The Rudiments of the Superior Responsibility Doctrine
摘要
This chapter examines the conceptual components, legal characterization, and practical application of the doctrine of superior responsibility under the Laws of Armed Conflict (LoAC), culminating in its evolution into a mode of liability under international(ized) criminal tribunals. It distinguishes between LoAC’s imposition of disciplinary responsibility on military commanders and international criminal law’s (ICL) imposition of vicarious criminal liability on military and political superiors for international crimes committed by subordinates. The chapter critically explores the doctrinal and terminological ambiguities surrounding “command” and “superior” responsibility, highlighting divergent interpretations by tribunals and scholars, and the challenges posed by fragmented treaty provisions and early, also fragmented, jurisprudence. Through a comparative and critical analysis of legal texts, case law, and academic scholarship, it clarifies the doctrine’s core elements and refutes the misconception that superior responsibility, for example, is merely omission-based liability. Rather, it supports the view that the doctrine constitutes a sui generis mode of liability, exclusive to ICL and grounded in a consequentialist normative framework. This theoretical approach—anchored in historical developments outlined in the previous chapter—offers a more coherent legal and moral basis for understanding superior responsibility as such, balancing liberal criminal law principles with humanitarian and human rights imperatives in addressing mass atrocity. Importantly, this chapter focuses on the jurisprudence of the ad hoc and hybrid tribunals, where the doctrine has developed most significantly. References to the Rome Statute are included only to establish comparative context, while a detailed analysis of its provisions is reserved for the next chapter.