The Transposition of Superior Responsibility onto Guerrilla Warfare under the Laws of the International Criminal Tribunals

Abstract

AbstractThis article deals with the question whether and how to assess superior responsibility within irregular (guerrilla) warfare; based on the principles developed by the international criminal tribunals on the area of superior responsibility for regular forces. In particular the article examines whether those criteria are useful to apply to guerrilla warfare. Specific problems, typical for guerrilla warfare, are analyzed such as the organizational level, the exercise of effective command and control, the assessment of the mens rea criterion within a complex situation of guerrilla warfare. Additionally, the material ability to prevent or punish crimes within guerrilla forces seems a point of concern in view of the absence of proper disciplinary systems within this type of warfare. Recent case law of the ICTY is taken into account in order to arrive at an answer to the main research question.