Outline and critically discuss the notion of individual criminal responsibility for war crimes, where the perpetrator has acted under superior orders, in the light of the Statute of the International Criminal Court and the case law of the International Criminal Tribunal for the former Yugoslavia.
The notion of individual criminal responsibility has evolved from a merger of traditional international law with human rights and humanitarian law 1. Historically, the notion of individual criminal responsibility has been recognised from the end of the First World War in the Treaty of Verseilles 1919 2, thereafter the 1945 Nurenberg Charter 3 and then the General Assembly of 1946 4 which stated that genocide was a crime under international law which bore individual responsibility, which was reaffirmed under the Genocide Convention of 1948.
In 1991, the International Law Commission established a Draft Code of Crimes Against the Peace and Security of Mankind 5, which specifically refers to war crimes. The events in the former Yugoslavia caused the establishment of the International Criminal Court, as in 1994 the Draft Statute for an International Criminal Court was adopted. The Draft Code was revised in 1996. The draft statute led to the enactment of the Rome Statute of the International Criminal Court in 1998 via an international conference, and was in force on 1 July 2002. The Court’s jurisdiction is limited by the Statute’s wording to the most serious international crimes, including war crimes.
Furthermore, the events in Yugoslavia and also Rwanda led to the establishment by the United Nations Security Council of the International Tribunal for Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia or the International Criminal Tribunal for the former Yugoslavia (ICTY) (resolution 808 (1993) and the International Tribunal for Rwanda (ICTR) 6.
In the Rome Statute 7, Article 1 sets out the power of the ICTY to prosecute persons responsible for serious violations of international humanitarian law in the former Yugoslavia since 1991. Articles 2 to 5 state the crimes over which the Tribunal can exercise jurisdiction as breaches of the Geneva Conventions. Article 2 includes deliberate killing, torture, causing serious suffering or injury, destroying property, deportation, transfer or detention, hostage-taking and forcing prisoners of war to serve in hostile forces or depriving him of a fair trial. Article 3 includes use of poisonous weapons, destruction and military attacks against undefended places, seizing, looting, damaging or destroying religious, arts, scientific or educational establishments. Article 4 defines ‘genocide’ as killing and conspiracy, attempt, public incitement and complicity to commit genocide. Article 5 defines the relevant crimes under its jurisdiction; murder, extermination, enslavement, deportation, imprisonment, torture, rape and inhuman or degrading treatment or persecution on religious, racial or political grounds.
1 International Law: Malcolm N. Shaw p 232
2 Article 228
3 Article 6, paragraph 2(c) 39 AJIL 1945 Supp p 259
4 Resolution 95(1)
5 A/46/10 and 30 ILM 1991, P 1584
6 Resolution 955 (1994)
7 Cases and Materials on International Law: D.J. Harris pp 748-750
Article 7 states that persons who “planned, instigated, ordered, committed or otherwise aided or abetted in the planning, preparation or execution” of crimes outlined in Articles 2 to 5 can be held to be individually responsible for the crimes 8. Article 7 also states that the official position of the accused person does not relieve him of criminal responsibility nor mitigate prospective punishment 9. It particularly states that a subordinate committing the crime does not relieve the superior of responsibility if he knew or has reason to know that the subordinate was about to or had in fact committed the crime, and the superior had failed to take the required reasonable measures to prevent the actions of the subordinate or to punish him 10.
Furthermore, Article 7 states that even if the accused has acted under an order of the government or of a superior this will not relieve him of criminal responsibility, although this can be regarded as a mitigating factor in the Tribunal 11. Therefore, from the wording of Article 7, it is very clear that there is provision for the notion of individual criminal responsibility irrespective of official position, though mitigation is possibly available to a subordinate who has been acting under superior orders.
Since its establishment, the ICTY has issued over 50 indictments against individuals accused of war crimes. Of the two that pleaded guilty (the other being Erdemovic), Tadic was convicted and sentenced to imprisonment. This case 12 is particularly relevant to the issue of whether the ICTY had overridden its jurisdiction to deal with the notion of individual criminal responsibility. Tadic had appealed to the Appeals Chamber of the ICTY on numerous grounds, including citing examples of where Germany, the United Kingdom, the United States, New Zealand and other states had breached Article 3. In the Appeal Chamber’s decision 13, there was a reference to the two resolutions passed unanimously on Somalia 14 by the Security Council that the actors who committed breaches of humanitarian law or those who had ordered their commission would be held to be “individually responsible” for them. This covers subordinates and superiors giving orders.
The Appeals Chamber noted that although Article 3 of the Geneva Conventions made no explicit reference to criminal liability for violation of its provisions, the notion of individual criminal responsibility cannot be excluded by the absence of treaty provisions on punishment of breaches. However, the Chamber noted that customary international law imposed criminal liability for serious violations of Article 3, and that in Yugoslavia, such violations were punishable under the Criminal Code of the Socialist Federal Republic of Yugoslavia and the additional Protocols of 1977 as well as the decree law of Bosnia and Herzegovina of 11 April 1992, and therefore the individuals concerned should have known that such acts were punishable in the national courts.
8 Article 7(1)
9 Article 7(2)
10 Article 7(3)
11 Article 7(4)
12 Prosecutor v Tadic;  35 ILM 35;  2 IHRR 578
13 October 2, 1995, para. 128-129
14 SC Res 794 (3 December 1992; SC Res 814 (26 March 1993)
The Appeals Chamber further stated that under Article 3, the ICTY has jurisdiction over events occurring either internationally or internally within a state. It referred to the recognition of such crimes after the First World War and the definition of crimes including war crimes in the subsequent Nuremberg Charter 15 and the 1948 General Assembly Resolution. The Chamber took this as an indication of the recognition of the rules in international law and State practice demonstrating an intention to make the prohibition of war crimes a criminal offence, taking into account the punishment of violations of such offences by national courts and military tribunals.
The Chamber concluded that as crimes against humanity can be committed either internationally or internally within a state, that Article 5 can be invoked in either instance. It stated that where the circumstances showing that such crimes have been committed, then individuals must be held criminally responsible, because, as the ICTY stated “crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.”The ICTY in examining the particular violations, concluded that individual criminal responsibility was involved, and that this was regardless of whether such acts were committed internally or internationally, as the principles and rules of humanitarian law were widely recognised in global armed conflicts.It therefore can be seen from Prosecutor v Tadic that the Appeals Chamber was prepared to take as broad an interpretation as possible to include the notion of individual responsibility.
In Prosecutor v Furundzija 16, it was stated that the provisions of the human rights treaties impose certain obligations upon states to prohibit and punish individuals who commit torture, as well as refraining such individuals from engaging in torture through their officials. It was acknowledged that international human rights law deals with state responsibility rather than individual criminal responsibility, but that torture is prohibited as a criminal offence which should be punished under national law 17.
The ICTY also referred to the obligation of signatory states to the human rights treaties to exercise their jurisdiction to investigate, prosecute and punish offenders. The ICTY therefore refers to the obligations of such states as encompassing and extending to the criminal liability of individuals. The ICTY further clarified this by stating that the existence of treaty rules against torture shows that the international community has recognised the importance of outlawing any type of torture by operating at the interstate and the individual level. It is very clear that again, from the global treaty rather than a specific Article viewpoint, the ICTY has justified actions of any member states to investigate and prosecute individuals that are considered to have violated Articles 2 and 5 in particular. This case also specified that “at least one of the persons involved in the torture process must be a public official or must at any rate act in a non-private capacity, e.g., as a de facto organ of a State or any other authority-wielding entity.” This clearly encompasses subordinates acting under superior orders.
15 Article 6(2)(c), (ibid)
16 38 ILM 317 
17 Cases and Materials on International Law: Dixon & McCorquodale pp 242-243
In another case, Prosecutor v Mucic et al 18, the Appeals Chamber stated that it was not necessary for Article 3 to contain an explicit reference to individual criminal liability in order to impose criminal sanctions in relation to violations of relevant articles. The Chamber referred to the ICTY’s approach in Prosecutor v Tadic where it stated that a finding of individual criminal responsibility would not be barred by the absence of treaty provisions on punishment of breaches 19. The Tadic case has established the point that “individual acts prohibited by international law constitute criminal offences even though there was no provision regarding the jurisdiction to try violations.”The Chamber concluded that it could not see any reason why the violation of the internationally recognised principles of international humanitarian law which were extended to cover armed conflicts in such instances, both at interstate and internal levels, should not be enforced at the international level by way of criminal sanctions. At the Trial Chamber 20 it was stated that an act of torture must be “committed by, or at the instigation of, or with the consent or acquiescence of, an official or other person acting in an official capacity.” This covers subordinates acting under superior orders.
In Blaskic 21, the Trial Chamber stated that violations of Article 3 of the Statute include violations of the Regulations of The Hague that because of their serious nature, they are very “likely to incur individual criminal responsibility in accordance with Article 7 of the Statute.” The Chamber also stated that it is shown from the practice of customary international law that criminal sanctions are imposed upon individuals who commit breaches of the relevant articles.
In Kunarac, Kovac and Vokovic 22, the Appeals Chamber first established the point that there must be the existence of an armed conflict which has caused the perpetrator to play a part therein and cause the crime. The Chamber then considered that in considering whether or not the crime can be regarded to be ‘related’ to the armed conflict, it can take into account certain factors, including whether the crime has been committed as part of or in the context of ‘official duties.’ This clearly covers the instance of a subordinate taking orders, but does not focus upon the criminal responsibility of such a person.
In conclusion, it can be seen from Furundzija and Kunarac, Kovac and Vokovic, together with the wording of Article 7, that the intention of the Statute is to cover individuals at all levels, and that accordingly, being a subordinate taking orders from a superior will not excuse war crimes in most instances, and that such a factor will only be taken as mitigating circumstances at the discretion of the ICTY or the Appeals Chamber.
18 Case No. IT-96-21, February 20, 2001, para. 162, 171
20 November 16, 1998, para. 494-496
21 March 3, 2000, para. 176
22 June 12, 2002, para. 58-59
Cases and Materials on International Law (3rd edition) 1991(Blackstone): Dixon & McCorquodale pp 241-243
Cases and Materials on International Law (5th edition) 1998 (Sweet & Maxwell): D.J. Harris pp 748-764
Internationalized Criminal Courts: Sierra Leone, East Timor, Kosovo and Cambodia 2004 (Oxford): Romano, NollKaemper and Kleffner pp 133-139
International Law (5th edition) 2003 (Cambridge): Malcolm Shaw pp 262-266; pp 238-239; pp 596, 656
State Responsibility v Individual Responsibility for International Crimes: Tertium Non Datur?: Marina Spinedi: EJIL 2002 Vol 13 No 4 895-899
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