Journal of International Criminal Justice Advance Access originally published online on July 3, 2007
Journal of International Criminal Justice 2007 5(3):665-682; doi:10.1093/jicj/mqm033
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Superior Responsibility under Article 28 ICC Statute
For What Exactly is the Superior Held Responsible?
* Doctor iuris, Humboldt-University of Berlin; Master of International and Human Rights Law, University of the Western Cape; Assessor, Kammergericht Berlin; Associate Legal Officer, International Criminal Court. The views expressed are those of the author alone and cannot be attributed to the International Criminal Court. [ volker.nerlich{at}icc-cpi.int]
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Abstract |
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Superior responsibility is a concept for attributing criminal liability to military commanders and other superiors that is employed with some frequency in the ad hoc international criminal tribunals. Nevertheless, it remains unclear for what the superior is actually blamed. The author argues that with respect to superior responsibility as construed in Article 28 ICC Statute the answer to this question depends on the form of superior responsibility for which the accused is found guilty. If the superior is held responsible for not having prevented or repressed the subordinate's crime even though the superior knew of the crime, he or she can be blamed for both, the criminal conduct of the subordinate and the wrongful consequence caused by it. For all other forms of superior responsibility, the superior can only be blamed for his or her failure to exercise control properly, which resulted in a wrongful consequence, but not for the criminal conduct of the subordinate.