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 …