Responsibility of the State in Jurisprudence

1. Responsibility of the State for the Conduct of Its Agents and Organs

In several cases, the International Court of Justice (ICJ) held that the conduct of a State organ always triggers the responsibility of that State, without having to prove that this group acted under the States’ orders or that it overstepped them.

The ICJ affirmed that “according to a well-established rule of international law, which is of customary character, ‘the conduct of any organ of a State must be regarded as an act of that State’” ( Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights , Advisory Opinion, ICJ Reports 1999 [I], p. 87, para. 62; Armed Activities on the Territory of the Congo [ Democratic Republic of the Congo v. Uganda ], Judgment, ICJ Reports 2005, p. 168, para. 213).

In the case Democratic Republic of the Congo v. Uganda (see supra), the ICJ held that “the conduct of individual soldiers and officers of the UPDF [Ugandan group in DRC] is to be considered as the conduct of a State organ . . . by virtue of the military status. . . . The contention that the persons concerned did not act in the capacity of persons exercising governmental authority in the particular circumstances, is therefore without merit” (para. 213). In the same case, the ICJ held that is was also irrelevant for the attribution of their conduct to Uganda whether the UPDF soldiers acted contrary to the instructions given or exceeded their authority. The court asserted that “according to a well-established rule of a customary nature, as reflected in Article 3 of the Fourth Hague Convention respecting the Laws and Customs of War on Land of 1907 as well as in Article 91 of Protocol I additional to the Geneva Conventions of 1949, a party to an armed conflict shall be responsible for all acts by persons forming part of its armed forces” (para. 214).

2. Responsibility of the State for the Conduct of Non-state Armed Groups Operating under Its Control

The issue of the responsibility of the State for actions perpetrated by non-state armed groups acting under its control was raised in three major cases examined by the International Court of Justice: Military and Paramilitary Activities in and against Nicaragua ( Nicaragua v. United States of America ), Merits, Judgment, ICJ Reports 1986, p. 14, paras. 109–16; Application of the Convention on the Prevention and Punishment of the Crime of Genocide ( Bosnia and Herzegovina v. Serbia and Montenegro ), Judgment, ICJ Reports 2007, p. 43, paras. 391–407; and Armed Activities on the Territory of the Congo ( Democratic Republic of the Congo v. Uganda ), Judgment, ICJ Reports 2005, p. 168, paras. 161–65, 213–14, 220, 245, 248–50, 277, 300–301.

These decisions specify the degree of total, effective, or overall control necessary for the acts of a non-state armed group to be legally attributed to a State.

In the case Nicaragua v. United States of America , the ICJ had to “determine . . . whether or not the relationship of the contras to the United States Government was so much one of dependence on the one side and control on the other that it would be right to equate the contras, for legal purposes, with an organ of the United States Government, or as acting on behalf of that Government” (para. 109). The Court held that the participation of a State in the financing, organizing, training, supplying, and equipping of a non-state armed group is insufficient for the purpose of attributing the acts or violations of human rights and humanitarian law committed by this group to the State concerned (para. 115). For this conduct to give rise to legal responsibility of the State, “it would in principle have to be proved that that State had effective control of the military or paramilitary operations in the course of which the alleged violations were committed” (para. 115). This “effective” control implies the total dependency of the group on the State, or that the State has directly ordered the group to commit the alleged criminal acts. If this degree of control has not been reached, the State remains responsible for its own conduct, notably if the support to the armed group is considered unlawful and if the State was aware of the violations committed by this group (para. 116).

In the case Bosnia and Herzegovina v. Serbia and Montenegro , the ICJ had to determine if the acts of genocide committed during the war in the former Yugoslavia by non-state armed groups who were not organs of Serbia and Montenegro could be attributed to this State and give rise to its international responsibility under the control it exercised over these groups. The ICJ developed the arguments it used in the jurisprudence Nicaragua v. United States of America . The Court held that “persons, groups of persons or entities may, for purposes of international responsibility, be equated with State organs . . . provided that in fact the persons, groups or entities act in ‘complete dependence’ on the State, of which they are ultimately merely the instrument” (para. 392). The Court recalled that the notion of “complete dependence” and absence of autonomy is required for a non-state armed group to be assimilated, de facto, to a State agent, and consequently giving rise to the responsibility of the latter for the committed acts (para. 393). The Court added another case where the responsibility of the State can be triggered. In the case where the criteria of “complete dependence” does not exist, the acts of a non-state armed group can still be attributed to the State concerned if it is proven that they acted in accordance with that State’s instructions or under its “effective control” (para. 400). In this decision, the ICJ rejected the validity of the concept of “overall control” developed by the International Criminal Tribunal for the former Yugoslavia in the Tadic Case (paras. 404–406).

In the case Democratic Republic of the Congo v. Uganda , the ICJ listed the different criteria and forms of the State responsibility in the case where a State supports the activity of non-state armed groups operating from its territory on the territory of a neighboring State. But it denied this responsibility in the case where the State simply tolerates those acts or is powerless to control these groups. However, the ICJ held that DRC breached its duty of vigilance by tolerating anti-Ugandan rebels on its territory (para. 300).

Responsibility of Superiors and Commanders in Jurisprudence

Apart from international treaty and customary humanitarian law, decisions by International Criminal Tribunals have clarified the conditions of criminal responsibility at the commander level as well as the aggravating or mitigating circumstances linked to such situations.

International criminal courts have required three elements to be proven before a person may incur superior responsibility for crimes committed by subordinates:

The existence of a relationship of superiority and subordination between the accused and the perpetrator of the underlying offence;

The superior’s knowledge of the fact that his subordinate had committed or was about to commit the crime;

The failure of the superior to prevent the commission of the crime or to punish the perpetrators.

1. The Existence of a Relationship of Subordination or Effective/Overall Control

A relationship of subordination can be established by showing a formal or informal hierarchical relationship. No formal superior–subordinate relationship between the accused and the perpetrator is required. It is sufficient that there is proof of some position of authority on the part of the accused that would compel another to commit a crime in following the accused’s order (ICTR: Semanza Case , 15 May 2003, para. 401; and Renzaho Case , 14 July 2009, para. 738).

The relationship of subordination may be direct or indirect, de jure or de facto, civilian or military. What matters is to establish the effective command, with power to prevent and punish the crimes of persons who are in fact under their control (ICTY: Celebici Case , 16 November 1998, paras. 377–78, and 20 February 2001, para. 251; Blaskic Case , 3 March 2000, paras. 300–302; Kordic and Cerkez Case , 26 February 2001, para. 416; and ICTR, Kayishema and Ruzindana Case , 21 May 1999, paras. 229–31). Both the ICTY and the ICTR consider that effective control may be de facto or de jure (ICTR: Musema Case , 27 January 2000, para. 141; and Bagilishema Case , 7 June 2001, para. 39; ICTY: Aleksowski Case , 25 June 1999, para. 78; and Kordic and Cerkez Case , 26 February 2001, paras. 415, 416).

The superior must have had effective control over the subordinate at the time the offence was committed, effective control meaning “the material ability to prevent the commission of the offence or to punish the principal offenders” (ICTR, Renzaho Case , 14 July 2009, paras. 744, 745); and ICTY, Halilović Case , 16 October 2007, para. 59). The concept of effective control is the threshold to be reached in establishing a superior–subordinate relationship for the purpose of superior responsibility. Whether the subordinate is found to have participated in the crimes through intermediaries (e.g., due to remoteness of control) is irrelevant as long as his criminal responsibility is established beyond reasonable doubt (ICTY, Orić Case , 3 July 2008, para. 20). A superior’s authority to issue orders does not automatically establish that a superior had effective control over his subordinates but is one of the indicators to be taken into account when establishing the effective control. Whether a superior’s orders are actually followed can also be indicative of a superior’s effective control over his subordinates (ICTY, Strugar Case , 17 July 2008, paras. 253, 256).

2. The Knowledge of the Wrongful Acts

A superior is not permitted to remain willfully blind to the acts of his subordinates. A superior who simply ignores information within his actual possession compelling the conclusion that criminal offences are being committed, or are about to be committed, by his subordinates commits a most serious dereliction of duty for which he may be held criminally responsible under the doctrine of superior responsibility.

The effective control by the commander of his subordinates may be used to establish a presumption according to which the commander had reasons to know the criminal acts committed by his subordinates (ICTY, Celebici Case , 16 November 1998, paras. 386–87).

3. The Failure to Prevent or Punish

The principle of individual criminal responsibility of superiors for failure to prevent or to punish crimes committed by subordinates is an established principle of international customary law (ICTY: Limaj et al. Case , 30 November 2005, para. 519; Halilovic Case , 16 November 2005, para. 55; and Strugar Case , 31 January 2005, para. 357). The ICTY Appeals Chamber stated that a superior could be held criminally responsible for his subordinates’ planning, instigating, ordering, or committing of a crime or otherwise aiding and abetting a crime ( Orić Case , 3 July 2008, para. 21). It also confirmed that superior responsibility encompasses all forms of criminal conduct by subordinates, not only the “committing” of crimes in the restricted sense of the term, but all other modes of participation. It encompasses actions by “subordinates who as accomplices substantially contributed to the completion of the crime” but who do not physically commit the crime (ICTY: Blagojević & Jokić Case , 9 May 2007, paras. 280–82; Lasva Valley Case , 26 February 2001, para. 401; Celebici Case , 16 November 1998, para. 346; Blaskic Case , 3 March 2003, para. 294; Orić Case , 3 July 2008, para. 18; as well as ICTR: Kayishema and Ruzindana Case , 21 May 1999, paras. 229–31).

4. The Hierarchical Position as Aggravating Circumstance

The ICTR and ICTY considered the question of the hierarchical position of the accused as aggravating circumstance.

The fact that the accused occupied a high ministerial post at the time he committed the said crimes negated the mitigating circumstances (ICTR, Kambanda Case , 4 September 1998, paras. 61–62).

The fact that the accused abused his authority and played an important leading role in the execution of the crimes (ICTR: Rutaganda Case , 6 December 1998, paras. 468–70; and Musema Case , 27 January 2000, paras. 1000–1004; as well as ICTY: Plavsic Case , 27 February 2003, para. 57; Simic Case , 17 October 2002, para. 67; Sikirica et al. Case , 13 November 2001, paras. 138–39 and 172; Krstic Case , 2 August 2001, para. 709; Kuranac, Kovac, and Vukovic Case , 22 February 2001, para. 863; and Blaskic Case , 3 March 2000, para. 788).

Going beyond the issue of hierarchy and command, international courts have held that committing a crime while exercising a public function—such as that of a policeman—may be considered an aggravating factor (ICTY, Mrdja Case , 31 March 2004, para. 51). What matters is not the position of authority taken alone, but the position coupled with the manner in which the authority is exercised; for example, the abuse of superior position may be considered an aggravating factor (ICTY, Blagojević & Jokić Case , 9 May 2007, para. 324; and ICTR, Samba Case , 27 November 2007, para. 284).

Superior Orders

International humanitarian law takes into account the fact that combatants generally act in the framework of a hierarchical organization or unit. It therefore first imposes specific responsibilities on commanders. However, the fact that a combatant acted pursuant to superior orders will not shield him or her from individual criminal responsibility incurred for grave breaches of humanitarian law. Individuals hence remain personally accountable, even when following orders. Thus, war criminals are individually criminally responsible for their acts (Art. 3 of 1907 Hague Convention on the laws and custom of war; GCI Art. 49; GCII Art. 50; GCIII Art. 129; GCIV Art. 146; API Arts. 75.4.b, 86, and 87). Judgments by international criminal courts confirm the restrictive interpretation of duress and superior orders as mitigating circumstances with respect to individual criminal responsibility (see Jurisprudence).

The Statute of the ICC also stipulates that “the fact that a crime within the jurisdiction of the Court has been committed by a person pursuant to an order of a Government or of a superior, whether military or civilian, shall not relieve that person of criminal responsibility.” While some grounds for excluding criminal responsibility exist in the case of war crimes, there are no exceptions in the case of genocide or crimes against humanity (Art. 33 of ICC Statute).

Individual Responsibility of Combatants in Jurisprudence

International Criminal Tribunals have analyzed under what condition perpetrators may be held criminally responsible for crimes under international law.

There is a two-stage test that must be satisfied in order to establish individual criminal responsibility. This test requires the demonstration of (1) participation, that is, that the conduct of the accused contributed to the commission of an illegal act, and (2) knowledge or intent, which is awareness by the actor of his participation in a crime (ICTR, Kayishema and Ruzindana Case , 21 May 1999, para. 198; and ICTY, Boškoski & Tarčulovski Case , 19 May 2010, para. 66).

Individual criminal responsibility “is incurred not only by individuals who physically commit that crime, but also by individuals who participate in and contribute to the commission of a crime in other ways, ranging from its initial planning to its execution, as specified in the five categories of acts in this Article: planning, instigating, ordering, committing, or aiding and abetting” (ICTR, Kamuhanda Case , 22 January 2004, para. 588). See also ICTR, Bisengimana Case (13 April 2006, para. 31), and ICTY, Jokic Case (18 March 2004, para. 56) and Simic et al. Case (17 October 2003, para. 135).

With regard to aiding and abetting a crime, “the individual criminal responsibility can be discussed under two distinct modes of responsibility: (i) aiding and abetting by tacit approval and encouragement, and (ii) aiding and abetting by omission proper” (ICTY, Brđanin Case . 3 April 2007, paras. 273–74).

The International Criminal Tribunals considered how superior orders may impact on the criminal responsibility of the perpetrator (by increasing or diminishing this responsibility).

1. Duress and Superior Orders

Duress does not afford a complete defense to a soldier charged with a crime against humanity or a war crime involving the killing of innocent human beings. There is a clear difference between duress and duty to obey superior orders. With duress, the life of the accused must immediately be in danger if he refuses to execute the order. There are three essential conditions for duress to be accepted as a defense for a violation of international humanitarian law: (1) The act charged was done to avoid an immediate danger both serious and irreparable. (2) There was no adequate means of escape. And (3) the remedy was not disproportionate to the evil (ICTY, Erdemovic Case , 29 November 1996, para. 17).

The absence of moral choice is one of the essential components for considering duress as a complete defense. The mere duty to obey superior orders does not constitute duress. Facing a manifestly unlawful order, the duty was to disobey rather than to obey; “this duty to disobey could only recede in the face of the most extreme duress.” The existence of duress and superior orders must be assessed for each case, because “while the complete defense based on moral duress and/or a state of necessity stemming from superior orders is not ruled out absolutely, its conditions of application are particularly strict.” One must “examine whether the accused in his situation did not have the duty to disobey, whether he had the moral choice to do so or to try to do so.” This restrictive definition of duress was subsequently confirmed (ICTY, Mrdja Case , 31 March 2004, paras. 65–67). The Trial Chamber refused to admit that an atmosphere of hatred and propaganda alone may create duress. Those circumstances may have had some influence on the criminal behavior of the accused, but the Tribunal did not accept that they were such that the accused, even taking account of his age and low rank, would have had no alternative but to participate in the massacre of around two hundred civilians. The absence of any convincing evidence of any meaningful sign that the accused wanted to dissociate himself from the massacre at the time of its commission prevented it from accepting duress as a mitigating circumstance (para. 66).

The definition of duress has been limited to extreme situations where there is no other choice than killing or being killed (ICTY, Erdemovic Case , 5 March 1998, para. 17). The ICTY explained that superior orders may be considered as mitigating circumstances only if the orders were not manifestly unlawful. Where orders were manifestly unlawful, before benefiting from mitigating circumstances, the subordinate must show that he disobeyed, which created a direct threat against his life (ICTY, Mrdja Case , 31 March 2004, paras. 67–68).

2. Mitigating Circumstances

International criminal courts have admitted, beside duress and superior orders, other mitigating circumstances. However, the reduction of the penalty stemming from the application of mitigating circumstances must not in any way diminish the gravity of the offence (ICTR, Kambanda Case , 4 September 1998, paras. 36–37, 56–58).

In several cases, tribunals have considered the following mitigating circumstances:

• Substantial cooperation with the prosecutor;
• Surrendering to authorities;
• Admitting guilt;
• Demonstrating remorse for victims and the fact that the accused was not an authority de jure (ICTR, Kayishema and Ruzindana Case , 21 May 1999, Sentencing, para. 20).
• The personal circumstances of the accused may also be relevant: the absence of a criminal record, the character of the accused, the accused’s assistance to victims, the fact that the accused did not personally participate in the killings (ICTR, Ruggiu Case , 1 June 2000, paras. 53–80).
• Post-conflict conduct of the accused has been considered a mitigating circumstance (ICTY, Blagojević & Jokić Case , 9 May 2007, paras. 328, 330, 342, and 344).
• The fact that the accused was not a very high-ranking official in the governmental hierarchy (ICTR, Akayesu Case , 2 October 1998, Sentencing, p. 8).
• The need for sentences to reflect the relative significance of the role of the accused in the broader context of the conflict in the former Yugoslavia: “Although the criminal conduct underlying the charges of which the Appellant now stands convicted was incontestably heinous, his level in the command structure, when compared to that of his superiors, i.e. commanders, or the very architects of the strategy of ethnic cleansing, was low” (ICTY, Tadic Case , 26 January 2000, paras. 55–56).

3. Aggravating Circumstances

• The vulnerability of victims is considered an aggravating factor in sentencing. The civilian status of the victim is not an element supporting particular vulnerability of the victim, as it already constitutes an element of the crime. However, the fact that victims are displaced persons or detainees constitute an aggravating factor (ICTY, Mrdja Case , 31 March 2004, paras. 47–48). See also ICTY, Kordic and Cerkez Case , Judgment, 17 December 2004, para. 1088; Blaskic Case , Judgment, 3 March 2000, para. 786; and Kunarac Case , Judgment, 22 February 2001, para. 864 (young age of the victims).
• The consequences of the crimes for the victims, in particular extraordinary suffering, are taken into account as an aggravating factor (ICTY, Mrdja Case , 31 March 2004, para. 56).
• The number of victims and the magnitude of the crime can constitute aggravating factors (ICTY, Kunarac Case , Judgment, 22 February 2001, para. 866; Stakic Case , Judgment, 31 July 2003, para. 907; and Erdemovic Case , Judgment, 5 March 1998, para. 15).
• Abuse of authority is an aggravating circumstance (ICTY, Tadic Case , Judgment, 15 July 1999, para. 55; and Krstic Case , Judgment, 2 August 2001, para. 709).
• Zeal and sadism are factors to be considered, where appropriate, as aggravating (ICTR, Simba Case , Judgment, 27 November 2007, para. 320; and Muvunyi Case , Judgment, 11 February 2010, para. 145).
• Premeditation can also be considered as an aggravating factor (ICTY, Krsitc Case , Judgment, 2 August 2001, para. 711).