Superior responsibility of civilians for international crimes committed in civilian settings.

• Author: Ronen, Yael

ABSTRACT

This Article examines the notion of superior responsibility of civilians for international crimes committed in civilian settings. The doctrine of superior responsibility grew out of the military doctrine of command responsibility, and its evolution is informed by this origin. Jurisprudence and academic writers emphasize that the doctrine is applicable to civilian superiors of military or paramilitary organizations, but there has never been a detailed analysis of the doctrine's relevance and applicability in civilian settings. The Article argues that the claim that customary international law extends the doctrine of superior responsibility to civilians, let alone in civilian settings, is inaccurate. In judicial practice, including recent rulings, civilians have rarely been convicted under the doctrine even as leaders of military organizations, and when they have, these convictions were generally secondary to their direct responsibility. The Article elaborates various challenges to the application of the doctrine in civilian settings, particularly in the determination of the existence of a superior-subordinate relationship. Despite the difficulties in transposing the doctrine to the civilian sphere, the Article argues that, as a matter of policy, civilians should also be subject to the doctrine. It also contends that the normative distinctions between civilians and military superiors, today entrenched in Article 28 of the International Criminal Court Statute, are neither absolutely necessary nor practicable.

TABLE OF CONTENTS I. INTRODUCTION II. CIVILIAN SUPERIOR RESPONSIBILITY; LEX LATA A. International Instruments B. Jurisprudence on Superior Responsibility of Civilians 1. Jurisprudence in the Aftermath of World War II 2. ICTY Case Law 3. ICTR Case Law C. Assessment of the Ad Hoc Tribunals' Case Law III. CHALLENGES IN APPLYING THE PRINCIPLE OF SUPERIOR RESPONSIBILITY TO CIVILIAN SETTINGS A. The Source of the Obligation to Prevent or Punish in a Civilian Setting B. De Facto Authority of Civilian Superiors C. Distinguishing Superior Responsibility from Direct Responsibility IV. BACK TO NAHIMANA A. Nahimana's Status as Superior B. The Obligation to Control Subordinates V. SHOULD THE DOCTRINE OF SUPERIOR RESPONSIBILITY BE EXTENDED TO CIVILIAN SETTINGS? VI. CONCLUSION I. INTRODUCTION

In 2007, the International Criminal Tribunal for Rwanda (ICTR) Appeals Chamber confirmed the conviction of Ferdinand Nahimana for public and direct incitement to genocide and crimes against humanity, and it sentenced him to thirty years imprisonment. (1) Nahimana, a former university lecturer and former director of the Rwandan Ministry of Information, was the founder and director of RTLM, the only private radio station operating in Rwanda in 1993-1994, which served as a platform for a genocidal media campaign against the Tutsi population in Rwanda. (2) Nahimana himself never broadcast on RTLM. He was convicted under the doctrine of superior responsibility for failing to prevent the broadcasters from inciting to genocide in their programs or to punish them for having done so. (3)

The doctrine of superior responsibility, known traditionally as command responsibility, (4) is well established, although its precise nature and content remain controversial. (5) One jurisprudential line has been to treat it as responsibility of the superior for the crimes committed by his subordinates, (6) whereas another has been to treat it as a separate offence of dereliction by the superior of his duty to properly supervise his subordinates. (7) Recent jurisprudence supports the latter interpretation. (8)

Four elements must be proven for a person to be held responsible as a superior. In general terms, these are: (9) (1) an international crime has been perpetrated by someone other than the defendant; (2) there existed a superior-subordinate relationship between the defendant and the perpetrator; (3) the defendant as a superior knew or had reason to know that the subordinate was about to commit such crimes or had done so; (10) and (4) the defendant as a superior failed to take the necessary and reasonable measures to prevent such crimes or punish the perpetrator. (11) Under the International Criminal Court (ICC) Statute, there is a further requirement of a causal link between the superior's dereliction of duty and the commission of the crime. (12) The International Criminal Tribunal for the former Yugoslavia (ICTY) and ICTR Statutes do not distinguish between types of superiors, while ICC Statute Article 28 expressly provides for the responsibility of both military commanders (and persons effectively acting as military commanders) and other superiors. (13)

The doctrine of superior responsibility grew out of the military doctrine of command responsibility, and its evolution is informed by this origin. (14) This raises the question on which this Article focuses-whether the doctrine is suited for application in a civilian setting. Part II examines existing jurisprudence and argues that the claim that superior responsibility extends to civilians as a matter of a customary law is inaccurate. Judicial practice demonstrates that civilians have rarely been convicted under the doctrine and that, when they have, these convictions were generally secondary to their direct responsibility. Part III elaborates various challenges to the application of the doctrine in civilian settings, particularly with respect to the determination of the existence of a superior-subordinate relationship. Part IV examines the Nahimana case in light of the preceding analysis and conclusions. The analysis gives rise to the question whether the doctrine should be transposed to the civilian sphere. Part V considers superior responsibility in civilian settings de lege ferenda and argues that, despite the difficulties that arise, civilians should also be subject to the doctrine. It also argues against the normative distinctions between civilians and military superiors that are entrenched in Article 28 of the ICC Statute.

2. CIVILIAN SUPERIOR RESPONSIBILITY: LEX LATA

   1. International Instruments

      Command responsibility is codified in Additional Protocol I to the Geneva Conventions. Article 87(1) provides: (15)

      The High Contracting Parties and the Parties to the conflict shall require military commanders, with respect to members of the armed forces under their command and other persons under their control, to prevent and, where necessary, to suppress and to report to competent authorities breaches of the Conventions and of this Protocol. The responsibility of "superiors" is triggered, according to Article 86(2), (16) "if they knew, or had information which should have enabled them to conclude in the circumstances at the time, that he was committing or was going to commit such a breach and if they did not take all feasible measures within their power to prevent or repress the breach." This provision is not limited to military commanders, although it has been interpreted as applying primarily to them. (17) In Celebici, the ICTY relied on the International Law Commission (ILC) commentary on the Draft Code of Crimes against Mankind (18) to point out that Articles 86(2) and 87(1) extend to civilian superiors. Yet the ILC had explained that "this principle [of responsibility of superiors] applies not only to the immediate superior of a subordinate, but also to his other superiors in the military chain of command or the governmental hierarchy if the necessary criteria are met." (19) Thus, the ILC appears to have envisaged civilians only as indirect superiors of military personnel (whose direct superiors are also military personnel). It does not appear to have considered the possibility of a civilian setting where neither superior nor subordinates perform military or paramilitary functions. Furthermore, Additional Protocol I leaves certain issues unresolved. First, it establishes responsibility only for breaches of the Additional Protocol and the Geneva Conventions, namely war crimes. (20) Such crimes are by definition related to armed conflict and are therefore more likely to be committed by military or paramilitary personnel. (21) Second, Additional Protocol I does not establish superior responsibility for crimes against humanity or genocide as such.

      ICTR Statute Article 6(3) and ICTY Statute Article 7(3) (hereinafter Article 6/7(3)) contain a provision resembling Article 86(2):

      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. Both tribunals have interpreted their respective statutes as permitting the attachment of responsibility to both military and nonmilitary superiors. (22)

      Finally, ICC Statute Article 28 expressly provides for the responsibility of both military commanders (and persons effectively acting as military commanders) and other superiors:

      In addition to other grounds of criminal responsibility under this Statute for crimes within the jurisdiction of the Court:

      (a) A military commander or person effectively acting as a military commander shall be criminally responsible for crimes within the jurisdiction of the Court committed by forces under his or her effective command and control, or effective authority and control as the case may be, as a result of his or her failure to exercise control properly over such forces, where:

      (i) That military commander or person either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes; and

      (ii) That military commander or person failed to take all necessary and reasonable measures within his or her power to prevent or repress...