Arthur T. O’Reilly, Command Responsibility: A Call to Realign the Doctrine with Principles of Individual Accountability and Retributive Justice, 40 Gonz. L. Rev. 127 (2005).[PDF] [Westlaw] [LexisNexis]
The command responsibility doctrine criminalizes a failure by a superior to exercise necessary care to prevent or punish crimes by subordinates. The modern formulation of this doctrine permits criminal liability to be based upon a minimum mens rea of negligence and an actus reus of omission. This article proposes that such a combination of negligence and omission is incompatible with a deontological, retributive theory of criminal law that values the individual as the necessary unit of moral accountability. Under this doctrine, liability is established without conduct that exhibits strong individualized choice and without a mental element that reflects a guilty mind. As such, it persists as a utilitarian tool of victor’s justice favoring deterrence of crimes and the punishment of superiors over the principle of individualized fault.
International lawmakers and scholars must concern themselves with realigning the command responsibility doctrine with this bedrock principle. Absent such concern, support for international criminal justice may erode as the discord between principles of individualized liability and legal doctrines raises doubt regarding the justness and efficacy of the emerging framework of international criminal law. Admittedly, the tradition of positivism and the prevailing dynamic of compromise in international lawmaking may hinder the realignment proposed here. Nonetheless, greater attention must be given to deriving criminal doctrines from individualized fault principles and rooting them in a philosophy of law rather than succumbing to the appeal of utilitarian objectives.
Building upon a historical overview of the origins and evolution of the command responsibility doctrine and a discussion of the philosophy of criminal law, this article provides a normative critique of the elements of command responsibility and suggests an approach that international legislators should adopt to improve the doctrine in light of its normative failings and the peculiar nature of international law….Read More