On the 26 June, a panel of experts convened to address the topic of responsibility and control in international criminal law and its influence on other fields of law. Dr. Kristen Boon (Seton Hall University) presented her research on the topic and was joined by Drs. Carsten Stahn and Dov Jacobs from the University of Leiden for discussion.
Dr. Boon’s findings indicate that the idea of command responsibility, a pillar of international criminal law, is having an impact on other areas of law as different courts and tribunals utilize the notion of effective control. Dr. Boon explained that this concept is present everywhere in international law, including in international criminal law, the laws of state responsibility, the laws of international organizations’ responsibility, the law of occupation, the law on recognition and statehood, and international human rights law.
Effective control can be exercised over individuals and over territory, and while the effective control test is applied differently in different contexts, the basic compulsion behind the legal inquiry is the same – who is the aggregator of power, who can be held accountable, and which facts are required to satisfy those tests? Dr. Boon found that international courts have engaged with this inquiry in a number of ways, including by elaborating on the type of control necessary to trigger accountability and encouraging the practice of de factoversus de jure analyses to establish control.
On this last point, Dr. Boon explained that there has been expansion in the concept of effective control through a functionalist legal analysis employed by some international legal bodies. Some courts have contracted the notion of control, such as the ICTY, whereas others use a functional test to expand it, namely in terrorism cases and investor-state arbitrations. The purpose of expansion is to prevent states from avoiding accountability. Dr. Boon pointed out that utilizing this analysis fundamentally changes how one views the responsibilities of a state.
The implications of the developing notions of control and responsibility are multiple. Firstly, the developments blur the lines between public and private actors and question where the borders between the state, the public order, and private actors lie. This expansion, Dr. Boon noted, stems from a desire for responsibility on the part of actors in the international legal system. Dr. Boon added, however, that she was not advocating the position that there should always be state responsibility assigned. This would place great burdens on under-resourced or weak states. Secondly, the changing notions of control provides clues with respect to the goals of different legal regimes vis-à-vis shielding or exposing the state, depending on how each tribunal expands or contracts the effective control test.
The discussion that followed with audience participants, including ICTY staff and law students, covered a wide range of topics that went directly to the matter of the boundaries of the law. For instance, a state’s duty to prevent mass atrocities was a topic that drew much interest. As noted by Dr. Stahn, negative duties and positive obligations can be hard to distinguish and there is often conflation of the two. Dr. Boon added that the due diligence obligation was also interesting because it was an obligation of conduct, not result. She explained that if the duty to prevent genocide is assumed, a state must only “react” to the genocide, without being obligated to change the outcome. These norms of state obligations to prevent mass atrocities are still very much in development.
Dr. Boon ended her presentation by posing two key questions for future consideration: (1) Is effective control changing as a secondary norm, influenced by other bodies like international criminal law? (2) Or is effective control a development on primary norms, meaning there is little room for secondary rules on attribution?
This discussion was part of The Hague Institute for Global Justice’s Supranational Criminal Law Lecture Series. The series is organized and sponsored by The Hague Institute, the Grotius Centre for International Legal Studies, the Asser Institute, and the Coalition for the International Criminal Court.