Superior Order and Criminal Liability in International Criminal Law

This article focuses on the study on the theories and decisions of the international criminal cases with regard to “superior order”. The theory of ”Superior order” responsibility is a doctrine whereby a person in authority may, under certain circumstances, be held criminally liable for acts committed by subordinates because of a failure to prevent them from committing such acts or failure to punish them after the acts have been committed. The criminal responsibility of the superior orders applies to both military commanders and civilian superiors. After World War II, the ICTY and ICTR tribunals applied codified elements of the superior’s criminal responsibility including the “knew or had to know” requirement and “failed to take the necessary and reasonable measures” notion. The recent creation of Article 28 of the ICC Statute added new requirements of “effect command and control, or effective authority and control”. Also, Article 28 created new knowledge standard for civilian superiors, which is “consciously disregarded” element instead “should have known” requirement for military commanders. A non military civilian superior does not have the disciplined structure of the military and should not be required to have same knowledge requirement as military commander. Therefore, the Article 28(b) of ICC Statute will not weaken any deterrent effect or impose an insurmountable obstacle for successful prosecution of civilian superiors. The civilian superior’s less strict knowledge standard is reasonable in the sense that it requires “either knew or consciously disregarded information….” Also, the term “crimes concerned activities” in the Article 28(b)(ii) of ICC could be construed as it means that the superior actually have authority over, or be able to control the subordinates’ actions “within the effective responsibility and control of the superior.”