Further to Just Security’coverage on Tuesday of the potential war crimes liability of U.S citizen/Libyan warlord General Khalifa Haftar, this article discusses the distinction under international criminal law between (1) ordering the commission of offenses and (2) being found liable under the doctrine of superior responsibility for failing to prevent or punish the commission of abuses by subordinates. As I discuss in an earlier piece, while the latter form of responsibility is not fully codified in U.S. law, legal liability associated with ordering offenses is well established in the federal penal code and would support a domestic prosecution of Haftar under the U.S. War Crimes Act.

Superiors can be held liable for the criminal acts of their subordinates through several distinct modes of liability. Two will be considered here: the ordering of subordinates to commit offenses and the failure to prevent abuses or to punish subordinates who have committed abuses. Other applicable forms of liability derived from doctrines of co-perpetration, complicity, incitement, and conspiracy may also implicate leaders in the commission of abuses by their confederates.

Individuals who order a crime to be committed are individually culpable if the order achieves its purpose in inducing others to act. (See Article 146 of the Fourth Geneva Convention). The existence of an affirmative act on the part of the superior—the order—is what distinguishes ordering liability from superior responsibility, which is premised on a culpable omission. Ordering the commission of a crime is thus a form of direct, rather than vicarious, liability.  The concept of an order has been defined as:

A demand for action or omission, written or oral, addressed either to a specific individual or unknown recipients, which compels its addressees to implement the demanded action or omission.

Superior responsibility attaches if the defendant had actual or constructive knowledge that his/her subordinates were committing abuses and s/he did not take necessary and reasonable measures to prevent these abuses or to punish the perpetrators. The theory of liability is thus premised on the commander’s failure to exercise powers of command and control over subordinates in the face of a duty to act. Although originally developed in the military context, the doctrine of superior responsibility applies to both military and civilian superiors.

Depending on the nature of the evidence, prosecutors will often indict leaders under both theories of responsibility. This was the case with respect to Croatian General Tihomir Blaškić, who stood accused by the International Criminal Tribunal for the Former Yugoslavia (ICTY) of having planned, instigated, ordered, or otherwise aided and abetted in the planning, preparation, or execution of war crimes during an attack on several Bosniak villages in concert with members of the defense council of a breakaway political entity. The Trial Chamber convicted the defendant on the basis of his written orders and, in the alternative, under the doctrine of command responsibility. The Appeals Chamber reversed, reasoning that the orders were not inherently unlawful or of a type to give rise to a substantial likelihood that crimes would be committed in their execution. The superior responsibility conviction was also reversed based upon the conclusion—in part undergirded by new evidence adduced on appeal—that the defendant lacked effective control over the military units responsible for the commission of the crimes in question.

In considering the elements of liability for ordering the commission of crimes, international and domestic courts have established the following principles:

First: The defendant must be in some sort of hierarchical relationship with respect to the individual(s) who actually committed the crime. The Trial Chamber in the Prosecutor v. Akayesu case before the International Criminal Tribunal for Rwanda (ICTR) thus held that “Ordering implies a superior-subordinate relationship between the person giving the order and the one executing it. In other words, the person in a position of authority uses it to convince another to commit an offense.”

That said, in Prosecutor v. Kordić & Čerkez, an ICTY Trial Chamber ruled that “no formal superior-subordinate relationship is required for a finding of ‘ordering’ so long as it is demonstrated that the accused possessed the authority to order.”

Second: In terms of the mens rea of the offense, liability attaches when the defendant superior intends that his or her subordinate commit the ordered crime. In the absence of a showing of direct intent that the crimes be committed: “A person who orders an act or omission with the awareness of the substantial likelihood that a crime will be committed in the execution of that order, has the requisite mens rea for establishing liability [for] ordering.  Ordering with such awareness has to be regarded as accepting that crime.”

Third: It is unlawful to convey patently illegal orders down a chain of command. The military commission in the World War II-era High Command case (U.S.A. v. Wilhelm von Leeb et al.) thus held: “to find a field commander criminally responsible for the transmittal of such an [illegal] order, he must have passed the order to the chain of command and the order must be one that is criminal upon its face, or one which he is shown to have known was criminal.”

Fourth: There is a split in authority as to whether the order must be executed for liability to attach. By most accounts, the criminal act is complete upon the issuance of an illegal order.  A famous U.S. case is that of General Jacob H. Smith, who was court martialed for issuing orders to take no prisoners while he was commanding general of the Sixth Separate Brigade in the Philippines in 1901. As it turned out, his subordinates did not heed his order to the fullest extent, as it was in clear violation of the rules of engagement, but he was admonished nonetheless.  By contrast, the International Criminal Court can charge ordering only if the crime occurs or is attempted.  Article 25(3) of the ICC Statute thus states: “In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person: … (b) Orders, solicits or induces the commission of such a crime which in fact occurs or is attempted…”

Fifth: The existence of orders to commit abuses can be inferred, particularly when there is evidence that oral orders were issued on a regular basis or that the order could only have been issued by the defendant given his temporal or physical whereabouts. In many contemporary cases, prosecutors must infer the existence of orders or contend with he said/he said evidence because war criminals are careful to leave no physical trail. Rarely are such orders captured on film with the specificity and brutality seen in the Haftar case.