The Application of Superior Responsibility to Civilian Leaders, 1975-79

By Rehan Abeyratne, Harvard Law School 2010

Legal Associate Summer 2009, Documentation Center of Cambodia



The Extraordinary Chambers in the Courts of Cambodia (also “ECCC” or “Court”) was established to hold criminally responsible senior leaders of Democratic Kampuchea (DK) and those most responsible for the most serious violations of Cambodian penal law and international law from April 1975 to January 1979. Article 29 of the 2004 ECCC Law holds superiors individually responsible for the crimes of their subordinates, among other modes of liability. Because the ECCC’s jurisdiction extends only to high-level offenders, the prosecution will probably rely, at least in part, on the principle of superior responsibility to attach guilt to the senior leadership of the DK regime for the criminal acts of their subordinates. This is particularly likely in the DK context, where senior leaders may not have perpetrated many of the crimes themselves, but likely knew, or should have known that their subordinates were engaged in the most egregious violations of national and international law.

While superior responsibility is a well-established principle of customary international law today, under the general principle of nullem crimen sine lege (“no crime without law”) [hereinafter “nullem crimen”], the ECCC can only hold individuals responsible for acts that were criminal at the time of their commission. The ECCC has limited temporal jurisdiction: it can only hear cases in which the alleged crimes occurred between 1975 and 1979. Thus, the accused at the ECCC can only be held responsible for crimes that were both perpetrated and legally cognizable in this period (1975-79).

The accused leaders who occupied positions in the central committee of the DK regime may raise a nullem crimen challenge by arguing that superior responsibility did not attach to their actions in the period for which the ECCC has temporal jurisdiction (1975-79): specifically, that superior responsibility only applied to military, not civilian, leadership in this period. In anticipation of this defense, this article examines whether superior responsibility applied to civilian leadership from 1975-79. In other words, it will analyze whether this mode of liability can survive a nullem crimen challenge by the accused. (A more in-depth version of this article is available at www.dccam.org).

In this analysis, it is necessary to first identify how the ECCC might define the elements of superior responsibility. The Court has not yet ruled on this issue, but the ECCC Law and jurisprudence from other international criminal tribunals provide insights into how it may eventually rule. Article 29 of the ECCC Law states, “The fact that [crimes]….were committed by a subordinate does not relieve the superior of personal criminal responsibility if the superior had effective command and control or authority and control over the subordinate, and the superior knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators.” This articulation of the principle of superior responsibility is similar to the corresponding provisions in the International Criminal Tribunal for the Former Yugoslavia (ICTY) and International Criminal Tribunal for Rwanda (ICTR) statutes.

ICTY and ICTR jurisprudence has elaborated upon this basic provision and established that superior responsibility has three distinct elements when applied to either military or civilian leaders. They are: (1) a superior-subordinate relationship, characterized by “effective control” by the superior over the subordinate; (2) in which the superior knew or had reason to know of the subordinates’ crimes; and (3) failed to take necessary and reasonable measures to prevent those crimes or to punish the perpetrators.[1] For the ECCC Trial Chamber to define superior responsibility similarly, it must first find that this same conduct was criminalized during the jurisdiction of the court.

In response to a nullem crimen challenge, the prosecution would have to show that from 1975-79 superior responsibility existed in international law in a form sufficiently clear and similar to the above formulation so as not to unfairly burden the accused. Specifically, the prosecution must show that it (1) applied to civilian superiors in the relevant period (1975-79) as a mode of individual criminal liability; (2) in a form sufficiently specific and (3) accessible to the particular accused to make foreseeable the imposition of criminal sanctions.[2]

Drawing on jurisprudence from the post-World War II tribunals—the International Military Tribunal and International Military Tribunal of the Far East[3]—and Article 87(3) of the 1977 Additional Protocol to the Geneva Conventions,[4] it is clear that, at least with regard to military leaders, superior responsibility existed as a mode of individual criminal liability in international law from 1975-79.

With that established, we can move on to the more contentious matter of whether superior responsibility applied to civilian hierarchies from 1975-79. Recent jurisprudence from the ICTY and ICTR and the ICC Rome Statute have explicitly extended this mode of individual criminal liability to civilian superiors.[5] Prior case law and treaties, by contrast, treated superior responsibility in more general terms, where liability was imposed on “superiors” without any distinction between civilian and military leaders.[6] The Rome Statute, moreover, is the first instrument to separate civilian and military responsibility and to institute slightly different elements within each.[7]

Nevertheless, relying on jurisprudence from the post-WWII tribunals and the Additional Protocol there is strong evidence to suggest that superior responsibility for civilian leaders was part of customary international law from 1975-79. While the post-WWII tribunals did not clearly establish the standard of mens rea or the level of control over subordinates required to convict civilian leaders, they did find several civilian superiors guilty of superior responsibility for crimes in their statutes[8]—a development that was codified into conventional law by Additional Protocol I of 1977, which claimed only to restate existing customary law.[9] Thus, the ECCC is likely to find that superior responsibility for civilian leaders had crystallized into customary international law by 1975-79.

Nullem crimen, at its heart, is intended to protect those who acted in good-faith ignorance of the law. The post-WWII jurisprudence, reinforced by Additional Protocol I, made clear that civilian superiors could be criminally liable under superior responsibility. The law therefore existed in a form sufficiently clear to impute liability on civilian leaders in the Khmer Rouge period (1975-79). The accused in the ECCC, by virtue of their rank in the regime, likely knew that they were criminally responsible for the failure to prevent the criminal conduct of their subordinates. The ECCC is therefore likely to find that they were put on notice that their acts were illegal and that the law was not in too vague a form to be accessible to them.

Overall, a nullem crimen defense contesting the claim that superior responsibility for civilian leaders was part of international law from 1975-79, should fail. If such a defense is raised before the ECCC, the evidence—case law, conventional law, and the element of fairness underlying the nullem crimen principle—militates against the accused.