The Law of Command Responsibility

This book offers a unique study of the law of command or superior responsibility under international law. Born in the aftermath of the Second World War, the doctrine of superior responsibility provides that a military commander, a civilian leader, or the leader of a terrorist, paramilitary, or rebel group could be held criminally responsible in relation to crimes committed by subordinates even where he has taken no direct or personal part in the commission of these crimes. The basis of this type of liability lies in a grave and culpable failure on the part of the superior to fulfil his duties to prevent or punish crimes of subordinates. The idea that a superior could be held criminally responsible in relation to crimes of subordinates is central to the ability of international law to ensure compliance with standards of humanitarian law, and it remains a most important legal instrument in the fight against impunity. Though it first developed in the international arena, the doctrine of superior responsibility has now spread into many domestic jurisdictions, thus offering judicial and prosecutorial authorities a ready-made instrument to hold to account the leaders of men who knew of the crimes of their subordinates but failed to adequately respond to prevent or punish those crimes. This volume provides a comprehensive and insightful dissection of the doctrine of superior responsibility and the scope of its application, as well as the evidential difficulties involved in establishing the criminal responsibility of a superior in the context of a criminal prosecution.

Table of Contents:
PART I INTRODUCTION 1: The Evolution of the Law of Command Responsibility and the Principle of Legality 2: The Resurgence of International Criminal Justice and the Rebirth of Command Responsibility 3: Command Responsibility under Customary International Law and the Statute of the International Criminal Court PART II NATURE AND SCOPE OF APPLICATION OF THE DOCTRINE OF COMMAND RESPONSIBILITY 4: Command Responsibility as a Sui Generis form of Liability for Omission 5: Scope of Application of the Doctrine of Command Responsibility-International and Internal Conflicts as well as Peacetime? 6: Military Commanders, Civilian leaders, and Other Superiors, wthether De Jure or De Facto PART III ELEMENTS OF COMMAND RESPONSIBILITY AND UNDERLYING OFFENCES 7: General Remarks 8: Underlying Offences 9: A Superior-Subordinate Relationship between the Accused and Those Who Committed the Underlying Offences 10: A Culpable State of Mind 11: Breach of a Duty and Consequential Failure to Prevent or to Punish Crimes of Subordinates PART IV CONCLUSION 12: Concluding Remarks: A Workable Standard of Liability for Superiors Annex: Relevant Provisions Bibliography Index

About the Author :
Guénaël Mettraux is a former legal assistant in the Chambers of the International Criminal Tribunal for the Former Yugoslavia ('ICTY'). He has appeared as counsel before the ICTY on behalf of General Sefer Halilovic, first commander of the Army of Bosnia and Herzegovina, and Ljube Boskoski, former Minister of Interior of the Republic of Macedonia. He is the author of International Crimes and the ad hoc Tribunals (Oxford: Oxford University Press, 2005) and Perspectives on the Nuremberg Trial (Oxford: Oxford University Press, 2008).

Review :
`From its 'birth in sin' at the end of the Second World War, to its contemporary prominence in prosecutions at the ad hoc tribunals for the former Yugoslavia and Rwanda, the doctrine of command responsibility is one of both great complexity and much misunderstanding. With his usual mastery, Guénaël Mettraux untangles the legal and policy issues, providing what is instantly the standard work on the topic.' William Schabas OC MRIA, Professor of Human Rights Law, National University of Ireland, Galway `In his latest book, Guénaël Mettraux expertly examines the law of command responsibility from every possible angle, from its controversial World War II beginnings to its increasingly relevant application to modern-day terrorism cases. His rigorous analysis of each element of command responsibility, along with a distinct comparison to other modes of liability under international law, enables the reader to understand this highly complex legal doctrine on a practical level. By investigating various evidentiary problems and lessons learned from domestic law, Mettraux illustrates the potential influence that command responsibility may have on the future of international criminal jurisprudence. Indeed, Mettraux's book will prove invaluable to understanding the role that command responsibility will play in bringing criminals to justice.' Daqun Liu, Judge at the United Nations International Criminal Tribunal for the former Yugoslavia `There is no shortage of articles on various aspects of the doctrine known as 'command responsibility', but Dr Mettraux's work fills a significant void in synthesising the principle arguments of the leading publicists in the area and adding thereto his own unique perspective, gained not only from thorough academic study and research, but from practical experience derived from various cases before the ICTY. The work is lively, easy to read and commendably devoid of unnecessary 'legalese'. Cogent, exceptionally well researched and forward looking, it is set to become the leading work on command responsibility. It constitutes an indispensible resource to practioners, academics, judges and students alike.' Karim A. A. Khan, Barrister `Guenael Mettraux's The Law of Command Responsibility adds clarity to the complicated entanglement of statutes, custom, and court rulings that together make up the law on command responsibility and, as the first book devoted entirely to the goal of defining a general theory of command responsibility, is a welcomed contribution to the field...this book is a timely and necessary publication...I have simply found no significant point of substance, which deserves criticism in this work...Anyone seeking an in-depth analysis of the present, past and future states of the doctrine of command responsibility will find this work useful.' Chris Engels, International Criminal Law Review 9, 2009 `Mettraux not only asks the fundamental theoretical questions underlying the doctrine of command responsibility but also answers them in the most accomplished mannerThis book is without doubt among the most authoritative statements on the law of command responsibility, in which every argument is wholly justified with an impeccable and impressive research and where, moreover, the author has something unique to say, other than simply making sense from the vast array of contemporary jurisprudence that is available; sometimes by bravely, but in a very scholarly manner, defying this very jurisprudence.' Ilias Bantekas, Journal of International Criminal Justice 7, 2009 `Mettraux certainly demonstrates impeccable knowledge of the relevant jurisprudence, especially of the two ad hoc Tribunals, the ICTY and the ICTR...it is an important study' Daniel Heilmann, Senior Research Fellow at the Max Planck Institute for Comparative Public and International Law, Heidelberg, EJIL 21 `...this book has done well at what the author set out to do. Mettraux states in the preface of this work that his goal will be achieved if The Law of Command Responsibility contributes to a better understanding of the doctrine of command responsibility. He has without doubt accomplished this goal. Mettraux has also successfully bridged two periods in the development and application of the law on commanad responsibility: the unclear, inconsistent past and the hoped-for, stable future... Anyone seeking an in-depth analysis of the present, past and future states of the doctrine of command responsibility will find this work useful.' Chris Engels - former Director of the Criminal Defence Section for the War Crimes Chamber of the Court of Bosnian and Herzegovina.