Command Responsibility: International Criminal Law Guidelines (2nd Edition)

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Updates include the application of command responsibility in the Bemba judgment (ICC)

International Criminal Law Guidelines: Command Responsibility, 2nd edition
Brussels, November 2016
164 pages
ISBN: 978-82-8348-096-2
PURL: http://www.legal-tools.org/doc/367a2d/

The International Criminal Law Guidelines: Command Responsibility provide a concise overview of the legal requirements of command responsibility using emblematic case law from international tribunals and the analysis of leading publicists. The second edition includes updates from the recent ICC Trial Chamber judgment in The Prosecutor v. Jean-Pierre Bemba Gombo, where Bemba was found guilty for sexual violence crimes through the liability of command responsibility, amongst other charges.

Command responsibility assigns criminal responsibility to higher-ranking members of the military for the crimes of genocide, crimes against humanity and war crimes committed by their subordinates. It is a criminally negligent dereliction of duty.

The Guidelines include 86 judgments or decisions from 62 cases, as well as 19 publicist texts that address the definition and interpretation of command responsibility. Organised according to the six legal requirements of command responsibility under the ICC Statute, the Guidelines provide a succinct overview of the liability, following the interpretive developments of international tribunals as well as publicist commentaries. They also provide comparative charts on the legal requirements of command responsibility under the ICC Statute and other international or internationalised tribunals.

The purpose of the Guidelines is to enable practitioners to:

  • Recognise the six legal requirements of command responsibility under the ICC Statute;
  • Compare the legal classifications of command responsibility under international legal instruments;
  • Access the relevant paragraphs of international case law that address the elements of command responsibility;
  • Review the trends and variation in international case law as recognised by leading international publicists;

Legal Requirements of Command Responsibility

The Guidelines adopt the Legal Requirements Framework, a structure that enables the interpretation of the crimes and modes of liability enshrined in the ICC Statute. The Legal Requirements Framework helps to define:

  • the material elements (actus reus) of each crime and mode of liability, such as the conduct, consequences and circumstances, which are objective in their nature; and
  • the mental elements (mens rea), which require subjective proof of intent and knowledge[1] for the respective material elements.

Together, the material and mental elements help to establish the scope and essence of criminal behaviour or prohibitive act as defined by the ICC Statute.

Unlike the crimes of the ICC Statute, its liabilities and mens rea are not elaborated by subsidiary legal documents: the Legal Requirements Framework aims to fill these gaps in order to define the distinct elements that comprise each mode of liability under Article 25 and 28, as well as the mental elements under ICC Art.30. This offers a clear and consistent structure to interpret the crimes and liabilities found in the ICC Statute, which can guide a Prosecutor, defence attorney or judge in the evaluation of available evidence, development of legal arguments and legal analyses.

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For more information, please contact:
Emilie Hunter, CMN Deputy Director: [email protected]
Ilia Utmelidze, CMN Director: [email protected]
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