3. Individual and superior responsibility

3. Individual and superior responsibility

Individual responsibility

One of the fundamental principles of criminal law is the individual responsibility for crimes, meaning no person should be punished for an offence that he or she has not personally committed.1

According to its Statute, the ICC has jurisdiction over all “natural persons” aged 18 and above, regardless of their official capacity and of any protections provided for under national law (Article 27 deals with the “irrelevance of official capacity” and Article 29 with the “non-applicability of statute of limitations”). In other words, state officials are by no means exempt from criminal responsibility under this Statute. Neither should special immunities, whether under national or international law, prevent the ICC from exercising its jurisdiction.2

Individual criminal responsibility is dealt with in Article 25 of the Rome Statute. Paragraphs 3(a)-(e) list various forms of perpetration of and participation in international crimes within the ICC’s jurisdiction, and any person committing any of these acts is considered “criminally responsible and liable for punishment.” The acts include:

(a) Commits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible;

(b) Orders, solicits or induces the commission of such a crime which in fact occurs or is attempted;

(c) For the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission;

(d) In any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose. Such contribution shall be intentional and shall either:

(i) Be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime within the jurisdiction of the Court; or

(ii) Be made in the knowledge of the intention of the group to commit the crime.

To sum up, an international crime may be perpetrated either directly by an individual, jointly with another person or a group of people, or through another person or group. A person may also be criminally responsible if he or she has participated in the crime, whether by ordering, soliciting, inducing, aiding, abetting or otherwise assisting the attempt, commission or facilitation of the crime, including providing the means for its commission.

An important feature of the Rome Statute is the above provision on the co-responsibility of a group “acting with a common purpose,” usually a criminal one. This requires certain objective and subjective elements of the crime, which will be discussed shortly.

It should be noted that criminal responsibility also includes attempts to commit a crime but the crime did actually take place due to circumstances independent of the person’s intentions.

However, if a person abandons the effort to commit a crime or otherwise prevents its completion, then he or she should not be liable for punishment under the Statute for the attempt to commit the crime, provided that he or she “completely and voluntarily gave up the criminal purpose” (Article 25(f)). This is different from the classic notion of ‘conspiracy’ in common law, where it does not matter whether the crime has been actually committed or not.

Defences

The Rome Statute lists a number of defences, or “grounds for excluding criminal responsibility,” available to the accused, which are dealt with in Article 31. These include suffering from a mental illness or intoxication that “destroy that person’s capacity to appreciate the unlawfulness or nature of his or her conduct, or capacity to control his or her conduct to conform to the requirements of law.” They also include reasonable self-defence and duress resulting from a threat of imminent death or imminent serious bodily harm.

Self-defence includes the defence of property “which is essential for the survival of the person” and the defence of another person or property “which is essential for accomplishing a military mission, against an imminent and unlawful use of force in a manner proportionate to the degree of danger to the person or the other person or property protected.” However, the fact that the person is involved in a defensive operation conducted by the force that he or she is part of does not in itself constitute a ground for excluding criminal responsibility.

Another related and important defence that is likely to be invoked by the Syrian and Iranian governments is that contained in paragraph 3 of Article 8, which states that none of the war crimes listed in this Article “shall affect the responsibility of a Government to maintain or re-establish law and order in the State or to defend the unity and territorial integrity of the State, by all legitimate means.”

This is inspired by Article 3 of Protocol II Additional to the Geneva Conventions, which deals with non-intervention and the sovereignty of states. However, both provisions should not be interpreted in a way that frustrates the purposes of these treaties. In other words, they are not meant to grant states a free hand to use whatever means they wish to maintain law and order or defend national unity. The means must be legitimate under international law.

Mental elements

To establish individual criminal responsibility for war crimes and crimes against humanity, the Rome Statute requires the satisfaction of not only the objective or material elements mentioned above (actus reus), but also two subjective or mental elements (mens rea), namely intent and knowledge. Article 30 states that “a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge.”

Intent is defined as “mean[ing] to engage in the conduct” or “mean[ing] to cause that consequence or [being] aware that it will occur in the ordinary course of events.” Knowledge is defined as the “awareness that a circumstance exists or a consequence will occur in the ordinary course of events.”

In addition to this general rule, the Rome Statute is supplemented with detailed “elements of the crime” for each of the crimes within the ICC’s jurisdiction, in order to “assist the Court in the interpretation and application of articles 6, 7 and 8.”3 For instance, the elements of the war crime of “extensive destruction and appropriation of property” contained in Article 8(2)(a)(iv) are given as follows:

1. The perpetrator destroyed or appropriated certain property.
2. The destruction or appropriation was not justified by military necessity.
3. The destruction or appropriation was extensive and carried out wantonly.
4. Such property was protected under one or more of the Geneva Conventions of 1949.
5. The perpetrator was aware of the factual circumstances that established that protected status.
6. The conduct took place in the context of and was associated with an international armed conflict.
7. The perpetrator was aware of factual circumstances that established the existence of an armed conflict.

Similarly, the elements of the crime against humanity of “deportation or forcible transfer of population” contained in Article 7(1)(d) are given as follows:

1. The perpetrator deported or forcibly transferred, without grounds permitted under international law, one or more persons to another State or location, by expulsion or other coercive acts.
2. Such person or persons were lawfully present in the area from which they were so deported or transferred.
3. The perpetrator was aware of the factual circumstances that established the lawfulness of such presence.
4. The conduct was committed as part of a widespread or systematic attack directed against a civilian population.
5. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population.

The mental element of international crimes should not be interpreted, as various international tribunals have ruled, as requiring proof that the perpetrator had knowledge of all the specific details of the crime or of the plan. The mental element is generally satisfied if the perpetrator intended to further the attack and was aware of the broader context of the act, as demonstrated by elements 5 and 7 in the first list above and elements 3 and 5 in the second list. Moreover, the knowledge element only relates to facts, not to a legal evaluation. The perpetrator therefore need only be aware of the factual circumstances rather than the legal status of the concerned persons or property.

It should also be noted that the mental element required in the case of facilitation of such crimes (aider, abettor, etc.) is a ‘double intent’, one related to the facilitator’s own conduct and the other to that of the crime perpetrator(s). In other words, the facilitator must have known as well as wished that his or her assistance would facilitate the commission of the crime.

In regard to crimes committed by “a group acting with a common purpose,” the intentional contribution of the members must be either “made with the aim of furthering the criminal activity or criminal purpose of the group” or “made in the knowledge of the intention of the group to commit the crime.” In other words, it may relate to the crime itself or the criminal purpose of the group more generally.

Superior responsibility

Having dealt with individual criminal responsibility, we now turn to the responsibility of commanders and other superiors, which is of particular significance for the purposes of this report.

Since the controversial case of Tomoyuki Yamshita, the Japanese general whose forces tortured and murdered thousands of civilians in Manila, the Philippines in 1945, the concept of superior or command responsibility has become an integral part of international law as well as many domestic laws.4

For instance, Articles 86 and 87 of Protocol I Additional to the Geneva Conventions – which should be read together – established the responsibility of states to “take measures necessary to suppress all other breaches of the Conventions or of this Protocol which result from a failure to act when under a duty to do so,” as well as requiring military commanders to “prevent and, where necessary, to suppress and to report to competent authorities breaches of the Conventions and of this Protocol.” Article 86 adds:

The fact that a breach of the Conventions or of this Protocol was committed by a subordinate does not absolve his superiors from penal or disciplinary responsibility, as the case may be, 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.

The Rome Statute, and various international criminal tribunals before it, developed the doctrine further by establishing international criminal responsibility rather than contending with disciplinary procedures by states, and by extending this responsibility to de facto commanders as well as civilian superiors. Article 28 of the Statute states:

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.

In other words, a military commander, whether official or de facto, bears a double responsibility or liability: a direct one for his or her own action (failure to exercise proper supervision, which is considered a serious omission or negligence) and an indirect one for the criminal conduct of his subordinates (thereby creating a risk of the crime occurring, as well as a risk of future crimes if the first one went unpunished).

A military commander can therefore be held responsible for international crimes committed by forces under his or her command if it can be established that 1) he or she was in effective control of his or her subordinates accused of committing the crime and 2) that this control could or would have prevented the crime had it been exercised properly.

The notion of ‘effective control’ – which is not limited to formal ranks or positions but encompasses both de jure and de facto command – is particularly relevant in cases where multiple chains of command coexist, such as the case in Syria today. Indeed, evidence suggests that it is often Iranian or Hezbollah commanders who are in effective or de facto control on the ground in certain parts of Syria, as the previous chapter explains.

To determine whether a group qualifies as an organisation exercising de facto authority, a number of considerations should be taken into account, including:

(i) whether the group is under a responsible command or has an established hierarchy;

(ii) whether the group possesses the means to carry out a widespread or systematic attack against a civilian population;

(iii) whether the group exercises control over part of the territory of a state;

(iv) whether the group has criminal activities against the civilian population as a primary purpose;

(v) whether the group articulates, explicitly or implicitly, an intention to attack a civilian population;

(vi) whether the group is part of a larger group which fulfils some or all of the above-mentioned criteria.5

Mental elements

The subjective or mental elements required for superior responsibility are often more controversial and more difficult to establish than the objective elements mentioned above. Article 28 of the Rome Statute defines them as follows:

(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 their commission or to submit the matter to the competent authorities for investigation and prosecution.

The first point – whether the standard should be actual, positive knowledge (knew) or presumed or constructed knowledge (should have known) – has been the subject of extensive debate and disagreement. But it is now generally accepted – following the ICTY judgment in Delalić and the ICTR in Akayesu, among others – that a theoretical or general presumption of knowledge is not sufficient to satisfy the mental element. However, the establishment of such knowledge on the basis of circumstantial evidence is permitted.

In other words, the subjective element would be satisfied if it can be shown that the commander had clear information or mechanisms that could have enabled him or her to conclude, in the circumstances at the time, that his or her subordinates have committed, or were going to commit, an international crime, but he or she did not take all the necessary measures within his or her power to prevent or punish it, i.e. deliberately ignored the information. This negligence – variously called ‘wanton disregard’, ‘willful blindness’, etc. – is so serious, it is argued, that it amounts to malicious or criminal intent.

The source and form of information – whether direct reports by subordinates, media reports, witness accounts, etc. – do not matter much as long as they are clear and reliable enough for the commander to have acted upon them. And it should be remembered that the crimes in question are meant to be of systematic or widespread nature.

As to the what these “necessary and reasonable measures” are, this has been dealt with by various judges and commentators. They often include such things as ensuring that subordinates are aware of their responsibilities under international law, having an effective monitoring and reporting system in place, investigating and punishing alleged breaches and so on. The important thing is that they have to be within the commander’s de facto power. Thus, if a commander reports to his or her superior(s), or to the concerned or competent authorities, about the crime concerned, asking for the matter to be investigated or punished, then he or she may no longer be held responsible for that crime, because this is considered a reasonable measure taken to prevent or repress the crime.

Paragraph (b) of Article 28 repeats similar provisions for other, non-military superiors (civilian officials belonging to a ‘policy level’). It replaces “effective command and control” with “effective authority and control” and adds that the crime should concern “activities that were within the effective responsibility and control of the superior” (i.e. their area of competence). However, the standard for the knowledge element is higher: the superior must have either known or consciously disregarded information; there is no “should have known” option.

Individual vs. superior responsibility

Superior responsibility often goes hand in hand with criminal orders. But more often than not, direct orders to commit specific crimes are difficult to prove, so superior responsibility is, to a certain extent, a way around this obstacle. Various commanders may also be responsible for the same crime committed by one subordinate, depending on the chain of command.

Superior responsibility is also closely linked to the “obedience to superior orders” defence (“I am not guilty because I was only obeying the orders of my superior”). However, individual and superior responsibility are not mutually exclusive; they simply reflect different ways of participating in the same crime.

As Article 33 of the Rome Statute clearly states, superior orders or laws do not relieve a perpetrator of an international crime from individual criminal responsibility unless the person

(a) was under a legal obligation to obey orders of the government or the superior in question;
(b) did not know that the order was unlawful; and
(c) the order was not manifestly unlawful (Article 33).

Orders to commit war crimes and crimes against humanity are manifestly unlawful.

Thus, if there are any cases where the perpetrator(s) have invoked the superior order defence, this can be used as evidence against their superior(s).

Nor does it absolve the superior from responsibility to delegate his or her powers or duties, because the duty of proper supervision is still ultimately the responsibility of the superior (proper selection of the delegates, ensuring they are fulfilling their duties and so on). It could be a valid defence only when the delegation is “partial, precise and specific” and the delegates are competent enough to properly fulfill the tasks delegated to them.

The previous chapter should have demonstrated that there is sufficient evidence to try the Iranian military and political leaderships, as well as the commanders of the various militias controlled by them which are fighting in Syria, for their superior responsibility for the war crimes and crimes against humanity that are the focus of this report. And this should be distinguished from their role as accomplices in some of these crimes (co-perpetration) and in instigating or providing the means for other ones (indirect perpetration), which was also discussed in the previous chapter.

Notes & References:

1. For more on this, see here.

2. See also the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity.

3. The Elements of the Crimes are available here.

4. See, for instance, here and here.

5. See here.