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Command Responsibility in International Criminal Law - Chantal Meloni

Command Responsibility in International Criminal Law

Hardcover Published: 10th June 2010
ISBN: 9789067043243
Number Of Pages: 270

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This book offers an in depth study of the command responsibility doctrine, pursuant to which military commanders and civilian leaders can be held responsible for the crimes committed by their subordinates that they failed to prevent or punish. This form of responsibility has gained much attention in the last years; however, it still presents several open questions and critical difficulties arise in its application.

The author traces back the roots of such criminal responsibility, from its military origins to its first appearances in the international case law after World War II. Particular attention is given to the jurisprudence of the ad hoc Tribunals, which extensively elaborated on the issue, and to the provision of Article 28 of the Statute of the International Criminal Court.

The book provides a systematic analysis of command responsibility, outlining its different forms and finding it a proper role within the complex net of responsibilities that connotes the commission of international crimes.

This book is an important contribution to the literature and worldwide discussion on command responsibility and therefore highly recommended to scholars of international law, criminal law and international criminal law as well as to all practitioners (judges, legal assistants, prosecutors, defense counsels) working at or with international tribunals, experts in the military field, investigators dealing with international crimes, NGOs and journalists.

Prefacep. V
Summary of Contentsp. VII
Acknowledgmentsp. IX
Abbreviationsp. XV
Introduction: From command responsibility to superior responsibility: Notion, origins and scope of application of the doctrinep. 1
The principle of individual responsibility and the macro-dimension of international crimesp. 7
Individual criminal responsibility and its relationship with State responsibility under international lawp. 7
The macrocriminal and the group dimension of international crimes: Difficulties in attributing individual responsibilityp. 14
The macrocriminal nature of international crimesp. 14
The group dimension of international crimesp. 19
The consolidation of the principle of personal and culpable responsibility in international criminal law: From Nuremberg to The Haguep. 23
The need to establish the responsibility of the top leadersp. 27
The historical evolution of command responsibilityp. 33
Forerunners of the command responsibility doctrinep. 33
The concept of responsible command introduced by the Fourth Hague Convention of 1907p. 35
The Commission on the Responsibility of the Authors of the War of 1919: First attempts to attribute responsibility for international crimes to the 'most senior leaders'p. 37
The Treaty of Versailles and the Leipzig Proceedings: The unsuccessful attempt to bring to justice 'highly-placed enemies'p. 40
The Yamashita trial of 1945: The first conviction based on command responsibilityp. 42
The problem of the mens rea standard adopted to convict Yamashitap. 46
Command responsibility lato sensu and stricto sensu in the proceedings against German war criminals after the Second World Warp. 48
Superior responsibility before the Nuremberg International Military Tribunalp. 50
The subsequent proceedings: The High Command Trial and the Hostage Trialp. 52
The responsibility of Japanese leaders after the Second World Warp. 56
General principles on responsibility for 'failure to act' before the International Military Tribunal for the Far Eastp. 57
The criminal responsibilities of members of the Japanese governmentp. 59
dissenting opinionp. 61
The trial against Admiral Toyodap. 63
The first codification of the doctrine: Articles 86 and 87 of the Additional Protocol I of 1977 to the Geneva Conventionsp. 64
Superior responsibility in the Israeli Kalian Report of 1983 on the Massacres of Sabra and Shatillap. 71
The recognition of command responsibility for failure to act as a mode of liability in international criminal lawp. 74
The elements of command responsibility in the jurisprudence of the ad hoc Tribunalsp. 77
The express provision of command responsibility in the Statutes of the ad hoc Tribunalsp. 78
Similar provisions in the statutes of other international criminal tribunals and special courtsp. 81
Outline of the constitutive elements as developed by the jurisprudence: A critiquep. 83
(A) The underlying offence committed by the subordinatep. 84
The subordinate does not need to be the principal perpetrator of the underlying offencep. 86
The subordinate does not need to be identified but his responsibility must be determinedp. 87
Superior responsibility per superior responsibility?p. 89
(B) The superior-subordinate relationshipp. 91
The concept of superior: The military commander and the civilian leaderp. 92
De jure and de facto positions of authorityp. 94
Parallel chains of command and indirect subordinationp. 96
Difficulties in proving the superior-subordinate relationship: Effective control and substantial influencep. 99
The effective control must be exercised within a hierarchyp. 105
(C) The mens rea requirementp. 107
The superior knewp. 108
The superior had reason to knowp. 111
(D) The failure to adopt the necessary and reasonable measuresp. 114
The problem of the autonomous relevance of the violation of the duty to punishp. 116
The material ability to prevent and/or to punish the crimesp. 119
The adequateness of the measures to prevent or punishp. 120
The assumption of command/authority by the superior after the commission of the crimesp. 123
The problem of causality between the superior's failure to act and the subordinates' crimep. 126
Differences in the standards applied to military commanders and to civilian leadersp. 128
The uncertain nature of command responsibility in the ICTY jurisprudencep. 131
From the responsibility of the superior 'for his subordinates' crimes' …p. 133
… to the responsibility of the superior for his failure to act 'with regard to his subordinates' crimes'p. 134
A sui generis responsibility for failure to act when under a duty to do sop. 136
Article 28 of the ICC Statute: The need to distinguish the basic forms of command responsibilityp. 139
A multilayered provision on command responsibilityp. 139
The value of the Rome Statute as first 'codification' of international criminal lawp. 139
Article 28 ICC Statute: A multilayered provisionp. 143
First elaborations on Article 28 by the Court: The decision confirming the charges against Bemba Gombo of 15 June 2009p. 146
The triggering of command responsibility: The subordinates' crimep. 147
The relevance of the attempted form of the underlying crimep. 148
The role of the subordinate in the commission of the underlying crimep. 150
Does the subordinate need to be criminally responsible for the underlying crime?p. 152
The superior-subordinate relationship in the military or civilian contextp. 154
The military commander or the person effectively acting as suchp. 155
The lowest and highest hierarchical position and the different forms of commandp. 157
The civilian superiorp. 159
Effective command, or authority, and controlp. 160
Effective control within a hierarchical structure as the core element of command responsibilityp. 162
The different duties of the superiorp. 164
The primary duty of the superior: Adequate control over his subordinatesp. 165
The necessary and reasonable measures to prevent or repress the crimes or to submit the matter to the competent authoritiesp. 167
The adequateness of the measures: The need to consider the aims of the normp. 171
The problem of the causal link between the superior's failure to act and the subordinates' crimesp. 173
The ascertainment of the causal link between the superior's failure to prevent and the subordinates' crimesp. 176
The alternative mens rea standardsp. 178
The commander or superior knewp. 180
The commander should have knownp. 182
The superior consciously disregarded the informationp. 186
Object and extent of the superior's knowledge: Is special intent required?p. 188
The plurality of mens rea standards in the light of the principle of culpabilityp. 190
How to clarify command responsibilityp. 191
Mode of liability for the crimes of subordinates or separate offence of the superior?p. 191
The need to distinguish the basic forms of command responsibilityp. 194
The basic forms of command responsibilityp. 196
Intentional failure to preventp. 197
Negligent failure to preventp. 200
Intentional or negligent failure to punishp. 202
The enforcement of command responsibility in domestic criminal lawp. 205
The example of the German Völkerstrafgesetzbuchp. 205
The relationship between command responsibility and other modes of liabilityp. 209
Possible overlapping of command responsibility and different modes of liabilityp. 209
Modes of liability pursuant to Article 25 ICC Statutep. 213
Command responsibility and other forms of liability for omissionp. 216
Liability for omission in international criminal law: Is there a general principle?p. 220
Joint commission of the crime and forms of participation in the common planp. 224
The 'joint criminal enterprise' doctrine in the jurisprudence of the ad hoc Tribunalsp. 228
The adoption of the 'control over the crime' approach by the first ICC jurisprudencep. 233
The origin of the doctrine: German Dogmatik and international criminal lawp. 239
The erosion of command responsibilityp. 244
Concluding remarksp. 247
Bibliographyp. 253
Table of Casesp. 265
Table of Contents provided by Ingram. All Rights Reserved.

ISBN: 9789067043243
ISBN-10: 9067043249
Audience: Professional
Format: Hardcover
Language: English
Number Of Pages: 270
Published: 10th June 2010
Country of Publication: NL
Dimensions (cm): 16.26 x 24.64  x 2.03
Weight (kg): 0.61