Command responsibility after Bemba

Murphy, Ray. (2017). Command responsibility after Bemba. In Christian Riffel & Róisín Burke (Eds.), New Zealand Yearbook of International Law (Vol. 15, pp. 94–118). Leiden, Holland: Brill | Nijhoff, https://doi.org/10.1163/9789004387935_008

Abstract

Command responsibility is a subject that has generated significant controversy since its adoption in the post-World War ii trials. It took a long time for omission liability to evolve under international criminal law.1 However, today it is a well established principal that superiors are criminally responsible for the actions of subordinates under their effective command or authority.2 According to Schabas, the topic has generated “more heat than light”.3 This seems an apt description of how this doctrine is interpreted and applied by international tribunals and courts. Command responsibility is a complex form of criminal responsibility and its most recent iteration is Article 28 of the Rome Statute (“icc Statute”), governing responsibility of commanders and other superiors. This contains a lengthy and complex definition of what is a long established modality dealing with individual criminal responsibility under international law.4 For an act or omission to constitute the physical element of a crime, it is not sufficient that a commander be under a mere duty to act; he or she must also have the material ability to do so.5 This was an important factor in the Bemba decision before the International Criminal Court (“icc”).6

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Brill | Nijhoff

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Attribution-NonCommercial-NoDerivatives 4.0 International

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