A Justification of Command Responsibility
43 Pages Posted: 19 Jun 2017 Last revised: 23 Feb 2018
Date Written: June 1, 2017
In this article, I advance a culpability-based justification for command responsibility. Command responsibility has attracted powerful, principled criticisms, particularly that its controversial “should have known” fault standard may breach the culpability principle. Scholars are right to raise such questions, as a negligence-based mode of accessory liability seems to chafe against our analytical constructs. However, I argue, in three steps, that the intuition of justice underlying the doctrine is sound.
An upshot of this analysis is that the “should have known” standard in the ICC Statute, rather than being shunned, should be embraced. While Tribunal jurisprudence shied away from criminal negligence due to culpability concerns, I argue that the “should have known” standard actually maps better onto personal culpability than the rival formulations developed by the Tribunals.
Keywords: Command Responsibility, Culpability, Negligence, Mens Rea, Knowledge, Deontological, Criminal Theory
JEL Classification: K14, K33
Suggested Citation: Suggested Citation