CYIL vol. 13 (2022)

FRANTIŠEK TÓTH CYIL 13 ȍ2022Ȏ crime and as a result, a superior can be held responsible for failing to comply with both of these duties. 81 Subsequently, for a superior to be held responsible, the judge must decide on a case by case basis if the commander took all necessary measures in order to prevent or punish the commission of the crimes. Nevertheless, the judge has to have some ’ guiding instructions ’ upon which they can decide if the actions of the commander were in conformity with international criminal law or not. For this reason, judges apply the degree of effective control which the commander had possessed in order to find out whether a superior took all necessary measures or not. As can be seen, it seems that the elements of the doctrine of command responsibility are intertwined. 82 4. The International Criminal Court and the Doctrine of Command Responsibility The International Criminal Court (ICC) is the first and the only permanent international criminal court with jurisdiction to prosecute individuals for crimes under international law. Its aim is therefore to hold those responsible accountable for their crimes and moreover, the ICC also helps to prevent these crimes from happening again. 83 In order to reach its goals, the Rome Statute, an international treaty governing the functioning of the ICC, was adopted. The Rome Statute provides in its Article 28 – „ r esponsibility of commanders and other superiors ”, provisions establishing the legal regime of the doctrine of command responsibility for the crimes which fall under the jurisdiction of the ICC. 84 Article 28 of the Rome Statute therefore lays down the legal regime applicable to persons who have disregarded their duties as superiors or military commanders. When interpreting Article 28, one has to take into account three significant aspects connected to the doctrine of command responsibility. First, Article 28 of the Rome Statute establishes that a superior may be found liable for a failure of supervision of their troops. 85 Subsequently, this means that they may not be found liable for the crimes committed by their subordinates. 86 It is therefore rightly to note that a superior is only liable for their own failure to supervise and act when it their duties require. This form of command responsibility, as included in the Rome Statute, constitutes therefore “ a type of imputed culpability based on the leader’s omissions. ” 87 It is therefore rightly considered as a liability by omission. 88 Besides that, Article 28 has adopted a unique standard concerning the superior-subordinate relationship. It is mainly because compared to (other) statutes of the ad hoc tribunals, Article 28 does distinguish between the responsibility of military commanders and on the other hand, the responsibility of non-military (civilian) superiors. 89 By establishing two separate standards, one for military commanders and 81 FRULLI, note 16, p. 450. 82 Ibid, p. 451. 83 The International Criminal Court. About the Court. Available at: https://www.icc-cpi.int/about/the-court. 84 Rome Statute of the International Criminal Court. Article 28. Available at: https://legal.un.org/icc/statute/99_ corr/cstatute.htm. 85 FRULLI, note 16, p. 452. 86 Ibid., p. 452. 87 VETTERT, Greg R., Command Responsibility of Non-Military Superiors in the International Criminal Court (ICC). The Yale Journal of International Law . Vol. 25, 2021, p. 98, Available at: https://openyls.law.yale.edu/ bitstream/handle/20.500.13051/6406/07_25YaleJIntlL89_2000_.pdf?sequence=2&isAllowed=y.

88 FRULLI, note 16, p. 452. 89 VETTERT, note 87, p. 98.

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