecting it as an acceptable mental element for attributing participation responsibility to the superior who omits to prevent the acts of their subordinates. When the superior does not even realize that those under their control are committing a crime – and this is why they fail to prevent them (inadvertent negligence) – then to punish this superior as a participant to the crime would fall under the category of vicarious liability, as a form of strict liability. Footnote 40 However, strict liability should be sparingly applied in criminal law when it comes to substantial crimes (i.e., the crimes usually established in the general part of the penal code in national jurisdictions) if it should be used at all. Footnote 41 Indeed, to punish someone as a participant to a crime of others they were not aware of, even in case they did a bad job in controlling the perpetrators properly in the first place, contradicts personal culpability as the basis of individual criminal responsibility.Footnote 42
A similar conclusion can be drawn in relation to advertent negligence. In this situation, the individual has suspicions that persons under their control may commit a crime, but they discard this possibility because they believe that it will not happen. Here, the individual’s mens rea does not fully cover the causal link to the crime. The individual is in doubt of whether their omission creates a risk to the protected legal good because one cannot fully predict the (criminal) behaviour of others when there is a simple suspicion about it, even if this suspicion is well-founded. Consequently, as is the case with inadvertent negligence, an individual should not be considered a participant to the crime via an indirect inauthentic omission under the mens rea of advertent negligence.
It is also useful to note that intentional omission can be related to the concept of wilful blindness – also known as wilful/contrived/culpable ignorance or conscious avoidance – established in national criminal law. It covers the cases where the individual refrains from knowing too much over a dubious situation to be able to deny responsibility in the event of a crime commission. An omission stemming from a conscious avoidance of knowledge, however, is considered an intentional omission and still attaches responsibility to the individual. Footnote 43 The ICTY Trial Chamber in Tadić echoed this reasoning in regard to individual criminal responsibility in international law.Footnote 44
The conclusion of the above analysis is that the intentional omission of a superior to prevent the acts of their subordinates is, in fact, the omission of an individual to prevent the acts of others who fall under his/her effective control. It is, therefore, an (indirect) inauthentic omission and falls within the category of ‘commission by omission’ or participation in the crime.
Thus, this article suggests that, concerning the prevention of the subordinates’ crime, the superior’s intentional omission of Article 28 ICC Statute is, alongside with ‘active’ acts, another way of fulfilling the objective element of the different types of the modes of participation in Article 25. Footnote 45 In terms of a military commander, the ‘military commander or person failed to take all necessary and reasonable measures within his or her power to prevent or repress … [the crime] commission’Footnote 46 clause of Article 28(a)(ii), in combination with the intent requirement of Article 28(a)(i) ICC Statute, could as well be a subparagraph of Article 25, Footnote 47 covering the situation where an individual capable of exercising control over others, intentionally fails to do so. Footnote 48 The same conclusion can be drawn for the ‘[civilian]superior failed to take all necessary and reasonable measures within his or her power to prevent [the] commission [of the crimes by their subordinates]’ clause of Article 28(b)(iii), combined with the intent requirement of subparagraph (i) of the same Article. In a further analysis, the superior is responsible for the substantive underlying crime on the same level as the subordinates: if the subordinates are perpetrators, then he or she is a(n) (indirect) perpetrator, too; if the subordinates are aiders and abettors to the crime committed by others, then they are an aider and abettor accordingly. Footnote 49 In this sense, the secondary responsibility provisions of Article 25(3)(c) are also relevant.Footnote 50
In terms of Article 28, the ICC defines control as the ‘material ability [of the superior] to prevent or repress the commission of the crimes [by the subordinates] or to submit the matter to the competent authorities.’Footnote 51 The judges did not elaborate on the elements of ‘material ability’. Nevertheless, under the unified approach to control and participation to the crime suggested in this article, this ‘material ability’ can be understood as the ability to determine the criminal outcome,Footnote 52 similar to the ability of the individual-in-control/superior in Article 25(3)(a) to decide whether and how the crime will be committed. Thus, in terms of the indirect responsibility of the superior, as analysed in this article, the omissions of the superior are linked to the subordinates’ crime commission under a single theory of control applied throughout the ICC Statute.
This approach provides a solution to the debate among the ICC judges on the issue of causality in superior responsibility. As already mentioned in the introduction of this article, the ICC Trial Chamber has not adopted a clear view on this issue in Bemba. Some of the judges, however, offered their own views in their dissenting or separate opinions. Judge Steiner argued in favour of a high probability threshold, according to which the superior can be responsible only when it is highly probable that, by being diligent, the crime of the subordinates would have been prevented or not have been committed the way it did.Footnote 53 On the contrary, Judges van den Wyngaert and Morrison rejected this theory of ‘probabilistic causation’, arguing that Article 28 of the ICC Statute establishes responsibility for the superior’s failure to decrease the risk of a crime being committed by the subordinates, irrespectively of the level of probability regarding its commission.Footnote 54 Nevertheless, approaching causality in superior responsibility – in its inauthentic omission component – under the control theory avoids the uncertainty posed by ‘evaluation of probabilities’ or ‘level of risk’ tests. Whether the superior has an ‘actual power to control’Footnote 55 the subordinates is established by the evidence, and in this direction, the Trial Chamber in Bemba mentioned a number of factors that can indicate the existence or lack of control.Footnote 56
This theoretical structure integrates indirect superior responsibility into the general framework of participation in international crimes commission, alongside direct superior responsibility. Most importantly, it avoids the weak spots of the existing approaches other scholars adopt. For instance, Ambos also accepts that the failure to prevent the crime of the subordinates, when it is accompanied by intent, constitutes an inauthentic omission, and belongs to the modes of participation. However, he argues that Article 28 does not cover this inauthentic omission responsibility in the first place. He interprets the ‘failure to prevent the crimes of the subordinates’ element as a failure to supervise. As a result, he concludes that superior responsibility under Article 28 is a responsibility for dereliction of duty, i.e., failure to supervise subordinates and failure to report their crimes, and not for the superior’s participation in the underlying crime. Footnote 57 Nevertheless, he does not explain the difference between failure to prevent a crime as a participant (Article 25) and failure to prevent a crime as a dereliction of duty (Article 28) in terms of the civilian superior, when the only acceptable mens rea in the ICC Statute is intent in both cases.Footnote 58
Nybondas, on the other hand, distinguishes between a superior who is merely negligent in their failure to prevent the crime of the subordinates and a superior who omits intentionally it. In the first case, she correctly argues that the superior is responsible for a dereliction of duty, as one cannot negligently participate in a crime committed by others. Regarding the intentional omission, though, which is the case of the civilian superior of Article 28(b) ICC Statute, she argues that ‘a form of sui generis participation’ to the crime is constituted. She characterizes this type of criminal responsibility as an ‘aggravated command responsibility’, which ‘does not have to meet the requirements’ of Article 25, without, nevertheless, offering any further explanation. Footnote 59
This section has argued that superior responsibility is a responsibility for participation to the crime when the elements of control and intent are fulfilled. Even though the responsibility of both military commanders and civilian superiors cannot be established without them being capable of exercising control over their subordinates, Article 28, nevertheless, sets different mens rea requirements between these two categories of superiors. In terms of civilian superiors, it requires intent as a conditio sine qua non for superior responsibility, following the general mens rea standard of Article 30. Military commanders, though, are still responsible, despite the lack of actual knowledge and intent, if they should have known, but they were (inadvertently) negligent. By this article’s argument on the link between indirect inauthentic omission and participation, this can only mean that even though military superiors are not /should not be considered participants to the crime if they lack the mens rea of intent, the ICC Statute still requires their responsibility. This responsibility should then be approached under a different theoretical framework, this of dereliction of duty. The links between dereliction of duty and superior responsibility are the focus of the next section.
3. Responsibility of the superior for failing to exercise their duties properly
Besides inauthentic omission, which is approached as participation to the commission of the crime, there is also another type of omission, the so-called proper or authentic omission. There are specific crimes in national jurisdictions which can be committed only through an omission rather than a physical act. Footnote 60 Some jurisdictions, for example, criminalize the omission to save an individual who is in danger when one can do it without danger for its own life.Footnote 61 In this so-called ‘authentic omission’, there is no causal link between the failure to act and the final result, e.g., the death of the random individual in the previous example. As such, the person who omits could not be responsible for homicide but, rather, for a different type of crime originating from the dereliction of a duty.
More specifically, each of the authentic omission crimes is based on the perception that the individual in question has a specific duty to act in a specific way – a duty that is generated by each authentic omission crime in particular – but they do not fulfil this duty. The individual is then criminally responsible only for their failure to fulfil such a duty and not for the commission of a substantive crime. This conclusion is also reflected in terms of sentencing. While the penalty range for commission by omission assimilates that of the different types of participation to the crime, the sentences for a proper omission crime are far less severe. Footnote 62
As authentic omissions constitute special crimes of failure of duty, it is argued in this article that the mens rea of negligence should be sufficient. This is because the rationale of the ‘duty to act’ concept lays primarily on justifying individual criminal responsibility in cases where the person who omits was not even aware that this omission could lead to a criminal outcome (inadvertent negligence). It is precisely because of such a duty, that the individual is expected to be aware of the relevant circumstances and act accordingly (‘should have known’ standard). Naturally, the contents of each duty will vary depending on the provisions of each authentic omission rule. As a general rule, though, in situations where the authentic omission is related to the crimes of others, these duties will reflect the specific relationship between the individual who omits and the perpetrators.Footnote 63
In this direction, the superior responsibility doctrine of Article 28 ICC Statute – besides the intentional omission to prevent the crime of the subordinates, which has already been justified as participation – establishes responsibility for negligence as well. A military commander can be found responsible for their failure to prevent the crimes of their subordinates when owing to the circumstances, they should have known (inadvertent negligence) that their forces were committing or about to commit such crimes (Article 28(a)(i) ICC Statute).Footnote 64 Based on the above analysis of authentic omissions, this article suggests that, in this case, the superior is responsible not for participation in the underlying crime but merely for a dereliction of duty crime.
The content of this duty emanates from the existence of a superior-subordinate relationship, as established in Article 28. In other words, it is incorporated into the very nature of the superior’s authority towards their subordinates. Footnote 65 In this sense, the superior’s ability to control their subordinates is a relatively peripheral concept – in contrast to the authentic omission component of Article 28, where the element of control establishes the causal link between the omission of the superior and the crime of the subordinate. The superior did not know that the subordinates were about to commit the crime, as they were not diligent in exercising control, but this is not what creates their duty to prevent their subordinates from committing it. This duty is based rather on the fact that, because of their ability to exercise such control, a specific circumstantial relationship has been created between the individual who omits and the person who commits, i.e., a superior-subordinate relationship. Under this shift of focus, the English courts, for example, have recognized control as a ‘pro-duty factor’: due to the ability to exercise control, a specific relationship is established between two parties, and it is this relationship that creates certain duties of the one towards the other. Footnote 66 In contrast to the ‘elusive’ duties that create problems regarding inauthentic omissions, though, the duties creating liability for authentic omissions are – at least in continental law jurisdictions – being established specifically for each authentic omission, the national penal law decides to criminalize.
In terms of the superior-subordinate relationship, there is an exercise of control by the former over the latter, as superiors are responsible for their subordinates, and they need to be able to efficiently supervise them. Footnote 67 To do so, the ICC Statute creates a duty of due diligence for superiors. Footnote 68 In terms of the military commander, Article 28(a) ICC Statute establishes such a duty, even prior to the crime commission, as the commander should have known in any case about the intentions and acts of their subordinates. In addition, it establishes responsibility for both military and civilian superior’s failure to punish the subordinates or their omission to submit the matter to the competent authorities. (Article 28(a)(ii), (b)(iii) Statute). This component of Article 28 covers the situation where the superior learned about the crime(s) of the subordinates after the commission. Footnote 69 One cannot be a participant in the commission of a crime they did not know (and they were not purposeful ignorant, either) of in the first place, so the superior cannot be considered a perpetrator or an aider and abettor anymore. Thus, their criminal responsibility, in this case, should also be based exclusively on their failure to fulfil a duty. Footnote 70
Thus, in terms of the after the commission of a crime provisions of Article 28, the relevant duty of the superior is identified as a duty to punish the subordinates when they violate the law or to refer the matter to the authorities. Footnote 71 It includes ‘at least an obligation to investigate the crimes to establish the facts and to report them to the competent authorities if the superior does not have the power to sanction himself’. Footnote 72 In this regard, the ad hoc Tribunals have argued that the duty to punish, when it refers to a civilian superior, should be approached in a broad sense, as the former is not in a position to punish their subordinates in the same way as military commanders. Thus, ‘[t]o require a civilian authority to have sanctioning powers similar to those of a member of the military would so limit the scope of the doctrine of superior authority that it would hardly be applicable to civilian authorities’. Footnote 73 For this reason, the ‘punishment’ capacity of civilian superiors will most often limit itself in referring the subordinates responsible for the commission of a crime to the relevant authorities to initiate a criminal investigation. Footnote 74
This section has argued that in the case of the military commander’s negligent omission to prevent the crimes of their subordinates; and in the case of both military commander and civilian superior’s failure to punish the subordinates or refer their crimes to the competent authorities, it should be accepted that Article 28 ICC Statute establishes a special crime, distinct from the general international crimes set in Articles 5–8: this of ‘omission to act diligently’. Footnote 75 As Ambos points out, in this case, ‘[t]he underlying crimes of the subordinates are neither an element of the offence nor a purely objective condition of the superior’s punishability. Rather, they constitute the point of reference of the superior’s failure’. Footnote 76 It follows that, in this case, the superior’s sentence cannot be similar to this of the participants to the crime but much less instead.
Taking into account the underlying crimes of the subordinates, Mettraux develops his own theory by approaching the superior responsibility doctrine as a sui generis form of liability that renders the superior responsible for a violation of their relevant duties.Footnote 77 However, the superior is not responsible for a separate dereliction of duty crime but ‘is convicted in relation to the crimes committed by his subordinates which he has failed to prevent or punish’.Footnote 78 Despite the appeal of this theory for merging the participation and dereliction of duty elements which are indeed both traced in the superior responsibility doctrine, this author believes that interpreting superior responsibility as a derivative form of liability creating responsibility for the superior’s violation of their personal duty is a complex way of recognizing superior responsibility as participation to the crime of the subordinates. The superior contributes to the crime (by failing to prevent it) and is responsible for their own conduct (the failure to prevent, which is translated by Mettraux to ‘dereliction of duty’, due to the control exercised by the superior towards the subordinates). This theoretical structure is similar to complicity, which is considered participation to the crime commission: the aider and abettor contributes to the underlying crime and is responsible for this contribution. In the same way, through their contribution/‘dereliction of duty’, the superior participates in the crime of their subordinates. There is, nevertheless, a substantial doctrinal flaw in approaching the whole spectrum of superior responsibility as participation, which is discussed in the next section.
One final point related to the dereliction of duty approach adopted in this article is a critique of the different mens rea standards established in Article 28 between military and civilian superiors. In principle, in a dereliction of duty crime, the mens rea of inadvertent negligence would be sufficient, as mentioned already: even if the superior did not know of the criminal act they were supposed to prevent or punish/report to the authorities, the existence of their duty creates a ‘should have known’ standard. Footnote 79 In this direction, Article 28 accepts negligence as an exception to the general mens rea standard of intent established in Article 30. It does so, nonetheless, only regarding the military superior’s duty to prevent the crimes or punish their subordinates (Article 28(a)(i) and (ii)). Footnote 80 When it comes to a civilian superior, Article 28(b)(i) requires intent and not mere negligence for the former’s failure to prevent or punish.
Consequently, the civilian superior is responsible for their omission to prevent the crime or punish their subordinates only when they know or choose not to know (wilful blindness) that the latter were about to commit/have committed the crimes and decided not to do anything about it. In the first case – intentional omission to prevent the crime – they are responsible as perpetrators, as discussed in the previous section. In the second case – intentional failure to punish or refer the matter to the authorities – they are responsible for a dereliction of duty crime, as discussed in this section.
As a result, international criminal law does not seem to recognize a supervision duty for civilian superiors in order to prevent the crimes of the subordinates, while the duty to punish in terms of civilian superiors does not include an obligation to investigate possible crimes. This marks a significant difference from the case of the military commanders who – to avoid responsibility for failure to gain knowledge (‘should have known’ standard) – are expected to actively investigate for potential subordinate crimes, so they can punish the former accordingly. Footnote 81 Even with the application of the overall control requirement, this author believes that it is possible for a superior with general operational control of the activities of their subordinates to become informed of their criminal behaviour if they actively pursue a relevant policy. On the other hand, the civilian superior can be responsible only if they happen to have the relevant information and not in case they did not actively investigate to obtain them. Unfortunately, under this approach, Article 28(b) ICC Statute unjustifiably weakens the scope of application of the civilian superior’s duty of due diligence. If anything, the due diligence duty ought to stand against negligent behaviour, as its main purpose is to render the individual responsible in cases where they should have taken care of a situation more responsibly than they did. How international criminal law expects the civilian superior to fulfil their due diligence duty if they are not required to actively search for relevant information (under reasonable circumstances) remains unanswered. Footnote 82
4. The dual nature of superior responsibility, culpability, and legality considerations
The previous sections have explained how Article 28 ICC Statute can be interpreted in order to encompass both superior responsibility as a mode of participation and a separate offence of dereliction of duty.Footnote 83 The rationale for this dual nature of superior responsibility has been its harmonization with the culpability principle as the cornerstone of liability for participation in core international crimes.
As Robinson eloquently points out, the heart of the troubling relationship with the culpability principle is the responsibility of the superior post crime.Footnote 84 As it has already been discussed in the previous section, the superior is also responsible for their failure to punish the crimes of the subordinates after their commission. This means that a superior who has been diligent but nevertheless was not able to find out that their subordinates were about to commit a crime can still be liable if they learned about the crime in the aftermath but decided not to punish the perpetrators. If the post-crime activity of the superior is to be considered as core crime participation, the culpability principle is infringed because there can be no causal link to the crime of the subordinates.
The ICTY trial judges in Delalić, faced with this inconsistency, argued that the establishment of the superior responsibility doctrine must have created an exception to the causality requirement as the basis of attributing liability for participation in international crimes.Footnote 85 This is because:
… the Trial Chamber has found no support for the existence of a requirement of proof of causation as a separate element of superior responsibility, either in the existing body of case law, the formulation of the principle in existing treaty law, or … in the abundant literature on this subject.Footnote 86
From a doctrinal point, though, this argument does not stand. If one approaches superior responsibility as participation in a core crime – which seems to be the view of the Delalić Trial Chamber – one has to accept that there is a causal link between the acts of the participator and this crime. Otherwise, it would be as calling the person ‘participator’ without them actually ‘participating’ into the core crime. The only plausible explanation for this otherwise ‘illogical’Footnote 87 provision is to accept that the ‘failure to punish the subordinates’ component of superior responsibility creates liability for a separate dereliction of duty crime, as this article has argued, where there is indeed no need for a causal link to the core crime of the subordinates.
To save causality – and thus maintain superior responsibility as participation – a theory of subsequent crimes has been suggested. According to this, the failure to punish the subordinates for a crime contributes, in the form of encouragement, to the commission of future crimes, as it conveys a message of a superior’s tolerance to crime commission.Footnote 88 This theoretical construction leaves out the responsibility of the superior for their failure to punish the ‘first’ subordinate crime. Still, this flaw is considered trifling if we are to avoid the doctrinal discrepancy of the no causal link participation.Footnote 89 This article suggests that there is no need to resort to such a subsequent crime theory as long as the doctrinal integrity of superior responsibility is salvaged by incorporating a dereliction of duty component in it. It may look neatly simpler to have a single contribution to the crime approach for the whole spectrum of superior responsibility, but unfortunately, this approach eventually disputes the culpability principle – and this outcome cannot be considered trifling.
The culpability principle violation arises when the superior fails to prevent the crime by inadvertent negligence, a.k.a. when they should have known that their subordinates were about to commit a crime but – by not being diligent – they did not know. If the failure of an individual to be the average, responsible ‘supervisor’ is considered participation in a crime of such a nature, density and magnitude that reaches the level of a core international crime, then superior responsibility does not do justice to the actual culpability of the superior.Footnote 90 The essence of the culpability principle, after all, is for the individual to be criminally responsible for their own merit to the crime because each one of us should get what they deserve in terms of justice – ‘Give to Caesar what belongs to Caesar and to God what belongs to God’. Identifying the dereliction of duty component of the superior responsibility doctrine respects this dogma.
Despite the above reasoning, the explicit wording of Article 28 ICC Statute rather carelessly establishes that the superior shall be criminally responsible for the crimes of the subordinates that have been committed as a result of the superior’s failure to control the subordinates/exercise their superior duties. Due to this drafting, it has been argued that the ICC jurisdiction (has to) recognize(s) that the superior responsibility doctrine is a form of participation to the core crime.Footnote 91 However, if one interprets in this way the superior’s inadvertently negligent failure to prevent the subordinates’ crime, it would mean that Article 28 ICC Statute violates the principle of culpability. One solution would be to argue that the superior cannot be responsible for inadvertent negligence, but this is not supported by Article 28 ICC Statute either. On the contrary, Article 28(a)(i) explicitly renders the military superior responsible under a ‘should have known standard’.Footnote 92 Thus, the (military) superior must be responsible for inadvertent negligence, according to the ICC Statute. In order not to violate the culpability principle, it then needs to be accepted that the ‘superior shall be criminally responsible for the crimes of the subordinates’ phrase applies only to the intentional failure of the superior to prevent the crime, a.k.a. when the superior is considered a participant to the core crime.Footnote 93 Perhaps this was what Triffterer had in mind when arguing that the general provision of Article 28 ICC Statute does not require a nexus ‘in the sense of strict causality according to the laws of natural sciences’ between the commission of the crime by the subordinates and the superior’s failure to exercise control properly.Footnote 94 What can be concluded is that one way or the other, the poor drafting of Article 28 ICC Statute renders the application of the superior responsibility doctrine in the ICC jurisdiction problematic. However, between the somewhat selective application of the ‘responsible for the crimes of the subordinates’ clause and the violation of the principle of culpability, this author chooses the first as the less of two evils.
Ultimately, by justifying causality and culpability, the dual nature of the superior liability doctrine serves the principle of legality. The reasoning behind superior responsibility as participation and superior responsibility as dereliction of duty, based on the element of control and the mens rea of the superior, explains to the defendant exactly on which grounds he/she is accused. Most importantly, it does so without introducing a new crime and considering superiors as participants to core international crimes in sum, opting for a more lenient to the accused alternative when certain circumstances are met.Footnote 95 It, thus, contextually interprets Article 28 ICC Statute. In this interpretation, it does not favour a specific national legal system over another – which could potentially contradict Article 21(1)(c) ICC Statute – but, rather, takes the general theory of omissions, which has been discussed in all national jurisdictions, and seeks to apply it to the particular provisions of the ICC Statute. It is, thus, of no importance whether specific national jurisdictions criminalize certain omissions or not, as long it is established that the ICC Statute does. The purpose of the article has been to clarify the doctrine behind this criminalization for the purposes of legality.
5. Conclusion
This article has argued that superior responsibility is not conclusively a ‘sui generis’ mode of responsibility because it does not quite fit within the rest of the modes of participation, but rather an all-fit concept to cover the multiple ways a superior gets involved in international criminality, which requires a careful disentangling. Article 28 ICC Statute is an umbrella provisionFootnote 96 in the sense that it incorporates two different types of individual criminal responsibility: the responsibility of a participant to the underlying offences of others; and responsibility for a special crime of dereliction of duty.
In terms of participation, the notion of control is an important element in order to establish the causal link between the individual who omits and the criminal outcome of the ‘active’ persons, and to build, thus, the connection with the provisions of Article 25(3)(a) ICC Statute. Even though not the focal point of reference as in the case of participation, control is also an element to consider in a dereliction of duty crime. In terms of international criminal law, it establishes the superior/subordinate relationship and, as a result, it identifies the relevant duties of the superior.
Creating a unified theory regarding the responsibility of a superior, in which the superior responsibility doctrine of Article 28 ICC Statute can conveniently fit, responds to the ‘violation of the individual criminal responsibility base of international criminal law’ criticism expressed in theory. Indeed, it has been argued that the superior responsibility doctrine, by creating responsibility based on the acts of others, ‘surprises, because it partly neglects and reaches beyond the traditional concept of criminal liability and personal guilt, the well-accepted and acknowledged, indispensable basis of criminal law and responsibility for centuries in all major legal systems in the world’. Footnote 97
However, the two types of liability argued for in this article are indeed in compliance with the principle of culpability. In terms of the intentional omission to prevent the crime, the individual/superior does not become responsible for the crimes of others/subordinates but for their own participation in the criminal outcome. Regarding the negligent omission to prevent the subordinates’ crimes, the military commander is responsible as a perpetrator of a distinct crime, that of a dereliction of duty. The same happens with the omission to punish for both military commanders and civilian superiors. As dereliction of duty is a separate crime, no causal link to the crime of the subordinates is required. Footnote 98 By identifying the rationale of the dual nature of the superior responsibility doctrine and how it serves the culpability principle, the principle of legality is eventually preserved: it becomes clear that no new crime is introduced into the ICC jurisdiction, while the current provisions of Article 28 ICC Statute are interpreted to most accurately reflect the superior’s mens rea and actus reus.
Finally, the analysis of omissions, and its application in explaining the doctrinal foundations of the responsibility of an individual who exercises control over others, i.e., a superior, in relation to the acts of their subordinates, has revealed an important flaw of the ICC Statute. The lack of a ‘should have known standard’ when it comes to civilian superiors significantly weakens the scope of Article 28. In contrast to military commanders, there is no obligation to supervise the subordinates as part of the due diligence duty of a civilian superior. The latter cannot be responsible if they do not have actual knowledge of the illegal acts of their subordinates to prevent them. As it does not demand an active seek for knowledge, the ICC Statute gives the opportunity to civilian superiors to escape liability by creating a ‘faulty’ system of receiving information. In the case of a corporation being involved in the commission of an international crime, for example, the company directors could avoid potential international criminal responsibility by creating a deficient delegation system in the first place, where the lower managers are not required to report back to directors information on the illegal activities of the corporation. This is an unfortunate outcome for international criminal justice that the ICC may soon be compelled to take into consideration.
