PhD studies in human rights: Liability of the New Commander for Crimes of the Previous One

Monday, 26 January 2009

Liability of the New Commander for Crimes of the Previous One

One of our doctoral students, David Akerson, has asked for feedback, comments, ideas, suggestions, state practice, etc, on the issue of successor superior/subordinate liablity. the issue arises with respect to the new President. Does Obama have a duty under international law to punish subordinates he inherits from Bush if he knows (or has reason to know) that they have committed crimes.
Some relevant precedent he refers to:
The statutes of the international criminal tribunals, the relevant texts of which are derived from Additional Protocol I, articles 86 and 87. The language in these two provisions is conflicting; one uses present tense language and the other past tense. Present tense language (duty to punish crimes a superior knows his subordinates are committing) would argue against Obama having a duty. Past tense (duty to punish crimes a superior knows his subordinates have committed) would argue in favor of it.
Hadzihasanovic was indicted as a successor commander at the ICTY, and the Appeals Chamber found that the duty to punish, set out in article 7(3) of the Statute, did not extend to commanders for crimes committed by subordinates before the commander assumed command. However, it was a 3-2 decision, with judges Hunt and Shahabadeen issuing what David says were compelling dissents.
The Tadic trial chamber in dicta indicated that liability would extend to successor commanders.
The Rome Statute's version of Superior / Subordinate liability (art. 28) uses the present tense and thus excludes successor liability. The commentary indicates (with a note of irritation) that this creates the proverbial lacuna.
US Army Field Manual 27-10 para. 501 uses the past tense seeming to support successor liability.

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William A. Schabas is professor of international law at Middlesex University in London. He is also professor of international criminal law and human rights at Leiden University, emeritus professor human rights law at the Irish Centre for Human Rights of the National University of Ireland Galway, and an honorary professor at the Chinese Academy of Social Sciences, in Beijing and Wuhan University. He is the author of more than 20 books and 300 journal articles, on such subjects as the abolition of capital punishment, genocide and the international criminal tribunals. Professor Schabas was a member of the Sierra Leone Truth and Reconciliation Commission. He was a member of the Board of Trustees of the United Nations Voluntary Fund for Technical Cooperation in Human Rights and president of the International Association of Genocide Scholars. He serves as president of the Irish Branch of the International Law Association chair of the Institute for International Criminal Investigation. He is an Officer of the Order of Canada and a member of the Royal Irish Academy. Here is the full c.v.

Dr Yvonne McDermott is Senior Lecturer in Law at Bangor University, UK, where she is also Director of Teaching and Learning and Co-Director of the Bangor Centre for International Law. Yvonne is a graduate of the National University of Ireland, Galway (B. Corp. Law, LL.B.), Leiden University (LL.M. cum laude) and the Irish Centre for Human Rights (Ph.D.). Her research focuses on fair trial rights, international criminal procedure and international criminal law. She is the author of Fairness in International Criminal Trials (Oxford University Press, 2016).

Niamh Hayes has been the Head of Office for the Institute for International Criminal Investigations (IICI) in The Hague since September 2012. She is about to complete her Ph.D. on the investigation and prosecution of sexual violence by international criminal tribunals at the Irish Centre for Human Rights, National University of Ireland Galway. She previously worked for Women's Initiatives for Gender Justice as a legal consultant, and as an intern for the defence at the ICTY in the Karadzic case. She has lectured on international criminal law and international law at Trinity College Dublin and, along with Prof. William Schabas and Dr. Yvonne McDermott, is a co-editor of The Ashgate Research Companion to International Criminal Law: Critical Perspectives (Ashgate, 2013). She is the author of over 45 case reports for the Oxford Reports on International Criminal Law and has published numerous articles and book chapters on the investigation and prosecution of sexual and gender-based violence as international crimes.

Joseph Powderly is Assistant Professor of Public International Law at the Grotius Centre for International Legal Studies, Leiden University. Between September 2008 and January 2010, he was a Doctoral Fellow/Researcher at the Irish Centre for Human Rights, where he worked, among other projects, on a Irish Government-funded investigation and report into the possible perpetration of crimes against humanity against the Rohingya people of North Rakhine State, Burma/Myanmar. He is currently in the process of completing his doctoral research which looks at the impact of theories of judicial interpretation on the development of international criminal and international humanitarian law. The central thesis aims to identify and analyze the potential emergence of a specific theory of interpretation within the sphere of judicial creativity. Along with Dr. Shane Darcy of the Irish Centre for Human Rights, he is co-editor of and contributor to the edited collection Judicial Creativity in International Criminal Tribunals which was published by Oxford University Press in 2010. He has written over 80 case-reports for the Oxford Reports on International Criminal Law, as well as numerous book chapters and academic articles on topics ranging from the principle of complementarity to Irish involvement in the drafting of the Geneva Conventions. In December 2010, he was appointed Managing Editor of the peer-reviewed journal Criminal Law Forum. His research interests while focusing on international criminal and international humanitarian law also include topics such as the history of international law and freedom of expression.