Superior responsibility revisited: Milanković v Croatia
Delivering its judgment in Milanković v Croatia on 20 January 2022, the European Court of Human Rights (ECtHR) was yet once again faced with deciding whether prosecutions based on international crimes were in accordance with the principle of legality. The Court confirmed the applicability of superior responsibility to civilian leaders and in situations of non-international armed conflict on the basis of customary international law in its state in 1991. Thus, it found no violation of Article 7 of the European Convention on Human Rights (ECHR).
CASE BEFORE THE COURT
The case was filed by a Croatian national claiming to have been victim of a violation of Article 7 of the ECHR. The article in question is an embodiment of the principle of legality, generally conceived to provide that a person cannot face criminal punishment if the law at the time the act in question was executed did not deem it as criminal conduct and did not provide sanctions for it (nullum crimen, nulla poena sine lege). Moreover, in case the law was amended after the act, the accused should benefit from the application of the more lenient sanction (lex mitior).
The applicant was convicted for twenty-two counts of war crimes against the civilian population (having ordered three, personally committed two and failed to prevent seventeen), and one war crime against a prisoner of war (committed by omission). The acts took place during the armed conflict in Croatia in between August 1991 and June 1992, whereas the perpetrator was initially deputy head of a police department, to later become commander of police forces in the broader area in question. He was convicted by the Osijek County Court in 2013, whose decision was later confirmed by the Supreme, and Constitutional courts in 2014 and 2020, respectively.
Both in his domestic appeals and the case at the ECtHR, the applicant raised the following arguments in his defence:
The armed conflict in Croatia was a non-international one (NIAC) at the time of the acts;
The concept of superior responsibility applies solely to case of international armed conflicts (IAC);
Superior responsibility exists only for military commanders;
The identity of the exact perpetrators of the proscribed acts is unknown;
As deputy head of the police department, a more narrow scope of powers was vested in him in comparison to the head.
Agreeing with the findings of the domestic courts and invoking the jurisprudence of international tribunals, the ECtHR found no violation of Article 7 in the present case. The main findings of the Court can be summarised as follows:
The applicant’s conviction in the case is based on international law;
Assessing the state of international law in 1991, the principle of command responsibility has already at that point been applicable in both IACs and NIACs;
Appraising the foreseeability of his responsibility, it is of particular relevance (1) that albeit non-military, he was as police officer whose occupation is exercised with high caution; (2) that he obtained military education; and (3) that although not in force yet, Croatia had already declared its independence at that time. Hence, he could have predicted at least a risk of criminal liability;
Thus, the requirements of a legal basis, foreseeability and accessibility were met in the present case.
Seeing that the Court did not undertake a re-assessment of the factual circumstances in the case, the present blogpost will likewise not enter a more detailed analysis of the applicant’s arguments on the scope of his powers to prevent the commission of international crimes, nor the question of identity of the exact perpetrators thereof. Hence, the blogpost focuses on the notion of superior responsibility and its components. Therein, it elaborates on the two particular questions underpinning the case at hand with regards the scope of superior responsibility – its existence in NIACs, and its extension beyond military commanders, pursuant to customary international law.
SUPERIOR RESPONSIBILITY
In re Yamashita, the case of a Japanese general convicted by the United States courts in 1946 for failing to discharge his duties as commander of the troops in the Philippines during the armed conflict with the United States in 1944-1945, is deemed to be the first case which laid the foundations of command responsibility in international law (Cassese, International Criminal Law, p. 183). Having emerged into custom quickly afterwards, the concept was widely applied since at the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), the Special Court for Sierra Leone (SCSL) and the International Criminal Court (ICC).
The concept of superior responsibility as such enables the pursuit for the accountability of the individual who, albeit not personally perpetrating the criminal act, had disregarded their position and duty to prevent or punish the crime. Importantly, the failure to discharge superior responsibility is rather treated as a crime separate of that committed by their subordinates. Lacking the mental element for the commission of the crime of its subordinates, the responsibility of the commander is thus not equated to a mode of liability for that crime but is rather another criminal act for the disregard of the supervisory duty (Cassese, p. 191).
The elements that need to be present cumulatively in a case raising superior responsibility is that the person in question:
Were in effective control, meaning that he/she had the material ability to take measures to prevent or punish the act in question. While this condition can be met only if there is a superior-subordinate relationship, it does not require that it be one of an immediate superior and allows for there to be a chain of command. This is particularly relevant for the argument raised by the applicant that the head of the police department would have had a broader scope of powers than him to influence the subordinates’ behaviour. According to this condition, a comparatively narrow scope of authority would not have ipso facto excluded his command responsibility.
Knew or had reasons to know of the crimes. This presumes the person’s awareness of certain general information which would have put him/her on alert that the crimes could be, or could have been, committed, and does not require the superior to know the exact perpetrators or crimes.
Failed to prevent or punish the crimes. Such a condition is a requirement for the commander to take all necessary and reasonable measures at his/her disposal. For instance, the ICC mentioned training, disciplinary measures, an investigation into the circumstances, and submission of the matter to the competent authorities as illustrative of such measures (Bemba Trial Chamber).
A fourth element introduced by the ICC which was not present at the ad hoc international tribunals is the one of causality. Namely, the ICC requires that the superior’s failure to exercise control was the cause of the committed crime (Cassese, pp. 187-191).
Is superior responsibility applicable in NIACs?
In arguing the existence of command responsibility in IACs only, the applicant referred to Croatian domestic courts that invoked Additional Protocol I which is only applicable in IACs. However, as elaborated upon by the ECtHR, one needs to look beyond Articles 86 and 87 of the Protocol to grasp the full scope of superior responsibility pursuant to international law.
In addition to the intensity of violence threshold, one of the main requirements for the existence of a NIAC is the organisation of parties. While such organisation is presumed for the State party to the conflict, it requires an assessment exercise for the non-State armed group. This organisation criterion has been interpreted by the ICTY to include responsible command as one of the indicators enshrined in triggering the applicability of Common Article 3, and is also explicitly mentioned in the material scope of application of Additional Protocol II applicable to NIACs. In any case, the notion of responsible command can be seen as deriving from their obligation to ensure respect with IHL norms (Spadaro, Punished and Be Punished, pp. 5-7). This notion has formed the basis for the command responsibility of military superiors (Cassese, p. 186). Seeing its presence in both the IHL of IACs and NIACs, as pointed out by the ICTY in Hadžihasanović, there is no reason why the IHL derivative of command responsibility pursuant to international criminal law would not follow in NIACs as well.
Does the concept of superior responsibility extend to civil superiors?
Nonetheless, the notion of ‘responsible command’ stemming from IHL does not provide for the basis of extending superior responsibility beyond the confines of the military onto the civilian sphere. While missing a clear-cut answer as to the origin of this omission liability, superior civilian responsibility was embraced in post-World War II jurisprudence and featured prominently in the ICTR jurisprudence. Therein, the ICTR made an analogy on the degree of control such a civilian superior would exercise to that of a military commander (in particular, see cases of Media Appeals Chamber and Baghilishema Appeals Chamber – Cassese, p. 189). Finally, and as invoked by the defendant and confirmed by the Court, the ICTY’s Čelebići case confirmed the existence of superior responsibility of civilian superiors in its interpretation of both post-World War II jurisprudence and the ICTY Statute.
This possibility is now explicitly envisioned by the ICC Statute, whose Article 28 provides for separate paragraphs dealing with the superior responsibility of military commanders and civilian superiors. Nonetheless, the ICC puts a slightly different threshold on the element of knowledge (mens rea) when it comes to military and civilian superiors. The ICTY and the ICC agree that any information received by the commander that should have put him on notice and made him suspect that crimes were about to be committed is sufficient to bring about superior responsibility of the military commander. However, unlike the ICTY, the ICC makes a distinction in the threshold, with the bar for the civilian superior being higher and requiring either knowledge or conscious disregard of the information indicating a crime by their subordinates (Cassese, pp. 187, 190).
BEYOND SUPERIOR RESPONSIBILITY: CRIMES UNDER INTERNATIONAL LAW AND THE PRINCIPLE OF LEGALITY
As an alternative to finding a legal basis in domestic law and customary international law, the defence put forward that the principle of legality was in any case upheld via Article 7§2 of the ECHR. Therein, trial and punishment of a person for an act or omission is permitted insofar as it forms part of general principles of law recognised by civilised nations at that time of act. With the Court finding that there was a legal basis sufficiently foreseeable and accessible, it did not resort to that second paragraph. In general, Article 7§2 was seen by the ECtHR as a World War II relict, providing the legality umbrella for the laws adopted in the aftermath of the war so as to punish the crimes committed therein. Nonetheless, Cassese was of the opinion that this was not to say that future cases bringing about exceptional circumstances may not again justify the reincarnation of the second paragraph in ECtHR jurisprudence and the general principles as the legal basis.
Milanković was another chance for the Court to pronounce itself on the compatibility of convictions based on international crimes and their compliance with the legality principle. An assessment of its jurisprudence on the matter so far shows a prevalent trend of rather rare findings of violations of Article 7 (see for instance Korbely) and the Court siding with the domestic law solutions. However, what is more conspicuous is the legal reasoning the Court employs on the way to such a decision. Indeed, not going into the assessment of the Court’s judgment in terms of outcome in Milanković, the components of its reasoning seem to be circular to a certain point. Namely, the Court initially sets out a three-prong test as to the State’s compliance with Article 7 – the legal basis, and its accessibility and foreseeability. However, at the stage of appraising the legal basis for extending the notion of command responsibility to civilian superiors and in NIACs, it puts forward that, so long as the essence of the concept was preserved and the interpretation foreseeable, such a gradual clarification would not be deemed as going against the legality principle. Therein, it is as if the Court were relying on the presence of the second prong (that of foreseeability) in order to reach the final verdict on whether the first one (that of legal basis) was fulfilled. Ultimately, in casu, it is not obvious why the Court employs such an argument at all, having previously referred to the ICTY saying that both extensions already formed part of customary law in 1991.
Beyond that, two larger streams of issues had rightfully been put forward in scholarship – the risk of fragmentation of international law, and the inter-temporality of the law problem. Indeed, the ECtHR has not always found itself consonant with other international judicial institutions. In the Jorgić case, the ECtHR allowed for Germany to adopt a broader definition of genocide than the one referred to by the ICTY and the ICJ. Such actions, without a more consistent take on the interpretation of the principle of legality to that end, were seen as also going in the direction of a fragmentation of international law. Furthermore, although international criminal law today does not make crimes against humanity hinge upon their nexus with the armed conflict, as shown in the Kolk case, a nexus requirement was present in the Nuremberg Charter and Principles, and at the time when the crimes in Estonia were committed in 1949. Therefore, the ECtHR was (rightfully) criticised for applying the law not as it stood in 1949, but in 2006 at the time of the judgment. Although arguably aiming to satisfy substantive justice, such a decision was deemed as a very loose interpretation of compliance with the principle of legality.
Nonetheless, both the issue of inter-temporality of law and coherence in international law seem to have been avoided in Milanković. The Court concurred with the ICTY case-law and recalled the Hadžihasanović case, where the Trial Chamber affirmed that customary international law extended command responsibility in times of NIACs already in 1991. Furthermore, it also recalled the findings of both the Trial and Appeals Chamber in Delalić, Mucić et al. where the analysis of World War II jurisprudence provided the basis for extending superior responsibility to civilian superiors.
