The Limited Reach of Superior Responsibility
Forthcoming in Suzannah Linton, Gerry Simpson & William A. Schabas (eds.), ‘For the sake of present and future generations: Essays in honour of Roger Clark (Brill, 2015)
17 Pages Posted: 26 Nov 2014
Date Written: July 2014
The doctrine of superior responsibility is firmly embedded in the fabric of international criminal law. As a seemingly broad mode of criminal liability, it has not, however, yielded the results that one would expect from a form of liability that allows military commanders or civilian superiors to be held responsible for the acts of subordinates which they fail to prevent or punish. Its apparent potential to hold the most senior leaders to account for allowing international crimes to be committed has not been fulfilled. Superior responsibility has generated controversy from its inception, for several reasons, including its theoretical reach to the top of military and political chains of command and authority.
High-ranking officials may be criminally responsible for failing to prevent or punish crimes committed by their subordinates, even where they did not intend that such offences be committed or have full knowledge of their commission. Yet, despite the broadening of criminal liability that superior responsibility entails, practice before international criminal tribunals and elsewhere reveals this the doctrine has not been applied as successfully, as often, or as high up the chain of command as one might expect. This essay seeks to consider why this is the case, paying particular attention to the legal requirements of the doctrine and their application by international and national tribunals.
Keywords: Superior responsibility, criminal liability, international criminal law, mens tea, control, subordinate crime
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