Abstract
Article 28 of the ICC Statute encapsulates the concept of command or superior responsibility. This is a complex and multilayered concept of liability. It is, on the one hand, a mode of liability, and, on the other hand, a separate offense. It is noteworthy that certain national laws recognize the various "layers" of superior responsibility in that they criminalize these different concepts of superior responsibility in separate provisions. In that sense a "conceptual distinction" is made. Article 28 of the ICC Statute does not provide for such a distinction. The distinction the provision does make, however, is that between military and nonmilitary superiors. To this author's opinion that distinction should be removed and replaced by a conceptual distinction.
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