Libya’s Haftar and Liability of Superiors: Ordering Offenses v. Responsibility for Omissions

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Other Writing
Publication Date: 
September 20, 2017

Further to Just Security‘s 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.

Read the full post at Just Security