Rethinking command responsibility: a critique of the applicability of command responsibility in the international criminal justice system
Abstract
Command responsibility is a form of criminal responsibility that addresses the culpability of
superiors who fail to prevent or punish their subordinates committing criminal acts during war. It
has been developed through customary international law especially in cases after the second
World War (WWII) and in domestic jurisdictions. It dates back almost to the beginning of
organized professional armies. The justification for the development of command responsibility
in international criminal law was that low-level officials or military personnel often commit
crimes because their superiors failed to prevent or repress them. The doctrine aimed at promoting
compliance with IHL by obligating commanders to curb the criminal acts of subordinates.
Despite the development and application of the doctrine, the doctrine of CR has been subjected
to numerous criticisms.
This research shall therefore critique the applicability of command responsibility in the
international criminal justice system. It aims at questioning the basis of criminal liability of a
commander for criminal acts committed by subordinates. It therefore begs the question: is the
doctrine applied as a means of indirectly holding superiors responsible for criminal acts of their
subordinates or is a form of liability for a superior’s own misconduct?
Publisher
University of Nairobi