The Uncertain Application of Superior Responsibility at the International Criminal Court
摘要
This chapter critically examines the evolving and uncertain application of the doctrine of superior responsibility within the framework of the Rome Statute, with particular focus on the implications of the Bemba Appeals Chamber judgment. While the jurisprudence of the UN ad hoc tribunals significantly shaped the doctrine—anchoring it in the Laws of Armed Conflict—the International Criminal Court (ICC) has adopted a structurally distinct and arguably narrower approach under Article 28. This divergence raises pressing questions about the ICC’s conceptualization of superior responsibility, particularly in light of the recent acquittal and prosecutorial caution. This chapter contends that the ICC’s main challenge lies in its fragmented interpretation of the doctrine’s elements, including the introduction of acquittal-enabling factors such as the remoteness of superiors from the scene of the crimes. Through analysis of key cases—especially Prosecutor v. Bemba—this chapter explores how institutional and doctrinal shifts have affected the standards for conviction and accountability. Furthermore, in light of their normative parallels, the chapter considers the broader relationship between superior responsibility, the crime of aggression, and superior orders, and concludes with recommendations aimed at enhancing doctrinal clarity and prosecutorial consistency in future ICC practice.