Robinson: The Puzzle of Command Responsibility: Culpability, Causation and the Constraints of Justice

Darryl Robinson (Queen's Univ. - Law) has posted The Puzzle of Command Responsibility: Culpability, Causation and the Constraints of Justice. Here's the abstract:

This article examines a current controversy in international criminal law, to show that it raises difficult questions about personal culpability and the principled limits of a criminal justice system. The doctrinal issue under discussion is whether a commander’s dereliction must facilitate or have an effect on a crime for her to be liable by virtue of command responsibility. An extension of the controversy is whether a successor commander can be held liable in relation to crimes occurring prior to her assignment.

Drawing on scholarship from criminal law theory on causation and culpability, I seek to demonstrate that the position currently taken in Tribunal jurisprudence is remarkable, in that it appears to contradict the principle of culpability as recognized by international criminal law itself. This internal contradiction is currently obscured by several factors. This article carefully examines these obscuring factors and counter-arguments, to expose the problem clearly. For example, Tribunal jurisprudence offers doctrinal arguments as to why causation is not required; I see to show that those arguments do not even attempt to address the contradiction with the fundamental principles of the system. As another example, many argue that command responsibility is not a mode of liability but rather a separate offence. That characterization would solve the culpability conundrum, but I argue that it is not available to the Tribunals and the ICC, given their applicable law, and given that they demonstrably do in fact charge and convict the commander as a party to the underlying crime.

Thus, to be maintained, the Tribunal position would at least require a careful deontological justification for a new concept of culpability. Possible outlines for such a conception are explored.

This inquiry has several implications. It shows the need for more careful grappling with the principled constraints of the system and concepts of culpability and causation. The causal contribution requirement in the Rome Statute, and the cautious approach of the majority in the Hadzihasanovic decision, are arguably to commended rather than condemned. Finally, the “risk aggravation” approach adopted in early ICC jurisprudence is supportable by deontological thinking about culpability.