Superior Responsibility of Civilians for International Crimes Committed in Civilian Settings
This Article examines the notion of superior responsibility of civilians for international crimes committed in civilian settings. The doctrine of superior responsibility grew out of the military doctrine of command responsibility, and its evolution is informed by this origin. Jurisprudence and academic writers emphasize that the doctrine is applicable to civilian superiors of military or paramilitary organizations, but there has never been a detailed analysis of the doctrine’s relevance and applicability in civilian settings. The Article argues that the claim that customary international law extends the doctrine of superior responsibility to civilians, let alone in civilian settings, is inaccurate. In judicial practice, including recent rulings, civilians have rarely been convicted under the doctrine even as leaders of military organizations, and when they have, these convictions were generally secondary to their direct responsibility. The Article elaborates various challenges to the application of the doctrine in civilian settings, particularly in the determination of the existence of a superior–subordinate relationship. Despite the difficulties in transposing the doctrine to the civilian sphere, the Article argues that, as a matter of policy, civilians should also be subject to the doctrine. It also contends that the normative distinctions between civilians and military superiors, today entrenched in Article 28 of the International Criminal Court Statute, are neither absolutely necessary nor practicable.