How command responsibility got so complicated: A culpability contradiction, its obfuscation, and a simple solution

Abstract

The literature on command responsibility is extensive and is rapidly growing more complex. In this article, I argue that command responsibility can be much simpler than it seems. I focus on a single puzzle, one hidden in plain sight. The puzzle is that international criminal tribunal jurisprudence uses command responsibility to convict persons without causal contribution to the crime, while also recognising a culpability principle that requires causal contribution. This stark contradiction has been obscured by many arguments in the jurisprudence and discourse. Indeed, many readers will raise a host of arguments to deny the contradiction I just described. I will dissect the major arguments to demonstrate that the contradiction does indeed exist. I argue that Tribunal jurisprudence took an early wrong turn in concluding that the 'failure to punish' branch of command responsibility is irreconcilable with a contribution requirement. This led to a rejection of causal contribution. Subsequent efforts to deny the resulting contradiction with the culpability principle, or to avoid it, have spawned many inconsistent, complex and convoluted claims about command responsibility. These include the descriptions of command responsibility as 'sui generis', as hybrid, as variegated, as responsibility for-the-acts-but-not-for-the-acts, as neither-mode-nor-offence or as sometimes-mode-sometimes-offence. However, if we revisit the first misstep, a simple and elegant solution is available. Command responsibility is a mode of accessory liability; it requires causal contribution and it is perfectly workable. I draw on scholarship from criminal law theory to explore the parameters of the contribution requirement.