Evaluating the Doctrine of Command Responsibility under International Criminal Law : Its Suitability in the Prosecution of Conflict-Related Sexual Violence Crimes

Abstract

The doctrine of command responsibility is a well-established norm of customary and conventional international law. This doctrine imputes criminal responsibility on a commander or superior for unlawful acts of his or her subordinates. Under international law, command responsibility is an important prosecutorial doctrine to prosecute military commanders or persons effectively acting as military commanders or superiors criminally responsible for crimes, including sexual violence crimes committed in armed conflict. The purpose of the doctrine of command responsibility is to offer a possibility to ensure that international crimes, including sexual violence crimes committed by subordinates in the context of armed conflict can be attributed to military commanders or civilian superiors for falling short in their legal duty to prevent, stop, or punish sex crimes committed against the civilian population. It also places legal obligations on commanders to take reasonable and necessary steps to prevent and suppress commission of crimes by persons under their command, or to report to competent authorities if the crimes are committed.

The importance of the doctrine of command responsibility cannot be overstated and therefore a clear understanding of it is crucial. Reports by the United Nations show that sexual violence crimes continue to increase in severity and scale in contemporary conflicts, with widespread and strategic rapes, including mass rapes, allegedly committed by several parties to armed conflict. The increase in severity and scale of sexual violence crimes in these contemporary conflicts, such as in the Democratic Republic of Congo (DRC) therefore necessitates a clear understanding of this doctrine to aid its successful application in future prosecutions.

During armed conflict, most of the sexual violence crimes are committed by foot soldiers or subordinates in the lowest ranks which makes it difficult for the prosecution to ascertain or effectively prosecute those who directly committed the crimes. Command responsibility offers the prosecution the best option to reduce the impunity gap and a chance for accountability. It also ensures some form of justice for victims hence making the examination of its content critical. Also, because international criminal courts and tribunals do not have the jurisdiction, resources, and capacity to prosecute all perpetrators of international crimes, a clear understanding of this doctrine will provide guidance to practitioners and domestic systems on how to successfully apply it. This study analyses the controversy and legal challenges of applying command responsibility to capture the mass criminality aspect of sexual violence crimes committed in armed conflict. The controversy and legal challenge include the assertion that it violates the principle of individual criminal responsibility and principle of personal culpability. Another legal challenge relates to the inconsistent characterization of the doctrine of command responsibility. That is, whether it is a mode of liability, principal liability for commission by omission or a sui generis responsibility for the commander’s own failure to control the subordinates. Additionally, the legal challenge of proving the substantive elements of command responsibility often makes it difficult for the prosecution to successfully get convictions for sexual violence crimes. An analysis of these legal challenges could therefore contribute to a higher success rate in the prosecution of sexual violence crimes based on command responsibility. Also, through conducting original research, this study seeks to help fill the gap in existing literature that does not adequately address the legal challenges that impede the successful application of command responsibility in prosecuting sexual violence crimes under international criminal law.