Robert Cryer is Professor of International and Criminal Law at the University of Birmingham Law School.

Let me say at the outset that I think that Kevin has done an excellent job on the book (as have OUP in its production). I should probably also say, in the interests of full disclosure, that I flatter to call myself a friend of Kevin’s and have enjoyed the discussions we have had over aspects of the book during its gestation. The book is exceptionally well researched and written, and fills a significant lacuna in the literature. It has a strong narrative flow, and skilfully entwines the historic and legal aspects of the cases. There are many rich seams to mine in the book, but I will limit myself to one, and one of the rare instances where I disagree with Kevin, at least a little. This is the issue of the legacy of the Tribunals.

We used to hear quite a lot about the Nuremberg legacy; often in terms that bemoaned its betrayal. The International Criminal Tribunals for Yugoslavia and Rwanda, and the Special Court for Sierra Leone are now all self-consciously attempting to shape their respective legacies. Sadly, it is not clear to me that, in spite of Telford Taylor’s hopes and desires, the Nuremberg Military Tribunals had much of a legacy. In contrast, in the book, Kevin is relatively upbeat about aspects of their legacy (although other aspects are characterised, rightly, as “a complete failure” (p.400)).

In particular, he says that the greatest success of the Tribunals were their inestimable contribution to the form and substance of international criminal law…[unlike the Nuremberg IMT they]…took the raw materials provided to them-the London Charter, the IMT judgment, Law No 10- and honed them unto a coherent system of criminal law, one in which crimes were divided into elements, modes of participation were precisely identified, and defences were made available but cabined within reasonable limits. The NMTs, in other words, were committed to treating international criminal law as criminal law first and international law second. That commitment almost certainly explains why judges who had little knowledge of international law were able, far more often than not, to reach substantive decisions concerning crimes, modes of participation, and defences that remain good law more than 60 years later (pp.400-401).

I am sympathetic to the idea that international criminal law is made up of all three parts of its moniker. On the other hand, as an international lawyer, as well as a criminal lawyer, it is difficult not to comment that prioritising one aspect over another can be problematic. The idea the book seems to be pointing towards is that as the judges had a ‘feel’ for criminal law, they came to basically the right results. However, in the end, the sources of international criminal law, though, are those of positive international law, not natural reason. We stray from that path at our peril, not least owing to the nullum crimen sine lege principle. The judgments of the NMTs (which do differ on many issues, as the book brings out with great depth and sophistication, but which shows the fallacy of reliance on right reason), are usually brief, to say the least, on the sources of international criminal law. There often is no real discussion of custom and the like to determine the position in international law. Of course, it can be countered that there was less of a corpus of international criminal law at the time, in particular with regard to principles of liability and defences. But the brevity of the judgments on sources should give us pause about whether they can really be called good positive law, at least then.

The other point that the book is making (and I hope Kevin will pull me up if I have mistaken him here) is that they reflect much of modern international criminal law. The book spends quite a large amount of time discussing the authority in which the judgments have been held, in particular before the ICTY, where there was a lively debate about the question in Erdemović (a debate which is recounted well at pp.375-377).  However, there are two issues that need to be thought through on this. The first is whether the citation of the decisions of the NMTs in later cases reflects the authority which they were thought to have, rather than them being considered useful support for a proposition that was decided upon for other reasons. The second is the issue, more generally, of causation where the positions that States may have reached in Rome, or in other treaty negotiations, were at least similar to those reached in some of the cases before the NMTs.

Looking first at the issue of citation of the NMT’s jurisprudence, the book is meticulous in identifying examples of citation of those cases in later decisions. Rightly, this is leavened by reference to the times that the jurisprudence was referred to inaccurately, incompletely, or ignored (examples of all which abound inter alia, at pp.377, 378, 381-382). But the issue of influence is not a matter solely of counting quotes. As the legal realists, amongst others, have discussed, citation occurs for various reasons. It can come from anything from a genuine belief in the precedential authority of a pronouncement, to the purely pretextual (and for many reasons in between). Where reference is made to bolster a position that has been adopted on other grounds, the case has not been influential per se; it has been co-opted, rather than treated as authority. Given the number of occasions that the book identifies misstatements and selective citation of the jurisprudence of the NMTs, it can be questioned whether at least some of those references in the cases can be explained away as misunderstandings, rather than tactical. This is particularly the case where there are, as the book shows very well, contradictory, or at least inconsistent, findings on substantive issues in the various NMTs.

To take this a little further, the book’s optimism about the authority granted to the findings of the NMTs is shown by the (accurate) critique of US Court of Appeals for the Second Circuit’s decision in Presbyterian Church of Sudan v Talisman Energy 582 F.3d 244 (2^nd Cir. 2009). The work takes the decision to task for asserting a purposive standard for the mens rea of aiding and abetting on the basis of one acquittal at the NMTs, when the vast preponderance of the NMTs decisions applied a knowledge-based standard. The book asserts that ‘[i]f this study had existed a few years ago, the court might have reached a very different conclusion’ (p.5). I would like to believe that it would have, but, as Kevin has repeatedly shown elsewhere, in particular on Opinio Juris (for a recent example, see here), citation by courts, in the US, as elsewhere, is often based on reasons far removed from a genuine investigation into the sources of international law and the relevant degree of authority that is to be attached to them.

Turning to the second issue; it is, of course, difficult to prove causation in international affairs, but I fear at times the work overstates the influence of the NMTs on States, describing them has having made “significant contributions” to the law of war crimes (p.380). For example, it is said that “the tribunals likely influenced the drafters of the Article 4(2) [of Geneva Convention III] concerning partisan activity in occupied territory” (ibid.). This is said to be “consistent” with the NMT jurisprudence. That is entirely true, but it does not prove causation. There is, for example, no reference to the jurisprudence of the NMTs in the Pictet commentary on GC III (which, admittedly, is not a record of the proceedings in Geneva, but is, nonetheless, hardly the rantings of a random scribbler either).  What is, to me, at least as plausible, is that the issue was known about by the Allies owing to the practice in the Second World War rather than specifically being influenced by the case per se. The second example, that of the prohibition of killing hostages contained in GC IV was, as the book rightly points out, a complete repudiation of the position adopted in the Hostages case, so at best, it can be seen as a framing of the issues for States, rather than a contribution to the law.

When dealing with the drafting of other documents, this time the Rome Statute, again we have quite a strong claim, that “the Einsatzgruppen approach to duress had a considerable influence on the ICC”, in that “in contrast to ICTY jurisprudence, Article 31(1)(d) specifically permits a defendant to invoke duress as a defense to murder” (p.395). The latter statement is, in essence, true (the Article does not specifically permit the defence to murder, but it is probably implicit, and it is of no impact here). However, if the former assertion is taken to mean that the Einsatzgruppen case itself (rather than perhaps Erdemović which, admittedly, did discuss Einsatzgruppen) had an impact on the debate, I would have to express some considerable scepticism. The provision was a last ditch compromise in the final days of the Rome conference, and discussions at Rome on point did not did not focus on the post-war jurisprudence. It could be, though, that the quoted statement means that the approach adopted in Einsatzgruppen, rather than the case itself, was influential, but that takes us back to the beginning, that rather than authority, naturalism/reason was the inspiration for Article 31(1)(d). This would not be entirely inappropriate, because as States are entitled to create international law, they are entitled to bring their views into positive law by including it in Article 31(1)(d). That does not show the influence of the NMTs though.

The work of the NMTs was interesting. Equally, that does not mean that their output was or is always (good) international law, at least its sources are normally understood. It might be the case that sometimes the NMT’s jurisprudence has been considered, in and of itself, to be authoritative, but this is by no means always the case. The NMTs may have had some influence on modern international criminal law, but not in as strong a way as the book might imply. These are all, at least to me, fascinating issues, and I look forward to a discussion of them.

Professor Robert Cryer is Professor of International and Criminal Law at the University of Birmingham Law School, UK. He is the author of Prosecuting International Crimes: Selectivity and the International Criminal System (Cambridge, 2005) and co-author of An Introduction to International Criminal Law and Procedure (Cambridge, 2007). 

One of the most interesting decisions of the International Criminal Court on confirmation of charges has passed by with little comment so far. Whilst the Al-Bashir Arrest Warrant decision has received very considerable attention (for example – shameless self-promoter that I am - in the symposium in the most recent Journal of International Criminal Justice), the lesser-known  confirmation of charges decision in the case against former Congolese Vice-President Bemba (in relation to alleged crimes in the Central African Republic) raises some extremely interesting issues deserving of comment. For example, the decision (Prosecutor v Jean-Piere Bemba Gombo, decison of June 15, 2009) has interesting things to say in relation to definitions of crimes, their contextual elements, and the mental element as provided for in Article 30 of the ICC Statute. Indeed far too many matters to deal with in any meaningful way in a post of this nature. 

 As such, this post will concentrate on only one aspect of the decision, command responsibility, as this is the first time this principle of liability (and I call it as such deliberately) has been the subject of significant comment by the ICC. Its decision on point is important, not only for the comments the Pre-Trial Chamber make directly on the issue, but also because it is indicative of the extent to which the ICC is looking, whilst showing considerable respect at times to the jurisprudence of the ICTY and ICTR, to create a separate regime of what might be termed ‘Rome law’. Whether this is a good idea or not, or whether we might see a problematic fragmentation of international criminal law from the multiplicity of Tribunals applying different definitions of international criminal law will be (briefly) returned to at the end. It is not the intention of this post to enter into detail on the facts found and their interpretation by the Pre-Trial Chamber on point. There is a trial to be had on that. 

To set things up, though, it is necessary to provide some background. Bemba was charged by the Prosecution for crimes against humanity and war crimes on the basis both of Article 25(3)(a), on the basis of co-perpetration, and command responsibility pursuant to Article 28 of the Rome Statute. The Pre-Trial Chamber found that he did not have the requisite mental element for Article 25(3)(a), as he did not have what the Pre-Trial Chamber decided Article 30 requires for this, i.e. dolus directus in the second degree (para 401-which is controversial in itself). As a result, they focused in some considerable depth on command responsibility and its requirements, as the OTP had charged Bemba with responsibility on the basis of Article 28 in the alternative. It is interesting in itself that the Chamber at the outset said it was only necessary to do so because they found that he was not responsible as a co-perpetrator (paras 402-3). This is rather discomforting, as if they had found that he was responsible at this stage under Article 25(3)(a), thus confirmed the charges only on that basis, ignoring command responsibility, but at trial the relevant Article 30 mental element could not be shown, it could be argued that they had not confirmed the charges on the basis of command responsibility and he therefore could not be convicted on them. This could also cause problems at trial stage as the Prosecution and Defence need to know what evidence they need to bring to support or refute the charges, therefore command responsibility ought to be dealt with whenever it is pled, not only when it is decided that there is no evidence of the necessary mental element for Article 30.

That said, this hardly even begins the controversy. The PTC begins its discussion by pointing out that command responsibility is not the same type of responsibility as that provided for in Article 25(3)(a), but makes clear that, pursuant to Article 28, this is only

 in the sense that a superior may be held responsible for the prohibited conduct of his  submit the matter to the competent authorities. This sort of responsibility can be better understood “when seen against the principle that criminal responsibility for omissions is incurred only where there exists a legal obligation to act” (para 405).

There is little, if any succor here for the view that command responsibility is a sui generis form of omission liability rather than a form of responsibility for the underlying crimes. Therefore the ICTY’s current vacillations on the nature of the responsibility (see, e.g. the disagreement between the majority and minority in Hadžihasanović (Prosecutor v Hadžihasanović, Alagić and Kubura, Judgment on Interlocutory Appeal Challenging Jurisdiction in Relation to Command Responsibility, IT-01-47-AR72, 16 July 2003) and the rather awkward Orić Appeal (Prosecutor v Orić, Judgment, IT-03-68-A, 3 July 2008)) is essentially bypassed. To be fair, this is done on the basis of the abundantly clear language of Article 28 of the Rome Statute, which states that a superior is to be ‘held criminally responsible for crimes…committed by forces under his or her effective command and control…’.

 Since the evidence seemed to show that Bemba was a military commander, or someone effectively acting as such on the basis of analogous ICTY and ICTR jurisprudence (paras 409-10) the PTC decided that they only need look at Article 28(a) (which deals with responsibility of a military commander). Notably, albeit sensibly, the Chamber decided that the words ‘command’ (as used in Art. 28(a)) and ‘authority’ (as used in Art. 28(b) – dealing with civilian superiors)imply the same standard of control (para 412), even though, to avoid linguistic redundancy, the Chamber noted that the ‘modality, manner or nature’ may be different (para 413).  Following, inter alia Čelebići in the ICTY, the PTC accepted that

 ”The concept of “effective control” is mainly perceived as “the material ability [or power] to prevent and punish” the commission of offences,…”effective control” also refers to the material ability to prevent or repress the commission of the crimes or submit the matter to the competent authorities. To this end, this notion does not seem to accommodate any lower standard of control such as the simple ability to exercise influence over forces or subordinates even if such influence turned out to be substantial…That said, the Chamber concurs with the view adopted by the ad hoc tribunals that indicia for the existence of effective control are “more a matter of evidence than of substantive law”" (paras 415-6).

On this basis the PTC noted that there are factors which are probative in this regard, for example, official position, the authority to give orders and ensure their implementation, the capacity to alter command structures and promote or remove people, and the ability to require people to engage or withdraw from hostilities were all relevant factors, that had been identified by the ad hoc Tribunals (para 417).

Here the congruence ended. The PTC noted that, in spite of the moves by the ICTY to expand command responsibility out to failure to punish offences committed prior to the period of authority of the superior, there is no possibility of such liability at the ICC  (paras 418-9). Since this is a necessary implication of Article 28 though, the judges cannot be criticized for this. Similarly, since Article 28 makes it express that the offences must occur as a result of a failure to supervise underlings this means that there is some form of causality implied, although ‘the element of causality only relates to the commander’s duty to prevent the commission of future crimes’ (para 424). Given, however that counterfactuals are all but impossible to prove, the Chamber therefore asserts that’ it is only necessary to prove that the commander’s omission increased the risk of the commission of the crimes charged in order to hold him criminally responsible under article 28(a) of the Statute’ (para 425). 

Where the decision gets truly interesting is where it comes to the mental element of command responsibility.  Here we see a considerable step aside from the approach of the ICTY which perhaps accepts the critical analysis to which the Čelebići Appeals Chamber decision (Prosecutor v Delalić, Mucić, Delić and Landžo, Judgment, IT-96-21-A, 20 February 2001) on point has been subjected, although it does so against a backdrop of different statutory language, rather than directly reject that case.

To begin the PTC rightly says that there are two levels of mental element covered in Article 28, the first of which is actual knowledge. Such knowledge can be determined with the assistance of direct or circumstantial evidence, the forms of which were taken essentially from the decisions for the ICTY (paras 429-3). So far, so consistent. However, the PTC, seemingly influenced by the Amicus Curiae Brief submitted by Amnesty International and others, in para 429, also states that the second form of mental element that suffices ‘is covered by the term “should have known”,…[and]… is in fact a form of negligence’. This cuts quite directly against what the ICTY and ICTR have consistently held, at least since the decision of the Appeals Chamber in Bagilishema (Judgment, ICTR-95-1A-A, 3 July 2002, para 35) that negligence is not the standard. The mental element in the ICTY is summed up by the Appeals Chamber in Čelebići, as not covering negligence in failure to find out about offences, instead requiring either actual knowledge or that the superior ‘had in his possession information of a nature, which, at the least, would put him on notice of the risk of such offences by indicating the need for additional investigation’ (para 239)

 However, the PTC in Bemba quite clearly prefers the ICTY Trial Chamber’s decision on Blaškić (as do many academics see e.g. Robert Kolb, ‘The Jurisprudence of the Yugoslav and Rwanda Criminal Tribunals on their Jurisdiction and on International Crimes’ (2000) 71 British Yearbook of International Law 259, pp.309-12). The Trial Chamber in that  case, which the based itself on Articles 86 and 87 of Additional Protocol I (which, like the ICTY and ICTR Statutes use the ‘have reason to know’ formulation) determined that negligence in relation to ‘failing to acquire knowledge’ suffices for command responsibility (paras 432-3). Interestingly, the PTC in Bemba uses the rather ugly compromise (that few thought was customary) between the mental element required for military and non-military superiors in the Rome Statute to support their agreement with the Trial Chamber in Blaškić (para 433).

 The PTC does, to be fair, engage with the fact of the different language in the ICTY/R Statute and the Rome Statute, when (at para 434) it says that: 

“The Chamber is mindful of the fact that the “had reason to know” criterion embodied in the statutes of the ICTR, ICTY and SCSL sets a different standard to the “should have known” standard under article 28 (a) of the Statute. However, despite such a difference, which the Chamber does not deem necessary to address in the present decision, the criteria or indicia developed by the ad hoc tribunals to meet the standard of “had reason to known” may also be useful when applying the “should have known” requirement.”

Insofar as it makes the point that the relevant evidence will be the same in both instances the PTC is right, however, it is a little difficult not to see the decision as in some way critiquing the Čelebići approach to the mental element of command responsibility, since they rely on the Blaškić decision and support its interpretation of the language in Additional Protocol I (and thus the ICTY statute).

To quickly deal with the question of necessary and reasonable measures, it must be said that the PTC here (paras 435-443) essentially adopts the approach of the ICTY and ICTR, which promotes coherence and accepts that the question is not one that can be answered without looking at the particular powers that a superior has. This is not especially controversial, and shows the (good) use to which the jurisprudence of the ICTY and ICTR can be put by the ICC.

 As mentioned at the start of this post, although the ICC is often fairly respectful of the jurisprudence of the ICTY an ICTR, they are (as with genocide in the al-Bashir decision), stepping out on its own to create a separate regime of definitions of international crimes and principles of liability that at times is mandated by its Statute, but at times not. Obviously, where the Statute requires it, there is little the ICC can do other than contribute to fragmenting the definitions of international crimes and their principles of liability. Where it is not so required, I confess I am a little torn, I do not wish to promote dissensus in definitions, but nor do I think that Čelebići was correct. On balance, I think the PTC was right here. Better to be right than follow a non-binding and wrong precedent in the name of coherence. 

Editors note: Professor Robert Cryer is Professor of International and Criminal Law at the University of Birmingham Law School, UK. He is the author of Prosecuting International Crimes: Selectivity and the International Criminal System (Cambridge, 2005) and co-author of An Introduction to International Criminal Law and Procedure (Cambridge, 2007). We are pleased to welcome him to EJIL:Talk!

I am very flattered to have been asked to comment on EJIL Talk. It is also very pleasant to be able to do so in relation to a piece that I genuinely like and, given the increasing privatised nature of many actions that were previously considered truly jure imperii, deals with a question of unquestionable importance.

I would primarily like to see what State responsibility can do here. I think Carsten Hoppe raises the right issues, the positive duties of States under human rights law and IHL are hugely important here, but I would like to play devil’s advocate and suggest some alternative views and other ways in which State responsibility might be invoked here. I raise the following not to criticise, but to suggest some additional lines of inquiry. They are, perhaps, somewhat speculative, but, the point of EJIL talk is to initiate debate, so in that spirit, let us enter the fray!

The first is on attributability insofar as it is covered by Article 8. There is, as we all know, a disjunction between the approach taken by the ICJ in Nicaragua and reaffirmed in Bosnian Genocide case, and that taken by the ICTY in Prosecutor v. Tadić as to the level of control that is required for liability to be incurred. The ICJ considers the test to be ‘effective control’, whilst the ICTY considered it to be ‘overall control’ Although the ICJ in Bosnian Genocide case said that maybe for international criminal law the test is different, the ICTY saw itself as applying the general rules on State responsibility. If the ICJ was wrong and the test for attributability in some contexts is ‘overall control’, then there must be some room for arguing that employing States have overall control over PMC’s. Not least, they would have the power to bring the contract to an end. This would ensure iability for the offence itself. I have to say that there is rather a lot to be said for the more functional approach taken by the ICTY (on control, and, for example, nationality) rather than the rather rigid approach that characterises the ICJ’s position on point.

Taking the ICJ’s view that State responsibility is still that contained in Nicaragua, recent developments in State responsibility might have led to broader responsibility for States for failures to prevent actions than the ILC articles might suggest. Works like Tal Becker’s Terrorism and State Responsibility take the view that on some issues at least, State responsibility has moved on so (or always was) that a violation of a general duty of due diligence leads to some form of State responsibility for that failure. It would seem, to me, that if this is the case, then there is room for argument that there is State responsibility for failing to exercise due diligence to prevent even off-duty conduct by PMCs employed by a State. After all, he who pays the piper…Lest this be seen as excessively modern, Michael Akehurst, for example, argued back in the 1960s that there were general due diligence obligations on States in relation to rebels, and surely such duties would apply a foriori with respect to those directly paid by the State.

Still, we could push this further, taking into account that a State is responsible for aiding or assisting a violation of international law. Article 16 of the ILC Articles provides that

A State which aids or assists another State in the commission of an internationally wrongful act by the latter is internationally responsible for doing so if:

(a) That State does so with knowledge of the circumstances of the internationally wrongful act; and

(b) The act would be internationally wrongful if committed by that State.

This does not deal four square with the question of whether a State can be responsible for aiding or assisting a violation of international law by a non-state actor, as it is based on a State-State relationship, and it might generally be questioned whether we can transfer responsibility issues across any divide which exists. On the other hand, assisting rebels and the like has frequently been held to incur State responsibility, as it did, for example, in Nicaragua.

There is, in my view a strong argument that violations of international criminal law have parallel State and individual responsibility, as the norms apply equally to both (thus dealing with the requirement in Article 16(b) (which would probably apply by analogy)). The Bosnian Genocide case made clear that this was the case for genocide (although some question the conclusion) and it is undoubtedly the case for war crimes (Article IV of the Hague Regulations). I personally have no qualms about crimes against humanity having similarly parallel forms of responsibility, which developed to deal with State policies. The first question will be whether there has been assistance. This will depend on the facts, but allowing PMCs to use facilities, and paying them might do (allowing them to leave the country through airports they control might also do, but the question of whether or not assistance after the fact will do is unclear). The second question will be whether or not any assistance given occurs in a situation in which knowledge could be proved. Continuing to pay PMCs when they have repeatedly engaged in such conduct might lead to a finding of knowledge.

There are other issues, such as the fact that in occupied territories, the overall commander might if the High Command case is to be believed, have quite strong duties in relation to what occurs in that territory, which would certainly encompass that form of liability, and as a result State responsibility for the failings of the commander but that is an issue for another time.

As I said above, these are speculative thoughts rather than definite conclusions, but I hope they stimulate debate.