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Part 3 General Principles of Criminal Law: Principes Généraux Du Droit Pénal, Art.28 Responsibility of commanders and other superiors/Responsabilité des chefs militaires et autres supérieurs hiérarchiques

William A. Schabas

From: The International Criminal Court: A Commentary on the Rome Statute (2nd Edition)

William A Schabas

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.date: 13 June 2024

Elements of crimes — International criminal law, conduct of proceedings — Evidence

This chapter comments on Article 28 of the Rome Statute of the International Criminal Court. Article 28 consists of two paragraphs; the first addressing superior responsibility in a military context, the second dealing with the issue with respect to civilians. Unlike the superior responsibility liability that attaches to military commanders, which was well accepted, application of the concept to civilians proved to be very controversial. Some Trial Chambers at the ad hoc tribunals have referred to article 28 as a basis for the view that the ‘distinction between military commanders and other superiors embodied in the Rome Statute is an instructive one’, although this is a rather isolated opinion. Nevertheless, the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia has acknowledged that whether the liability of civilian superiors ‘contains identical elements to that of military commanders is not clear in customary law’.

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