This contribution to the ongoing debate over the promise””and””limits of holding Sudan’s President Omar al Bashir individually accountable before the International Criminal Court (ICC) for international crimes perpetrated in Darfur considers two further modes of liability in international law that Luis Moreno Ocampo’s Office of the Prosecutor could invoke, namely the doctrines of command and superior responsibility.

Five dates matter for understanding the evolution of both doctrines in modern international law””1919, 1945, 1977, 1993, and 1998. Before turning to the case of Darfur, and the utility of either doctrine for prosecuting international crimes there, let us briefly consider each of these critical junctures in turn.

1919. Following World War I, the largely forgotten but highly significant Commission of Inquiry on the Responsibility of the Authors of the War issued a path-breaking report in which it introduced the principle that superiors could be held responsible for crimes committed by their subordinates provided that the superiors knew of the crimes in question and took no action.

1945. The transition from principle to practice came in the immediate aftermath of World War II, when a U.S. military commission in Manila””in a very controversial judgment””sentenced General Tomoyuki Yamashita, the Commanding General of the Fourteenth Army Group of the Japanese Imperial Army and the Military Governor of the Philippines, to death for failing to exercise control over military personnel under his command, personnel that had been shown to have been involved in, among other things, the murder and mistreatment of some 32,000 Filipino civilians and captured Americans. Few World War II proceedings have provoked as much criticism in international legal circles as the Yamashita case of 1945. It is no exaggeration to suggest that the handling of the case gave the international rule of law a bad name. The International Military Tribunal for the Far East (IMTFE), better known as the “Tokyo Tribunal,” did not help matters. It adopted a very broad interpretation of the doctrine of command responsibility, as the 1919 principle by then had become known. As a result, the doctrine came perilously close to what has become known as joint criminal enterprise (see my posting of June 22, 2008). At times, it seemed as if the prosecution was using the doctrine of command responsibility as a drag net with which to catch, i.e. bring within the ambit of international law, otherwise elusive defendants.

1977. The next critical juncture came with the adoption, in 1977, of Additional Protocol I to the 1949 Geneva Conventions, which enshrined the doctrine of command responsibility in Articles 86 and 87. For the first time, the doctrine became part of international treaty law, which enhanced its standing in customary international law. Then, a little more than a decade later, commenced the wars in the former Yugoslavia (and, shortly thereafter, the 1994 genocide in Rwanda).

1993. The Statute of the International Criminal Tribunal for the former Yugoslavia (ICTY), in Article 7(3), adopted the definition of Additional Protocol I almost verbatim:

The fact that [international crimes] were committed by a subordinate does not relieve his superior of criminal responsibility if he knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.

In over a decade’s worth of jurisprudence, the various Trial Chambers as well as the Appeals Chamber of the ICTY tried to make sense of the meaning of the (with minor adjustments) adopted 1977 definition, and the implications thereof for the adjudication of international crimes. In a nutshell, the Office of the Prosecutor (OTP) was found to have to clear the following legal hurdles in order to obtain a conviction under the doctrine: (1) the existence of a command/subordinate relationship had to be demonstrated; (2) the presence of the requisite mens rea, or guilty mind, had to be established; and (3) a defendant’s failure to take reasonable measures to prevent or punish the international crimes for which he or she stood accused had to be proven.

The ÄŒelebići Appeals Chamber did much of the heavy lifting at the ICTY as far as the doctrines of command and superior responsibility were concerned. In particular, it introduced a test of “effective control” in order to be able to ascertain whether a superior/subordinate had relationship truly existed. Such a relationship had to be shown to have existed de facto. (One criticism of the Yamashita judgment holds that the General had de jure control over the Fourteenth Army Group in the dying days of the Pacific War, but no de facto control, and thus should not have been held criminally responsible.) According to the ÄŒelebići Appeals Chamber, effective control connotes “the material ability to prevent or punish criminal conduct.” I will return to this issue when it comes to discussing the case of Darfur and the role(s) of President Bashir in Sudanese politics.

Turning to the requisite mens rea, next, the ICTY jurisprudence has established that commanders must be shown to have possessed, at the time when the international crimes in question were perpetrated or about to be perpetrated, one of two types of knowledge of these crimes: actual knowledge (“knew”) or circumstantial knowledge (“had reason to know”). The former connotes an awareness (e.g., stemming from an order that the defendant gave, or from a cable received at the defendant’s command post). The latter refers to imputed knowledge, i.e., knowledge that is presumed to have existed on the part of a defendant due to the possession of information that would have put him or her on notice of the likelihood that specific international crimes could be committed by his or her subordinates. Mere awareness of the risk of international crimes being committed by subordinates was not believed to be sufficient. Not supported either by international jurisprudence or scholarship””although the Rome Statute, as we shall see, has a different take on this””are convictions based on a mens rea that a defendant “should have known” that international crimes would be committed by his subordinates. The ICTY Appeals Chamber in no uncertain terms rejected this argument (which repeatedly had been put forth by the OTP) in its 1998 ÄŒelebići Judgment, as did the Appeals Chamber of the International Criminal Tribunal for Rwanda (ICTR) in Bagilishema in 2002.

Having considered the superior/subordinate relationship and the mens rea requirement in the context of the ad hoc tribunals, it remains for me to briefly elucidate the third and final legal hurdle that has to be cleared for a successful conviction under the liability theory discussed herein””the defendant’s failure to take reasonable measures to prevent or punish the international crimes for which he or she stands accused.

Whatever constitutes “reasonable measures” is context-dependent; it is a question of evidence rather than of substantive law, as we shall see when we turn to the case of Darfur. It is related to the actual (and proven) ability of a commander to prevent or punish international crimes perpetrated by his subordinates as well as the seriousness of the offence(s) in question. A good rule of thumb is the following: The more serious the international crimes for which a defendant is indicted, the more is expected””in terms of both scope and promptness of response””from this commander as far as prevention or punishment of international crimes are concerned. Considering the gravity of atrocities in Darfur and their publicity, any Sudanese commander who finds himself before the ICC will, in his defense, have to demonstrate that he or she acted expeditiously and with vigor.

And yet, as the Krnojelac Trial Chamber noted, “A superior is not obliged to perform the impossible.” He or she is only required by international law to do what was “feasible” and “within his [or her] power.” As far as the imperative of prevention is concerned, what international law demands, for example, is that a commander suppress the planning of international crimes by, for instance, referring the matter to appropriate authorities (be they civilian or military police), or interfere with their execution. It is noteworthy in this, and especially the Darfurian, context, that punishment (which can range from investigations to disciplinary measures) for international crimes meted out by a commander ex post facto does not absolve of any responsibility that he or she might have incurred for failing to prevent the commission of international crimes ex ante. Finally, the failure to prevent or punish international crimes must have been a conscious decision, by which is meant in the case law that the failure was the consequence of either a defendant’s deliberate failure to prevent or punish or a defendant’s culpable or willful disregard for prevention or punishment.

Having heard a great deal about command responsibility, what role for superior responsibility? Notwithstanding the fact that the term “superior” appeared already in 1919 in the deliberations about the “authors” of World War I, up until the operation of the ICTY and the ICTR, “superior” was always taken to refer to a military superior, i.e., to a commander. Hence command responsibility. However, as the carnage in the former Yugoslavia and Rwanda made abundantly clear, civilians have often been at the forefront (although usually not literally) of the perpetration of international crimes. This being so, by extending the doctrine of command responsibility to non-military contexts in the late twentieth century, the ad hoc tribunals invented the doctrine of superior responsibility. Up until recently, the only distinguishing feature of the two doctrines was the context to which they applied (military vs. civilian). But things have changed. Of particular significance here is the Rome Statute of the ICC, which brings me to the last of my five historical junctures””the year 1998.

1998. Unbeknownst to many, the Rome Statute’s fairly detailed Article 28, while retaining the customary international law understanding of command responsibility as it has evolved since 1919, curtailed the doctrine of superior responsibility as it had been developed in the jurisprudence of the ICTY and ICTR. What are the implications of this for Moreno Ocampo’s treatment of the case of Darfur at the ICC?

In answer, let us consider the cases of Ahmad Harun and Bashir. It appears that the OTP could potentially try to attain a conviction of Harun based on a theory of liability revolving around the doctrine of command responsibility. Initially appointed Director of the paramilitary Popular Defence Forces (PDF), between 2003 and 2006 Harun oversaw the “Darfur Security Desk” as part of his portfolio as Minister of State for the Ministry of the Interior of the Government of Sudan. There he coordinated the activities of Sudan’s police, armed forces, and National Security Service. Given the scope of his government responsibility, Harun could potentially be fit into the mold of a military commander. However, this would be a tall order, for according to the Kunarac Trial Judgment at the ICTY, a commander with superior responsibility “may be a colonel commanding a brigade, a corporal commanding a platoon or even a rankless individual commanding a small group of men.” This list should not be read as exhaustive, and yet it delimits the interpretive maneuvering space available to Moreno Ocampo.

A perusal of the jurisprudence of the ad hoc tribunals indicates that in any and all of the successful convictions there, the commanders on trial were part of a military organization in the strict sense. It appears, therefore, that the OTP at the ICC would be hard-pressed to liken Harun to any of the aforementioned types of military commanders. So what, one might ask? There still is the doctrine of superior responsibility. Why not hold Harun accountable as a civilian superior instead? After all, he has occupied a number of high-ranking posts in the Government of Sudan, most recently that of Minister of State for Humanitarian Affairs.

While this is certainly a plausible and most likely prosecutorial strategy, the Rome Statute, as already intimated, saw to it that the prosecution of civilian superiors is more demanding at the ICC than it had been at the ICTY””and also more demanding than the prosecution of military commanders. Article 28, the provision detailing the grounds of criminal responsibility for commanders and superiors, is far wordier than either the aforementioned 1977 provision in Additional Protocol I or the provisions of the early 1990s in the ICTY and ICTR Statutes. But differences exist not just in length but also in substantive law.

The actus reus and mens rea of command and superior responsibility in the Rome Statute of the ICC now differ from one another. This is a direct consequence of a U.S.-brokered compromise in Rome that helped overcome China’s vociferous opposition to any mention in the 1998 international treaty of the doctrine of superior responsibility. As for the differences in mens rea, or the guilty minds that defendants need to have, military commanders incur criminal responsibility under the Rome Statute if and when they either “knew” (actual knowledge) or “should have known” (circumstantial knowledge) of the international crimes that their subordinates were perpetrating or about to perpetrate. By contrast, civilian superiors only incur criminal responsibility if and when they either “knew” or “consciously disregarded information which clearly indicated” that their subordinates were perpetrating or were about to perpetrate international crimes. What changed in the half-decade between 1993 and 1998?

First, it has become easier to prosecute military commanders (which is why I discussed in passing the possibility of Harun being tried as a military commander rather than a civilian superior). Instead of having to demonstrate any longer that a military commander “had reason to know” that his or her subordinates were perpetrating or about to perpetrate international crimes (see above), the OTP now only needs to show that a commander “should have known.” This requirement of Article 28(b)(i), say many scholars and practitioners, moves the mental element too far in the direction of mere negligence. As discussed above, ever after adoption of the Rome Statute, the ICTY and ICTR Appeals Chambers both snubbed the treaty makers at Rome, wholeheartedly rejecting the watering down of the mens rea for command responsibility in the Rome Statute. Only time will tell how this doctrinal dissonance will play out in the courtroom if it comes to Darfur-related prosecutions of military commanders at the ICC.

Second, it has become harder to prosecute civilian superiors. In contradistinction to a decade’s worth of international jurisprudence at the ICTY and ICTR (not to mention customary international law), the Rome Statute of the ICC, for political reasons, treats the two types of actors differently. Most important, it sets a noticeably higher mens rea requirement for the prosecution of civilian superiors than it does for military commanders. Whereas a conviction of military commanders, as we have seen, can be locked in by showing that they should have known that international crimes were being perpetrated or about to be perpetrated by their subordinates, a conviction of civilian superiors requires the OTP to demonstrate that they consciously disregarded information which clearly indicated that their subordinates were perpetrating or about to perpetrate international crimes.

Enter Bashir, the President of Sudan. Given the current state of the contemporary law of command and superior responsibility, Moreno Ocampo’s OTP would have no other option (aside from joint criminal enterprise liability) than to submit that Bashir failed to prevent or punish as a superior (in whatever capacity) international crimes perpetrated by his subordinates in Darfur. So far so good. Where the OTP will face an uphill struggle, however, is on the evidentiary front. Demonstrating a series of superior-subordinate relationships should be relatively straightforward, although one should not underestimate the institutional and organizational distance that is bound to have existed (and that the President most certainly will have created) within the Sudanese state between Bashir and the direct perpetrators of international crimes in Darfur.

But what of the second actus reus requirement, i.e., that the President of Sudan failed to take reasonable measures to prevent or punish international crimes in Darfur? What difference, if any, would it make if Bashir handed over Harun to Moreno Ocampo? Could this, together with perfunctory domestic prosecutions in Sudan, be construed as a reasonable measure at punishing international crimes in Darfur? I leave the answers to these and related questions for others.

Assuming that Bashir could be shown to have failed to prevent and/or punish international crimes in Darfur, did the President of Sudan have a guilty mind? How much compelling evidence is there that he consciously disregarded information which clearly indicated that his subordinates were perpetrating or were about to perpetrate international crimes? Chances are, there is plenty of evidence. But then again, much documentary evidence (e.g., memos, memoranda, minutes or videos of meetings, death lists, signed orders, etc.), to the extent that such evidence exists and can be gathered at all in Darfur, will invariably be difficult to authenticate beyond a reasonable doubt in a court of international law.

Moreover, the Rome Statute hollowed out the doctrines of command and superior responsibility conceptually. It downgraded both to mere theories of complicity. Why should any of this matter? Aside from conceptual regression, the Rome Statute””when it provides in Article 28 that commanders and superiors “shall be criminally responsible for crimes within the jurisdiction of the Court committed by forces under his or her effective command and control”””clearly imputes the crimes of subordinates to the commander or superior. This constitutes a major departure from customary international law. Worse, it bespeaks an indifference on the part of the drafters at Rome to a defendant’s specific roles(s) in””and scope of responsibility for””the perpetration of international crimes. Judge Mohamed Shahabuddeen of the ICTY, in a partial dissenting opinion to the influential 2003 Hadžihasanović Decision on Appeal Challenging Jurisdiction in Relation to Command Responsibility, put it aptly:

Command [and superior] responsibility imposes criminal responsibility on a commander for failure to take corrective action in respect of a crime committed by another; it does not make the commander a party to the crime committed by that other.

For it is one thing to try holding President Bashir of Sudan individually criminally responsible for his failure to prevent or punish, say, murders in Darfur that may have been authorized by his subordinates, including perhaps Harun. It is quite another to suggest that Bashir’s alleged failure as a superior to prevent or punish such alleged murders in Darfur justifies holding him individually criminally responsible for these offences as if he were an ordinary accomplice.

Jens Meierhenrich is Assistant Professor in the Department of Government, Harvard University.