The Shadow Side of Command Responsibility

Abstract

"Command responsibility" is an umbrella term used in military and international law to cover a variety of ways in which individuals in positions of leadership may be held accountable. In its broadest sense the term refers to the liability of a military commander for failure properly to discharge his duties. The failure need not necessarily imply insufficient control over the conduct of subordinates: a commander could be punished, for example, because he exposed his troops to undue risk. But in a narrower sense, the term refers to the commander's liability for the criminal conduct of his underlings. This type of liability may in turn be variously structured, and be either civil, disciplinary or criminal in nature. Of late, however, the term is usually reserved to denote a species of this latter type - a species in which not only a military commander, but also a non-military leader, is held criminally liable for the conduct of his subordinates as if he personally had executed the criminal deed. Problems related to this particular species of command responsibility, as it has developed in international law, are the subject-matter of this essay.