Command Responsibility in International Criminal Law

The book deals with the problem of the effective attribution of criminal responsibility to individuals involved in the commission of heinous, macro-dimension crimes, such as war crimes, crimes against humanity and genocide. The practical difficulties involved in the ascertainment of the multi-level and complex web of responsibilities which lies behind the commission of such crimes raises the question whether it is possible to overcome their collective dimension. However, it is clear that only the timely attribution of individual criminal responsibilities to those implicated at various levels in the commission of the crimes can be an effective reaction. It is also apparent that the need to bring the single individuals to justice is particularly important with regard to those occupying positions of authority, the ‘most senior leaders’ or, in other words, those with powers of command. In recent years considerable attention has been devoted to the doctrine of command responsibility in international criminal law. Through this form of responsibility a military commander or a civilian superior may be held criminally responsible for crimes committed by his subordinates. The superior is held criminally responsible for his culpable failure to adopt necessary and reasonable measures to prevent or punish the crimes committed by his subordinates. Command responsibility is a concept that originated in the military field and then was applied in the context of international humanitarian law and finally in international criminal law. This complex form of responsibility has been a source of debate since its first applications in the period following the Second World War, and which continues to present particular difficulties for those who are called upon to interpret it. The limits and boundaries of this responsibility are still much debated, as the jurisprudence of the ad hoc Tribunals shows. Even more arduous is the attempt to establish the (legal) nature of command responsibility. Is it a form of responsibility pursuant to which the superior is held accountable for a specific offence of dereliction of duty or, instead, is he liable for the crime committed by the subordinates? The thesis put forward by the author is that it is erroneous to consider command responsibility as a unitary form of responsibility. Indeed, around a central corpus of common elements there are at least four different basic forms of command responsibility which can be differentiated on the basis of their various objective and subjective elements. We thus have superior responsibility cases of intentional failure to prevent or of negligent failure to prevent, and cases of intentional failure to punish or of negligent failure to punish the subordinates’ crimes. Moreover, each of these basic forms entails different characteristics depending on whether the superior is a military commander or a civilian superior. Each of these presents features that are so different that we may advance the thesis that the legal nature itself of command responsibility changes according to whether it is in turn a case of intentional or negligent failure to prevent or to punish. Thus in order to understand this form of responsibility, the author proceeds with a separate analysis necessary for each of the different basic forms of command responsibility, in order to reconcile it with the fundamental principles of individual and culpable responsibility.