로마규정 제28조 (가) 지휘관 책임의 국내이행법률 분석 < 국제형사재판소 관할 범죄의 처벌 등에 관한 법률 제5조, 제15조의 내용 및 문제점을 중심으로 >

The commander's responsibility under Article 28 (a) of the Rome Statute and its domestic implementation act,「Act on punishment, etc. of crimes under jurisdiction of the international criminal court」, requires certain status of commander who exercises effective control over the subordinates, The one who owns material ability to control over the subordinates is considered exercising effective control over them. And those actually exercising the power of superiors is included in the meaning of commander. Consequently, the standard of ‘effective control’ is main issue of the element of status. The commander’s responsibility imposes several duty to act within the boundary of commander’s material ability. The content of the duty is to prevent, repress and submit the subordinates’ commissions. But whether the commander violated the duty or not is comprehensively decided by whether the one implemented ‘all necessary and reasonable measures’ in case of Article 5, ‘not neglecting the one’s duty to prevent or stop subordinates’ in case of Article 15. It impose the obligation to prevent, repress, and submit the offense and penalize the omission of the obligation to comply. Since the commander is responsible for the criminal responsibility of his subordinate’s commissions and that this extends criminal responsibility for the misconduct of others, It is located in the theories about co-perpetrator or accomplice. But the domestic implementation act provided it as an independent article which not only includes elements of the crime but also its statutory punishment. Nevertheless, like the accomplice, dual subjective element of crimes are required in commander’s responsibility. International criminal jurisprudence constantly tried to widen the subjective element about the subordinatees commissions by providing ‘should have known’ or ‘could have known’ standard. German implementation law also classified various types of commander’s responsibility by considering dual subjective elements. Among the coverage of Article 28 (a) of the Rome Statute, Article 5 of the domestic implementation act stipulates certain situation that (1) the type of omission is a failure to prevent, (2) the commander knew the subordinates’ commissions, and (3) the commander intently failed to prevent the subordinates’ commissions. The responsibility of Article 15 of this act is to penalize the rest of scope of discipline of Article 28 (a) of the Rome Statute. As article 15 of this act did not provide the alleviation of subject element about the subordinates’ commissions, needs to be revised. Article 5 is not the joint punishment provision because of the different type of omissions, and dependency to the subordinates’ commissions. As subordinates’ commissions informs the commander what should be done, the situation is the part of the object element which is highly related to the other object elements of the commander’s responsibility.