President Obama and the international criminal law of successor liability.

• Author: Akerson, David

1. INTRODUCTION

   The last fifteen years have seen the dramatic expansion of international criminal law and the use of international criminal tribunals to prosecute senior leaders for their role in war crimes, crimes against humanity and genocide (international criminal law or ICL). An important development at the tribunals has been the law of command responsibility, (1) While its history can be traced as far back as 500 B.C., the modern doctrine draws from the jurisprudence that emerged from the military tribunals established after World War II--the International Military Tribunal (IMT) that tried Nazi Germany's war criminals and the International Military Tribunal for the Far East (IMTFE) that prosecuted Japanese officials.

   Decades later, in the early 1990s, scenes of concentration camps eerily reminiscent of the Nazi Holocaust began to come out of the former Yugoslavia. The outrage over those images spurred the United Nations Security Council in 1993 to utilize its broad Chapter VII powers (2) in a novel way--with the creation of the International Criminal Tribunal for the former Yugoslavia (ICTY). (3) Within a year, that decision spawned the creation of the International Criminal Tribunal for Rwanda (ICTR). Thus began the inexorable trend toward the deployment of tribunals as a tool in post-conflict resolution. By 2008, there were seven international or quasi-international tribunals, including the ICTY and ICTR, The Special Court for Sierra Leone (SCSL), The Extraordinary Chambers in the Courts of Cambodia (ECCC), The Special Tribunal for Lebanon (Lebanon Tribunal),. The Ad-Hoc Court for East Timor (East Timor Tribunal) and the International Criminal Court (ICC). These institutions (collectively The Tribunals) are focused on and mandated to indict high-level political and military leaders who orchestrate atrocities. To date, the Tribunals' indictments include Yugoslavian President Slobodan Milosevic, Rwandan Prime Minister Jean Kambanda, two Presidents of the self-declared Republic of Srpska Radovan Karadzic and Biljana Plavsic, Liberian President Charles Taylor and Sudanese President Omar al-Bashir.

   The Tribunals exercise jurisdiction over three categories of core international crimes: war crimes, crimes against humanity and genocide. (4) The direct perpetrators of these crimes are typically lower-ranking subordinated field soldiers, militia or paramilitary members. One of the significant challenges of the tribunals is to link crimes committed by subordinates to the military or political superiors. To this end, the tribunals have two alternatives. The first alternative is to charge commanders with "individual criminal liability" for their direct involvement in the crimes, such as ordering, instigating or planning. (5) The second alternative, command or superior responsibility, is an indirect form of responsibility based on an omission: the commander's failure to fulfill a duty with regard to subordinates to prevent crimes where possible, or to punish the commission of offenses after the fact. (6)

   While the doctrine of command responsibility is firmly entrenched in ICL, new issues have arisen in the doctrine's application. In 2001, the ICTY indicted Bosnian military officers Enver Hadzihasanovic, Mehmed Alagid and Amir Kabura (the Accused) on charges of war crimes and crimes against humanity based on a command responsibility theory for failing to punish his subordinates who had committed those crimes. (7) These charges were contentious because for certain acts Kabura was not the subordinates' commander at the time of the commission of the crime, rather he had assumed command after the fact. For the purposes of this article, we refer to this form of command responsibility as successor liability. Before trial, the Accused moved to strike successor liability in the indictment. (8) The Trial Chamber rejected their argument, but on interlocutory appeal the Appeals Chamber reversed the lower court and invalidated successor liability. (9) The Appeal Chamber decision issued its decision in the form of a three-two majority opinion with two strong dissents. (10)

   At the time the ICTY was litigating successor liability in Hadzihasanovic, President George W. Bush, was commander-in-chief of U.S. armed forces, and had implemented controversial policies of water-boarding, harsh interrogation and indefinite detention at Guantanamo Bay. These policies were widely-publicized and openly acknowledged by the Bush administration. (11) The implementation of these policies involved the issuing of orders at a command level and the execution of orders by subordinates. On January 20, 2009, President Barack Obama succeeded President Bush as commander-in-chief and inherited authority over many subordinates who are alleged to have participated in the execution of these policies. Successor liability would mandate that Obama has a duty to punish known subordinate offenders, and a failure to do so would subject him to liability.

   As international law becomes more comfortable holding senior leaders liable for mass crimes, it will be confronted on reoccurring basis with the criminal subordinates who remain in their positions in successive regimes. Do the new regime leaders, such as Obama and Prime Minister Gordon Brown of the United Kingdom, each of who may have had no involvement in the crimes or opposed the criminal policies of their predecessors (hereinafter referred to as successor regimes), have a duty to root out and punish subordinate offenders to the extent that a failure to discharge that duty subjects them to criminal liability for acts they may have opposed?

   This article examines the law and policies of successor liability in light of President Obama and clamor for him to appoint a special prosecutor to investigate possible war crimes and crimes against humanity committed by the Bush administration. Section II will analyze the branch of successor liability as it currently stands in international law. Section III will then view successor liability with respect to President Obama and his role as a commander of subordinates in the armed forces who may have committed crimes. The section will first set forth the alleged crimes committed under the prior Presidential administration and then discusses President Obama's duty to respond to those crimes. Various policy arguments militating for and against establishing successor liability are explored in Section IV.

2. COMMAND RESPONSIBILITY AND THE SUCCESSOR LIABILITY BRANCH

   1. Codification

      The body of case law that came out of the World War II tribunals established and developed command responsibility as a form of individual criminal responsibility; however, the operating statutes of the IMT and IMTFE did not expressly provide for command responsibility. Likewise, the four Geneva Conventions are largely silent on the issue. (12) The first codification of the doctrine in international humanitarian law is in Articles 86 and 87 of Additional Protocol I to the Geneva Convention of 1977--applicable to international armed conflicts--which establishes superior liability for failures to act and places a duty on commanders to prevent, suppress or punish breaches of the Geneva Conventions. (13)

      Since then, the doctrine of command responsibility as a form of individual criminal liability has been expressly recognized by all of the international tribunals. It is set forth in Articles 6(3) and 7(3) of the Statute of the ICTR and ICTY, respectively, Article 6 of the Statute of the SCSL, Section 16 of the constitutive document of the Special Panels for Serious Crimes, and in Article 29 of the ECCC. (14) All of these tribunals generally reference command responsibility as follows: (15)

      The fact that any of the acts referred to in ... the present Statute was 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 thereof. (16) While the expression of the command responsibility doctrine may vary from jurisdiction to jurisdiction, the ad hoc jurisdictions, beginning with the Celebici Trial Chamber, have generally recognized three elements necessary to a finding of superior liability: the existence of a superior-subordinate relationship; the commander's knowledge of the subordinate's crime; and the commander's failure to act either in the form of preventing the criminal acts or if learned of after the fact, punishing the offenders. (17) Successor liability is concerned with this latter duty to punish, in the case of a new commander who inherits subordinates who have previously committed criminal acts under a previous commander.

   2. Successor Liability

      1. Current State of the Law

         The successor liability branch of command responsibility has to date been litigated only at the ICTY. It was first discussed in the case of Prosecutor v. Kordic and Cerkez. (18) Dario Kordid was a high-ranking political figure in the Bosnian Croat separatist movement who exercised substantial influence over its military and paramilitary operations. (19) Mario Cerkez was the commander of a Bosnian Croat Brigade. (20) While the issue of successor liability was not specifically challenged at the pre-trial stage, the Trial Chamber in convicting the two Accused did address the issue. In obiter dicta, the Trial Chamber affirmed that

         The duty to punish naturally arises after a crime has been committed. Persons who assume command after the commission are under the same duty to punish. This duty 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. Civilian superiors would be under similar obligations. (21) The issue of successor liability next came up in the...