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1 Eyes on the ICC 1 (2004)

handle is hein.journals/eyesicc1 and id is 1 raw text is: Criminal Prosecution

Crminal Prosecution
One of the major achievements in the development of international law is the assignment of personal culpability to those who
commit core crimes. Personal culpability is reflected in two doctrines of international criminal law: individual criminal
responsibility and command responsibility. In general, command responsibility holds commanders and superiors accountable
for crimes committed by their subordinates if they knew or should have known that their subordinates committed the crimes,
and they failed to take steps to prevent or halt the commission of the crimes, or they failed to punish the perpetrators. Article
28 of the Rome Statute provides the most current articulation of command responsibility. Under it, civilians can be indicted
on crimes that fall within the jurisdiction of the International Criminal Court (ICC) based on the theory of command
Despite the Rome Statute's binding effect on the ICC, this paper will argue for the following reasons that the Court should
not apply the doctrine of command responsibility to certain civilians, specifically to civilians who do not hold positions in
government (non-government civilians). Doing so would deprive them of fundamental guarantees of due process of law.
First, the authority for prosecuting civilians under the theory of command responsibility is not well established. Of the
hundreds of cases before the post-World War II tribunals, few involved civilians charged with crimes based on command
responsibility and fewer still involved non-government civilians. More recently, the International Criminal Tribunals for the
Former Yugoslavia (ICTY) and Rwanda (ICTR) have affirmed the conviction of only one non-government civilian on the
theory of command responsibility. The positive law cited as the legal authority for applying command responsibility to
civilians is a relatively recent development and is too ambiguous to apply with confidence.
Second, the doctrine of command responsibility arose out of duties and responsibilities unique to the military and therefore
should not form the basis of criminal responsibility for non-government civilians.
Third, the doctrine of command responsibility is not entirely settled as a matter of international law, even in those cases
involving military commanders. As recently as the Diplomatic Conference on the ICC, the delegates revised the elements
that form the basis of command responsibility, while at the same time the ICTY and ICTR applied the elements as defined by
their respective statutes. The pace at which the doctrine is evolving renders it too unstable to apply wholesale to civilians.
This paper will propose the following recommendations that both honor the integrity of the Court and protect the rights of
accused civilians. First, the ICC's Prosecutor should refrain from issuing indictments against non-government civilians
based on command responsibility, and the ICC's judges should decline to assert the Court's jurisdiction over such
defendants. Second, the ICC should revert the original application of command responsibility exclusively to military
commanders and those who effectively act as military commanders, such as certain government leaders. Third, the ICC
should try non-government civilian leaders under the theories of individual criminal responsibility as set forth in Article 25 of
the Rome Statute.
Origins and Development of Command Responsibility
When the ICTR found Alfred Musema, Director of Gisovu Tea Factory, guilty of the crime of genocide and certain crimes
against humanity that he did not commit, it also found that international humanitarian law extends the doctrine of command
*Ms. Bohn, '03 J.). University of Wisconsin ]Law School, practices law as an Assistant State Public Defender in Wisconsin. She co-founded and led
the Milwaukee Campaign to Ban Landmines in a succcssful effort to clear mincfields in Cambodia. In 2003, she organized an academic symposium
on the International Criminal Court at the UN( Law School.

Eyes on the ICC       Volume 1

Lou Ann Bohn

Number 1       2004   1

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