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?