Command Responsibility at the ICTY - Three Generations of Case Law and Still Ambiguity

Abstract

Command Responsibility is one of the most complex liability theories in international criminal law. Prior to the Second World War, superior responsibility was an articulation of military practice. This accounts for the term command responsibility. International adjudication in the twentieth century, in particular after the Second World War, has developed superior responsibility into a concept of criminal responsibility. It was the Second World War and its aftermath that generated the leading cases on superior responsibility. In these cases the first contours of a modern concept of superior responsibility were drawn. The ICTY built on this legacy. Still, some critical aspects of the command responsibility doctrine remain indeterminate. Two reasons account for this. First of all, the complex nature of the concept; command responsibility is a multilayered concept that has traits of a separate offence - a failure to act - and of a mode of liability, a form of participation in subordinate wrongdoing. Secondly, in more recent rulings the ICTY has moved away from some of the (implicit) findings in its earlier case law. This is the result of tailoring command responsibility to a new class of defendants who, compared to the first generation of ICTY defendants, can be referred to as the ‘big(ger) fry’ and who are generally far removed from the scene of the crimes and the perpetrators. The question then is: what is the current scope and meaning of command responsibility in ICTY case law? Moreover, how does it relate to customary international law, national and international statutory and case law, and general principles of criminal law? The aim of this paper is to answer these questions by uncovering the nature of command responsibility in the law of the ICTY.