Title
The Nature of Superior Responsibility: How the Duty to Prevent Is Distinguished from the Duty to Punish in Customary International Law
Abstract
Three recent decisions of trial chambers at the International Criminal Tribunal for the former Yugoslavia suggest that superior responsibility connotes a separate crime, or sui generis form of responsibility, rather than a mode of liability for the crimes committed by subordinates. This characterisation of the doctrine is only partly correct. Sources of customary international law that support the existence of the doctrine – including Second World War jurisprudence, military manuals, the ad hoc tribunals’ statutes, and legislation implementing the Rome Statute of the International Criminal Court – demonstrate that where a superior fails to prevent a crime the doctrine is in fact a mode of liability. On the other hand, these sources also demonstrate that the failure to punish is not a mode of liability, not least because such a characterisation is inconsistent with fundamental principles of international criminal law, namely the culpability principle. To this end, the formulation of the superior responsibility in the German Act to Introduce the Code of Crimes against International Law, passed to implement its obligations under the Rome Statute of the International Criminal Court, best reflects the nature of superior responsibility in customary international law.
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