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Mr. Kevin Riordan
Deputy Chief Judge
Court Martial of New Zealand
Deputy Judge Advocate General
Armed Forces of New Zealand
Adjunct Lecturer in Law
Victoria University of Wellington

Biography Biography in PDF

Criminal Law and Procedure
International Criminal Law
Basic Ideas About International Criminal Law
This lecture will examine the question of why it is that intentional criminal law has developed in the way it has. It will outline the four crimes that are the focus of the Rome Statute and will ponder the question of why some actions are criminalised and some are not. It will touch on possibilities for further expansion of the enumerated crimes. Much of this lecture will deal with the sources of International Criminal Law, and will look in particular at the role of customary international law, general principles of law and the subsidiary sources.

Video  (47 minutes)

Command Responsibility
An army is dominated by its officers. Small wonder then that commanders should bear particular responsibility for the offences committed by their subordinates. Since it first crystalised in the Yamashita trial, however, the concept of command responsibility has entailed some degree of controversy. When the idea of attributing responsibility was extended to superiors such as mayors and civilian officials the efficacy of the doctrine grew, but so too did criticism of its scope. This lecture will examine the philosophical basis for the doctrine and also looks at some of the more instructive cases relating to its application.

Video  (34 minutes)
Criminal Law and Procedure
International Criminal Law
Basic Ideas About International Criminal Law
A. Legal Instruments
Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, and Charter of the International Military Tribunal, London, 8 August 1945, United Nations, Treaty Series, vol. 82, p. 280.

Convention on the Prevention and Punishment of the Crime of Genocide, Paris, 9 December 1948, United Nations, Treaty Series, vol. 78, p. 277.

Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Geneva, 12 August 1949, United Nations, Treaty Series, vol. 75, p. 31.

Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Geneva, 12 August 1949, United Nations, Treaty Series, vol. 75, p. 85.

Geneva Convention relative to the Treatment of Prisoners of War, Geneva, 12 August 1949, United Nations, Treaty Series, vol. 75, p. 135.

Geneva Convention relative to the Protection of Civilian Persons in Time of War, Geneva, 12 August 1949, United Nations, Treaty Series, vol. 75, p. 287.

Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the protection of victims of international armed conflicts (Protocol I), Geneva, 8 June 1977, United Nations, Treaty Series, vol. 1125, p. 3.

Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the protection of victims of non-international armed conflicts (Protocol II), Geneva, 8 June 1977, United Nations, Treaty Series, vol. 1125, p. 609.

Statute of the International Criminal Tribunal for the former Yugoslavia, Report of the Secretary-General pursuant to paragraph 2 of Security Council resolution 808 (1993) (S/25704), 3 May 1993.

Statute of the International Criminal Tribunal for Rwanda, Security Council resolution 955 (1994) of 8 November 1994.

Rome Statute of the International Criminal Court, Rome, 17 July 1998, United Nations, Treaty Series, vol. 2187, p. 3.

Statute of the Special Court for Sierra Leone, Freetown, 16 January 2002.

Law on the Establishment of Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the period of Democratic Kampuchea, with inclusion of Amendments as promulgated on 27 October 2004, Extraordinary Chamber in the Courts of Cambodia.
B. Jurisprudence
International Criminal Tribunal for the former Yugoslavia, Prosecutor v. Dusko Tadić, Decision on the defence motion for interlocutory appeal on jurisdiction of 2 October 1995, Appeals Chamber, No. IT-94-1-AR72.

International Criminal Tribunal for the former Yugoslavia, Prosecutor v. Anto Furundžija, Judgment of 21 July 2000, Appeals Chamber, No. IT-95-17/1-A.

International Criminal Tribunal for Rwanda, The Prosecutor v. Jean-Paul Akayesu, Judgment of 2 September 1998, Trial Chamber I, No. ICTR-96-4-T.

Special Court for Sierra Leone, The Prosecutor v. Sam Hinga Norman, No. SCSL-03-08-I. 
C. Documents
General Assembly resolution 3314 (XXIX) of 14 December 1974 (Definition of Aggression).

Security Council resolution 808 (1993) of 22 February 1993.

International Criminal Court, Rules of Procedure and Evidence, New York, 9 September 2002.

International Criminal Court, Elements of Crimes, 9 September 2002, ICC-ASP/1/3(part II-B).

International Criminal Court Review Conference, resolution RC/Res.6 of 11 June 2010, “The crime of aggression”.


Command Responsibility
A. Legal Instruments
B. Jurisprudence
International

International Military Tribunal, Judgment and Sentences, Nuremburg, 1 October 1946, reprinted in American Journal of International Law, vol. 41, 1946, p. 172.

International Criminal Tribunal for the former Yugoslavia, Trial Chamber, Prosecutor v. Delalić et al (Celebici), Judgment of 16 November 1998,IT-96-21-T.

International Criminal Tribunal for the former Yugoslavia, Prosecutor v. Stanislav Galić,Decision of 26 March 1999, Trial Chamber I, IT-98-29-I.

International Criminal Tribunal for Rwanda, Prosecutor v. Clément Kayishema and Obed Ruzindana, Judgment of 21 May 1999, Trial Chamber II, IT–95–1–T.

International Criminal Tribunal for Rwanda, Prosecutor v. Alfred Musema, Judgment and Sentence of 27 January 2000, Trial Chamber I, ICTR-96-13-T.

International Criminal Tribunal for the former Yugoslavia, Prosecutor v. Blaskić, Judgment 3 March 2000, Trial Chamber I, IT-95-14-T.

International Criminal Tribunal for the former Yugoslavia, Prosecutor v. Zlatko Aleksovski, Judgment of 24 March 2000, Appeals Chamber, I-95-14/1-A.

International Criminal Tribunal for the former Yugoslavia, Prosecutor v. Delalić et al. (Celebici), Judgment of 20 February 2001, Appeals Chamber, IT-96-21-A.

International Criminal Tribunal for the former Yugoslavia, Prosecutor v. Kordić and Cerkez, Judgment of 26 February 2001, Trial Chamber, IT-95-14/2-T.

International Criminal Tribunal for the former Yugoslavia, Prosecutor v. Hadzihasanović, Decision of  16 July 2003 on Interlocutory Appeal Challenging Jurisdiction in relation to Command responsibility, Appeals Chamber, IT-01-47-AR72.

International Criminal Tribunal for the former Yugoslavia, Prosecutor v. Stakić, Judgment of 31 July 2003, Trial Chamber, IT-97-24-T.

International Criminal Tribunal for the former Yugoslavia, Prosecutor v. Obrenović, Judgment of 10 December 2003, Trial Chamber, IT-02-60/2-T.

International Criminal Tribunal for the former Yugoslavia, Prosecutor v. Blaskić, Judgment of 29 July 2004, Appeals Chamber, IT-95-14-A.

International Criminal Tribunal for the former Yugoslavia, Prosecutor v. Halilović, Decision of 17 December 2004 on Prosecutor’s motion seeking leave to amend the indictment, Trial Chamber, IT-01-48-PT.

International Criminal Tribunal for the former Yugoslavia, Prosecutor v. Halilović, Judgment 16 November 2005, Trial Chamber, IT-01-48-T.

International Criminal Tribunal for the former Yugoslavia, Prosecutor v. Hadzihasanović, Judgment of 15 March 2006, Trial Chamber, IT-01-47-T.

International Criminal Tribunal for the Former Yugoslavia, Prosecutor v. Blagojević and Jokić, Judgment of 9 May 2007, Appeals Chamber, IT-02-60-A.

International Criminal Tribunal for the former Yugoslavia, Prosecutor v. Orić, Judgment of 30 July 2006, Trial Chamber, IT-03-68-T.

International Criminal Tribunal for the former Yugoslavia, Prosecutor v. Halilov, Judgment of 16 October 2007, Appeals Chamber, IT-01-48-A.

International Criminal Tribunal for the former Yugoslavia, Prosecutor v. Hadzihasanović, Judgment of 22 April 2008, Appeals Chamber, IT-01-47-A.

International Criminal Tribunal for the former Yugoslavia, Prosecutor v. Orić, Judgment of 3 July 2008, Appeals Chamber, IT-03-68-A.

International Criminal Court, Prosecutor v. Bemba, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, 15 June 2009, ICC-01/05-01/08.

National

United States Military Commission, Manila, Trial of General Tomoyuki Yamashita, Judgment of 7 December 1945.

Supreme Court of the United States, In re Yamashita, 327 U.S. 1 (1946).
C. Documents
Instructions to Third Army Corps and Division Commanders by General George S. Patton, Jr., 5 March 1944.

Ieng Sary, Alternative Motion on the Limits of the Applicability of Command Responsibility at the ECCC, Case No 002/19-09-2007-ECCC/OCIJ, 15 February 2010.
D. Doctrine
I. Bantekas, “The Contemporary Law of Superior Responsibility”, American Journal of International Law, vol. 93, 1999, p. 573.

L.A. Bohn, “Criminal Prosecution: Proceeding with Caution under Article 28: An Argument to Exempt Non-Governmental Civilians from Prosecution on the Basis of Command Responsibility”, Eyes on the ICC, vol. 1, 2004, p. 1.

W. Burnett, “Command Responsibility and a Case Study of the Criminal Responsibility of Israeli Military Commanders for the Pogrom at Shatila and Sabra”, Milwaukee Law Review, vol. 107, 1985, p. 71.

C.N. Crowe, “Command Responsibility in the Former Yugoslavia: The Chances of Successful Prosecution”, University of Richmond Law Review, vol. 29, 1994, p. 191.

M. Damaska, “The Shadow Side of Command Responsibility”, American Journal of Comparative Law, vol. 49, 2001, p. 455.

W.G. Eckhardt, “Command Criminal Responsibility: A Plea for a Workable Standard”, Milwaukee Law Review, vol. 97, 1982, p. 1.

W.J. Fenrick, “Article 28: Responsibility of Commanders and Other Superiors”, in O. Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court, Nomos, Baden-Baden, 1999, p. 515.

W.J. Fenrick, “Some International Law Problems related to Prosecutions before the International Criminal Tribunal for the former Yugoslavia”, Duke Journal of Comparative and International Law, vol. 6, 1995, p. 103.

V. Hansen, “What’s Good for the Goose is Good for the Gander Lessons from Abu Ghraib: Time for the United States to Adopt a Standard of Command Responsibility Towards its Own”, Gonzaga Law Review, vol. 42, 2006-2007, p. 335.

R.D. Heinl, Dictionary of Military and Naval Quotations, United States Naval Academy, Annapolis, 1956.

J. Henckaerts and L. Doswald-Beck, Customary International Humanitarian Law, Cambridge University Press, Cambridge, 2009.

C. Hessler, “Command Responsibility for War Crimes”, Yale Law Journal, vol. 82, 1973, p. 1274.

B.B. Jia, “The Doctrine of Command Responsibility Revisited”, Chinese Journal of International Law, vol. 3, 2004, p. 1.

J. Joseph, “Rethinking Yamashita: Holding Military Leaders Accountable for Wartime Rape”, Women’s Rights Law Reporter, vol. 28, 2007, p. 107.

Y. Kang and T. Wu, “Criminal Liability for Actions of Subordinates – The Doctrine of Command Responsibility and its Analogues in United States Law”, Harvard International Law Journal, vol. 38, 1997, p. 272.

B.D. Landrum, “The Yamashita War Crimes Trial: Command Responsibility Then and Now”, Milwaukee Law Review, vol. 149, 1995, p. 293.

E. Langston, “The Superior Responsibility Doctrine in International Law: Historical Continuities, Innovation and Criminality: Can East Timor's Special Panels Bring Militia Leaders to Justice?”, International Criminal Law Review, vol. 4, 2004, p. 141.

R.L. Lael, The Yamashita precedent: war crimes and command responsibility, Scholarly Resources, Wilmington, 1982.

M. Lippman, “The Evolution and Scope of Command Responsibility”, Leiden Journal of International Law, vol. 13, 2000, p. 139.

J.S. Martinez, “Understanding Mens Rea in Command Responsibility: From Yamashita to Blaskic and Beyond”, Journal of International Criminal Justice, vol. 5, 2007, p. 639.

C. Meloni, Command Responsibility in International Criminal Law, TMC Asser Press, The Hague, 2010.

G. Mettraux, International Crimes and the Ad Hoc Tribunals, Oxford University Press, Oxford, 2005.

A.D. Mitchell, “Failure to Halt, Prevent or Punish: The Doctrine of Command Responsibility for War Crimes”, Sydney Law Review, vol. 22, 2000, p. 381.

W. O’Brien, “Law of War, Command Responsibility and Vietnam”, Georgetown Law Review, vol. 60, 1971, p. 605.

A.T. O’Reilly, “Command Responsibility: A Call to Realign Doctrine with Principles”, American University International Law Review, vol. 20, 2004-2005, p. 71.

H. Olasolo, The Criminal Responsibility of Senior Political and Military Leaders as Principals to International Crimes, Hart Publishing, Oxford, 2009.

M. Osiel, Obeying Orders: Atrocity, Military Discipline, and the Law of War”, Transaction Publishers, London, 1998.

M. Osiel, “The Banality of Good: Aligning Incentives against Mass Atrocity”, Columbia Law Review, vol. 105, 2005, p. 751.

W.H. Parks, “Command Responsibility for War Crimes”, Milwaukee Law Review, vol. 62, 1973, p. 1.

W.H. Parks, “A Few Tools in the Prosecution of War Crimes”, Milwaukee Law Review, vol. 149, 1995, p. 73.

F. Reel, The case of General Yamashita, University of Chicago Press, Chicago, 1949.

A.J. Sepinwall, “Failures to Punish: Command Responsibility in Domestic and International Law”, Michigan Journal of International Law, vol. 30, 2008-2009, p. 251.

R. Slye and B. Schaack, International Criminal Law: Essentials, Aspen Publishers, New York, 2009.

M.L. Smidt, “Yamashita, Medina, and Beyond: Command Responsibility in Contemporary Military Operations”, Milwaukee Law Review, vol. 164, 2000, p. 164.

E. van Sliedregt, “Article 28 of the ICC Statute: Mode of Liability and/or Separate Offence?”, New Criminal Law Review, vol. 20, 2009, p. 420.

G. Vetter, “Command Responsibility of Non-Military Superiors in the International Criminal Court (ICC)”, Yale Journal of International Law, vol. 25, 2000, p. 89.

A. Zahar/G. Sluiter, International Criminal Law, Oxford University Press, Oxford, 2008.