The ICTY's Practice And Development Of Superior Responsibility Identifications

In the field of international criminal law,the principle of superior responsibility is an important principle of liability derived from the principle of individual criminal responsibility.It is an international criminal liability type that military superiors and other superiors should bear responsibility for international crimes committed by their subordinates.The establishment of the principle of superior responsibility has gone through a long process and is still in the dynamic development.In the early stage of the emergence of the superior responsibility,it mainly evolved on the basis of individual criminal responsibility,and was often confused with individual criminal responsibility.Therefore,clarifying the emergence and development of the principle of individual criminal responsibility and clarifying its relationship with the principle of superior responsibility is essential for better understanding the principle of superior responsibility.Individual criminal responsibility stems from customary international law related to piracy,slave trade,war crimes and other crimes,and was initially tried in the Treaty of Versailles after World War I.After the practice of the Nuremberg Trial and the Tokyo Trial,the individual criminal responsibility was not truly established until in the Statute of International Criminal Tribunal for the former Yugoslavia(ICTY)and refined through the trial practice of the International Criminal Court(ICC).After the improvement by the ICC,the way in which individuals participate in internationalcrimes has been scaled up,and four modes of participation have been established.At the same time,the principle of individual criminal responsibility has also triggered the provisions of international crimes such as war crimes,crimes against humanity and genocide,and has enabled the establishment of a complete system of crime and punishment in the field of international criminal law.Although the individual's ability to become a subject of responsibility in international law has always been controversial,in the field of international criminal law,the individual criminal responsibility seems to have become a consensus in academic area and trial practice.This is related to the particularity of international criminal law.Different from other branches of international law,international criminal law has the fundamental purpose of safeguarding the fundamental interests of the international community and punishing international crimes.Therefore,in the commitment of responsibility,international criminal law pays more attention to the subject of responsibility and emphasizes individual obligations.However,in addition to the main line of individual criminal responsibility,some scholars still advocate the state criminal responsibility,namely,the state that implements international crimes should bear criminal responsibility.Therefore,it is also necessary to analyze and discuss the connotation,feasibility,and specific judicial practice of the state criminal responsibility.With the development of theory and practice of the individual criminal responsibility,the principle of superior responsibility has gradually stepped on the historical stage.The principle of superior responsibility is based on the principle of individual criminal responsibility,while at the same time developing and enriching the principle of individual criminal responsibility,but the principle of superior responsibility originating from the principle of individual criminal responsibility is fundamentally different from the former.In the field of international criminal law theory,formation of individual criminal responsibility is earlier than superior responsibility,and the scope of application is broader.In judicial practice,compared with the principle of superior responsibility that pays more attention to specific details,the principle of individual criminal responsibility tends to be more general descriptionwhen blaming the offender.Therefore,the principle of individual criminal responsibility is a broader concept and a basic form of international legal responsibility.The formation process of the principle of superior responsibility has experienced a process of mixing with individual criminal responsibility and then gradually detaching.Through the practice of the Nuremberg Trial and the Tokyo Trial after World War II,the nature of superior responsibility gradually deviated from the accomplice model of individual criminal responsibility and was first interpreted as an independent mode of responsibility.On the basis of the importance of the status of superior responsibility,the theoretical analysis of the principle of superior responsibility itself has gradually deepened.Among them,the identification of superior responsibility becomes the core content of the principle of superior responsibility.At the same time,the ICTY has made tremendous development contributions to the determination of superior responsibility through a large number of judicial practices,so that its content is continuously enriched,giving it a new life,and making the principle of superior responsibility become the important legal basis and approach of realizing international criminal justice.Along with the judicial practice of the Omarska case,the Celebici case,and the Hadzihasanovic case,the ICTY has comprehensively and fully developed the superior responsibility.The ICTY has greatly developed the criminal liability system in international criminal law through the contribution of theory and practice of the superior responsibility system.On the basis of the Nuremberg Trial and the Tokyo Trial,the ICTY has given more meaning to the principle of superior responsibility,and the judicial precedents have been supplemented in detail.The work and achievements of the ICTY have inspired other international criminal justice institutions,including the International Criminal Tribunal for Rwanda,the Special Court for Sierra Leone and the ICC,and have finally formed detailed provisions on the responsibility of superiors in article 28 of the ICC Statute.Since its inception,the ICTY has consistently and systematically developedinternational criminal law as well as international humanitarian law.Through its own trial practice,the court has proved that effective and transparent international justice is feasible.The ICTY is a unique international criminal justice institution,a pioneer in international legal proceedings and the first truly international war crimes court.Its construction is not only the embodiment of the common will of all countries in the world,but also in line with the trend of internalization and internationalization of international criminal law.The punishment of the ICTY's serious violations of international law in the former Yugoslavia is of great significance to international peace and stability.As a measure to maintain international peace and security and the first international criminal justice institution established under Chapter 7 of the Charter of the United Nations,the ICTY has made a lasting contribution to international criminal justice.The establishment of the ICTY by the Security Council is a major milestone of the United Nations system.This is the first time that the Security Council has used its power under Chapter 7 of the Charter of the United Nations to establish a judicial body with international criminal jurisdiction to try perpetrators of large-scale atrocities.The establishment of an ad hoc tribunal is a historic application of Chapter 7 of the United Nations Charter and an unprecedented use.In addition to judging war crimes of individuals as its main function,the ICTY also encouraged the former Yugoslav authorities to reform their judiciary and became a catalyst for the advancement of the judicial system in the former Yugoslavia.However,with the official closure of the ICTY at the end of 2017 and the emergence of the exit trend in the ICC,the development of the principle of superior responsibility has inevitably experienced temporary stagnation.At the same time,the internal worry and external troubles both arise,and the long-standing problems of superior responsibility in the field of international criminal legislation and justice are gradually exposed.The theoretical problem of superior responsibility has always been complicated,and in the new era,the challenge of superior responsibility has also ushered in greater challenges,such as how to determine the relationship between superiors and subordinates in special circumstances,and how the temporal impact of the relationship between superiors and subordinates is balanced,and the provisions ofthe domestic legislation on the determination of superior responsibility and criminal judicial cooperation have to be further improved.In view of this,this paper takes the ICTY's practice and evelopment of superior responsibility identifications as the research object,which is divided into four parts:The first part is an overview of the principle of individual criminal responsibility.First of all,to understand sources of international law on the principle of individual criminal responsibility,analyze its relationship with customary international law and the ICC Statute;secondly,distinguish between individual criminal responsibility and state criminal responsibility,and further deepen the individual's criminal responsibility status.In addition,the four situations in which individuals are criminally responsible under the framework of the ICC Statute are elaborated,and the way in which individuals participate in international crimes is categorized.The second part introduces the theoretical development of the principle of superior responsibility.First of all,it clarifies the relationship between the principle of superior responsibility and the principle of individual criminal responsibility.It is clear that although individual criminal responsibility is the basis of superior responsibility,the individual criminal responsibility is fundamentally different from superior responsibility.In addition,the process of establishing the principle of superior responsibility is introduced.Through the detailed process of development of the Nuremberg Trial,the Tokyo Trial,the ICTY and the ICC on the principle of individual criminal responsibility and the principle of superior responsibility,the development of the principle of superior responsibility is elaborated.The paper analyzes in detail the development context and time node of the principle of superior responsibility,and finally focuses on the three major elements of the superior responsibility under the ICC Statute.The third part discusses the practice of the ICTY's responsibility to superiors through a large number of cases.First of all,with the trial practice of the Omarska case,the Aleksovski case,and the Kordic case,the necessity of formal relationship between superiors and subordinates to identify superior responsibility was excluded.Then,through the Celebici case,the Blaskic case and the Krnojelac case,the ICTYfurther clarified the superior's knowledge of the imminent or actual crimes committed by their subordinates;in addition,through the Celebici case,the Hadzihasanovic case,and the Sesay case,the ICTY clarified how the temporal impact of the relationship between superiors and subordinates is balanced;finally,through the Tadic case and the Hadzihasanovic case,the ICTY first discussed the issue of superior responsibility in the domestic armed conflict.The fourth part selectively discusses the identification of the superior responsibility or the challenges that will be faced after the closure of the ICTY,including the identification of the superior-subordinate relationship in the two special cases.By identifying the issue of the identification of special superior and subordinate relationships,it is clear that the criteria for the recognition of effective control should be adhered to;and that the identification of the responsibility of superiors in domestic legislation remains to be unified.In this context,judicial cooperation in international criminals should be further strengthened.In terms of writing techniques,this paper summarizes the contribution of the ICTY to the recognition and development of superiors in the past twenty-four years by enumerating the institutional innovations of the ICTY,and highlighting its milestone meaning and important reference value in international criminal justice practice.