How Command Responsibility Got So Complicated: A Culpability Contradiction, Its Obfuscation, and a Simple Solution
Robinson, Darryl, Melbourne Journal of International Law
The literature on command responsibility is extensive and is rapidly growing more complex. In this article, I argue that command responsibility can be much simpler than it seems, I focus on a single puzzle, one hidden in plain sight. The puzzle is that international criminal tribunal jurisprudence uses command responsibility to convict persons without causal contribution to the crime, while also recognising a culpability principle that requires causal contribution. This stark contradiction has been obscured by many arguments in the jurisprudence and discourse. Indeed, many readers will raise a host of arguments to deny the contradiction I just described. I will dissect the major arguments to demonstrate that the contradiction does indeed exist, I argue that Tribunal jurisprudence took an early wrong turn in concluding that the failure to punish" branch of command responsibility is irreconcilable with a contribution requirement. This led to a rejection of causal contribution. Subsequent efforts to deny the resulting contradiction with the culpability principle, or to avoid it, have spawned many inconsistent, complex and convoluted claims about command responsibility. These include the descriptions of command responsibility as 'sui generis', as hybrid, as variegated, as responsibility for-the-acts-but-not-for-the-acts, as neither-mode-nor-offence or as sometimes-mode-sometimes-offence. However, if we revisit the first misstep, a simple and elegant solution is available. Command responsibility is a mode of accessory liability; it requires causal contribution and it is perfectly workable. I draw on scholarship from criminal law theory to explore the parameters of the contribution requirement.
CONTENTS I Introduction A The Argument B Scope and Terminology II Analysis of Command Responsibility A The Structure of Command Responsibility B Principled Concerns and Justifications of Command Responsibility III The Question of Causal Contribution A Culpability Requires Contribution B ICL Jurisprudence Recognises the Contribution Requirement C Yet Tribunal Jurisprudence Rejects Contribution in Command Responsibility D The Problem of the Isolated Crime E The Problem of the Successor Commander IV Why Comply with Fundamental Principles? V The Doctrinal Arguments to Circumvent Causation A The Argument that Precedents Do Not Require Contribution 1 Reference to Precedent Does Not Answer a Deontological Challenge 2 Did the Doctrinal Precedents Reject a Contribution Requirement? B The Perceived Incompatibility with 'Failure to Punish' C The Argument that Command Responsibility Would be Rendered Redundant VI The Assertion that Command Responsibility is a Separate Offence A Characterisation as a Separate Offence B Merits of the 'Separate Offence' Approach C The 'Separate Offence' Approach is Not Available to International Tribunals 1 The Legality Problem: Applicable Law 2 Fair Labelling Problem: Contradiction with Expressive Practice of the Tribunals D A 'Sui Generis' Mode Exempt from the Contribution Requirement? E A Variegated Approach? F Conclusion VII A Deontological Analysis A Why Do We Require Contribution? B How Much Contribution is Required? 1 Substantial or Significant Contribution or Effect 2 Alternative Standards: Could Have Made a Difference/Risk Aggravation C Alternatives to Contribution? Ratification Theory 1 'Accessory after the Fact'. 2 Acknowledgement and Adoption 3 Moral Pollution 4 Expression of Will 5 Conclusion on Ratification Theory VIII Implications A Implications for Tribunal Jurisprudence B Implications for ICC Jurisprudence 1 A Different Path 2 Sophisticated First Steps in the Bemba Decision 3 Possible Contamination? …