Principles of direct and superior responsibility in international humanitarian law

By Ilias Bantekas

Now available as an ebook for the first time, Bantekas's 2002 title on the forms of criminal responsibility arising from violations of international humanitarian law examines the evolution of personal responsibility and its contemporary application to war crimes, crimes against humanity and genocide. It traces the origin and development of such concepts as direct participation, ordering, complicity and inciting. The work includes extensive analysis of the jurisprudence of the International Criminal Tribunals for Yugoslavia and Rwanda and the International Criminal Court, as well as a variety of other legal material. Hans-Peter Gasser, then editor of the International Review of the Red Cross, describes the book in his Foreword as 'an invaluable contribution to a better understanding of the role that criminal law can play in efforts to enhance respect for the rights of victims of violence and war'. This title in the Melland Schill Studies in International Law series is a useful text for all those who wish to understand the principles of criminal responsibility in international humanitarian law.

• Language: English
• Publisher: Manchester University Press
• Release date: Dec 20, 2022
• ISBN: 9781526170545

Book preview

Principles of direct

and superior responsibility in

international humanitarian law

Melland Schill Studies in International Law

General editors Iain Scobbie and Jean D’Aspremont

Founded as a memorial to Edward Melland Schill, a promising scholar killed during the First World War, the Melland Schill Lectures (1961–74) were established by the University of Manchester following a bequest by Edward’s sister, Olive B. Schill, to promote the understanding of international law and implicitly lessen the possibilities for future conflict. Dedicated to promoting women’s employment rights and access to education, Olive’s work is commemorated in both the Melland Schill series and the Women in International Law Network at the University of Manchester.

The Melland Schill lecture series featured a distinguished series of speakers on a range of controversial topics, including Quincy Wright on the role of international law in the elimination of war, Robert Jennings on the acquisition of territory, and Sir Ian Sinclair on the Vienna Convention on the Law of Treaties.

In the 1970s, Gillian White, the first woman appointed as a Professor of Law in mainland Britain, transformed the lectures into a monograph series, published by Manchester University Press. Many of the works previously published under the name ‘Melland Schill monographs’ have become standard references in the field, including: A.P.V. Rogers’ Law on the battlefield, which is currently in its third edition, and Hilary Charlesworth and Christine Chinkin’s The boundaries of international law, which offered the first book-length treatment of the application of feminist theories to international law.

Closely linked to the Melland Schill Classics and Melland Schill Perspectives series, Melland Schill Studies in International Law has become a home for exceptional academic work from around the world.

Principles of direct and superior responsibility in international humanitarian law

Ilias Bantekas

Winner of the 2000 Paul Reuter Prize

Awarded by the International Committee of the Red Cross

MANCHESTER UNIVERSITY PRESS

Copyright © Ilias Bantekas 2002

The right of Ilias Bantekas to be identified as the author of this work has been asserted in accordance with the Copyright, Designs and Patents Act 1988.

Published by Manchester University Press

Oxford Road, Manchester M13 9PL

www.manchesteruniversitypress.co.uk

British Library Cataloguing-in-Publication Data

A catalogue record for this book is available from the British Library

ISBN 978 1 5261 7055 2   web pdf

ISBN 978 1 5261 7054 5   epub

This ebook edition first published 2022

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Original typesetting

by Graphicraft Limited, Hong Kong

Contents

Foreword – Hans-Peter Gasser

Preface and acknowledgements

Abbreviations

Table of cases

Table of treaties

Table of legislation

1Punishment in warfare and the application of law

Brief historical survey

Post-Westphalian developments

Early attempts at international codification

Efforts to enforce penal sanctions in international humanitarian law

Fundamental principles of the jus in bello

The derivation of customary humanitarian law

Individuals and national criminal prosecutions

Individual liability in contemporary humanitarian law

General principles as a source of law before international tribunals

Law applied by post-World War II military tribunals

The role of the Security Council

2Forms of direct criminal responsibility

Introduction

War crimes

Crimes against humanity

Liability for the planning of international humanitarian law violations

Conspiracy under international law

Liability for issuing criminal orders

The crime of ‘incitement’ in national and international law

Liability for hate propaganda

Complicity in international humanitarian law violations

3Ascertainment of superior status in international humanitarian law

Introduction

Historical survey of superior responsibility

Moral and political considerations pertaining to the doctrine

Discerning command from control

The sources of de jure command

United Nations and allied command structures

Establishing a superior–subordinate relationship

De facto command and the concept of control

Civilians as superiors

Evidence of de facto command

Capacity to influence

Capacity to issue orders

Evidence from the distribution of tasks

Concurrence of de jure and de facto command in the same person

4The substantive law of superior responsibility

Introduction

Legal nature of the doctrine of superior responsibility

Sources of command duties

Types of command and extent of liability

Operational commanders

Executive commanders

Persons entrusted with the care of prisoners

Applicable standards of knowledge

The duty to act

The duty to prevent

The duty to punish

Causation

The duty to control

5Individual responsibility in internal armed conflicts

Introduction

Classification of armed conflicts

Insurgency and belligerency

Common Article 3 and the 1977 Geneva Protocol II

The effects of external intervention in internal conflicts

Individual responsibility in non-international armed conflicts

Non-penal elements of humanitarian law in internal conflicts

When does international law establish criminal liability?

Criminalisation of internal conflict offences at the interstate level

International criminalisation at the domestic level

Retributive or restorative justice?

Bibliography

Index

Foreword

International humanitarian law is that part of international law which seeks to mitigate the effects of war on persons and objects. It does not regulate or prohibit recourse to force between States: that is the realm of the law of the United Nations Charter. It does, however, limit the belligerents’ right to choose methods and means of conducting military operations – that is, of resorting to violent acts – and defines the categories of persons who must not be the object of violence at all: persons who are not, or are no longer, participating in the war effort, in particular the civilian population. International humanitarian law applies to armed conflict, be it of an international or a non-international character. The universally accepted 1949 Geneva Conventions and their 1977 Additional Protocols, supported by rules of customary law, give expression to its norms.

As is the case for all law, domestic and international, humanitarian law needs institutions and procedures to ensure that it is respected and to sanction any violations of its provisions. Establishing individual criminal liability for serious violations of the Geneva Conventions is one of various measures aimed at strengthening enforcement of minimum standards of humanity in times of armed conflict. Once the chapter of post-World War II trials for war crimes and crimes against humanity (Nuremberg, Tokyo and others) was closed, political and scholarly interest in the Conventions’ provisions on criminal sanctions vanished, quite simply because there was no international criminal jurisdiction and domestic courts made their decisions on the basis of national law. This has radically changed with the establishment of the two ad hoc international criminal tribunals to try crimes committed in the former Yugoslavia and in Rwanda, and with the adoption in 1998 of the Rome Statute of the International Criminal Court. International criminal law, with its substantive content and its procedural provisions, has moved to the centre of political concern and of scholarly interest.

The rulings of the Yugoslavia and the Rwanda Tribunals alone have already produced a wealth of new insights into a range of issues affecting criminal liability under international humanitarian law. Moreover, numerous deployments of military units under United Nations command or authority have shed new light on and given new importance to the question of individual responsibility for lawful behaviour in conflict situations.

This work by Ilias Bantekas focuses on an issue which is essential for the understanding and the functioning of the system of criminal prosecution: the criminal responsibility of superiors or other persons who may in some way be at the origin of or associated with a breach of international humanitarian commitments. In dealing with this topic the author starts of course from the premise – and he is no doubt right to do so – that commanders and other superior officers have a decisive role to play in preventing violations of international humanitarian law by subordinates. As he shows quite convincingly, the duty to prevent crimes from happening implies the obligation for superior officers to monitor compliance with the relevant provisions by all those under their authority.

At the dawn of the twenty-first century, we may be witnessing a turning point in the history of international humanitarian law and its enforcement. Sir Hersch Lauterpacht wrote half a century ago that while international law is (already) ‘at the vanishing point of law’, the law of war is, ‘perhaps even more conspicuously, at the vanishing point of international law’. Today, we are beginning to realise that international humanitarian law has gained strength. Not that its provisions are respected by all those who have guns in their hands – not by a long way – but because credible judicial institutions have been set up on the international level to prosecute and punish individuals who have not understood that rules of international humanitarian law are ‘hard law’ and not merely wishful thinking expressed in esoteric rules ‘at the vanishing point of international law’. This development requires the clarification, by scholarly research and by the practice of the courts, of concepts which have not attracted great attention in the past. Ilias Bantekas’s study on direct and superior responsibility for ensuring compliance with international humanitarian law is an invaluable contribution to a better understanding of the role that criminal law can play in efforts to enhance respect for the rights of victims of violence and war.

Hans-Peter Gasser

Editor, International Review of the Red Cross

former Senior Legal Adviser, International Committee of the Red Cross

Preface and acknowledgements

A great deal of original research has gone with developing the ideas put forward in this book. My aim has been from the outset to identify the criminal elements of international humanitarian law. I am not a criminal lawyer, but an international one, if I can lay claim to such a title. Therefore, my interest and focus has been with the ascertainment of those criminal elements emanating from the processes of international law. I have not lost sight, however, of the passionate interaction between national and international law, and this is reflected throughout this book.

If it were not for the love and grace of God the writing of this book would have been impossible. My family has encouraged me in every conceivable way ever since I embarked on the journey of learning (I’ve always been a terrible yet very optimistic student), and there are few words to express my appreciation. I dedicate this work to my father who passed away halfway through my doctoral studies, but whose inspiration carried me through. Many thanks to David Turns and Professor Dominic McGoldrick, University of Liverpool, for unfailing support and supervision. I was very fortunate to study alongside them. Similarly, I am grateful to the staff at the ICTY Prosecutor’s Office during my internship and research in 1997, particularly Rodney Dixon and Karl Koenig. Many thanks for their brilliant research assistance are due to Brian Sheba, Attorney DC Bar, and Emmanouela Mylonaki, LLM candidate at the University of Westminster. Being a great believer in the Socratic method of learning, I could not have discerned my many shortcomings, mistakes, misconceptions and gross ignorance without the help of my students, both at the University of Westminster, as well as at Cleveland-Marshall College of Law, where I was a Visiting Professor of International Criminal Law during the autumn semester of 2000. The author would like to thank the American Society of International Law for giving permission to reproduce excerpts from his article in 93 (AJIL 573–95 (1999)).

Since carrying out my initial research the law has moved forward, especially the case law of the ad hoc tribunals. These developments have been incorporated in the present book, and the law stated is accurate as of 1 March 2001. Finally, I have to say that I missed not playing basketball, shooting pool and hanging out in the summer to watch Vassilis Levendis with my best buddies Zaf and Krupps, but I hope to make it up to them as soon as this book goes to press. Time to take it easy for a while and explore my beloved Greece with its blue sky and sea!

I. B.

International Law Unit

School of Law, University of Westminster

Abbreviations

Table of cases