Doctrine of Superior responsibility

It prescribes the “criminal liability of those persons who, being in positions of command,
have failed to either prevent or punish the crimes of their subordinates.”1

“The doctrine of superior responsibility imposes liability on superiors when they know or
should have known about their subordinates' violations of international law, but fail to prevent
such acts or punish the perpetrators. x x x  Unlike aiding and abetting liability, superiors are not
charged with assisting the crimes of their subordinates, but rather with failing to carry out their
duty as superiors to prevent or punish the criminal conduct of their subordinates or persons under
their control.” 2
 
Superior responsibility at the International Criminal Court (ICC) is a distinct mode of
liability from command responsibility, as provided in Article 28(b) of the ICC Statute, to wit:

“(b) With respect to superior and subordinate relationships not described in

paragraph (a), a superior shall be criminally responsible for crimes within the
jurisdiction of the Court committed by subordinates under his or her effective
authority and control, as a result of his or her failure to exercise control properly
over such subordinates, where: 

“(i) The superior either knew, or consciously disregarded information

which clearly indicated, that the subordinates were committing or about to
commit such crimes; 

“(ii) The crimes concerned activities that were within the effective
responsibility and control of the superior; and 

“(iii) The superior failed to take all necessary and reasonable measures
within his or her power to prevent or repress their commission or to
submit the matter to the competent authorities for investigation and
prosecution.”3

Principle of Legality in International Criminal Law

Also known as nullum crimen, nulla poena sine lege, this principle, enshrined in Article
15 of the International Covenant on Civil and Political Rights and also contained in Article 15 of
the International Criminal Court Statute, states that “no one may be convicted or punished for an
act or omission that did not violate a penal law in existence at the time it was committed”. 4 Thus,
1
Ilias Bantekas, The interests of States versus the doctrine of superior responsibility. International Red Cross.
Available at: https://www.icrc.org/en/doc/resources/documents/article/other/57jqhp.htm.
2
Brian Seth Parker, Applying the Doctrine of Superior Responsibility to Corporate Officers: A Theory of Individual
Liability for International Human Rights Violations, 35 Hastings Int'l & Comp. L. Rev. 1 (2012).
3
International Criminal Law Guidelines: Command Responsibility. Centre for International Law Research and
Policy (2016). Available at: https://www.legal-tools.org/doc/7441a2/pdf/, citing ICC Statute, art. 28(b).
4
Advisory Service on International Humanitarian Law, International Committee on the Red Cross. Available at:
https://www.icrc.org/en/download/file/1070/general-principles-of-criminal-law-icrc-eng.pdf.
“the existence of a particular crime depends on the existence of legislation stating that the
particular act is an offence, and for a specific penalty to be imposed for that offence, the
legislation in force at the time of its commission must include that particular penalty as one of
the possible sanctions for that crime”.5 The principle of legality determines “the limits of the law-
making process and encompasses norms that legal rules must adhere to” such as clarity,
promulgation and non-retroactivity.6 Its purpose is to “ensure that legislation is specific and
predictable so that individuals may reasonably foresee the legal consequences of their actions”.7

Nevertheless, the concept of legality in International Criminal Law “is fluid and
evolving”, there being “no agreed upon definition or fixed standard.” “Legality in the
international sphere is derived from that of municipal systems,” 8 “as legality is a general
principle of law common to almost all legal systems”. 9 The ICC Statute draft note characterizes
legality as “fundamental to any criminal legal system”, notes “the link between this general
principle and domestic systems”, and acknowledges the need to articulate legality clearly in the
statute.10

5
Advisory Service on International Humanitarian Law, International Committee on the Red Cross. Available at:
https://www.icrc.org/en/download/file/1070/general-principles-of-criminal-law-icrc-eng.pdf.
6
Noora Arajarvi, Between Lex Lata and Lex Ferenda - Customary International (Criminal) law and the Principle of
Legality, 15 Tilburg L. Rev. 163 (2010).
7
Advisory Service on International Humanitarian Law, International Committee on the Red Cross. Available at:
https://www.icrc.org/en/download/file/1070/general-principles-of-criminal-law-icrc-eng.pdf.
8
Jessica Lynn Corsi, An Argument for Strict Legality in International Criminal Law, 49 Geo. J. Int'l L. 1321 (2018),
citing M. Cherif Bassiouni, International Criminal Law 98 (3d ed. 2008), citing Machteld Boot, Genocide, Crimes
against Humanity, War Crimes: Nullum Crimen Sine Lege and the Subject Matter Jurisdiction of the International
Criminal Court 18 (2002).
9
Jessica Lynn Corsi, An Argument for Strict Legality in International Criminal Law, 49 Geo. J. Int'l L. 1321 (2018),
citing M. Cherif Bassiouni, International Criminal Law 98 (3d ed. 2008), citing M. Cherif Bassiouni, International
Criminal Law 98 (3d ed. 2008).
10
Jessica Lynn Corsi, An Argument for Strict Legality in International Criminal Law, 49 Geo. J. Int'l L. 1321
(2018), citing Jun Yoshida (Rapporteur), Rep. of the Preparatory Comm’n on the Establishment of an Int’l Criminal
Court, U.N. Doc. A/AC.249/CRP.1/Rev.1 (Apr. 11, 1996).