International criminal law evolved since some time ago

LETTER | We have two very important investigation reports this week, one on the unlawful death of journalist Jamal Khashoggi (photo, above) and the other on the downing of MH17.

The first was completed by UN Special Rapporteur Agnes Callimard, and the second by a Joint Investigation Team, including from Malaysia.

This brief letter is to draw attention to the development of international criminal law on the concept of “command responsibility”, or sometimes known as “superior command responsibility”.

These concepts, originating from international customary law since the world wars, have evolved rapidly with the prevalence of rape and sexual violence in conflict by state and non-state perpetrators. It has become necessary to recognise these crimes as war crimes and crimes against humanity.

Command responsibility is indirect criminal responsibility and attaches to a person in a position of superior authority, whether military, political, business or any hierarchical status, for acts directly committed by his or her subordinates. This development arises from the nature of crimes in war scenarios which involve military personnel in a chain of command to the higher-ups in military or political rank.

The higher ups need not be involved directly in the physical commission of the crime. Direct involvement of perpetrators in an actual commission of a war crime is direct responsibility and the evolved terminology is “joint criminal enterprise”. Joint criminal enterprise creates individual responsibility.

The ICC case against the ousted Sudan president Omar al-Bashir for the genocide in Darfur in 2003, which caused the deaths of some 300,000 people and 2.5 million to be displaced, is a case of command responsibility as he was the leader of the forces (state and armed militias supported by the state in Darfur) that perpetrated these crimes.

It has become necessary for the law to reflect the political realities of war crimes and crimes against humanity and crimes perpetrated by states through its leaders.

I have not read the actual MH 17 report. From internet reports, it appears to call for appropriate criminal investigations of the individual parties (joint criminal enterprise) and a finding of command responsibility in the appropriate case. That would involve political negotiation and public pressure.

The fact that the International Criminal Court failed in initiating cases of war crimes and crimes against humanity of the international armed forces in some third states should not detract us from the value and importance of the development of international criminal law itself in attaching culpability.

The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.