Command Responsibility: Mode of Liability for the Crimes of Subordinates or Separate Offence of the Superior?

Abstract

The nature of command responsibility is still open to debate in international criminal law: is a superior to be held criminally responsible for the crimes committed by his subordinates as an accomplice , for having participated in the commission of the crime by omission, or as a perpetrator of a separate offence of dereliction of duty? This article surveys the post-WW2 case law and the first international instruments on this point, and then analyses the jurisprudence of the International Criminal Tribunal for the former Yugoslavia (ICTY). The judges appear to have recently adopted a new approach to Article 7(3) ICTYSt. in that the superior is held responsible for failure to prevent or punish with regard to the crimes of the subordinate and no longer for the crimes of his subordinates . It is a responsibility sui generis indeed, where the crime of the subordinate plays a central role in the attribution of responsibility to the superior. It is, therefore, necessary to carefully consider the relationship between the superior's failure to act and the subordinate's crime, both with regard to objective and subjective elements. The same question finally arises in relation to Article 28 of the Rome Statute, the literal interpretation of which implies that a superior shall be punished for the same crime committed by his subordinates. In order to avoid the risk of holding a person guilty of an offence committed by others in violation of the principle of personal and culpable criminal responsibility, it is crucial to consider separately the different cases of command responsibility, which are based on distinct objective and subjective requirements.