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Section 2. International Criminal Law
Monira Nazmi Jahan, Lecturer of Law, East West University, Bangladesh Email: monira@ewubd.edu
THE DOCTRINE OF SUPERIOR RESPONSIBILITY IN THE TRIALS OF INTERNATIONAL CRIMES: A COMPARATIVE STUDY OF THE INTERNATIONAL CRIMES TRIBUNALS OF BANGLADESH AND OTHER JURISDICTIONS
Abstract: This paper is to determine whether the judgments passed by the International Crimes Tribunals of Bangladesh have correctly applied the doctrine of superior responsibility. Furthermore, this paper also asks whether the principle of civilian superior responsibility has been correctly interpreted and applied by the ICTs of Bangladesh. This is achieved by analysing relevant judgments of the ICTs against judgements passed by other international judicial forums trying international crimes.
Keywords: International Crimes Tribunals of Bangladesh; doctrine of superior responsibility; international crimes.
Introduction
The doctrine of "superior responsibility" prescribes the criminal liability of those persons who, being a superior failed to control his subordinates or after committing any offense by the subordinates failed to punish them. Under international humanitarian law and customary international law, it is the duty of the superior to have effective control over his subordinates. The superior should be aware of the activities of his subordinates. And in case of any armed conflict the superior should control his subordinates and prevent them from violating any of the rules of war. The central question of this paper is to determine whether the judgments passed by the International Crimes Tribunals (hereinafter, ICTs) of Bangladesh have correctly applied the doctrine of superior responsibility. Furthermore, this paper also asks whether the principle of civilian superior responsibility has been correctly interpreted and
applied by the ICTs of Bangladesh. This is achieved by analysing relevant judgments of the ICTs against judgements passed by other international judicial forums trying international crimes.
Although article 28 (b) of The Rome Statutes of the International Criminal Court 1998, states the provisions and conditions of civilian superior responsibility. This concept of "superior responsibility" does not differentiate between military officers and civilians placed in positions of command, since the duty of the both are to prevent and punish the offences of their subordinates. The duty of the superior to prevent and punish is well recognized in the field of customary international law as far back as the Leipzig trials following World War I. the modern formulation of this doctrine has found in many legal instruments, such as Articles 7, paragraph 3, and 6, paragraph 3, of the Statutes of the International Criminal Tribunal for the former Yugoslavia
(ICTY) and the International Criminal Tribunal for Rwanda (ICTR) respectively, Article 28, paragraph 2, of the Statute of the International Criminal Court (ICC), and Article 86 of 1977 Protocol I additional to the Geneva Conventions. At the evidentiary problems encountered in cases of superior responsibility: first, it must be proved that the superior was in a position of command and control which would have enabled him or her to prevent the crimes of his or her subordinates. Second, the superior must have known of these crimes or, at least, have deliberately remained ignorant of them. The latter issue is particularly controversial. Now my point of research is to find out the latter issue by analyzing the foreign laws and cases with the ICT Act 1973. By comparing foreign elements with sec 4(2) of 1973 Act, we can see how this sec is different from other jurisdictions. For instance, article 28 (b) of the ICC1998, talks about the element of "knowledge" whereas, sec 4(2) is silent about the part of knowledge. Moreover ICT act 1973 also has some dissimilarity with ICTY, ICTR and ICC. If we take the observation of the Celebici Case [22] Celebici Judgment of the ICTY that the doctrine of command responsibility refers to "vicarious liability" it follows that superiors will be criminally liable for the crimes of their subordinates regardless of their knowledge and subsequent action. If this were so, no person could escape such a strict liability test if subordinates overrode his/her best efforts to prevent and punish their actions. In the case of Naser Oric [41] the ICTY stressed that the possession of de jure authority does not result in a presumption of effective control; such a possession provides merely some evidence of effective control. Whereas in Ghulam Azam [26] case the prosecutor has argued that, superior responsibility under 1873 Act imposes "strict liability" to the superiors. some cases in which the defendants are found guilty for individual criminal responsibility or nor for the superior responsibility such as, Tokyo Tribunal as authorities for civilian superior responsibility, namely those of General Matsui, Prime Minister Tojo, and Foreign Ministers
Hirota and Shigemitsu. They found guilty by direct liability. Other cases shows superior responsibility but the relationship remains unclear, such as, Trial of Friedrich Flick and five others, US military tribunal, Nuremberg, 1947; in Germany v. Herman Roechling and Others, this cases talks about the civilian superior responsibility but not clearly mentioned the civilian settings. Which we have to do in this research paper is to compare cases with our ICT cases and find the positive sides of this doctrine which is incorporated in 1973 Act. Not only cases but also we analyze several articles in which some of them support my view such as, superior responsibility by Rene Vark, superior responsibility by Kai Ambos, on the other hand some authors raise the question of legality and by challenging its provision hold its as controversial doctrine such as, "superior responsibility of civilians for international crimes committed in civilian settings" by Yael Ronen. It is very easy to proof the command responsibility but it is not so easy to proof civilian superior responsibility. Therefore, the main purpose of this paper is to find the differences which lies in sec 4(2) of1973 Act which deals with doctrine of civilian superior responsibility.
Alongside the central question this paper answers, the following questions are also explored:
1. For what exactly the superior is responsible?
2. Is this doctrine correctly incorporated in sec 4(2) of 1973 Act?
3. How far is Section 4(2) different from other international instruments functioning with the same objective?
4. Does superior responsibility transfer the actual criminal conduct from the subordinates to the superiors?
5. How was the Doctrine of Superior Responsibility applied in the case of Prosecutor Vs. Professor Ghulam Azam and other related cases?
6. Is it a separate crime for dereliction of a superior's duty to control, prevent or punish? Will this application contribute positively to the development of the doctrine in international criminal law?
General concepts of Superior Responsibility
Concept of civilian superior responsibility -
The doctrine of superior responsibility grew out of the military doctrine of command responsibility, and its evolution is informed by this origin Ronen [4]. Before analyzing its origin and history, first we have to understand the concept of 'superior responsibility'. The concept of command or better superior responsibility [1] makes the superior liable for a failure to act to prevent criminal misconduct of his or her subordinates. According to this doctrine the superior will be liable for lack of control and supervision of the acts done by his subordinates. Hence, the superior will be punishable for his own failure to intervene on the acts done by his subordinates. Therefore, it can be said that, on both way a superior will be punished; for his lack of control and commissions done by others. As a result, on the one hand, the concept of superior liability creates direct liability for the lack of supervision, and, on the other, indirect liability for the criminal acts of others. Art 28 (b) of the Rome Statute of International Criminal Court 1998 stated that, a superior shall be criminally responsible for crimes within the jurisdiction of the Court committed by subordinates under his or her effective authority and control, as a result ofhis or her failure to exercise control properly over such subordinates which are:
• The superior either knew, or consciously disregarded information which clearly indicated, that the subordinates were committing or about to commit such crimes;
• The crimes concerned activities that were within the effective responsibility and control of the superior; and
• The superior failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.
The ICC statute not only gives provisions for military commanders but also separately described the position of civilian superior or nonmilitary supe-
riors. The responsibility of "superiors" is triggered, according to Article 86(2) of the Additional Protocol 1 of 1977 (Shany & Michaeli), [2]. "If they knew, or had information which should have enabled them to conclude in the circumstances at the time, that he was committing or was going to commit such a breach and if they did not take all feasible measures within their power to prevent or repress the breach." The important thing, which should be noted here that, this provision is not limited to military commanders although; it was interpreted primarily as to them. ICTR Statute Article 6(3) and ICTY Statute Article 7(3) contains a provision resembling Article 86(2) of the Additional Protocol 1: "The fact that any of the acts referred to in. . . the present Statute was 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." Both tribunals have interpreted their respective statutes as permitting the attachment of responsibility to both military and nonmilitary superiors [3].
Elements of Crime -
The doctrine of superior responsibility, known traditionally as command responsibility [4], is well established, although its precise nature and content remain controversial [5]. One jurisprudential line has been to treat it as responsibility of the superior for the crimes committed by his subordinates [6], whereas another has been to treat it as a separate offence of dereliction by the superior of his duty to properly supervise his subordinates [7]. Recent jurisprudence supports the latter interpretation [8]. Four elements must be proven for a person to be held responsible as a superior. In general terms, these are: [9] (1) an international crime has been perpetrated by someone other than the defendant; (2) there existed a superior-subordinate relationship between the defendant and the perpetrator; (3) the defendant as a superior knew or had reason to know that the subordinate was
about to commit such crimes or had done so, and (4) the defendant as a superior failed to take the necessary and reasonable measures to prevent such crimes or punish the perpetrator [10]. Under the International Criminal Court (ICC) Statute, there is a further requirement of a causal link between the superior's dereliction of duty and the commission of the crime [11]. Ifwe analyze the elements of crime then we can found that, both ICTY and ICTR Statutes do not distinguish between types of superiors, while ICC Statute Article 28 expressly provides for the responsibility of both military commanders (and persons effectively acting as military commanders) and other superiors.
Historical background of superior responsibility -
The conception of recognizing the responsibility of commanders for the actions of their subordinates is not something which is very new. The first recorded trial for the commission of war crimes was held 536 years ago and it ended with the beheading of Peter von Hagenbach by an ad hoc tribunal of the Holy Roman Empire [12]. This trail was the stepping stone of the doctrine of command responsibility as this trail was recognized as the first international recognition of commanders to act lawfully. The doctrine of command responsibility enjoyed in the jurisprudence of international criminal law at the trial of Hagenbach, war crimes trials in general remained a rarity in the 500 years or so that followed [13]. Therefore we need to go back a century find command responsibility in the 1899 and 1907 Hague Conventions. The phrase 'command responsibility' was first used in the Leipzig trial of Captain Emil Muller, who was responsible for the Flavy de Martel Camp. The charges brought against Muller following the end of the First World War included:
• failure to maintain a decent condition of the camp which had resulted in many deaths due to dysentery;
• failure to prevent the commission of crimes and to punish the perpetrators thereof;
• infliction of physical violence towards the prisoners of the camp [14].
The sentence imposed on Muller was only for a period of 6 months. Moreover, The Leipzig trial remained restricted to trying the 'small fish'. Lloyd George's [15] campaign to prosecute the Kaiser Wilhelm II [16] for war crimes remained unrealized due to the opposition of President Woodrow Wilson [17] who apprehended that such a prosecution would stunt the joining of Germany at the League of Nations. This trend was also prevalent at the Tokyo trials where Emperor Showa [18] and all the members of the Imperial Family enjoyed blanket exoneration as part of the design of sovereign immunity. The Nuremburg trials however stood out as an exception to the Leipzig and Tokyo trials where 24 of the most important captured leaders of Nazi Germany were tried by the International Military Tribunal of who 12 received the death sentence [18].
The power of the military in contrast to a civilian background was found at the identities of the captured German leaders. Geoffrey Robertson notes that with the completion of the trial of the Nazi leaders, 'interest in prosecuting underlings and accomplices waned' [19]. However, Alfred Krupp along with a few other industrialists received jail sentences [19].
It is worth mentioning that even the passage of fifty years did not relieve the liability of corporations such as Siemens, Volkswagen and I. G. Farben who had to compensate the surviving relatives of those Jews who were deliberately worked to death [19]. Finally with the initiation of tribunals of the likes of the ICTY and the ICTR that covered the holding of the 'big fish' liable for the crimes of their subordinates and also successfully increased the entrance to holding civilian superiors liable also. ICTA, '73 also accommodates the doctrine of command responsibility under Section 4(2) where commanders or superior officers are liable for the crimes [20] committed by their subordinates.
The status of superior responsibility in customary law -
"Under International Law and International Humanitarian Law (IHL) commanders have a duty to ensure that their troops respect that body of law
during armed conflict and hostilities [21] and failure to do so may give rise to liability of the superior. A mere "breach of duty," whereby the commander has not fulfilled the responsibilities expected of his rank, is usually dealt with through disciplinary action. However, where a commander fails to prevent or punish violations of IHL by subordinates, criminal proceedings are likely, and the punishment to be meted out will reflect the gravity and nature of the crime committed by the subordinate" [22].
According to the judgment of Prosecutor vs Gh-ulam Azam (para 311), from an IHL perspective, it took another thirty years or so to have these principles codified in a convention. By 1977 the doctrine of command responsibility was accepted as customary international law and was codified in the Additional Protocol I to the Geneva Conventions, relating to the International Armed Conflicts. Its status as customary law was confirmed with the explicit inclusion of command responsibility in article 7(3) of the Statute of the International Criminal Tribunal for the former Yugoslavia (ICTY) and article 6(3) of the International Crimes Tribunal for the former Rwanda (ICTR) of the Statute of the International Criminal Court (ICC). It should be noted and also evident from several cases that international law recognizes the principle of command responsibility both in international and in internal armed conflict [23]. By the adaptation of this civilian superior responsibility in numerous international instrument and through volumes of judgments from international tribunals it has now become part of customary international law that the military doctrine of command responsibility is also applicable to civilians in the form of civilian superior responsibility.
How superior responsibility inserted in sec 4 (2) of ICT Act -
As per the amendment of section 3 of the Act of 1973, in 2009, the Tribunal now has jurisdiction to try and punish any non-military person [civilian], whether superior or subordinate, who has direct or indirect involvement with the relevant crimes. In other words,
the Tribunal now has jurisdiction to try any accused who is a non-military person, including a civilian superior. Sec 04 (2) of this said Act which talks about the liability of the accused clearly stated that, "Any commander or superior officer who orders, permits, acquiesces or participates in the commission of any of the crimes specified in section 3 or is connected with any plans and activities involving the commission of such crimes or who fails or omits to discharge his duty to maintain discipline, or to control or supervise the actions of the persons under his command or his subordinates, whereby such persons or subordinates or any of them commit any such crimes, or who fails to take necessary measures to prevent the commission of such crimes, is guilty of such crimes."
In the case of Muhammad Kamaruzzaman the Tribunal notes that a civilian superior will be held liable under the doctrine of superior criminal responsibility if he was part of a superior-subordinate relationship, even if that relationship was an indirect one [24]. No formal document is needed to prove this relationship moreover, it may be well inferred from evidence presented and relevant circumstances revealed. The doctrine of superior responsibility is applicable even to civilian superiors of paramilitary organizations [25]. As a matter of policy, civilians should also be subject to the doctrine. The elements to be proven for a person to be held responsible under the theory of superior responsibility are (1) crime has been perpetrated (2) crime has been perpetrated by someone other than the accused (3) the accused had material ability or influence or authority over the activities of the perpetrators (4) the accused failed to prevent the perpetrators in committing the offence [25].
It is undisputed today that superior responsibility extends also to civilian political leaders, as Heads of State or party or Government officials or other civilians holding positions of authority [26, para 318]. The trial chamber of the ICTR in Kayishema and Ruzindana [27] judgment holds that......"The principle of superior responsibility applies not only to military commanders, but also encompasses political leaders
and other civilian superiors in positions of authority. The crucial question is not the civilian status of the accused, but the degree of authority he or she exercised over his or her subordinates."
Hence after discussing sec 4(2) of this Act with relevance case references it can be said that, sec 4(2) not only applying to military superiors but also equally apply to civilian superiors.
A Comparative study
For better understanding the doctrine of "civilian superior responsibility" we need to analysis the cases; both ICT and Foreign judgments' based on this doctrine. If we make a comparative study then we will be able to justify the decision of ICT-BD based on doctrine of civilian superior responsibility.
The Prosecutor v Dario Kordic and Mario Cerkez & The Prosecutor v Nahimana Case
Let me first analysis the The Prosecutor v Dario Kordic and Mario Cerkez case. In this case, a political leader was for the first time found guilty of war crimes and crimes against humanity [28]. Kordic, one of the two accused in the case, had exercised considerable authority during the conflict in Bosnia and, contrary to the accused in earlier cases, he did not have a clear military position. Therefore, the case offers a good basis for elaborating on the doctrine of superior responsibility with respect to civilian superiors [28]. Moving back to the facts of the case, On 26 February 2001, the Trial Chamber delivered its judgment in the case of Dario Kordi and Mario Cerkez, two Bosnian Croats who played prominent roles in the conflict in the Lasva Valley in Bosnia in 1992 and 1993 [28]. The accused were found guilty of having participated in a widespread or systematic campaign of persecution of the Bosnian Muslims in that region, in the course of which a number of Muslims were either killed or wounded and their homes, villages and towns were destroyed therefore, the crime of persecution amounted to a crime against humanity [28]. Furthermore, the accused were found guilty of unlawful attacks on civilians, murder, willful killing, and inhumane acts and other crimes falling under Articles
2, 3 and 5 of the Statute, namely grave breaches of the Geneva Conventions of 1949, violations of the laws or customs of war and crimes against humanity [28, P. 305-309]. The accused had acted in two completely different positions. Kordic was a regional leader who, among other positions, held the position ofVice President of the HZ H-B, the Croatian Community of Herceg Bosna. This was a separate Croatian community or entity for the Bosnian Croats, covering the area of Central Bosnia, established with the intention that it should become part of the Republic of Croatia [28, para 5]. Cerkez, on the other hand, was the Commander of a local Brigade, the Viteska Brigade, and as such participated in the conflict in the Lasva Valley [28]. It was the view of the Prosecutor that Kordic had held offices and positions which gave him both political and military powers to influence and control the aims and operations of the Bosnian Croat organisations and organs. Among other things he issued orders, appointed and dismissed persons to or from various offices, had the power to arrest or release Muslims in influential positions, who had been detained by the HVO. Furthermore, travelling and freedom of movement in territories controlled by the HVO was authorised by Kordic, as well as the passage of relief convoys through checkpoints [28, para 10]. According to the Prosecution there was, as a result, enough evidence to establish the responsibility of Kordic under Article 7(3). The Trial Chamber did not uphold this view of the Prosecution, but found the accused guilty only under Article 7(1). Nevertheless, the Trial Chamber in its judgment gave thorough consideration to the issue of superior responsibility. The Trail Chamber found both of them guilty and after that they appealed in the Appeals Chamber where the Appeals Chamber sentenced Dario Kordic 25 years of imprisonment and Mario Cerkez was given a new sentence of six years of imprisonment.
Prosecutor vs. Nahimana -
In 2007, the International Criminal Tribunal for Rwanda (ICTR) Appeals Chamber confirmed the conviction of Ferdinand Nahimana for public and
direct incitement to genocide and crimes against humanity, and it sentenced him to thirty years imprisonment [29]. Nahimana, a former university lecturer and former director of the Rwandan Ministry of Information, was the founder and director of RTLM, the only private radio station operating in Rwanda in 1993-1994, which served as a platform for a geno-cidal media campaign against the Tutsi population in Rwanda [30]. Nahimana himself never broadcast on RTLM. He was convicted under the doctrine of superior responsibility for failing to prevent the broadcasters from inciting to genocide in their programs or to punish them for having done so [31]. In fact, despite repeated statements to the effect that civilian superior responsibility is an established doctrine in the ad hoc tribunals, (Williamson, 2002) the entire jurisprudence of the ICTY and ICTR prior to Nahimana offers only two instances of conviction solely on the basis of superior responsibility, both of which concern military or paramilitary persons (Prosecutor v. Hadzihasanovic & Kubura, 2006). Nahimana is the first case in which either tribunal convicted a civilian solely (or even properly) on the basis of his superior responsibility in a purely civilian setting [32, P. 1044-52]. It basically demonstrates a leveling of the playing field between civilians and military personnel and has been hailed as a "giant leap forward" in the development of the civilian superior responsibility doctrine (Gordon, 2004).
Analyzing the Chief Prosecutor vs Professor Ghulam Azam case -
From the submission ofboth the parties and evidenced produced before the Tribunal, it is an admitted fact that accused Ghulam Azam was the Ameer (Head) ofthe then East Pakistan Jamaat-e-Islami during 1969 to 1971 and it is also undisputed that the accused was a prominent member of the 140-member central peace committee [26, para 555]. who played a significant role in forming Militia Bahinis such as Razakar, Al-Badr, Al-shams and peace committees in collaboration with Pakistan occupation forces [26, para 556]. The evidence as to status of the accused
leads the tribunal to hold that the accused became an indispensable person as well as de facto administrator to run the civil administration of the then East Pakistan by virtue of his civil superior status [26]. By this it appeared that, Accused Prof. Ghulam Azam as a defacto superior acted in such a manner which shows that his prime object was to annihilate the Bangalee nation in the name of protecting Pakistan. The accused was the head of East Pakistan Jamaat-e-Islami, but that stand did not give him licence to form Militia Bahinis with intent to attack upon unarmed civilians which resulted offences of genocide and crimes against humanity throughout the country in 1971 [26, para 386]. On scrutiny of the evidence on record, the Tribunal found that the prosecution has successfully proved the status of accused Prof. Ghulam Azam that he had superior responsibility over his subordinates but he failed to prevent them from committing atrocities as contemplated in section 4(2) which substantially aided and contributed to the commission of crimes against humanity, genocide and other class crimes as specified in section 3(2) of the Act during the War of Liberation in 1971 [26]. Therefore, the tribunal convinced to hold that Prof Ghulam Azam being a civilian superior is liable of offence done by its subordinates.
Analyzing the Chief Prosecutor v Motiur Rahman Nizami case
The disputed question which was raised in this case was, whether the tribunal has jurisdiction to try and pass decision regarding "civilian superior responsibility". In the opinion of the tribunal, in our jurisdiction, section 4(2) of the International Crimes (Tribunals) Act, 1973, provides that: "4(2). Any commander or superior officer who orders, permits, acquiesces or participates in the commission of any of the crimes specified in section 3 or is connected with any plans and activities involving the commission of such crimes or who fails or omits to discharge his duty to maintain discipline, or to control or supervise the actions of the persons under his command or his subordinates, whereby such persons or subordinates or any of them
commit any such crimes, or who fails to take necessary measures to prevent the commission of such crimes, is guilty of such crimes." [33, para 372].
To solve the issue of jurisdiction, the tribunal observed after considering the sentence structure and wording ofsection 4(2) ofthe ICT Act, 1973 that, the intention ofthe legislators, it is for the tribunal to interpret whether section 4(2) ofthe Act imposes superior responsibility to the civilian superiors [33, para 373].
In the opinion of the tribunal, a civilian superior need not to be the official superior of the perpetrators rather a de facto command over the perpetrators' is enough to hold someone responsible [33, para 374].
Moving back to the Nahimana Case, The ICTR found that Nahimana had been a superior of the RTLM staff. It also found that Nahimana [30] knew or had reason to know that his subordinates at RTLM were going to engage in incitement to genocide. For these reasons, it convicted him on superior responsibility grounds for not having taken reasonable and necessary steps to prevent the incitement or punish its perpetrators.
The tribunal also opined that, in earlier cases, it was mentioned that the doctrine of command responsibility is also applicable to the political leaders and other civilian superiors in position of authority. The crucial question is not the civilian status of the accused but the degree of authority he or she exercised over his or her subordinates. It is also a settled position of law that civilian superior responsibility has now become a part of customary international law. So, there is no scope to raise any question upon holding a civilian superior responsible under section 4(2) of the Act, 1973 [30, para 381].
Finally, the tribunal is of the opinion that, the president of Islami Chhatra Sangha is no doubt a designated post and the person holding such post maintains an office for the purpose for supervising works of the members as his subordinates [30, para 382]. The accused Motiur Rahman Nizami as the president of ICS was the ex-officio chief of Al-Badr Ba-hini in 1971 and thus he was a civil superior officer
in its true sense. Therefore, the accused as chief of both ICS and Al-Badr Bahini had a superior -subordinate relationship with the members of Al-Badr Bahini [30]. Hence under section 4(2) of the 1973 Act, he cannot neglect his liabilities as being a civilian superior.
Analyzing the Chief Prosecutor v Ashrafuzzaman Khan & Chowdhury Mueen Uddin Case
In the case of The Chief Prosecutor v Ashrafuzzaman Khan & Chowdhury Mueen Uddin, the tribunal opined that, since accused Ashrafuzzaman Khan and Chowdhury Mueen Uddin are proved beyond reasonable doubt that they had acted as 'chief executor' and 'operation-in-charge' of Al-Badar respectively and they had led the gang of Al-Badar men in picking up selected intellectuals on gun point they have been lawfully found to have participated the commission of abduction followed by killing of intellectuals, by leading and instructing the killing squad and also by virtue of their culpable position, and they had conscious knowledge about the plan and design in carrying out all the 'operations'. Therefore, they incur liability also under section 4(2) of the Act of 1973 which refers to the theory of civilian superior responsibility [34, para 444]. Hence the tribunal sentenced them with death penalty.
Analyzing The Chief Prosecutor Vs. Md Abdul Alim Case
In the case ofThe ChiefProsecutor vs Abdul Alim, the tribunal has correctly and clearly describes about "civilian superior responsibility." Here, the tribunal observed the decision of the ICTR Trial Chamber in the case of Zigiranyirazo which is as below:
"It is not necessary to demonstrate the existence of a formal relationship of subordination between the accused and the perpetrator; rather, it is sufficient to prove that the accused was in some position of authority that would compel another to commit a crime following the accused's order" [35, para 381].
The tribunal exemplifies the term authority. According to the tribunal, authority is that position which has the power to act. Position of power meant
it gives its holder an effective control over his subordinates, this authority includes, a right to command, suggest or pursue a situation by act or conduct. The word authority is used to give orders, support, and encouragement and influence people what to do. If one has authority, he or she is in control and able to make others listen. Synonyms of the expression 'authority' include 'command', 'domination', 'influence', 'permit' etc. [36, para 628].
Tribunal further notes that an individual is termed as a 'leader' when his activity involves establishing a goal and common purpose by sharing the vision with others so that they will follow or obey him willingly or seek his final decision to be executed [36, para 629] Leadership is a process by which a person influences others to accomplish an organizational objective. The 'knowledge' requirement is not needed to prove accused's superior position within the ambit of the Act of 1973. However an individual's superior position per se is a significant indicium that he had knowledge of the crimes committed by his subordinates. Additionally, 'knowledge' may be proved through either direct or circumstantial evidence [36].
The tribunal found the accused Alim guilty the under 'theory of civilian superior responsibility', as he was the local leader of Convention Muslim League, was the chairman/ influential leader ofJoy-purhat peace committee whose member did crime against humanity and genocide against the people of Bangladesh [36, para 630].
Now if we analyze the above cases, we can find some similarities and dissimilarities. Though ICT is a domestic law but the characteristics of the offence has an international character. ICYT, ICTR and ICC have applied this doctrine to civilian superior and the elements of crime are nearly same to ICT. However there are some difference lies in interpreting the Act. Through a comparative study, the slide differences between ICT act and other tribunals or jurisdictions will be visible. Thus, we need to go back to the elements of crime which has
been discussed in 2.2 in chapter 2. Here three basic elements needed to be proved for a superior to be held liable under superior responsibility; these are; i) superior- subordinate relationship; ii) knowledge and; iii) failed to take the necessary and reasonable measures to prevent the criminal acts or punish the subordinates. First we will be discussing the element of superior subordinate relationship. The superior subordinate relationship may be established in two independent ways (1) De-jure: if the commander has structural authority over its subordinates and (2) De Facto: if the commander got no lawful or structural authority over the subordinates, but in reality got actual command and influence over the subordinates [36, para 313]. This means that the superior will be having "effective control" over his subordinates. At this moment the question may arise that who is a genuine superior? It is a crucial question because "only those superiors, either de jure or de facto, military or civilian, who are clearly part of a chain of command, either directly or indirectly, with the actual power to control or punish the acts of subordinates may incur criminal responsibility" [37]. The ICTY adopted a concept of "effective control over a subordinate" referring to a "material ability to prevent or punish criminal conduct, however that control is exercised" [38, para. 256]. This was taken over by the ICTR which emphasized that general influence is not sufficient to establish a superior subordinate relationship [39, para 415]. At the same time it is not necessary to show direct or formal subordination, but "the accused has to be, by virtue of his position, senior in some sort of formal or informal hierarchy to the perpetrator." [40, para 59]. Therefore both the ICTY and ICTR have underlined that an official position is not determinative for superior responsibility because it is the actual possession or non-possession of powers to control subordinates that may lead to conviction or acquittal [38, para 256]. In the case of Oric, the ICTY stressed that the possession of de jure authority does not result in a presumption of effective control; such a possession provides merely
some evidence of effective control [41]. In Prosecutor v. Aleksovski [42], and in Prosecutor v. Delalic, [43], the defendants were the de facto commanders of prison camps where combatants and civilians were detained. They were responsible for conditions in the camps, with de facto authority over the officers, guards, and detainees. In both cases, the defendants were held responsible for failing to repress crimes that their subordinates had committed because they had an effective control over their subordinates. On the other hand, The ICTY Trial Chamber found in both the cases of Cordic and Boskosk; that though they were civilian leaders but they did not have effective control over the direct perpetrators of the Crimes and thus both of them were acquitted of their responsibilities as superiors [26, para 327]. Conversely in the Chief Prosecutor vs Ghulam Azam case, it was held that, Golam Azam as leader of the political party, i.e. Jamaat-i-Islami that issued Identity Cards to Razakars members through which the party acknowledged giving them arms and ammunition to trained Razakars members, cannot easily escape from denying effective control over them and possessing the material ability to prevent crimes committed by them because it was his party that in fact gave arms and ammunition to Razakars members. From the above, it is therefore justify to infer a superior-subordinate relationship between Golam Azam and the Razakars because Golam Azam did have the material ability to prevent the commission of the crimes the Razakars committed because he possessed 'effective control' over them. By comparing the above cases it can be said that, for held a superior liable in ICT the tribunal rely upon the facts and evidenced adduced before the tribunal which shows that having de facto authority a superior can be held liable. The second element is knowledge, while the respective statutes of ICTY, ICTR and the ICC require the civilian superior to have knowledge of the commission of crime by a subordinate in order for liability to attach; under the ICT Act of1973 there is no mens rea or mental state requirement (The
Bangladesh International Crime tribunal observer, 17-21 March 2003, pg 3). Apparently section 4(2) is silent about the knowledge part of the superiors. But this tribunal thinks that the "Judges of the common law shall supply the omission of the legislatures." Therefore, it has been held that the Prosecution does not need to prove knowledge, whether actual or constructive, in order to establish that Gholam Azam is liable under the superior responsibility doc-trine[26]. ICT Act codifies superior responsibility as a "strict liability" crime, which would mean that a superior would always be liable for the criminal act of his subordinate, regardless of his knowledge or intent vis-a-vis the subordinate's crime [26]. Whereas, The ICTY has frequently explained that superior responsibility is not a form o f strict liability (the ICTR has concurred), i.e. a person is responsible simply because he is the superior [38, paras 226, 239]. As in the case of Yamashita [38, paras 228.-239] the superior has no "duty to know."
The mental element is "determined only by reference to the information in fact available to the superior" Pavle Strugar, [4]. However, it is not necessary to prove that the superior had specific information about the crimes.- even general information in his possession, which would put him on notice of possible unlawful acts by his subordinates, is sufficient to prove that he "had reason to know." [38, para. 238] Third and last element is Omission on the part of the civilian superior. Section 4(2) of the ICT Act, 1973 provides that "any commander or superior officer, who orders, permits, acquiesces or participates in the commission of any of the crimes specified in section 3 or is connected with any plans and activities involving the commission of such crimes or who fails or omits to discharge his duty to maintain discipline, or to control or supervise the actions of the persons under his command or his subordinates, whereby such persons or subordinates or any of them commit any such crimes, or who fails to take necessary measures to prevent the commission of such crimes, is guilty of such crimes." The noticeable part of this section is that, Section 4(2) of ICTA '73
speaks only of the failure on the part of the superior to prevent the commission of crimes. Nowhere is it mentioned that the portion or element which are mentioned in the ICC or other jurisdictions. According to sec 28(b) of the ICC statute 1998, the superior had failed to take all necessary and reasonable measures within his power to prevent or repress the crime or to submit the matter to the competent authorities [26, para 320]. Therefore the difference which lies here is that, ICT does not require the component of the punishment by the superior rather his failure to prevent the commission.
Conclusion
The basic question of this research paper is, the scope of sec 4(2) of 1973 Act will be equally applicable for civilian superior or not. The requirements for the 'civilian or non-military' superior were laid out in Prosecutor vs. Bagilishema, where it was held that the doctrine of command responsibility "extends to civilian superiors only to the extent that they exercise a degree of control over their subordinates which is similar to that of military commanders. For a civilian superior's degree of control to be 'similar to' that of a military commander, the control over subordinates must be 'effective' and the superior must have the 'material ability' to prevent and punish any offence. The exercise of de facto authority must be accompanied by the trappings of the exercise of de jure authority [3, para 42].
Section 4(2) of ICTA, '73 is similar to the ICTY and ICTR provisions in this respect because it does not effectively distinguish between military and civilian commanders. It refers to the command responsibility of any 'commander or superior officer' [20]. The precedent and rationale behind Bagilishema may be utilized in this respect to incorporate the liability of civilian superiors within the framework of Section 4(2). Such would not be unreasonable because an amendment made to Section 3(1) of ICTA, '73 in 2009 widens the jurisdiction of the Tribunal by giving it the power to 'try and punish any individual... who commits ... any of the crimes mentioned in sub-section (2)' [44]. Therefore it is clear that sec 4(2) is equally applicable
for civilian superior and it can also be said that the judgments given by the ICT on basis of this doctrine cannot be subjected to any questioned. Now if we analyze the whole research paper then we can see that, sec 4(2) is slightly different from ICTR, ICTY and ICC statute. Firstly the foreign statutes and tribunals said that, there has to be a sufficient evidence to proof the effective control ofsuperior over his subordinates. Mere holding a position will prove that he is responsible for the commission done by the subordinates. De jure relationship has to be proven which we found in Kordic case. Unlike this, ICT 1 in Ghulam Azam case rightly pointed out that De facto authority will be enough to hold a superior liable. Moreover if we look at the knowledge part then we can see the major difference in elements of crime. ICC explicitly said that mens rea has to be proven and knowledge on the part of the superior is also a major part. On the other hand, in the Ghulam Azam case the tribunal passed a decision that as sec 4(2) is silent about the knowledge part of material state of superior therefore, there is no need of proving mens rea or mental state requirement. The omission on the part of the superior to control or prevent his superior is also an important part. The ICC statute also talks about the punishment of the subordinates by the superiors after knowing the commission of any offense. However the punishment portion is not mentioned in sec 4(2). Only omission to prevent the subordinate is enough to hold a superior liable for the acts done by its subordinate. Hence, the verdict given by the ICT 1 in Ghulam Azam case was rightly passed and it opens the door punish the culprits and develop the international criminal law by the application of the doctrine of civilian superior responsibility.
Conclusion
Superior responsibility is the mode of liability where it is difficult to impose the liability upon the superior that the superior participated in the commission of crimes, but where it is clear that he played an indirect role in enabling their commission or creating favorable conditions by inactivity. The superior is not directly liable for the crimes done by his sub-
ordinates rather he is liable for the omission done by him such as failure to control and prevent the commission of his subordinates. This doctrine has applied in our war crime tribunal. The Tribunal is a domestic judicial mechanism set up under national legislation and it is meant to try internationally recognized crimes and that is why it is known as 'International Crimes Tribunal'. Despite the fact that ours is a domestic Tribunal set up under International Crimes (Tribunal) Act, 1973, a domestic legisla-
tion, the Tribunal shall never be precluded to seek guidance from the universally recognized norms and principles laid down in international law and International Criminal Law with a blend of national law, in trying the persons responsible for perpetration of crimes enumerated in the Act of 1973. This doctrine helps to catch the "big fish" or head of the groups who played an important role against our liberation war. By giving the accused punishment Bangladesh sets an exceptional example in the world.
References:
1. Whereas the term 'command' seems to limit the doctrine to a military context, 'superior' is a broader term extending to civilians as well. As such it was adopted by the Rome Statute. See also W. J. Fenrick, 'Some International Law Problems Related to Prosecutions before the International Criminal Tribunal for the Former Yugoslavia', 6 Duke Journal of Comparative and International Law - 1995.- at 110 fn. 21.
2. Shany and Michaeli argue that Article 86(2) concerns the responsibility of military commanders for the crimes committed by subordinates under their command and control, while Article 87(1) concerns the responsibility of military commanders for dereliction of duty to control persons under their command or control.
3. For the ICTY, see Delalic, Case No. IT-96-21-T. 363. ("Thus, it must be concluded that the applicability of the principle of superior responsibility in Article 7(3) extends not only to military commanders but also to individuals in non-military positions of superior authority."). For the ICTR, see Prosecutor v. Bagilishema, Case No. ICTR-95-1A-T, Judgment, 42 (June. 7,- 2001). ("There can be no doubt, therefore, that the doctrine of command responsibility extends beyond the responsibility of military commanders to encompass civilian superiors in positions of authority.").
4. Superior Responsibility of Civilians for International Crimes Committed in Civilian Settings, Yeal Ronen - 2010.- 315 p.
5. Beatrice I. Bonafe, Finding a Proper Role for Command Responsibility, 5 J. INT'L CRIM. JUST. 599,2007. P. 604-11 (discussing the limited application of superior responsibility in practice); Mirjan Damaska, The Shadow Side of Command Responsibility, 49 AM. J. COMP. L. 455,- 2001.- P. 458-71. (discussing the divergence of superior responsibility in international law from similar principles in municipal law); Arthur T. O'Reilly, Command Responsibility: A Call to Realign the Doctrine with Principles, 20 AM. U. INT'L L. REV. 71,- 2004-2005.- P. 99-101 (arguing that superior responsibility should be applied less broadly).
6. Prosecutor V. Akayesu Case No. ICTR-96-4-T, Judgment, - 471 p. (Sept. 2,- 1998) (discussing "the principle of the liability of a commander for the acts of his subordinates"); 1 Jean-Marie Henckaerts & Louise Doswald-Beck, Customary International Humanitarian Law - 2005.- P. 558-60. Payam Akhavan, The Crime of Genocide in the ICTRJurisprudence, 3 J. INT'L CRIM. JUST. 989, - P. 993-2005. ("This doctrine provides that a superior is criminally responsible for the acts committed by his subordinates."); see also Kevin Jon Heller, Rome Statute in Comparative Perspective 29-30 (Melbourne Law Sch., Legal Studies Research Paper No. 370,- 2008), available at URL: http://papers.ssrn.com/sol3/papers.
cfm?abstract_id=1304539 (stating that Article 28 holds superiors responsible for the actual crimes of their subordinates).
7. Nicholas Tsagourias. Command Responsibility and the Principle of Individual Criminal Responsibility: A Critical Analysis of International Jurisprudence, in Essays In International Law In Honour OfJudge Navi Pillay (William Schabas ed., forthcoming Brill - 2010) (manuscript at 1-2, on file with the author) (internal citations omitted); see, e.g., Prosecutor v. Hadzihasanovic & Kubura, Case No. IT-01-47-T, Judgment, - 75 p. (Mar. 15,- 2006) (treating failure to prevent or punish crimes as a separate offense from the crimes).
8. The two interpretations may be compared to the distinction between vicarious liability and a direct duty of care. Prosecutor v. Oric, Case No. IT-03-68-T, Senior Political And Military Leaders As Principals To International Crimes 106-2009; Tsagourias, supra note 7 (manuscript at 12, on file with the author) (describing command liability as a separate type of liability for a failure to act); Chantal Meloni, Command Responsibility: Mode of Liability for the Crimes of Subordinates or Separate Offence of the Superior?, 5 J. INT'L CRIM. JUST. 619,- 2007.- P. 633-37. (discussing the implications of treating superior responsibility as a separate offense). For a nuanced interpretation of ICC Statute Article 28 see Volker Nerlich, Superior Responsibility under Article 28 ICC Statute: For What Exactly is the Superior Held Responsible?, 5 J. INT'L CRIM. JUST. 665,- 2007.- P. 668-71. (arguing that in most contexts, superiors should only be held accountable for failing to control their subordinates, not for the subordinates' actual crimes).
9. Oric, Case No. IT-03-68-T.- 293.
10. Prosecutor vs. Oric, ICTY, Case number-IT 03-68-T293.
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13. Hossain Sanjeeb M. "Evaluating 'Civilian' Superior Responsibility", in Tureen Afroz (ed), Genocide, War Crimes & Crimes against Humanity in Bangladesh: Trial Under International Crimes (Tribunals) Act,-1973. Dhaka: Forum for Secular Bangladesh and Trial ofWar Criminals of- 1971,- 2010.- P. 142-161.
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15. David Lloyd George (January 17,- 1863.- March 26,- 1945) was Prime Minister (1916-1921) of the United Kingdom who guided the British Empire through the First World War to victory over Germany.
16. Friedrich Wilhelm Victor Albert (Kaiser Wilhelm II) (January 27,- 1859.- June 4,- 1941) was the last German Emperor and King of Prussia, ruling both the German Empire and the Kingdom of Prussia from June 15,- 1888. to November 18,- 1918.
17. Thomas Woodrow Wilson (December 28,- 1856 - February 3,- 1924) was the 28th President of the United States.
18. Emperor Showa, also known as Hirohito (April 29,- 1901.- January 7,- 1989) was the 124th emperor ofJapan reigning from December 25,- 1926. until his death in - 1989.
19. Robertson G. Crimes Against Humanity - The Struggle For Global Justice (Penguin Books - 2006), at P. 254-255.
20. Crimes under Section 3(2) of ICTA, '73.
21. Prosecutor Vs Golam Azam.- 2013.- para 310.
22. Celebic' Case - No. IT-96-21-A, 20 February - 2001.- at 226.
23. Protocol Additional to the Geneva Conventions of 12 August - 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 1125 UNTS3.
24. The Chief Prosecutor Vs Muhammad Kamaruzzaman - 2013.
25. The Chief Prosecutor Vs Ali Ahsan Muhammad Mujahid - 2013.- para 178.
26. The Chief Prosecutor Vs Ghulam Azam - 2013.- para 318.
27. Prosecutor V. Kayishema & Ruzindana - 1999.
28. Prosecutor V. Dario Kordi. and Mario Cerkez - 2001.
29. Nahimana V. Prosecutor.- 2007. (affirming conviction on some counts and reducing sentence from life imprisonment to thirty years).
30. Prosecutor V. Nahimana.- 2003; see also Prosecutor V. Bikindi,- 2008. (concluding that RTLM was a vehicle for anti-Tutsi propaganda as of at least the end of - 1993).
31. For an overview of aspects of the Nahimana Appeal Judgment other than superior responsibility, see Sophia Kagan, The "Media Case" Before the Rwanda Tribunal: The Nahimana et al. Appeal Judgment, 3 HAGUE JUST. J. 83-2008. available at URL: http://www.haguejusticeportal.net/Docs/HJJ-JJH/ Vol_3 (1)/Media_Case_ Kagan_EN.pdf (discussing the decision generally); Catharine A. MacKinnon, International Decisions: Prosecutor v. Nahimana, Brayagwize, & Ngeze.- 2009. (discussing the appeals court's temporal analysis of the incitement to violence).
32. Nahimana V. Prosecutor, Case No. ICTR-99-52-A, Judgment, P. 1044-52.- Nov. 28.- 2007.
33. The Chief Prosecutor v Motiur Rahman Nizami - 2014.- para 372.
34. Chief Prosecutor v Ashrafuzzaman Khan & Chowdhury Mueen Uddin - 2013.- para 444.
35. Zigiranyirazo, ICTR Trial Chamber, December 18,- 2008.- para 381.
36. The Chief Prosecutor vs Abdul Alim,- 2013.- para 628.
37. Dario Kordi and Mario Cerkez, Case No IT-95-14/2-T, ICTY, Judgement of the Trial Chamber, 26 February - 2001. - para 416.
38. Zejnil Delali and Others, Case No IT-96-21-A, ICTY, Judgement of the Appeals Chamber, 20 February -2001.- para 256.
39. Laurent Semanza, Case No ICTR-97-20-T, ICTR, Judgement of the Trial Chamber, 15.- March - 2003.-para 415.
40. Sefer Halilovi, Case No IT-01-48-A, ICTY, Judgement of the Appeals Chamber, 16. October - 2007.-para 59.
41. Naser Oric, Case No IT-03-68-A, ICTY, Judgement of the Appeals Chamber, 3 July - 2008.- paras 91, 92.
42. Case No. IT-95-14/1-T.
43. Case No. IT-96-21-T.
44. The amended version of Section 3(1) of ICTA, '73 in full now reads: '(1) A Tribunal shall have the power to try and punish any individual or group of individuals, or any members of any armed, defence or auxiliary forces, irrespective of his nationality, who commits or has committed, in the territory of Bangladesh, whether before or after the commencement of this Act, any of the crimes mentioned in sub-section (2)'.
