The Practical Guide to Humanitarian Law

« Calling things by the wrong name adds to the affliction of the world. » Albert Camus.

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Responsibility

The notion of responsibility is an essential part of the implementation and respect for the law. A right is most often tied to a reciprocal obligation. If this obligation is violated, the individual who has committed such an act may be held accountable to his or her civil or criminal responsibilities. Responsibility is often individual, notably in international criminal law. State representatives benefit from jurisdictional immunity, except in matters of war crimes, crimes against humanity, and genocide. A special pattern of responsibility applies to States in case of violations of their international engagements toward another State. The responsibility of the State is triggered by the action of its agents and notably its armed forces, but also by individuals or groups that act, as a matter of fact, under its effective control (infra). The International Court of Justice is competent to examine such situations and to compel States to pay reparations.

Respect for human rights also rests on the responsibility of States. It is upheld by a number of instruments allowing various forms of recourse, either judicial or not, in front of different national and international institutions. State responsibility for violations of human rights, which is still at an embryonic stage, should not be confused with individual criminal responsibility or with State responsibility in classical interstate relations.

Human rightsImmunityIndividual recourse

Respect for humanitarian law, on the other hand, rests on the enumeration of the specific obligations for which States (I), commanders (II), and combatants (III) are responsible. International humanitarian law delineates and affirms the individual criminal responsibility of the different hierarchical actors involved in armed conflict. In case of grave breaches of humanitarian law, it also sets forth the recourses that can be used. Such recourses include international criminal prosecution.

International humanitarian law does not set forth obligations for humanitarian organizations in terms of criminal responsibility and sanctions. However, it does establish their responsibility to respect humanitarian law in the context of their relief actions. Their responsibility as witnesses is also engaged when they confront massive crimes or coercion committed against the populations that they take in charge (IV). The judgments pronounced by the International Court of Justice and International Criminal Tribunals have clarified the constitutive criteria of responsibility (infra).

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The Responsibility of States under International Humanitarian Law

International humanitarian law provides a number of obligations that trigger the international responsibility of States in case of violations. This responsibility differs from the individual responsibility of State agents, even when they act under orders.

State responsibility for failing to respect obligations under IHL can be triggered in front of the International Court of Justice by other governments suffering damages related to such violations and can lead to compensation. State failure to prosecute perpetrators of war crimes, crimes against humanity, and genocide at the national level may in certain circumstances trigger the competence of the International Criminal Court. Indeed, the Court’s jurisdiction over a situation is established by the State ratification of the ICC Statute or by a binding decision of the United Nations Security Council, when this State is unwilling or unable to prosecute alleged offenders (Art. 17 of ICC Statute).

States party to the Geneva Conventions “undertake to respect and to ensure respect for the [Geneva] Conventions in all circumstances” (GCI–IV Art. 1; API Arts. 1, 80.2). This general commitment translates into several concrete responsibilities:

  • States are under the obligation to disseminate the text of humanitarian law conventions widely among their armed forces and civilians (GCI Art. 47; GCII Art. 48; GCIII Art. 127; GCIV Art. 144; API Arts. 83.1, 87.2; and APII Art. 19). For instance, they should include the rules and regulations of humanitarian law in their military regulations, instructions for armed forces, and code of military discipline, and they must ensure that their commanders know the rules.
  • Political and military authorities have the obligation to take all necessary measures to ensure that the obligations foreseen by humanitarian law are respected (GCI Art. 49; GCII Art. 50; GCIII Art. 129; GCIV Art. 146; and API Arts. 80.1, 86, and 87).
  • States are under the obligation to enact any legislation necessary to provide effective criminal sanctions for persons committing, or ordering to be committed, any of the grave breaches (GCI Art. 49, GCII Art. 50, GCIII Art. 129, and GCIV Art. 146).
  • States are under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons before their own courts (GCI Art. 49, GCII Art. 50, GCIII Art. 129, GCIV Art. 146, and API Art. 86). This is regardless of the nationality of the accused, who may be a member of their own armed forces.
  • States are responsible for all acts committed by members of their armed forces. Furthermore, if a State violates humanitarian law, it may be held accountable and be compelled to pay compensation (API Art. 91).
  • A State may not absolve itself or any other State of any liability incurred with regard to breaches of the Geneva Conventions committed by their authorities, their nationals, or in their name (GCI Art. 51, GCII Art. 52, GCIII Art. 131, and GCIV Art. 148).

These treaty provisions of State responsibility are confirmed by the customary IHL study published by the ICRC in 2005. Rules of customary humanitarian law draw the following obligations that rest on States in connection with their actions in international and non-international armed conflicts:

  • A State is responsible for violations of international humanitarian law attributable to it, including:

    1. Violations committed by its organs, including its armed forces;
    2. Violations committed by persons or entities it empowered to exercise elements of governmental authority;
    3. Violations committed by persons or groups acting in fact on its instructions, or under its direction or control; and
    4. Violations committed by private persons or groups that it acknowledges and adopts as its own conduct (Rule 149).
  • A State responsible for violations of international humanitarian law in the context of an international or a non-international armed conflict is required to make full reparation for the loss or injury caused (Rule 150).

  • States must investigate war crimes allegedly committed by their nationals or armed forces, or on their territory, and, if appropriate, prosecute the suspects. They must also investigate other war crimes over which they have jurisdiction and, if appropriate, prosecute the suspects (Rule 158). Finally, States must make every effort to cooperate, to the extent possible, with each other in order to facilitate the investigation of war crimes and the prosecution of the suspects (Rule 161).

Responsibility of the State in Jurisprudence

  1. Responsibility of the State for the Conduct of Its Agents and Organs

In several cases, the International Court of Justice (ICJ) held that the conduct of a State organ always triggers the responsibility of that State, without having to prove that this group acted under the States’ orders or that it overstepped them.

The ICJ affirmed that “according to a well-established rule of international law, which is of customary character, ‘the conduct of any organ of a State must be regarded as an act of that State’” ( Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights , Advisory Opinion, ICJ Reports 1999 [I], p. 87, para. 62; Armed Activities on the Territory of the Congo [ Democratic Republic of the Congo v. Uganda ], Judgment, ICJ Reports 2005, p. 168, para. 213).

In the case Democratic Republic of the Congo v. Uganda (see supra), the ICJ held that “the conduct of individual soldiers and officers of the UPDF [Ugandan group in DRC] is to be considered as the conduct of a State organ . . . by virtue of the military status. . . . The contention that the persons concerned did not act in the capacity of persons exercising governmental authority in the particular circumstances, is therefore without merit” (para. 213). In the same case, the ICJ held that is was also irrelevant for the attribution of their conduct to Uganda whether the UPDF soldiers acted contrary to the instructions given or exceeded their authority. The court asserted that “according to a well-established rule of a customary nature, as reflected in Article 3 of the Fourth Hague Convention respecting the Laws and Customs of War on Land of 1907 as well as in Article 91 of Protocol I additional to the Geneva Conventions of 1949, a party to an armed conflict shall be responsible for all acts by persons forming part of its armed forces” (para. 214).

  1. Responsibility of the State for the Conduct of Non-state Armed Groups Operating under Its Control

The issue of the responsibility of the State for actions perpetrated by non-state armed groups acting under its control was raised in three major cases examined by the International Court of Justice: Military and Paramilitary Activities in and against Nicaragua ( Nicaragua v. United States of America ), Merits, Judgment, ICJ Reports 1986, p. 14, paras. 109–16; Application of the Convention on the Prevention and Punishment of the Crime of Genocide ( Bosnia and Herzegovina v. Serbia and Montenegro ), Judgment, ICJ Reports 2007, p. 43, paras. 391–407; and Armed Activities on the Territory of the Congo ( Democratic Republic of the Congo v. Uganda ), Judgment, ICJ Reports 2005, p. 168, paras. 161–65, 213–14, 220, 245, 248–50, 277, 300–301.

These decisions specify the degree of total, effective, or overall control necessary for the acts of a non-state armed group to be legally attributed to a State.

In the case Nicaragua v. United States of America , the ICJ had to “determine . . . whether or not the relationship of the contras to the United States Government was so much one of dependence on the one side and control on the other that it would be right to equate the contras, for legal purposes, with an organ of the United States Government, or as acting on behalf of that Government” (para. 109). The Court held that the participation of a State in the financing, organizing, training, supplying, and equipping of a non-state armed group is insufficient for the purpose of attributing the acts or violations of human rights and humanitarian law committed by this group to the State concerned (para. 115). For this conduct to give rise to legal responsibility of the State, “it would in principle have to be proved that that State had effective control of the military or paramilitary operations in the course of which the alleged violations were committed” (para. 115). This “effective” control implies the total dependency of the group on the State, or that the State has directly ordered the group to commit the alleged criminal acts. If this degree of control has not been reached, the State remains responsible for its own conduct, notably if the support to the armed group is considered unlawful and if the State was aware of the violations committed by this group (para. 116).

In the case Bosnia and Herzegovina v. Serbia and Montenegro , the ICJ had to determine if the acts of genocide committed during the war in the former Yugoslavia by non-state armed groups who were not organs of Serbia and Montenegro could be attributed to this State and give rise to its international responsibility under the control it exercised over these groups. The ICJ developed the arguments it used in the jurisprudence Nicaragua v. United States of America . The Court held that “persons, groups of persons or entities may, for purposes of international responsibility, be equated with State organs . . . provided that in fact the persons, groups or entities act in ‘complete dependence’ on the State, of which they are ultimately merely the instrument” (para. 392). The Court recalled that the notion of “complete dependence” and absence of autonomy is required for a non-state armed group to be assimilated, de facto, to a State agent, and consequently giving rise to the responsibility of the latter for the committed acts (para. 393). The Court added another case where the responsibility of the State can be triggered. In the case where the criteria of “complete dependence” does not exist, the acts of a non-state armed group can still be attributed to the State concerned if it is proven that they acted in accordance with that State’s instructions or under its “effective control” (para. 400). In this decision, the ICJ rejected the validity of the concept of “overall control” developed by the International Criminal Tribunal for the former Yugoslavia in the Tadic Case (paras. 404–406).

In the case Democratic Republic of the Congo v. Uganda , the ICJ listed the different criteria and forms of the State responsibility in the case where a State supports the activity of non-state armed groups operating from its territory on the territory of a neighboring State. But it denied this responsibility in the case where the State simply tolerates those acts or is powerless to control these groups. However, the ICJ held that DRC breached its duty of vigilance by tolerating anti-Ugandan rebels on its territory (para. 300).

Responsibility of Commanders under International Humanitarian Law

Humanitarian law takes into account the hierarchical nature of armed forces and the discipline imposed by commanders. It therefore confers certain specific obligations on commanders and, in certain situations, holds them individually criminally accountable not only for acts and omissions they committed but also for acts committed by their subordinates or people under their effective control.

The principle of authority must always be coupled with that of responsibility. This responsibility concerns both acts and omissions.

Humanitarian law holds commanders criminally accountable when they:

  • give orders to their subordinates that violate humanitarian law;
  • allow their subordinates to commit such violations;
  • fail to punish subordinates who violate humanitarian law of their own initiative;
  • do not prevent such a violation if they knew, or had information that should have enabled them to conclude, that such a breach was being committed or was going to be committed (GCI Art. 49, GCII Art. 50, GCIII Art. 129, GCIV Art. 146, and API Art. 86.2).

The commanders may be held accountable before competent national courts, before foreign courts (by virtue of universal jurisdiction), or before the International Criminal Court.

According to the ICRC customary IHL study, responsibility of commanders has developed into the following customary rules:

—Commanders and other superiors are criminally responsible for war crimes committed pursuant to their orders in the context of international and non-international armed conflicts (Rule 152).

—Commanders and other superiors are criminally responsible for war crimes committed by their subordinates if they knew, or had reason to know, that the subordinates were about to commit or were committing such crimes and did not take all necessary and reasonable measures in their power to prevent their commission, or if such crimes had been committed, to punish the persons responsible (Rule 153).

—Commanders are also responsible for ensuring that members of the armed forces under their command are aware of their obligations under humanitarian law (API Art. 87.2).

The Statute of the ICC reinforces these elements of responsibility (Art. 25 of ICC Statute), extending them to crimes against humanity, committed in times of peace or of war, and war crimes, whether committed in internal or international armed conflicts. It holds military commanders accountable, as well as other superiors, including civilians (Art. 28 of ICC Statute).

Responsibility of Superiors and Commanders in Jurisprudence

Apart from international treaty and customary humanitarian law, decisions by International Criminal Tribunals have clarified the conditions of criminal responsibility at the commander level as well as the aggravating or mitigating circumstances linked to such situations.

International criminal courts have required three elements to be proven before a person may incur superior responsibility for crimes committed by subordinates:

The existence of a relationship of superiority and subordination between the accused and the perpetrator of the underlying offence;

The superior’s knowledge of the fact that his subordinate had committed or was about to commit the crime;

The failure of the superior to prevent the commission of the crime or to punish the perpetrators.

  1. The Existence of a Relationship of Subordination or Effective/Overall Control

A relationship of subordination can be established by showing a formal or informal hierarchical relationship. No formal superior–subordinate relationship between the accused and the perpetrator is required. It is sufficient that there is proof of some position of authority on the part of the accused that would compel another to commit a crime in following the accused’s order (ICTR: Semanza Case , 15 May 2003, para. 401; and Renzaho Case , 14 July 2009, para. 738).

The relationship of subordination may be direct or indirect, de jure or de facto, civilian or military. What matters is to establish the effective command, with power to prevent and punish the crimes of persons who are in fact under their control (ICTY: Celebici Case , 16 November 1998, paras. 377–78, and 20 February 2001, para. 251; Blaskic Case , 3 March 2000, paras. 300–302; Kordic and Cerkez Case , 26 February 2001, para. 416; and ICTR, Kayishema and Ruzindana Case , 21 May 1999, paras. 229–31). Both the ICTY and the ICTR consider that effective control may be de facto or de jure (ICTR: Musema Case , 27 January 2000, para. 141; and Bagilishema Case , 7 June 2001, para. 39; ICTY: Aleksowski Case , 25 June 1999, para. 78; and Kordic and Cerkez Case , 26 February 2001, paras. 415, 416).

The superior must have had effective control over the subordinate at the time the offence was committed, effective control meaning “the material ability to prevent the commission of the offence or to punish the principal offenders” (ICTR, Renzaho Case , 14 July 2009, paras. 744, 745); and ICTY, Halilović Case , 16 October 2007, para. 59). The concept of effective control is the threshold to be reached in establishing a superior–subordinate relationship for the purpose of superior responsibility. Whether the subordinate is found to have participated in the crimes through intermediaries (e.g., due to remoteness of control) is irrelevant as long as his criminal responsibility is established beyond reasonable doubt (ICTY, Orić Case , 3 July 2008, para. 20). A superior’s authority to issue orders does not automatically establish that a superior had effective control over his subordinates but is one of the indicators to be taken into account when establishing the effective control. Whether a superior’s orders are actually followed can also be indicative of a superior’s effective control over his subordinates (ICTY, Strugar Case , 17 July 2008, paras. 253, 256).

  1. The Knowledge of the Wrongful Acts

A superior is not permitted to remain willfully blind to the acts of his subordinates. A superior who simply ignores information within his actual possession compelling the conclusion that criminal offences are being committed, or are about to be committed, by his subordinates commits a most serious dereliction of duty for which he may be held criminally responsible under the doctrine of superior responsibility.

The effective control by the commander of his subordinates may be used to establish a presumption according to which the commander had reasons to know the criminal acts committed by his subordinates (ICTY, Celebici Case , 16 November 1998, paras. 386–87).

  1. The Failure to Prevent or Punish

The principle of individual criminal responsibility of superiors for failure to prevent or to punish crimes committed by subordinates is an established principle of international customary law (ICTY: Limaj et al. Case , 30 November 2005, para. 519; Halilovic Case , 16 November 2005, para. 55; and Strugar Case , 31 January 2005, para. 357). The ICTY Appeals Chamber stated that a superior could be held criminally responsible for his subordinates’ planning, instigating, ordering, or committing of a crime or otherwise aiding and abetting a crime ( Orić Case , 3 July 2008, para. 21). It also confirmed that superior responsibility encompasses all forms of criminal conduct by subordinates, not only the “committing” of crimes in the restricted sense of the term, but all other modes of participation. It encompasses actions by “subordinates who as accomplices substantially contributed to the completion of the crime” but who do not physically commit the crime (ICTY: Blagojević & Jokić Case , 9 May 2007, paras. 280–82; Lasva Valley Case , 26 February 2001, para. 401; Celebici Case , 16 November 1998, para. 346; Blaskic Case , 3 March 2003, para. 294; Orić Case , 3 July 2008, para. 18; as well as ICTR: Kayishema and Ruzindana Case , 21 May 1999, paras. 229–31).

  1. The Hierarchical Position as Aggravating Circumstance

The ICTR and ICTY considered the question of the hierarchical position of the accused as aggravating circumstance.

The fact that the accused occupied a high ministerial post at the time he committed the said crimes negated the mitigating circumstances (ICTR, Kambanda Case , 4 September 1998, paras. 61–62).

The fact that the accused abused his authority and played an important leading role in the execution of the crimes (ICTR: Rutaganda Case , 6 December 1998, paras. 468–70; and Musema Case , 27 January 2000, paras. 1000–1004; as well as ICTY: Plavsic Case , 27 February 2003, para. 57; Simic Case , 17 October 2002, para. 67; Sikirica et al. Case , 13 November 2001, paras. 138–39 and 172; Krstic Case , 2 August 2001, para. 709; Kuranac, Kovac, and Vukovic Case , 22 February 2001, para. 863; and Blaskic Case , 3 March 2000, para. 788).

Going beyond the issue of hierarchy and command, international courts have held that committing a crime while exercising a public function—such as that of a policeman—may be considered an aggravating factor (ICTY, Mrdja Case , 31 March 2004, para. 51). What matters is not the position of authority taken alone, but the position coupled with the manner in which the authority is exercised; for example, the abuse of superior position may be considered an aggravating factor (ICTY, Blagojević & Jokić Case , 9 May 2007, para. 324; and ICTR, Samba Case , 27 November 2007, para. 284).

Responsibility of Individuals under International Humanitarian Law

All individuals having reached the age of legal majority are individually criminally responsible for any grave breaches of humanitarian law they commit, no matter what the circumstances may be. Combatants are held accountable even if they are carrying out the orders of a superior.

Superior Orders

International humanitarian law takes into account the fact that combatants generally act in the framework of a hierarchical organization or unit. It therefore first imposes specific responsibilities on commanders. However, the fact that a combatant acted pursuant to superior orders will not shield him or her from individual criminal responsibility incurred for grave breaches of humanitarian law. Individuals hence remain personally accountable, even when following orders. Thus, war criminals are individually criminally responsible for their acts (Art. 3 of 1907 Hague Convention on the laws and custom of war; GCI Art. 49; GCII Art. 50; GCIII Art. 129; GCIV Art. 146; API Arts. 75.4.b, 86, and 87). Judgments by international criminal courts confirm the restrictive interpretation of duress and superior orders as mitigating circumstances with respect to individual criminal responsibility (see Jurisprudence).

The Statute of the ICC also stipulates that “the fact that a crime within the jurisdiction of the Court has been committed by a person pursuant to an order of a Government or of a superior, whether military or civilian, shall not relieve that person of criminal responsibility.” While some grounds for excluding criminal responsibility exist in the case of war crimes, there are no exceptions in the case of genocide or crimes against humanity (Art. 33 of ICC Statute).

The Statute of the ICC clearly sets forth the elements that make up individual responsibility in terms of genocide, crimes against humanity, and war crimes: a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person:

  1. Commits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible;
  2. Orders, solicits or induces the commission of such a crime which in fact occurs or is attempted;
  3. For the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission;
  4. In any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose. Such contribution shall be intentional and shall either:
  5. Be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime within the jurisdiction of the Court; or
  6. Be made in the knowledge of the intention of the group to commit the crime;
  7. In respect of the crime of genocide, directly and publicly incites others to commit genocide;
  8. Attempts to commit such a crime by taking action that commences its execution by means of a substantial step, but the crime does not occur because of circumstances independent of the person’s intentions. However, a person who abandons the effort to commit the crime or otherwise prevents the completion of the crime shall not be liable for punishment under this Statute for the attempt to commit that crime if that person completely and voluntarily gave up the criminal purpose. (Art. 25 of ICC Statute)

Certain limited grounds for excluding criminal responsibility are foreseen in the ICC Statute (Arts. 26, 30, 31, and 33). For instance, these provisions protect individuals who were under the age of eighteen at the time the acts were allegedly committed, as well as individuals who suffered from a mental disease or defect or who acted in the context of legitimate—and proportionate—self-defense. Necessity and duress excuse conduct when there is a threat of imminent death or serious bodily harm, and when the person acts necessarily and reasonably to avoid this threat, and does not intend to cause greater harm than the one avoided (Art. 31.1.d of the ICC Statute).

Concerning war crimes, the ICC Statute provides that a crime committed by a person pursuant to an order of a government or of a superior, whether military or civilian, shall not relieve that person of criminal responsibility unless these three following conditions are reunited (Art. 33 of the ICC Statute):

  1. The person was under a legal obligation to obey orders of the government or the superior in question;
  2. The person did not know that the order was unlawful; and
  3. The order was not manifestly unlawful.

The Statute specifies that orders to commit genocide or crimes against humanity are manifestly unlawful, and as such cannot be used to justify obedience to orders.

Rule 151 of the customary IHL study prescribes that individuals are criminally responsible for war crimes they commit in the context of an international or a non-international armed conflict. Rule 154 provides that every combatant has a duty to disobey a manifestly unlawful order. Rule 155 states that obeying a superior order does not relieve a subordinate of criminal responsibility if the subordinate knew that the act ordered was unlawful or should have known because of the manifestly unlawful nature of the act ordered.

Individual Responsibility of Combatants in Jurisprudence

International Criminal Tribunals have analyzed under what condition perpetrators may be held criminally responsible for crimes under international law.

There is a two-stage test that must be satisfied in order to establish individual criminal responsibility. This test requires the demonstration of (1) participation, that is, that the conduct of the accused contributed to the commission of an illegal act, and (2) knowledge or intent, which is awareness by the actor of his participation in a crime (ICTR, Kayishema and Ruzindana Case , 21 May 1999, para. 198; and ICTY, Boškoski & Tarčulovski Case , 19 May 2010, para. 66).

Individual criminal responsibility “is incurred not only by individuals who physically commit that crime, but also by individuals who participate in and contribute to the commission of a crime in other ways, ranging from its initial planning to its execution, as specified in the five categories of acts in this Article: planning, instigating, ordering, committing, or aiding and abetting” (ICTR, Kamuhanda Case , 22 January 2004, para. 588). See also ICTR, Bisengimana Case (13 April 2006, para. 31), and ICTY, Jokic Case (18 March 2004, para. 56) and Simic et al. Case (17 October 2003, para. 135).

With regard to aiding and abetting a crime, “the individual criminal responsibility can be discussed under two distinct modes of responsibility: (i) aiding and abetting by tacit approval and encouragement, and (ii) aiding and abetting by omission proper” (ICTY, Brđanin Case . 3 April 2007, paras. 273–74).

The International Criminal Tribunals considered how superior orders may impact on the criminal responsibility of the perpetrator (by increasing or diminishing this responsibility).

  1. Duress and Superior Orders

Duress does not afford a complete defense to a soldier charged with a crime against humanity or a war crime involving the killing of innocent human beings. There is a clear difference between duress and duty to obey superior orders. With duress, the life of the accused must immediately be in danger if he refuses to execute the order. There are three essential conditions for duress to be accepted as a defense for a violation of international humanitarian law: (1) The act charged was done to avoid an immediate danger both serious and irreparable. (2) There was no adequate means of escape. And (3) the remedy was not disproportionate to the evil (ICTY, Erdemovic Case , 29 November 1996, para. 17).

The absence of moral choice is one of the essential components for considering duress as a complete defense. The mere duty to obey superior orders does not constitute duress. Facing a manifestly unlawful order, the duty was to disobey rather than to obey; “this duty to disobey could only recede in the face of the most extreme duress.” The existence of duress and superior orders must be assessed for each case, because “while the complete defense based on moral duress and/or a state of necessity stemming from superior orders is not ruled out absolutely, its conditions of application are particularly strict.” One must “examine whether the accused in his situation did not have the duty to disobey, whether he had the moral choice to do so or to try to do so.” This restrictive definition of duress was subsequently confirmed (ICTY, Mrdja Case , 31 March 2004, paras. 65–67). The Trial Chamber refused to admit that an atmosphere of hatred and propaganda alone may create duress. Those circumstances may have had some influence on the criminal behavior of the accused, but the Tribunal did not accept that they were such that the accused, even taking account of his age and low rank, would have had no alternative but to participate in the massacre of around two hundred civilians. The absence of any convincing evidence of any meaningful sign that the accused wanted to dissociate himself from the massacre at the time of its commission prevented it from accepting duress as a mitigating circumstance (para. 66).

The definition of duress has been limited to extreme situations where there is no other choice than killing or being killed (ICTY, Erdemovic Case , 5 March 1998, para. 17). The ICTY explained that superior orders may be considered as mitigating circumstances only if the orders were not manifestly unlawful. Where orders were manifestly unlawful, before benefiting from mitigating circumstances, the subordinate must show that he disobeyed, which created a direct threat against his life (ICTY, Mrdja Case , 31 March 2004, paras. 67–68).

  1. Mitigating Circumstances

International criminal courts have admitted, beside duress and superior orders, other mitigating circumstances. However, the reduction of the penalty stemming from the application of mitigating circumstances must not in any way diminish the gravity of the offence (ICTR, Kambanda Case , 4 September 1998, paras. 36–37, 56–58).

In several cases, tribunals have considered the following mitigating circumstances:

  • Substantial cooperation with the prosecutor;
  • Surrendering to authorities;
  • Admitting guilt;
  • Demonstrating remorse for victims and the fact that the accused was not an authority de jure (ICTR, Kayishema and Ruzindana Case , 21 May 1999, Sentencing, para. 20).
  • The personal circumstances of the accused may also be relevant: the absence of a criminal record, the character of the accused, the accused’s assistance to victims, the fact that the accused did not personally participate in the killings (ICTR, Ruggiu Case , 1 June 2000, paras. 53–80).
  • Post-conflict conduct of the accused has been considered a mitigating circumstance (ICTY, Blagojević & Jokić Case , 9 May 2007, paras. 328, 330, 342, and 344).
  • The fact that the accused was not a very high-ranking official in the governmental hierarchy (ICTR, Akayesu Case , 2 October 1998, Sentencing, p. 8).
  • The need for sentences to reflect the relative significance of the role of the accused in the broader context of the conflict in the former Yugoslavia: “Although the criminal conduct underlying the charges of which the Appellant now stands convicted was incontestably heinous, his level in the command structure, when compared to that of his superiors, i.e. commanders, or the very architects of the strategy of ethnic cleansing, was low” (ICTY, Tadic Case , 26 January 2000, paras. 55–56).
  1. Aggravating Circumstances
  • The vulnerability of victims is considered an aggravating factor in sentencing. The civilian status of the victim is not an element supporting particular vulnerability of the victim, as it already constitutes an element of the crime. However, the fact that victims are displaced persons or detainees constitute an aggravating factor (ICTY, Mrdja Case , 31 March 2004, paras. 47–48). See also ICTY, Kordic and Cerkez Case , Judgment, 17 December 2004, para. 1088; Blaskic Case , Judgment, 3 March 2000, para. 786; and Kunarac Case , Judgment, 22 February 2001, para. 864 (young age of the victims).
  • The consequences of the crimes for the victims, in particular extraordinary suffering, are taken into account as an aggravating factor (ICTY, Mrdja Case , 31 March 2004, para. 56).
  • The number of victims and the magnitude of the crime can constitute aggravating factors (ICTY, Kunarac Case , Judgment, 22 February 2001, para. 866; Stakic Case , Judgment, 31 July 2003, para. 907; and Erdemovic Case , Judgment, 5 March 1998, para. 15).
  • Abuse of authority is an aggravating circumstance (ICTY, Tadic Case , Judgment, 15 July 1999, para. 55; and Krstic Case , Judgment, 2 August 2001, para. 709).
  • Zeal and sadism are factors to be considered, where appropriate, as aggravating (ICTR, Simba Case , Judgment, 27 November 2007, para. 320; and Muvunyi Case , Judgment, 11 February 2010, para. 145).
  • Premeditation can also be considered as an aggravating factor (ICTY, Krsitc Case , Judgment, 2 August 2001, para. 711).

Responsibility of Humanitarian and Relief Organizations

The implementation of international humanitarian law is based on the respect by belligerents for specific obligations, notably concerning the protection of civilians in times of conflict but also the respect for the work of humanitarian organizations. IHL has created mechanisms of criminal sanctions for the violations of these obligations. It is important to note that humanitarian law is particularly creative in this area, since the basis on which it establishes individual responsibility for both subordinates and superiors is whether illegal orders were obeyed. It was also innovative in establishing, in 1949, the principle of universal jurisdiction, which implies that the courts of any State may have jurisdiction over cases of grave breaches (war crimes and crimes against humanity).

However, the application of humanitarian law is primarily based on crime-prevention and violence-mitigation mechanisms and only marginally on its punishment mechanisms. In situations of armed conflict, humanitarian law seeks above all to prevent civilians from being the object of direct attacks or other kinds of violence or from being subject to living conditions that result in the death of the most vulnerable. Humanitarian law’s first concern is to limit the consequence of violence rather than relying on postmortem justice. For this reason, the Geneva Conventions and their Additional Protocols have conferred an essential role and specific rights to impartial humanitarian organizations. A right of humanitarian initiative has been conferred to them in order to negotiate and implement relief activities corresponding to victims of conflict’s rights and humanitarian principles.

International humanitarian law effectively establishes that impartial humanitarian organizations have (inter alia) the right to:

  • offer their assistance to parties to the conflict, at any time, without this being construed as interference in the domestic affairs of the State concerned;
  • verify that a population is not suffering undue hardship due to a scarcity of supplies essential for its survival, such as food and medical supplies;
  • undertake relief actions for the benefit of the population when it does suffer from severe shortages of essential supplies and monitor the distribution to the most vulnerable;
  • collect and care for the wounded and sick and ensure that their treatment is in conformity with medical ethics and does not involve any form of adverse discrimination;
  • guarantee that persons who are displaced or detained as a result of a conflict receive the protection and assistance to which they are entitled;
  • provide all categories of protected persons with assistance in conformity with the rights and protection guarantees that humanitarian law grants them.

The action of impartial humanitarian organizations is an important indicator of the willingness and the capacity of belligerents to provide assistance and to authorize humanitarian organizations to do so. Humanitarian organizations therefore play the essential role of negotiating and safeguarding the balance between relief and the specific rights provided for each category of protected persons under IHL. This constitutes the framework and standards of protection for victims of armed conflicts contained in IHL. This duty of protection rests not only with the parties to the conflict but also with the ICRC, which is officially mandated by the Geneva Conventions, as well as on the professionalism of impartial humanitarian organizations.

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The 1949 Geneva Conventions and their 1977 Additional Protocols do not impose strict legal obligations on humanitarian organizations that potentially could make them subject to penal sanctions. However, it is inconceivable that the rights they are granted do not, in exchange, create specific responsibilities for such organizations.

Such responsibilities fall broadly under two categories: responsibility as actors undertaking relief actions (1), and responsibility as potential witnesses to crimes committed against the population (2).

Responsibility as Relief Actors

Humanitarian law establishes specific rules governing assistance and protection of civilians in times of conflict. Humanitarian organizations involved in such situations bear the responsibility of negotiating their working conditions with the belligerents. These conditions must conform to the guarantees set forth by humanitarian law. Humanitarian organizations also carry the responsibility of reporting on the degree to which they succeed in or are prevented from ensuring effective assistance relevant to protection and survival of the populations concerned. This responsibility is not limited to simply exercising proper financial control of private or institutional funds allocated for humanitarian aid. It also differs from human rights protection activities, and as such cannot simply be delegated by relief actors to human rights organizations in the name of the division and complementarity of relief and denunciation actions.

Humanitarian responsibility includes:

  • The duty to negotiate working conditions with the authorities, in conformity with the guarantees set forth by humanitarian law, to benefit the populations in general and the most vulnerable in particular.
  • The responsibility to identify and report any obstacles, impediments, or prohibitions imposed on their relief activities that will adversely affect the most vulnerable. This action must be carried out at the local, national, and international levels. It is crucial because it draws attention to the dangers that a given population or group may continue to face, despite the presence of humanitarian actors and the volume of aid being brought in. One of the roles of relief actors is to empower the authorities directly involved, who cannot claim afterward that they did not know.
  • The responsibility to denounce situations in which aid activities are diverted from their intended purposes and used to endanger the populations they are meant to help. These are not theoretical scenarios. There are numerous historical and contemporary examples of actions and means of humanitarian organizations used against the populations they are trying to help. For instance, this is the case when relief organizations are used to locate and attack the places where the vulnerable members of a population are hiding or when the distribution of aid is used to gather together populations that will then be attacked, sorted, or displaced by force. A party to a conflict may have deliberately deprived a population of essential supplies to attract and divert aid. Relief organizations may be authorized to deliver material assistance so as to provide an appearance of normalcy to places where, despite the aid, people are subject to deadly violence and coercion.

It is important that, in such situations, relief organizations be capable of analyzing the true nature of their action. They should not condone situations in which, despite the distribution of aid, the safety and the lives of populations continue to be threatened and destroyed. They should rather value their presence and action to stir armed actors’ responsibility toward victims and humanitarian necessities.

Many humanitarian organizations are still in an embryonic phase when it comes to taking these responsibilities into consideration. Too often, they are addressed through general debates surrounding the moral dilemmas faced by humanitarian action or to an alleged division of work among organizations focused on action and those focused on information and advocacy. The “Professional Standards for Protection Work,” published in 2010 and jointly drafted by the ICRC and a group of experts from international and nongovernmental organizations, gives important landmarks. These standards objectify the risks that could worsen the vulnerability of victims or weaken their rights. They should be taken into account in the planning and evaluation of activities within each organization and be of greater public transparency. The standards complete the codes of conduct drafted in the 1990s by the International Federation of the Red Cross and the Red Crescent, which set the humanitarian principles accepted by relief organizations.

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Jurisprudence

The interaction between humanitarian aid and criminal activities was highlighted in two cases by the International Criminal Tribunal for the Former Yugoslavia. In the Stakic Case (20 March 2006, para. 286), the Appeals Chamber of the ICTY found that the participation of an NGO in facilitating displacements does not in and of itself render an otherwise unlawful transfer lawful. Pursuant to this approach, the Appeals Chamber found in the Simic Case (28 November 2006, para. 180) that the presence of representatives from UNPROFOR and the ICRC during some of the exchanges that took place did not render the displacements at issue lawful, nor did it lead to the conclusion that the forcible displacements were of insufficient gravity to rise to the level of persecution.

Responsibility as Potential Witnesses to Crimes against the Population

Through their presence on the ground, members of humanitarian organizations may be direct witnesses of crimes and coercion committed against civilians in situations of conflict.

Humanitarian organizations are not responsible for the general promotion or defense of human rights or the global fight against impunity of international crimes. However, their responsibility under humanitarian law covers serious violations. They must report them to the ICRC and protest to the relevant party to the conflict that the violations must cease. When a humanitarian organization makes such a denunciation, it does not do so based on moral or legal imperatives: its aim is to secure the immediate improvement of the conditions for assistance and protection for the population in danger, through informing and confronting the military and political authorities in control of the situation so that they uphold their obligations to reconcile military and humanitarian necessity under IHL. The quality and accuracy of the dialogue or confrontation that takes place between the authorities responsible for the population concerned and the relief organizations flows from the organizations’ ability to balance between direct negotiation and speaking out as a last resort, to raise public awareness and put pressure at the local or international levels.

Humanitarian law does not impose any obligation of confidentiality to the ICRC or humanitarian organizations with regard to grave breaches. However, it prohibits public political controversies in the name of neutrality. It is therefore paramount to justify denunciations by taking into account the behavior of both parties to the conflict.

Nonetheless, the public denunciation of crimes by humanitarian organizations gives rise to several problems or operational dilemmas.

The first dilemma is based on the fact that any public action undertaken with regard to a crime may jeopardize the safety and therefore the presence and actions of the organizations on the ground. For a long time, humanitarian organizations adopted an absolutist interpretation of the principle of neutrality with regard to solving such problems. Neutrality prohibits organizations from taking a position vis-à-vis belligerents and their methods of warfare. However, in the case of genocide or acts of extermination, for instance, arguments that favor ensuring the continuation of relief operations for the population rather than jeopardizing aid operations no longer make sense. Silence cannot be the dogma for humanitarian organizations, since an authority might permit humanitarian activities to cover up crimes committed against part or all of the population. It is also possible that the suffering and deprivation experienced by the population is in fact deliberately organized by a given authority to attract and then divert aid. Such behavior challenges the responsibility and practices of humanitarian organizations.

Therefore, the issue of neutrality must be viewed from an operational perspective and assessed through its real impact on the protection and assistance given to the populations concerned. It must be noted that during the armed conflict in the former Yugoslavia, for instance, the ICRC stated that denouncing serious violations of humanitarian law was not a breach of the principle of neutrality. Since then, the ICRC has made it clear that neutrality cannot be confused with confidentiality and silence. This principle is worth its operational efficiency and should not stand as an abstract and absolute principle. ▸ Humanitarian principles

Some organizations prefer to transmit the information they possess concerning serious violations confidentially to human rights organizations, which can make such information public without disclosing their source and jeopardizing the safety of relief operations and workers on the ground. There are also various United Nations mechanisms that make it possible to render such information public while maintaining the confidentiality of the source. Such solutions risk diluting each organization’s responsibility toward protection of victims, since they have different objectives and act under different time constraints. As a general rule, humanitarian organizations should act pursuant to a rationale of immediate prevention and principled action. This can ultimately include voluntary interruption of relief actions when negotiation on core humanitarian principles fails, so that belligerents become aware of their responsibilities and obligations under IHL. It thus differs from activities of documentation and denunciation of human rights violations as well as collection of evidence for trials before international tribunals in the name of the fight against impunity. ▸ Protection

The creation of the International Criminal Tribunals for the Former Yugoslavia and Rwanda as well as the International Criminal Court opened a new judicial dimension of international relations. This has led humanitarian organizations to rethink their positioning toward violations of humanitarian law. Some humanitarian NGOs actively cooperate with international criminal justice and see themselves as actors of the fight against impunity, disclosing information for the indictment and trial of alleged authors of war crimes and crimes against humanity. Other organizations refrain from any such cooperation, arguing that judicial activities are incompatible with humanitarian action and the necessity to negotiate relief actions and safety guarantees with actors of the armed violence.

The second obstacle to denouncing crimes comes from the impression that their perpetrators will never be punished, or that they will eventually be prosecuted on broader political grounds, whether because of the failures of the local justice system or law enforcement body or because of the political selectivity of investigations on situations by the International Criminal Court. Under international humanitarian law, this is not a relevant concern, since perpetrators of serious violations can be tried by a variety of international or other national courts without any statute of geographic or time limitations. In the meantime, it is important that humanitarian organizations are able to confront the specificity of such crimes and limit their adverse consequences through appropriate relief actions. They can also document what is taking place before the evidence disappears. Finally, they can also provide medical reports and other documents to the victims, so as to enable them to assert their claims and their rights, wherever possible, later in time.

In all cases, humanitarian organizations must be capable of qualifying the situations in which they are acting. This enables them to be in a position to negotiate their relief activities with regard for the rights that international humanitarian law grants to victims and humanitarian organizations in each specific case and to insist on the application of the relevant provisions of humanitarian law. This ability to qualify a given situation and categories of vulnerable people rests on the assumption that organizations have an understanding and knowledge of the fate of the populations and the patterns of violence committed around and against them. It is the first stage of responsible relief action. Thus, fact finding and documentation of humanitarian law violations are an integral part of any responsible relief action. These organizations are under the obligation to signal these crimes to the relevant civilian or military authorities, to the ICRC, or to the Member States of the UN Security Council in the most serious cases.

However, this obligation to alert the authorities about humanitarian law violations should not be confused with an obligation to testify before national or international criminal tribunals. This confusion could jeopardize the presence and safety of relief workers in conflict situations. This has been recognized by the International Criminal Tribunals, which have acknowledged in several judgments the incompatibility between the mandates of relief workers and war correspondents and the role of judicial witnesses. This immunity has since been recognized to the ICRC by the International Criminal Court and to professions covered by professional secrecy such as doctors and journalists.

The jurisprudence on the principles and criteria of this immunity from testimony for humanitarian personnel is presented under the entry ▸ Immunity .

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