SUPERIOR RESPONSIBILITY UNDER THE ICC STATUTE: RESTATEMENT OR ADVANCEMENT OF THE LAW?

Abstract

The principle of superior responsibility has evolved into a vital tool for bringing military commanders and civilian superiors to
justice irrespective of the punishment meted on their subordinates who commit international crimes. The previous
instruments and old decisions on superior responsibility, which now form part of customary international law, adopted the
general mental fault standard for the superior —‘know or had reason to know’. They did not have separate standards of mental
fault for military and civilian superiors and required no causal connection between the superior’s failure to control and the
crime committed by the subordinate. Again, they did not particularise the ambits of the authority of the superior and did
not mandate the superior to take all necessary and reasonable measures in the performance of his duties. This paper enquires
into whether the relevant provisions of the International Criminal Court (ICC) Statute 1998 restates or advances the law
on superior responsibility. It argues that the ICC Statute, apart from providing for causal connections, has also advanced the law by providing for a separate, stricter mental fault standard for military commanders, when compared with that of civilian
superiors, even as the Court now lays emphasis on motivation and geographical remoteness.