Part IV The ICC and its Applicable Law, 25 Command Responsibility under Article 28 of the Rome Statute

Subject(s):

International crimes — Geneva Conventions 1949 — Command responsibility — Military assistance — Responsibility of individuals — Armed conflict, international — Prosecution — Mens rea

This chapter discusses the concept of command responsibility under Article 28 of the ICC Statute. This doctrine evolved against the need to rethink the existing concepts of ordinary criminal law in a manner that would address cases of individuals in high positions of authority responsible for mass criminality. There is a plethora of literature and jurisprudence, particularly since the experiences of the ad hoc tribunals, dealing with the most contentious aspects of command responsibility, but many aspects remain unclear. This chapter addresses issues which involve the most significant practical consequences, including the superior-subordinate relationship and the requirement of effective control, the duties imposed on commanders and superiors, the role of causation, and the mental element.