SUPERIOR RESPONSIBILITY UNDER THE ROME STATUTE AND ITS APPLICABILITY TO CONSTITUTIONAL MONARCHY: AN APPRAISAL

The doctrine of superior responsibility has been embedded in Article 28 of the Rome Statute of the International Criminal Court, which enunciates the responsibility of both military commanders and civilian superiors. Although constitutional monarchs are civilians entrusted with the position of commanders in chief, there are States that opposed accession to the Rome Statute on the simple ground that their respective monarchs could be indicted and punished under the Rome Statute. The main objective of this paper, therefore, is to examine whether constitutional monarchs could be responsible under the doctrine of superior responsibility. The paper focuses on the analysis of the elements of superior responsibility by referring to the authoritative commentaries of Article 28 and constitutional practices of three selected constitutional monarchies: the United Kingdom, Japan, and Malaysia. The paper finds that constitutional monarchs could not be held responsible because they have to act on the advice of the government and do not possess the effective and operational control over the armed forces as required under the Rome statute.

Ch.Two General Principles

This chapter focuses on the general principles of international criminal law. It first develops a general theory of crimes under international law by considering the concept of crimes under international law as well as the context of organised violence. The structure of crimes under international law is also explored. Next, the chapter studies the material and mental elements of crimes under international law. Individual criminal responsibility and superior responsibility are also discussed, as are the grounds for excluding criminal responsibility. Next, the chapter covers inchoate crimes, omissions within the context of the ICC Statute, immunity, the multiplicity of offences, and finally, the requirements for prosecution.

Trial Chamber Case 002/02 Against Nuon Chea and Khieu Samphan (Extraordinary Chambers in the Courts of Cambodia)

On November 16, 2018, the Trial Chamber of the Extraordinary Chambers in the Courts of Cambodia (ECCC) rendered the judgment in Case 002/02 against Nuon Chea and Khieu Samphan. The full written version of the judgment was notified in Khmer, English, and French on March 28, 2019. The Chamber found Nuon and Khieu guilty of crimes against humanity, grave breaches of the Geneva Conventions, and genocide of the Vietnamese ethnic, national, and racial group. The Chamber additionally convicted Nuon of genocide of the Cham ethnic and religious group under the doctrine of superior responsibility. Both Nuon and Khieu were sentenced to life imprisonment.

Superior Responsibility in the Bemba Case – Analysis of the Court’s Findings on Necessary and Reasonable Measures

Summary This article critically analyses an interpretation and application of necessary and reasonable measures to prevent or repress crimes committed by the subordinates in the Bemba case. The aim of the Article is to analyse the Pre-Trial Chamber, Trial Chamber and Appeal Chamber findings on necessary and reasonable measures in connection to responsibility of person effectively acting as a military commander. In doing critically analyses of the interpretation and application, this article evaluates legal challenges faced by the ICC in using superior responsibility, with special focus on the relevance of motives behind the measures taken by a superior or commander and the issue of remote commander. This study provides first comprehensive analysis of necessary and reasonable measures requirement in the Bemba case and as such, offers the latest development on the superior responsibility doctrine applicable at the ICC.

Superior Responsibility in Estonian Criminal Law and its Compliance with International Law

If a domestic criminal-law system is to be equipped to operate in conformity with the underlying idea of complementarity that is among the International Criminal Court’s underpinnings, it is vital that, amongst other aspects of general principles of responsibility, the superior responsibility doctrine be transposed into domestic law properly. Accordingly, the paper deconstructs Art. 88 (1) of the Estonian Penal Code, which stipulates the superior responsibility concept in the Estonian legal system, for the purpose of assessing whether it exhibits compliance with customary international law on superior responsibility or Art. 28 of the Rome Statute. The analysis presented reveals considerable differences between the Estonian regulatory scheme and relevant international norms: it appears that there are several respects in which Estonian regulation does not meet the international standard and, hence, large lacunae are to be found in Estonian law on superior responsibility. For this reason, the article concludes with a recommendation that Estonian regulation of superior responsibility be complemented in such a way that it is rendered consistent with international law – specifically, with the requirements of Art. 28 of the Rome Statute – while simultaneously taking into consideration the demands stemming from Estonian criminal-law dogmatics, especially the guilt principle.

Development of Superior Responsibility at the ECCC

This article aims to describe the development process of superior respon­sibility doctrine at the Extraordinary Chambers in the Courts of Cambodia. Superior responsibility is contained in all Statutes of ad hoc tribunals and also the Rome Statute. However, the case of ECCC is distinctive for its special structure and applicable law. As such, the ECCC is being often called ‘hybrid’, court. This Article aims to analyse travaux préparatoires to the ECCC Statute and ECCC Statute itself when it comes to superior responsibility. This analysis will be followed by the ECCC case law. In 2019, the closure of ECCC is anticipated. As such, the first complex analysis on superior responsibility and its applicability by the ECCC is appropriate and can be used as guidance for other already established or future hybrid tribunals. To some extent, the findings can also be used for the application of superior responsibility by the ICC.

An International Criminal Court

The earliest proposals for an international criminal court emerge during the sessions of the Commission on Responsibilities. The French insist that it will offer a ‘greater stage’, something that is necessary if the former German Emperor is to be prosecuted. On this issue, too, the Americans are totally opposed. The Commission also debates whether or not the Kaiser may be able to invoke immunity as a Head of State. It also considers a notion of guilt by abstention, whereby a leader may be tried for the crimes of subordinates to the extent that he or she failed to intervene to prevent the punishable acts, a doctrine known today as ‘superior responsibility’.