ABSTRACT
The status of ordering in international criminal law has customarily been defined as a mode of liability. As such, ordering has additionally been burdened with a causal nexus between the order and the actual commission of the crime. The ICTR and ICTY jurisprudence has established, as the Kamuhanda judgment indicates, that the order must have “a direct and substantial effect on the commission of the illegal act,” creating thereby a situation in which the speaker, that is, the superior officer or any other person in the position of command and/or authority could fully shift the burden of liability to the principal perpetrator of the crime. Furthermore, in the situation in which the physical crime is not executed, the superior would again not be held liable. These are only some of the problems arising from the traditional status of ordering as a mode of liability. Moreover, the ICC’s Rome Statute and its second key document, The Elements of Crimes, do not clearly distinguish between ordering as a mode of liability and as an inchoate offense. While pursuing an immaculate historical overview and analysis of ordering as one of the most thought-provoking and less than adequately understood forms of potential criminal conduct, as part of his proposal for a unified liability theory of atrocity speech law, Gregory Gordon offers a persuasive line of argumentation that “the crime of ordering should be modified from its present restrictive form and expanded to encompass inchoate liability.” What had once been assigned the status of a mode of liability by the ICTY and ICTR, for example, could and should be elevated to the level of a substantive offense with inchoate liability. After Cassese and Cryer, who have both briefly addressed a redefinition of ordering as an inchoate offense, Gordon’s line of argumentation is the best developed thus far and falls impeccably within the grand framework of potentially culpable propagandistic, cognitive and linguistic forms of intentional actions such as directive and commissive types of speech acts. While the former indicates that the speaker wants the targeted listener to do something and can be conveyed through orders, commands, demands, instructions, pleas or a combination of these and other types of directive speech acts, in the latter, the speaker commits himself to doing something in the form of promises, vows, threats and similar types of commissive speech acts. That is also why Gordon’s proposal to accord ordering the status of an inchoate offense lies at the heart of a cognitive process which integrates in time the intentional and the criminal components of an order on both ends of the speech act, the speaker’s and the listener’s.
