Responsibility
The notion of responsibility is an essential part of implementing and respecting the law. A right is most often tied to a reciprocal obligation. If this obligation is violated, the person who has committed such an act may be held accountable for his or her civil or criminal responsibility.
Responsibility is often individual, especially in international criminal law (ICL). Under ICL, State officials enjoy immunity, except in respect of war crimes, crimes against humanity, genocide and the crime of aggression.
A different pattern of responsibility applies to States in the case of violations of their international obligations toward another State. The responsibility of the State is triggered by the actions of its agents, in particular its armed forces, but also by individuals or groups acting under that State’s effective control ( infra ). The International Court of Justice (ICJ) has jurisdiction to adjudicate disputes between States, to compel them to comply with their international obligations towards other States and to make reparation for any damage caused to other States by their wrongful acts.
Respect for human rights is also based on the responsibility of the State to protect its population and the rights of its nationals. It is upheld by a number of instruments that provide for various forms of recourse, either judicial or not, before various national and international institutions. State responsibility for violations of international human rights, which is still at an embryonic stage, should not be confused with individual criminal responsibility or with State responsibility in traditional inter-State relations.
➔ Human rights </content/article/3/human-rights>__ ▸ Immunity ▸ Individual recourse ▸ International Court of Justice
Respect for international humanitarian law (IHL), on the other hand, is based on the enumeration of the specific obligations for which States and non-State parties to an armed conflict (I), their commanders and superiors (II), and combatants (III) are responsible. IHL defines and affirms the individual criminal responsibility of the various hierarchical actors involved in armed conflict. This includes the individual criminal responsibility of commanders and superiors for crimes committed by their subordinates, as well as the individual criminal responsibility of combatants, even when obeying to orders that are manifestly unlawful. In case of grave breaches of the Geneva Conventions (i.e., of IHL), it also establishes the duty of commanders to investigate, prevent and punish violation through disciplinary and criminal sanctions. It also sets out specific remedies that can be used, such as international investigation, and fact-findings mechanisms, actions through the United Nations (UN) system and international criminal prosecution.
IHL does not impose obligations on impartial humanitarian organisations in terms of criminal liability and sanctions. It does, however, establish their responsibility to respect IHL in the context of their assistance operations. Their responsibility as witnesses also come into play when they are confronted with mass crimes or coercion committed against the populations in their care (IV). The judgments of the ICJ, the International Criminal Court (ICC) and of the ad hoc International Criminal Tribunals have clarified the constitutive criteria of responsibility ( infra ).
➔ Duty of Commanders ▸ Humanitarian principles ▸ International Criminal Court ▸ International Criminal Tribunals ▸ Penal sanctions in humanitarian law ▸ Protection ▸ Respect for international humanitarian law ▸ War crimes/Crimes against humanity
I. The Responsibility of States under International Humanitarian Law
IHL contains a number of obligations which, if breached, give rise to the international responsibility of States. This responsibility is distinct from the individual responsibility of State agents, even when acting under orders.
State responsibility for failing to comply with obligations under IHL may be invoked in front of the ICJ by other governments that have suffered harm as a result of such violations and may result in reparations. State failure to prosecute perpetrators of war crimes, crimes against humanity, and genocide at the national level may, under certain circumstances, trigger the jurisdiction of the ICC. Indeed, the Court’s jurisdiction over a situation is established by a State’s ratification of the Rome Statute or by a binding decision of the UN Security Council (UNSC) if that State is unwilling or unable to prosecute alleged perpetrators (art. 17 of the Rome Statute).
Building on the general obligation of the State to respect and ensure respect for IHL, the Geneva conventions and its protocols draw up a list of related, specific, and concrete obligations of the State. These IHL treaty provisions on State responsibility have acquired the status of customary IHL (CIHL). They therefore apply in all situations of international and non-international armed conflict, vis-à-vis all State and non-State parties to the armed conflict.
Conventional and CIHL derive the following obligations that rest on States in connection with their participation in international and non-international armed conflicts:
•All States Parties to the Geneva Conventions “undertake to respect and to ensure respect for [IHL] in all circumstances” (GCI-IV, Common art. 1; API, arts. 1, 80(2); CIHL Rule 139).
•In situations of serious violations of the Conventions or its additional protocols, States that are high contracting Parties to these conventions undertake to act, jointly or individually, in co-operation with the United Nations and in conformity with the UN Charter (API, art. 89).
•All States are under the obligation to disseminate IHL texts widely among their armed forces and to civilians (GCI, art. 47; GCII, art. 48; GCIII, art. 127; GCIV, art. 144; API, arts. 83(1), 87(2); APII, art. 19). For instance, they should include IHL rules in their military regulations, instructions for armed forces, and code of military discipline, and they must ensure that their commanders know the rules and they should also disseminate them as widely as possible to include its study in their civilian education programmes so that IHL principles may become known to the entire population.
•Each State is required to make legal advisers available, as necessary, to advise military commanders at the appropriate level on the application of IHL (CIHL Rule 141).
•All States and parties to the conflict must provide instruction on IHL to their armed forces. (CIHL Rule 142)
•All States must encourage the teaching of IHL to the civilian population. (CIHL Rule 143)
•Political and military authorities have the obligation to take all necessary measures to ensure that the obligations foreseen by IHL are respected (GCI, art. 49; GCII, art. 50; GCIII, art. 129; GCIV, art. 146 and API, arts. 80(1), 86 and 87).
•All 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 of the Geneva Conventions (GCI, art. 49, GCII, art. 50, GCIII, art. 129 and GCIV, art. 146).
•All States are under the obligation to search for persons alleged to have committed, or to have ordered to be committed, any of the grave breaches of the Geneva Conventions 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.
•All States are responsible for all acts committed by members of their armed forces. Furthermore, if a State violates IHL, 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 grave 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).
•A State is responsible for violations of IHL attributable to it, including: (a) violations committed by its organs, including its armed forces; (b) violations committed by persons or entities it empowered to exercise elements of governmental authority; (c) violations committed by persons or groups acting in fact on its instructions, or under its direction or control; and (d) violations committed by private persons or groups that it acknowledges and adopts as its own conduct (CIHL Rule 149).
•A State responsible for violations of IHL in the context of an international or a non-international armed conflict is required to make full reparation for the loss or injury caused (CIHL Rule 150).
•All 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 (CIHL Rule 158).
- All 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 (CIHL Rule 161).
**Jurisprudence
- State Responsibility for the conduct of its agents and organs
In a number of cases, the ICJ has ruled that the conduct of an organ of the State always triggers the responsibility of that State, without the need to prove that this group acted under the orders of the State or that it went beyond those orders.
The ICJ has affirmed that “[a]ccording 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 , 29 April 1999, I.C.J. Reports 1999, p. 87, para. 62; Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment , 19 December 2005, I.C.J. 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 People’s Defence Forces (a group present in the 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 whether the UPDF soldiers acted contrary to orders or exceeded their authority was also irrelevant for the attribution of their conduct to Uganda. The Court asserted that “[a]ccording 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).
**2. State Responsibility 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 ICJ:*Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment , 27 June 1986, I.C.J. Reports 1986, p. 14, paras. 109-116; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment , 26 February 2007, I.C.J. Reports 2007, p. 43, paras. 391-407 and Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment , 19 December 2005, I.C.J. Reports 2005, p. 168, paras. 157-161, 213-214, 220, 245, 248-250, 277, 300 and 301.
**These decisions specify the degree of total, effective, or overall control required for the acts of a non-State armed group to be legally attributed to a State.
In the case of 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, organising, 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 IHL committed by this group to the State concerned (para. 115). For such conduct to give rise to the 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 of Bosnia and Herzegovina v. Serbia and Montenegro , the ICJ had to determine whether acts of genocide committed during the war in the former Yugoslavia by non-State armed groups which were not organs of Serbia and Montenegro could be attributed to that State and give rise to its international responsibility by virtue of the control it exercised over those groups. The ICJ developed the arguments it used in the case of Nicaragua v. United States of America and 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 the absence of autonomy are 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 (ICTY) in the Tadić case (paras. 404-406).
In the case of the Democratic Republic of the Congo v. Uganda , the ICJ listed the various criteria and forms of the State responsibility in the case where a State supports the activities of non-State armed groups operating from its territory in the territory of a neighbouring State. However, it denied such responsibility in cases where the State merely breaches its duty of vigilance and tolerates these acts or is unable to control these groups on its territory (para. 300).
II. Responsibility of Commanders under International Humanitarian Law
IHL recognises the hierarchical nature of armed forces and the discipline imposed by commanders. It therefore imposes certain specific obligations on commanders and, in certain situations, holds them individually criminally responsible not only for their own acts and omissions they committed, but also for those of their subordinates or persons under their effective control.
**☞ The principle of authority must always be coupled with that of responsibility. This responsibility covers both acts and omissions.
IHL holds commanders criminally responsible if they:
•give orders to their subordinates that violate IHL;
•allowing their subordinates to commit such violations;
•failing to punish subordinates who violate IHL out of their own initiative;
•failing to prevent such violations 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; API, art. 86(2) and CIHL Rules 152 and 153).
The commanders may be held accountable before competent national courts, before foreign courts (by virtue of universal jurisdiction), or before the ICC.**
The responsibility of commanders and their criminal liability for crimes committed by subordinates under certain conditions has been recognised as a customary rule of IHL (CIHL) and by ICL, in particular by the Rome Statute of the ICC. It is reflected in the following rules of IHL:
-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 (CIHL 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 in the context of international and non-international armed conflicts 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 CIHL Rule 153).
-Commanders are also responsible for ensuring that members of the armed forces under their command are aware of their obligations under IHL (API, art. 87(2)).
Article 28 of the Rome Statute reinforces the criminal responsibility of commanders and other superiors for crimes committed by subordinates as a result of the superior’s failure to prevent and punish such crimes. It extends the criminal responsibility of commanders and other superiors, to genocide, crimes against humanity, war crimes and the crime of aggression, whether committed in non-international or international armed conflicts. It applies equally to all persons without any distinction based on official capacity and establishes the criminal responsibility of official or de facto military commanders and other superiors, including civilians (arts. 27 and 33 of the Rome Statute).
In addition to the provisions of IHL and the ICL rules, the decisions of international criminal courts have helped to clarify the practical application of the criteria and conditions relating to the criminal responsibility of commanders or superior officers, as well as the aggravating and mitigating circumstances associated with such situations.
International criminal courts have required four elements to be proven beyond reasonable doubt before a person can be held responsible, as a superior, for crimes committed by subordinates:
1. The existence of a relationship of superiority and subordination between the accused and the perpetrator of the underlying crime;
2. The superior’s knowledge of the fact that his subordinate had committed or was about to commit the crime;
3. The superior’s failure to prevent the commission of the crime or to punish the perpetrators;
4. The causal link between the superior’s failure and the commission of the crime. This fourth element is an explicit requirement in ICL provisions, notably in article 28(b) of the Rome Statute, although not directly mentioned in the IHL provisions.
The detailed interpretation and implementation of the responsibility of superiors and commanders in international jurisprudence is presented in a separate section. It covers the general duties and responsibilities of commanders as well as their criminal liability.
III. Responsibility of Individuals under International Humanitarian Law
All persons of legal age of majority are individually criminally responsible for any grave breaches of the Geneva Conventions committed by them, regardless of the circumstances. Combatants can be held criminal responsible for their act even in case they obey orders of a superior. This also applies to conduct amounting to war crimes, crimes against humanity, genocide and the crime of aggression under the Rome Statue of the ICC.
**☞ Superior Orders
IHL recognises that combatants generally operate within a hierarchical organisation or unit. It therefore imposes specific responsibilities on commanders in the first instance.
However, the fact that a combatant acted pursuant to superior orders does not exempt him or her from individual criminal responsibility incurred for grave breaches of the Geneva Conventions. Individuals therefore remain personally accountable, even when acting under orders from superiors.
IHL establishes the individual criminal responsibility of person for violations of IHL, even when acting under the orders of superiors. This is reflected in both the conventional and CIHL. (art. 3 of the 1907 Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land; GCI, art. 49; GCII, art. 50; GCIII; art. 129; GCIV, art. 146; API, 86(2) and 87; CIHL Rules 151, 154 and 155).
- Rule 151. Individuals are criminally responsible for war crimes they commit.
- Rule 154. Every combatant has a duty to disobey a manifestly unlawful order.
- Rule 155. 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.
Under ICL, individual criminal responsibility for violations of IHL and other international crimes is reflected at article 25 of the Rome Statute.
The Rome Statute also provides that “[t]he 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 there are 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(2) of the Rome Statute).
Judgments of international criminal courts confirm the restrictive interpretation of duress and superior orders as mitigating circumstances with respect to individual criminal responsibility (see infra , Jurisprudence).
The Rome Statute clearly sets out the elements constituting individual responsibility for genocide, crimes against humanity, and war crimes: a person shall be criminally responsible and liable to punishment for a crime within the jurisdiction of the Court if he or she:
“(a) Commits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible;
(b) Orders, solicits or induces the commission of such a crime which in fact occurs or is attempted;
(c) 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;
(d) 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:
(i) 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
(ii) Be made in the knowledge of the intention of the group to commit the crime;
(e) In respect of the crime of genocide, directly and publicly incites others to commit genocide;
(f) 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 the Rome Statute).
The Rome Statute of the ICC provides for certain limited grounds for exemption from criminal responsibility (arts. 26, 30, 31 and 33). These provisions protect, for example, persons who were under the age of 18 at the time the acts were allegedly committed, persons who suffered from a mental disease or defect, or persons who acted in legitimate and proportionate self-defence. Necessity and duress may excuse conduct where there is a threat of imminent death or of continuing or imminent serious bodily harm, and when the person acts necessarily and reasonably to avoid that threat and does not intend to cause greater harm than that avoided (art. 31(1)(d) of the Rome Statute).
With respect to war crimes, the Rome 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 exonerate that person from criminal responsibility unless the following conditions are met (art. 33 of the Rome Statute):
2. The person did not know that the order was unlawful; and
3. The order was not manifestly unlawful.
The Rome Statute specifies that orders to commit genocide or crimes against humanity are manifestly unlawful and, as such, cannot be used to justify obedience. (art. 33(2) of the Rome Statute)
CIHL Rule 151 provides that individuals are criminally responsible for war crimes committed in the context of an international or a non-international armed conflict. Rule 154 provides that every combatant has the duty to disobey a manifestly unlawful order. Rule 155 provides that obeying a superior order does not relieve a subordinate of criminal responsibility if the subordinate knew or should have known that the act ordered was unlawful because of the manifestly unlawful nature of the act ordered.
**Jurisprudence
- Individual Criminal Responsibility of Combatants
International criminal courts have analysed the conditions under which perpetrators can 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 proof of (1) participation, i.e., that the conduct of the accused contributed to the commission of an unlawful act, and (2) knowledge or intent, i.e., that the actor was aware of his or her participation in a crime (see*Prosecutor v. Clément Kayishema and Obed Ruzindana , Case no. ICTR-95-1-T, Judgment , 21 May 1999, para. 198 and Prosecutor v. Ljube Boškoski and Johan Tarčulovski , Case no. IT-04-82, Judgment , 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” ( Prosecutor v. Jean de Dieu Kamuhanda , Case no. ICTR-99-54A-T, Judgment and Sentence , 22 January 2004, para. 588). See also Prosecutor v. Paul Bisengimana , Case no. ICTR-00-60-S, 13 April 2006, J udgment and Sentence , para. 31 and Prosecutor v. Miodrag Jokić , Case no. IT-01-42/1-S, Sentencing Judgment , 18 March 2004, para. 56 and Prosecutor v. Simić et al. , Case no. IT-95-9T, Judgment , 17 October 2003, para. 135).
With respect 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” ( Prosecutor v. Radoslav Brđanin , Case no. IT-99-36-A, Judgment , 3 April 2007, paras. 273-274).
The ad hoc International Criminal Tribunals have considered how superior orders may affect the criminal responsibility of the perpetrator (by increasing or decreasing that responsibility).
**2. Duress and Superior Orders
Duress does not provide a complete defence for a soldier accused of a crime against humanity or a war crime involving the killing of innocent people. There is a clear difference between duress and the duty to obey superior orders. In the case of duress, the life of the accused must be in immediately danger if he refuses to carry out the order. There are three essential conditions for duress to be accepted as a defence to violation of IHL: (1) the act charged must have been done to avoid an imminent danger which was both serious and irreparable and (2) there was no reasonable possibility of escape. Furthermore, the means were not disproportionate to the evil (3) (*Prosecutor v. Dražen Erdemović , Case no. IT-96-22-T, Sentencing Judgment , 29 November 1996, para. 17).
The absence of moral choice is one of the essential components for considering duress as a complete defence. 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 ( Prosecutor v. Darko Mrđa , Case no. IT-02-59-S, Sentencing Judgment , 31 March 2004, paras. 65-67). The Trial Chamber refused to accept that an atmosphere of hatred and propaganda alone could constitute duress. These circumstances may have had some influence on the accused’s criminal behaviour, but the Trial Chamber did not accept that they were such that the accused, even taking into account of his age and low rank, would have had no alternative but to participate in the massacre of some 200 civilians. The absence of any meaningful indication that the accused wished to disassociate himself from the massacre at the time of its commission prevented the Trial Chamber from accepting duress as a mitigating circumstance (para. 66).
In front of the ICTY, the definition of duress has been limited to extreme situations where there is no other choice but to kill or to be killed (Prosecutor v. Dražen Erdemović , Case no. IT-96-22-Tbis, Sentencing Judgment, 5 March 1998, para. 17). The ICTY has stated that superior orders can only be considered as mitigating circumstances only if the orders were not manifestly unlawful. If the orders were manifestly unlawful, the subordinate must prove that he disobeyed them, which resulted in a direct threat to his life, before benefiting from mitigating circumstances, ( Prosecutor v. Darko Mrđa , Case no. IT-02-59-S, Sentencing Judgment , 31 March 2004, paras. 67-68).
**3. Mitigating Circumstances
In addition to duress and superior orders, international criminal courts have recognised other mitigating circumstances. However, the reduce penalty resulting from applying mitigating circumstances should not diminish the gravity of the crime (*Prosecutor v. Jean Kambanda , Case no. ICTR-97-23-S, Judgment and Sentence , 4 September 1998, paras. 36-37 and 56-58).
•Substantial cooperation with the Prosecutor;
•Surrendering to the authorities;**
•Admitting of guilt; •Demonstration of remorse towards the victims and the fact that the accused was not a de jure authority ( Prosecutor v. Clément Kayishema and Obed Ruzindana , Case no. ICTR-95-1-T, Sentence , 21 May 1999, para. 20). •The personal circumstances of the accused may also be relevant: the absence of a criminal record, the character of the accused, the assistance given by the accused to the victims, the absence of authority in his official position and the fact that the accused did not personally participate in the killings ( Prosecutor v. Georges Ruggiu , Case no. ICTR-97-32-I, Judgment and Sentence , 1 June 2000, paras. 59-80).
•The post-conflict conduct of the accused was considered as a mitigating circumstance ( Prosecutor v. Vidoje Blagojević and Dragan Jokić , Case no. IT-02-60-A, Judgment , 9 May 2007, paras. 328, 330-331, 342 and 344).
•The fact that the accused was not a very senior official in the government hierarchy (Prosecutor v. Jean-Paul Akayesu , Case no. ICTR-96-4-S, 2 October 1998, Sentence , para. 35).
•The need for sentences to reflect the importance of the accused’s role 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” ( Prosecutor v. Duško Tadić , Case no. IT-94-1-A and IT-94-1-Abis, Judgment in Sentencing Appeals , 26 January 2000, para. 56).
- Aggravating Circumstances
•The vulnerability of victims is considered an aggravating factor in sentencing. However, 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. Finally, the fact that victims are displaced persons or detainees constitute an aggravating factor (*Prosecutor v. Darko Mrđa , Case no. IT-02-59-S, S entencing Judgment , 31 March 2004, para. 48). See also Prosecutor v. Dario Kordić and Mario Čerkez , Case no. IT-95-14/2-A, Judgment , 17 December 2004, para. 1088; Prosecutor v. Tihomir Blaskić , Case no. IT-95-14-T, Judgment , 3 March 2000, para. 786 and Prosecutor v. Kunarac et al., Case no. IT-96-23-T and IT-96-23/1-T, Judgment , 22 February 2001, para. 864 (young age of the victims).
•The consequences of the crimes for the victims, in particular extraordinary suffering, shall be taken into account as an aggravating factor (Prosecutor v. Darko Mrđa , Case no. IT-02-59-S, Sentencing Judgment , 31 March 2004, paras. 55 and 56).
•The number of victims and the magnitude of the crime can constitute aggravating factors ( Prosecutor v. Kunarac et al. , Case no. IT-96-23-T and IT-96-23/1-T, Judgment , paras. 866-867; Prosecutor v. Milomir Stakić , Case no. IT-97-24-T, Judgment, 31 July 2003, para. 907; and Prosecutor v. Dražen Erdemović , Case no. IT-96-22-Tbis, Sentencing Judgment , 5 March 1998, para. 15).
•Abuse of authority is an aggravating circumstance ( Prosecutor v. Duško Tadić , Case no. IT-94-1-A and IT-94-1-A bis , Judgment in Sentencing Appeals , 26 January 2000, paras. 55 and 56; Prosecutor v. Radislav Krstić , Case no. IT-98-33-T, Judgment , 2 August 2001, para. 709 and Prosecutor v. Tharcisse Muvunyi, Case no. ICTR-00-55A-T, Judgment, 11 February 2010, paras. 145 and 146).
•Zeal and sadism are factors to be considered, where appropriate, as aggravating ( Prosecutor v. Aloys Simba , Case no. ICTR-01-76-A, Judgment , 27 November 2007, para. 320).
•Premeditation can also be considered as an aggravating factor ( Prosecutor v. Radislav Krstić , Case no. IT-98-33-T, Judgment , 2 August 2001, para. 711).
IV. Responsibility of impartial Humanitarian Organisations
The implementation of IHL is based on the respect by belligerents for specific obligations, in particular with regards to the protection of civilians in times of armed conflict, but also with regards to the work of impartial humanitarian organisations. IHL has created mechanisms of criminal sanctions for the violations of these obligations. It is important to note that IHL has been particularly creative in this area, establishing individual responsibility for both subordinates and superiors on the basis of whether unlawful orders were obeyed. It was also innovative in 1949 in establishing the principle of universal jurisdiction, which means that the courts of any State may have jurisdiction in cases of grave breaches (war crimes and crimes against humanity).
However, the application of IHL is based primarily on mechanisms for the prevention and mitigation of crimes and only marginally on mechanisms for the punishment of crimes. In situations of armed conflict, IHL seeks above all to prevent civilians from being the object of direct attacks or other forms of violence, or from being subjected to living conditions that leads to the death of the most vulnerable. The primary concern of IHL is to limit the consequences of violence, rather than relying on post-mortem justice. For this reason, the Geneva Conventions and their additional Protocols have given an essential role and specific rights to impartial humanitarian organisations. They have been granted a right of humanitarian initiative in order to negotiate and implement assistance and protection activities in accordance with the rights of victims of armed conflict and humanitarian principles.
Humanitarian principles require that medical and humanitarian assistance be provided wherever it is needed, impartially and with priority given to those who have the greatest need. In this regard, IHL effectively confirms that impartial humanitarian organisations have the right ( inter alia ) 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; (Common art. 3 to the Geneva Conventions; GCI-III, art. 9; GCIV, arts. 10, 11 and 59; API, arts. 4(4) and 70(1); APII, arts. 3(2) and 18(1))
•undertake assistance operations for the benefit of the population when it does suffer from severe shortages of essential supplies and monitor the distribution to the most vulnerable; (CGIV, arts. 23, 38, 59, 61 and 63(a); API, art. 70; CIHL rules 55 and 56) •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; (Common art. 3(2) to the Geneva Conventions, GCI-III, arts. 9 and 10; GCIV, art. 38; API, arts. 15(4) and 17; APII, arts. 7-8 and 18) •guarantee that persons who are displaced or detained as a result of a conflict receive the protection and assistance to which they are entitled; (GCIII, art. 125; GCIV, art. 109; API, arts. 74, 75(3) to (7), 76; APII, arts. 5 and 6)
•provide all categories of protected persons with assistance in conformity with the rights and protection guarantees that IHL grants them. (CGI, art. 10; GCIV, art. 27; API, art. 75; APII, art. 4).
The action of impartial humanitarian organisations is an important indicator of the willingness and the ability of belligerents to provide assistance to the victims of armed conflict and to authorise humanitarian organisations to do so. Impartial humanitarian organisations play an essential role in safeguarding assistance adjusted to the various vulnerability and 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 on the parties to the conflict, but also with the International Committee of the Red Cross (ICRC) and other impartial humanitarian organisations active in situation of armed conflict. While the ICRC is officially mandated by the Geneva Conventions, the presence and professional duties of the other impartial humanitarian organisations are also clearly foreseen and regulated by IHL. In order to guarantee the humanitarian nature of their work and the principle of do no harm , impartial humanitarian organisations must take every precaution to ensure that assistance reaches the most vulnerable and does not provide benefit to any party to the conflict, or support attacks. This is reflected in the use of a privileged administrative framework, such as a Humanitarian Special agreement or Memorandum of Understanding agreed to by Parties to the conflict (under Common art. 3 of the Geneva Conventions; GCI-III, art. 6 and GCIV, art. 7) that respects and operationalises the provisions of IHL, in particular with regards to the neutral and protected status of impartial humanitarian and medical assistance.
The Geneva Conventions of 1949 and their additional Protocols of 1977 impose obligations on the Parties to the armed conflict and on States Parties to these Conventions. They create rights for impartial humanitarian organisations, which of course, include an element of responsibility.
Such responsibilities fall broadly into two categories: responsibilities as actors providing humanitarian assistance to victims of armed conflict under IHL (1), and responsibilities as potential witnesses to crimes committed against the population (3). There have also been instances in which States have attempted to transform humanitarian actions that are consistent with IHL into domestic criminal offences. This has been the case, in particular with regards to humanitarian actions in situations of armed conflict involving armed groups labelled as terrorist and with regard to State consent for cross-border humanitarian action. Humanitarian action has also been criminalised under domestic law in relation to humanitarian assistance to migrants and war-related refugees, notably in search and rescue operations at sea. In response to such risks, humanitarian exemption clauses have been developed to preserve the legitimacy of humanitarian activities and the immunity of medical action provided by IHL and limit the scope of potential criminal responsibility of humanitarian actors (2).
1. Responsibility as Humanitarian Actors
IHL sets out specific rules for assisting and protecting civilians in times of armed conflict. Impartial humanitarian organisations involved in such situations have a responsibility to negotiate their working conditions with the warring parties. These conditions must be consistent with, and not undermine, the guarantees set out in IHL. Impartial humanitarian organisations also have a responsibility to report on the extent to which they are able, or prevented, from providing effective assistance relevant to the protection and survival of the populations concerned. Humanitarian responsibility is distinct from human rights protection activities, and as such cannot simply be delegated by humanitarian actors to human rights organisations in the name of separation and complementarity between assistance and denunciation activities. This responsibility goes beyond the mere exercise of proper financial control over private or institutional funds allocated for humanitarian assistance. It also includes proper assessment and reporting on the humanitarian space granted by parties to a conflict and the following obligations:
•The duty to negotiate working conditions with the authorities, in accordance with the guarantees set out in IHL for the benefit of the population in general and the most vulnerable in particular.
•The responsibility to identify and report any obstacles, impediments, or prohibitions to their assistance activities that will adversely affect the most vulnerable. This action must be taken at the local, national, and international levels. It is crucial because it draws attention to the dangers that a particular population or group may continue to face, despite the presence of humanitarian actors and the volume of assistance being brought in. One of the roles of humanitarian organisations is to alert on difficulties of the humanitarian situation in order to empower the authorities directly involved, who can no longer claim their absence of knowledge of these facts.
In such situations, it is important that humanitarian organisations are able to analyse the true nature of their action and to test it against the IHL framework of assistance and protection of victims of armed conflict. They cannot remain silent in situations where, despite the distribution of assistance, the safety and lives of the population continue to be threatened and destroyed. It is important to recall that speaking out about violations of IHL is not a breach of neutrality for an impartial humanitarian organisation whose presence and actions must empower armed actors to respect and protect the victims of armed conflict.
Many humanitarian organisations are still in the early stages of addressing these responsibilities under IHL framework. They are often addressed through general debates about the moral dilemmas of humanitarian action or through an alleged division of labour between organisations focused on public denunciation and criminal sanctioning of violations of international law and those focused on field humanitarian action. The “Professional Standards for Protection Work,” published in 2010 and developed jointly by the ICRC and a group of experts from international and non-governmental organisations, provide important guidance. These standards objectify the risks of various well-intentioned actions by humanitarian and rights activist organisations that may actually increase the vulnerability of victims or weaken their rights. These professional standards should be taken into account in the planning and evaluation of activities within each organisation and should be made more transparent to the public. The standards complement the codes of conduct developed by the International Federation of the Red Cross and the Red Crescent Societies and the ICRC in the 1990s, which set out the humanitarian principles accepted by humanitarian organisations.
2. Humanitarian criminal liability and humanitarian exemption
The undue criminalisation of humanitarian actors has led to the need to develop humanitarian exemption clauses at the international and national levels.
In recent years, there have been two main categories of criminal charges brought by various States against impartial humanitarian organisations and individuals. Namely, when impartial humanitarian organisations provide assistance to migrants and asylum seekers and when they carry out their activities in a counterterrorism context.
With regard to assistance to asylum seekers, new criminalisation tendencies have emerged in numerous regions of the World including in Europe, to punish the facilitation of the entry and stay of irregular migrants on States territories. This is often due to the unclear distinction in criminal law between what is and what is not smuggling, humanitarian assistance and financial gain. In practice the EU and national policies are increasingly affecting impartial humanitarian organisations and other actors, including individuals, who provide humanitarian assistance and access to rights to undocumented migrants and asylum seekers. Even when final judgments exonerate humanitarian workers, the length of legal proceedings in different countries has a chilling effect on those providing humanitarian assistance.
National counterterrorism policies and legislation have had a significant impact on humanitarian assistance in war-affected areas. Their standard provisions criminalise the transfer of all kinds of resources to terrorist groups or individuals, even in the absence of knowledge or intent to support criminal acts. Expanded definitions of terrorist offences are contrary to IHL when they make humanitarian action in situations of armed conflict impossible for entire populations living in territory controlled by non-State armed groups labelled as terrorists.
The fact that non-State Parties to a conflict are labelled as terrorists does not deprive populations under their control of their fundamental right to assistance and consequent protection under IHL. The provision of humanitarian assistance in a manner consistent with IHL should never be considered as complicity or material support to terrorism or as direct or indirect support to a party to the conflict. Rather, adherence to humanitarian principles helps to alleviate human suffering and does not support or condone terrorism. Indeed, the IHL framework for humanitarian assistance is designed to avoid providing military or economic benefits to any party to an armed conflict. (see Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America). Merits, Judgment , I.C.J. Reports 1986, p. 14, paras. 242 and 243).
Impartial humanitarian action must be protected and cannot be prosecuted if it is lawful under IHL and respects the humanitarian principles of humanity, neutrality, independence, and impartiality. The unlawful classification of humanitarian assistance affects the protected status and safety of the medical facilities and personnel engaged in exclusively medical and humanitarian activities. It also imposes a criminal liability on medical and humanitarian personnel which is a clear violation of IHL’s prohibition on punishing persons for carrying out medical activities in accordance with medical ethics, regardless of the circumstances. (see API, art.16(1); APII, art. 10(1) and CIHL rule 26).
The first step in restoring the distinction between humanitarian and criminal activities in the sensitive contexts of counterterrorism armed conflicts has been achieved through special binding resolutions adopted at the highest level of the United Nations organisation.
UNSC resolutions have provided exemptions for humanitarian activities and instructed States to ensure that their counterterrorism measures do not adversely affect humanitarian action and to take into account the impact of counterterrorism measures on impartial humanitarian action. (see UNSC Resolution 2462 (March 2019), para. 24; Resolution 2482 (July 2019), para. 16, Resolution 2593 (August 2021), para. 3, Resolution 2582 (June 2021), para. 4, Resolution 2590 (August 2021), preambular paras. 9-10; Resolution 2615 (December 2021), para. 1 and Resolution 2664 (December 2022), para. 1).
In addition, the recommendations of the 2023 UN General Assembly (UNGA) resolution 77/288 on the Counterterrorism strategy “ [u]rge[d] States to ensure, in accordance with their obligations under international law and national regulations, and whenever international humanitarian law is applicable, that counterterrorism legislation and measures do not impede humanitarian and medical activities or engagement with all relevant actors as foreseen by international humanitarian law, noting the applicable rules of international humanitarian law relating to the non-punishment of any person for carrying out medical activities compatible with medical ethics;” (see para. 113).
The second step would be to incorporate the UN resolution humanitarian exemption into the national criminal law of the various countries for humanitarian and medical activities carried out by impartial organisations in a manner consistent with IHL.
Such a humanitarian exemption is not a blanket criminal exemption as it is deliberately narrow in terms of material and personal scope to ensure that any organisation with criminal intentions would de jure and de facto be unable to rely on this exemption.
**Jurisprudence
In the case of Nicaragua v. United States of America (Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America). Merits, Judgment , I.C.J. Reports 1986, p. 14), the ICJ affirmed the legality of providing humanitarian assistance in the context of a non-international armed conflict : “[t]here can be no doubt that the provision of strictly humanitarian aid to persons or forces in another country, whatever their political affiliations or objectives, cannot be regarded as unlawful intervention, or as in any other way contrary to international law.” (para. 242)
**It also emphasised the need for impartial humanitarian organisations to engage equally with all State and non-State parties to the conflict in order to provide the assistance necessary for the survival of the populations under their respective control, without adverse distinction/discrimination other than those based on need.
“An essential feature of truly humanitarian aid is that it is given ‘without discrimination’ of any kind. In the view of the Court, if the provision of ‘humanitarian assistance’ is to escape condemnation as an intervention in the internal affairs of Nicaragua, not only must it be limited to the pur-poses hallowed ( sic ) in the practice of the Red Cross, namely ‘to prevent and alleviate human suffering’ and ‘to protect life and health and to ensure respect for the human being’; it must also, and above all be given without discrimination to all in need in Nicaragua, not merely to the contras and their dependents” (para. 243)
The interaction between humanitarian assistance and criminal activities was highlighted in two cases of the ICTY. In the Stakić case ( Prosecutor v. Milomir Stakić , Case no. IT-92-24-A, Judgment , 22 March 2006, para. 286), the Appeals Chamber of the ICTY held that the involvement of an NGO in facilitating a transfer does not in and of itself render an otherwise unlawful transfer lawful. In line with this approach, the Appeals Chamber in the Simić case ( Prosecutor v. Simić et al. , Case no. IT-95-9-A, Judgment, 28 November 2006, para. 180) found that “the presence of representatives from UNPROFOR [the United Nations Peacekeeping Force in Bosnia and Herzegovina] 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”.
3. Responsibility of humanitarian organisations as potential witnesses to crimes against the population
By virtue of their presence in the field, members of impartial humanitarian organisations may be direct witnesses to crimes and coercion committed against civilians in situations of armed conflict.
Impartial humanitarian organisations are not responsible for the general promotion or defence of human rights or the global fight against impunity for international crimes. However, their responsibility under IHL extends to dealing with serious violations. They must report them to the ICRC and protest to the parties to the conflict to stop the violations. When an impartial humanitarian organisation makes such a denunciation, it does not do so out of moral or legal compulsion. The aim of the relevant provisions of IHL is to ensure that the parties concerned are informed about wrongful acts and humanitarian situation. Such knowledge is necessary to trigger their responsibility to investigate, sanction or otherwise secure an immediate improvement in the conditions of assistance and protection of the population at risk. The responsibility of impartial humanitarian organisations includes informing and confronting the military and political authorities in control of the situation about violations of IHL as an integral part of their humanitarian dialogue and negotiations. The quality and accuracy of such dialogue or confrontation depends on the ability of the organisations to master the basics of IHL, to secure reliable information, and to strike a balance between direct negotiation and, as a last resort, of speaking out, raising public awareness, and exerting pressure at the local or international level.
IHL does not impose an obligation of confidentiality on the ICRC or on other impartial humanitarian organisations with regard to grave breaches of the Geneva Conventions. It does, however, prohibit public political controversy in the name of neutrality. It is therefore essential to justify public denunciations by taking into account the behaviour of both parties to the conflict.
Nevertheless, the public denunciation of crimes by impartial humanitarian organisations remains a last resort, raising several problems and operational dilemmas.
The first dilemma is based on the fact that any public action taken in relation to a crime may jeopardise the safety and therefore the presence and activities of the organisations on the ground. For a long time, impartial humanitarian organisations have adopted an absolutist interpretation of the principle of neutrality in order to resolve such problems. Neutrality prohibits organisations from taking a position on belligerents and their methods of warfare. However, in the case of genocide or acts of extermination, for example, arguments in favour of allowing humanitarian operations to continue rather than jeopardising them no longer make sense. Silence cannot be the dogma of impartial humanitarian organisations, since an authority might allow humanitarian activities to cover up crimes committed against part or all of a population. It is also possible that the suffering and deprivation of a population is in fact deliberately organised by a particular authority to attract and then divert assistance. Such behaviour calls in question the responsibilities and practices of impartial humanitarian organisations.
The question of neutrality must therefore be considered from an operational perspective and assessed in terms of its real impact on the protection and assistance provided to the populations concerned. It should be noted that during the armed conflict in the former Yugoslavia, the ICRC clarified its doctrine and stated that denouncing serious violations of IHL did not constitute a breach of the principle of neutrality. Since then, the ICRC has made it clear that neutrality should not be confused with confidentiality and silence. This principle has a value in terms of operational effectiveness and should not be seen as an abstract and absolute principle.
➔ Humanitarian principles ▸ The Red Cross and Red Crescent Movement
Some organisations have attempted to solve their operational dilemmas by deciding to share their information on serious violations confidentially with human rights organisations or UN mechanisms, which can make such information public without revealing its source and jeopardising the safety of humanitarian operations and staff in the field. Such solutions risk confusing the scope of each organisation’s responsibility to protect victims, as they have different objectives and operate under different time constraints. As a general rule, impartial humanitarian organisations must act on the basis of immediate prevention and principled action. This may ultimately include voluntary suspension of assistance operations if negotiations on core humanitarian principles fail, so that belligerents become aware of their responsibilities and obligations under IHL. They should, of course, document e situations of violence to which they are exposed, as this remains within their humanitarian agenda. This is different from activities aimed at documenting and denouncing human rights violations or collecting evidence for trials in international courts in the name of the fight against impunity, which fall under broader international political and judicial agendas. ➔ Protection
The establishment of the two ad hoc International Criminal Tribunals for the former Yugoslavia and for Rwanda (ICTY and ICTR) as well as the ICC, has introduced a new judicial dimension to international relations. This has led impartial humanitarian organisations to reconsider their position on violations of IHL. Some NGOs actively cooperate with the international criminal justice system and see themselves as actors in the fight against impunity, providing information for the indictment, prosecution and trial of alleged perpetrators of war crimes and crimes against humanity. Other organisations abstain from any such cooperation, arguing that judicial activities are incompatible with neutral and impartial humanitarian action and with the need to negotiate assistance actions and security guarantees with perpetrators of the armed violence.
The risk of impartial humanitarian organisations being drawn into politicised judicial agendas has materialised in a number of situations following the creation of the ICC, leading to better adapted positions applicable before both national and international courts. This includes the recognition that cooperation with criminal courts is not a humanitarian choice, but a mandatory duty in criminal proceedings. This recognition raised the need to argue about the specificity of humanitarian action in order to claim a form of immunity before criminal courts.
Beyond criminal justice, it is important for impartial humanitarian organisations to be able to address the specificity of such crimes in the course of their field operations. They need to be able to qualify the situations in which they operate in order to adapt their activities to specific needs and vulnerabilities, and to limit their potential complicity in or facilitation of criminal activities. adjust their assistance. They can also document what happens before the evidence disappears. Finally, they can also provide victims with medical reports and other documents to enable them to assert their claims and rights at a later stage, if possible.
The ability to qualify a given situation in terms of the plight of the populations and the patterns of violence perpetrated around and against them is the first stage of responsible humanitarian action. Fact-finding and documentation of violations of IHL are therefore an integral part of a responsible humanitarian action. These organisations have an obligation to report these crimes to the competent civilian or military authorities, to the ICRC, and in the most serious cases, to the highest UN body (according to API, art. 89).
However, this obligation to inform the authorities of IHL violations should not be confused with an obligation to testify before national or international criminal tribunals. This confusion could jeopardise the presence and safety of humanitarian workers in conflict zones. This has been recognised by the ad hoc International Criminal Tribunals, which in several judgments have acknowledged the incompatibility between the mandates of humanitarian workers and war correspondents and the role of judicial witnesses. This immunity has since been recognised by the ICC for the ICRC and for professions covered by professional secrecy such as doctors and journalists. The ICRC’s privilege against the disclosure of information has been codified in Rule 73(4) of the ICC’s Rules of Procedure and Evidence .
The jurisprudence on the principles and criteria of this immunity from testimony for humanitarian personnel can be found under ➔ Immunity
➔** Amnesties </content/article/3/amnesties>__ ▸ Duty of commanders ▸ Humanitarian principles ▸ Immunity ▸ Individual recourse ▸ International Criminal Court ▸ International Criminal Tribunals ▸ Jurisprudence ▸ Peacekeeping ▸ Penal sanctions in humanitarian law ▸ Respect for international humanitarian law ▸ Universal jurisdiction ▸ War crimes/Crimes against humanity
**For Additional Information:
Aubert, Maurice, “The question of superior orders and the responsibility of Commanding Officers in the Protocol additional to the Geneva Conventions of 12 August 1949 and relating to the protection of victims of international armed conflicts (Protocol I) of 8 June 1977.” International Review of the Red Cross, vol. 263 (April 1988): 105-120.
Blishenko, Igor P., “Responsibility in Breaches of Humanitarian Law.” In International Dimensions of Humanitarian Law , Geneva, Henry Dunant Institute, 1988, p. 283-296.
Bouchet-Saulnier, “How counterterrorism throws back wartime medical assistance and care to pre-Solferino times”, International Review of the Red Cross, vol. 103, no. 916-917, February 2022: 479-516.
“Where Counterterrorism Measures Impede Humanitarian Action, Domestic Law Is Key”, IPI Global Observatory , 17 June 2021.
Crawford, James, Brownlie’s Principles of Public International Law , 9th edition, Oxford, Oxford University Press, 2019.
Dinstein, Yoram, The Conduct of Hostilities under the Law of International Armed Conflict , 4th edition, Cambridge, Cambridge University Press, 2022.
Doswald-Beck, Louise, Customary International Humanitarian Law , Cambridge University Press, 2005, Vol. II, p. 3733-3799.
Graditzky, Thomas, “Individual criminal responsibility for violations of international humanitarian law committed in non-international armed conflicts.” International Review of the Red Cross , vol. 322 (March 1998): 29-56.
Henckaerts, Jean-Marie and Doswald-Beck, Louise, eds., Customary International Law. Vol. 1, The Rules . Cambridge, Cambridge University Press, June 2005, part 6.
**Hendin, Stuart E., “Command Responsibility and Superior Orders in the Twentieth Century – A Century of Evolution”, Murdoch University Electronic Journal of Law, vol. 4, no. 10(1), 2003Available at http://classic.austlii.edu.au/au/journals/MurdochUeJlLaw/2003/4.html
ICRC, “Engagement with Non-State armed groups: Position paper March 2021: Why, how, for what purpose, and other salient issues”, International Review of the Red Cross , vol. 102, no. 915, January 2022: 1087-1098.
Professional Standards for Protection Work Carried Out by Humanitarian and Human Rights Actors in Armed Conflict and Other Situations of Violence , 3rd ed., 2018, Available at https://www.icrc.org/en/publication/0999-professional-standards-protection-work-carried-out-humanitarian-and-human-rights
International Federation of the Red Cross and Red Crescent Societies and the ICRC, The Code of Conduct for the International Red Cross and Red Crescent Movement and Non-Governmental Organisations (NGOs) in Disaster Relief , 1 January 1994, Available at https://www.ifrc.org/sites/default/files/2021-07/code-of-conduct-movement-ngos-english.pdf
La Rosa, Anne-Marie, “Humanitarian organizations and international criminal tribunals, or trying to square the circle”, International Review of the Red Cross , vol. 88, no. 861 (March 2006): 169-186.
Meloni, Chantal, Command Responsibility in International Criminal Law , T.M.C. Asser Press, The Hague, 10 June 2010, 286 pages.
Mettraux, Guénaël, The Law of Command Responsibility . Oxford, Oxford University Press, 2009, 307 pages.
Mongelard, Eric, “Corporate civil liability for violations of international humanitarian law”, International Review of the Red Cross , vol. 88, no. 863, (September 2006): 665-691.
Moore, Jonathan, ed., Hard Choices: Moral Dilemmas in Humanitarian Intervention, Rowman & Littlefield, Lanham, Oxford, 1998, 322 pages.
Pantuliano, Sara, Mackintosh, Kate and Elhawary, Samir with Metcalfe, Victoria, Counter-terrorism and humanitarian action: Tensions, impact and ways forward , HPG Policy Brief 43, October 2011, Available at https://cdn-odi-production.s3.amazonaws.com/media/documents/7347.pdf
Paust, Jordans, “Superior Orders and Command Responsibility.” In International Criminal Law , edited by M. Cherif Bassiouni, Ardsley, NY: Transnational, 1999, p. 223-238.
Renault, Céline, “The impact of military disciplinary sanctions on compliance with international humanitarian law”, International Review of the Red Cross , vol. 90, no. 870 (June 2008): 319-326.
Rona, Gabor, “The ICRC’s privilege not to testify: Confidentiality in Action, An explanatory memorandum”, International Review of the Red Cross , vol. 14, no. 845, (March 2002): 207-219. Available at https://international-review.icrc.org/sites/default/files/S1560775500105188a.pdf
Schaff, Michael P., and Rodley, Nigel S., “International Law Principles on Accountability.” In Post-Conflict Justice , edited by Cherif Bassiouni, Brill, Nijhoff, 2002, p. 89-96.
Sivakumaran, Sandesh, “Command Responsibility in Irregular Groups”, in Journal of International Criminal Justice , 2012, vol. 10, no. 5, p. 1137.
United Nations University, Centre for Policy and Research, Humanitarian Exemptions in UN Sanctions Regime , March 2022.
United Nations Office for the Coordination of Humanitarian affairs and Norwegian Refugee Council, Study of the impact of donor counterterrorism measures on principled humanitarian action , July 2013.
Van Sliedregt, Elies, The Criminal Responsibility of Individuals for Violations of International Humanitarian Law , T.M.C. Asser Press, The Hague, 15 November 2003, p. 438.
Williamson, Jamie Allan, “Some considerations on command responsibility and criminal liability”, International Review of the Red Cross , vol. 90, no. 870 (June 2008): 303-317.