How Command Responsibility Got So Complicated: A Culpability Contradiction, Its Obfuscation, and a Simple Solution

58 Pages Posted: 28 Oct 2011 Last revised: 19 Jun 2014

See all articles by Darryl Robinson

Darryl Robinson

Queen's University - Faculty of Law

Date Written: October 28, 2011

Abstract

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, a puzzle hidden in plain sight. The puzzle is that the Tribunal jurisprudence uses command responsibility to convict persons without causal contribution to the crime, while also recognizing 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, avoid or resolve the resulting contradiction with the culpability principle 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 and requires causal contribution. I draw on scholarship from criminal law theory to explore the parameters of the contribution requirement.

Keywords: International Law, Criminal Law, Culpability, Causation, Command Responsibility, Fundamental Principles, Liberal, Deontological, Successor Commander, Dereliction, Ratification, Risk Theory, Risk Aggravation, Puzzle

JEL Classification: K14, K33

Suggested Citation

Robinson, Darryl, How Command Responsibility Got So Complicated: A Culpability Contradiction, Its Obfuscation, and a Simple Solution (October 28, 2011). 13 Melbourne Journal of International Law (2012) 1. Available at SSRN: https://ssrn.com/abstract=1950770 or http://dx.doi.org/10.2139/ssrn.1950770

Darryl Robinson (Contact Author)

Queen's University - Faculty of Law ( email )

Macdonald Hall
Kingston, Ontario K7L 3N6 K7L3N6
Canada

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