Part 2 Attributing Criminal Responsibility, 8 Superior Responsibility

Abstract

The concept of superior responsibility has been developed and critically discussed since the Second World War. It owes much of its recent development to the ad hoc tribunals that have relied on the concept to try military and non-military leaders for crimes committed by subordinates. The International Criminal Court (ICC) has drawn from this jurisprudence and developed it further, as evidenced by Article 28 of its Statute. Superior or command responsibility is the primary mechanism through which superiors can be held criminally responsible for failing to prevent or punish crimes committed by subordinates. This chapter describes the present day scope and meaning of command responsibility, which means discussing mainly International Criminal Tribunals for the case law of the Former Yugoslavia, to date the main source of case law on superior responsibility. It discusses superior responsibility through the prism of its nature, which is still ambiguous. This is problematic since it is the nature of the concept that determines its outer limits; limits that have expanded considerably over the years.