Superior Responsibility

Abstract

The concept of command or better superior responsibility1 makes the superior liable for a failure to act to prevent criminal misconduct of his or her subordinates. The superior is punished for a lack of control and supervision of his or her subordinates who commit crimes. Thus, the superior is punished both for his or her own failure to intervene and for the crimes of others. As a result, the concept seems to create, on the one hand, direct liability for the lack of supervision, and, on the other, indirect liability for the criminal acts of others. Finally, as will be explained below, superior responsibility has a double character: it is a genuine offense of omission (echtes Unterlassungsdelikt) and an offense which creates danger (Gefährdungsdelikt). These rather theoretical considerations quickly take on practical importance if one looks, for example, at the evidentiary problems encountered in cases of superior responsibility: first, it must be proved that the superior was in a position of command and control which would have enabled him or her to prevent the crimes of his or her subordinates. Second, the superior must have known of these crimes or, at least, have deliberately remained ignorant of them. The latter issue is particularly controversial. This paper will first show that the doctrine of superior responsibility is recognized in customary international law (II) as evidenced by the case law (II.A), codification efforts (II.B), and comparative law (II.C). Analysis of these sources will also show, however, that the elements of the doctrine are far from clear and uniform. Thus, the main part of the paper is devoted to clarification and refinement of these elements, as established by Article 28 of the Rome Statute (III). Finally, this part of the paper contains suggestions for interpretation and, where necessary, improvement.