On Stretching the Boundaries of Responsible Command

There are few concepts in the realm of international criminal law that can trace their origin through the processes of international law. Indeed, most international offences, modes of participation and all of international criminal procedure originate in one form of another from related domestic concepts. The doctrine of command responsibility, along with genocide and crimes against humanity are among the few exceptions to this rule. It posits, in brief, that a person exercising effective control over a number of subordinates is criminally liable under international law if he fails to prevent or punish their crimes as long as the superior knew or had reason to know about such crimes. The concept certainly seemed simple enough to the majority of the US Supreme Court when General Tomoyuki Yamashita was tried at the end of World War II. Sixty years since Yamashita, those involved in the theory and practice of international criminal law have found endless dimensions and unanswered questions relating to this doctrine. Given its very broad formulation in instruments such as Articles 86 and 87 of 1977 Additional Protocol I to the Geneva Convention, and Articles 7(3) and 6(3) of the International Criminal Tribunals for former Yugoslavia and Rwanda (ICTY and ICTR) Statutes, respectively, academics and practitioners have relied for a fuller elaboration on the judgments of international courts and tribunals, which have not always been consistent. Moreover, such judgments do not necessarily reflect state practice or opinio juris, although there is really not much else to rely on. Finally, Article 28 of the International Criminal Court (ICC) Statute succeeded in adding some coherency to the disparate jurisprudence in respect of some aspects of the doctrine, but is hardly consistent with customary law with regard to others, particularly the mental element applicable to military superiors.