The Failure to Control and the Failure to Prevent, Repress and Submit: The Structure of Superior Responsibility under Article 28 icc Statute

In Article 28 of the statute of the International Criminal Court (icc), there appear to be two kinds of omission, namely, a failure to control on the one hand, and a failure to prevent, repress and submit on the other. However, the relationship between both omissions remains unclear so far. This is a controversial topic not only in the scholarly debate but also in the recent jurisprudence of the icc. The core question is whether both omissions need to be proved separately (twofold-failures approach), or whether only the proof of the latter omission could suffice for the superior to be held responsible (single-failure approach). These two approaches could lead to different conclusions as to several aspects of superior responsibility: the ‘number’ of omissions that must be proved and the requirement of causality, for example. This article addresses the difference between these two approaches and demonstrates which approach should be adopted.