Superior Responsibility of Civilians for International Crimes Committed in Civilian Settings
39 Pages Posted: 22 Aug 2009 Last revised: 15 Apr 2015
Date Written: August 20, 2009
The article examines the notion of superior responsibility of civilians for international crimes committed in civilian settings. The doctrine of superior responsibility grew out of the military doctrine of command responsibility, and its evolution is informed by this origin. Jurisprudence and academic writers emphasize that the doctrine is also applicable to civilian superiors, but the discourse has invariably focused on civilian leaders of military or paramilitary organizations. Moreover, there has never been a detailed analysis of the doctrine’s relevance and applicability in civilian settings. The article argues that the claim that superior responsibility extends to civilians, and moreover to civilian settings, is inaccurate as a matter of a customary law. In judicial practice (including recent rulings), civilians have rarely been convicted under the doctrine even as leaders of military organizations, and when they have, this conviction was generally secondary to their direct responsibility. The article elaborates various challenges to the application of the doctrine in civilian settings, particularly in the determination of the existence of a superior-subordinate relationship. Despite the difficulties in transposing the doctrine to the civilian sphere, the article argues that as a matter of policy civilians should also be subject to the doctrine. It also argues that the normative distinctions between civilians and military superiors, today entrenched in Article 28 of the ICC Statute, is neither absolutely necessary nor practicable.
Keywords: superior responsibility, command responsibility, international criminal law, ICC, ICTY, ICTR, media case, Nahimana
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