Skip to main content
Article thumbnail
Location of Repository

Command Responsibility and the Defence of Superior Orders.

By Koji Kudo

Abstract

The thesis analyses how the two notions of superior responsibility and the defence of superior orders are related under current international criminal law. Superior responsibility and the defence of superior orders have been developed independently since the Nuremberg Trial. However, both doctrines have been categorized into a singular notion called individual responsibility, which seem to have emerged simultaneously after World War II. The two doctrines are sometimes heard in one case, where a commander charged with a crime who actually ordered such behaviour may raise a superior order defence. Sometimes a superior who issued illegal orders has to take responsibility for his own actions but also for his subordinates’ actions. The reason for this complication is that both doctrines only focus on one aspect of individual responsibility. Are the two concepts inter-related or inter-dependent?\ud There is no fixed solution to this question. The focus of this thesis is to examine the relation between these different concepts. The aim of the paper is to address the reality and problems of the new concepts of individual responsibility established at Nuremberg and also assess the validity of the principles under current international criminal law. Although the individual approach, dealing with defendants independently, is widely accepted, the balance issue should be examined. To strike a balance between superiors and subordinates, superiors should also have opportunities to be mitigated under certain circumstances. This idea would be necessary to contribute a balanced approach. The possible conditions are presented to strike a balance between superiors and subordinates

Publisher: University of Leicester
Year: 2007
OAI identifier: oai:lra.le.ac.uk:2381/4568

Suggested articles

Citations

  1. (1998). 11 Trials of War Criminals Before the Nuremberg Military Tribunals Under Control Council Law No 10, doi
  2. (2000). 381( cited in this paper ‘‘Mitchell’’); Please note that imputed criminal responsibility is not based on the commander’s orders.
  3. (1972). A Response to Telford Taylor’s Nuremberg and Vietnam: An American Tragedy, doi
  4. (1959). An outline of Soviet Military Law’,
  5. (2000). and beyond: Command Responsibility in contemporary Military Operations’,
  6. (2002). Bantekas, Ilias, Principles of Direct and Superior Responsibility in International Humanitarian Law, doi
  7. (2000). Bassiouni (eds) Superior Orders and Command Responsibility, International Criminal Law, (2nd ed.,Transnational Publishers,
  8. (2002). Bassiouni and Manikas (eds), The Law of the International Criminal Tribunal for the Former Yugoslavia,(Transnational Publishers, Inc., doi
  9. (1948). Blaskic judgment In Ohlendorf and others, United States Military Tribunal at Nuremberg,
  10. Cherif,'Combating Impunity for International Crimes',(2000) 71,
  11. (1985). Command Responsibility and a Case Study of the Criminal Responsibility of Israeli Military Commanders for the Pgrom at Shatila and Sabra’,
  12. (2003). Command Responsibility and Superior Orders in the Twentieth Century- A Century of Evolution’,
  13. (1999). Command Responsibility for War Crimes’,
  14. Command Responsibility in the Former Yugoslavia: The Chances for Successful
  15. (1994). Command Responsibility in the Former Yugoslavia: the Chances for Successful Prosecution’,
  16. (2002). Command Responsibility---A New Basis of Criminal Liability in English Law?’,
  17. (2000). Commanders on Trial: The Blaskic Case and the Doctrine of Command Responsibility under International Law’, doi
  18. (1920). Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties', doi
  19. (1999). Contemporary Law of Superior Responsibility’, doi
  20. (1996). Conundrums of Armed conflict: Criminal Defenses to Violations of the Humanitarian law of War',
  21. (1996). Conundrums of Armed Conflict: Criminal Offences to Violations of the Humanitarian Law of War’,
  22. (1914). Convention on the Suppression and Punishment of the Crime of Apartheid The doi
  23. Criminal Liability for the Actions of Subordinates ---the
  24. (2003). Defence of Superior Orders Before Military Commissions’,
  25. (1999). Evolution of the Command Responsibility Doctrine in Light of the Celebici Decision of the International Criminal Tribunal for the Former Yugoslavia’,
  26. (2000). Failure to Halt, Prevent or Punish: The Doctrine of Command Responsibility for War Crimes’,
  27. (2001). Farhad Malekian, “International Criminal Responsibility”, doi
  28. (1997). Fifth Report on the draft Code of Offences against the Peace and Security of Mankind’,
  29. (1948). Genocide Convention, Prepared by the Ad Hoc Committee of the Economic and Social council (ECOSOC), meeting between April 5,
  30. High Command Case: A Study
  31. (1995). Hostage or Prisoners of War’,
  32. Humanitarian law: doi
  33. (2001). Humanitarian Law: The Uncertain Contours of Command Responsibility’,
  34. (1950). ii Yearbook of the ILC 374-375 Table of cases Att’y Gen. Of Isr.
  35. (2002). Ilias, Principles of Direct and Superior Responsibility in International Humanitarian Law, doi
  36. (1971). in Trials of War Criminals,
  37. (1995). Leslie,Command Responsibility in International Humanitarian Law’, doi
  38. (1993). Mistakenly Obeying Unlawful Superior Orders’,
  39. Obedience of Orders and the Law of War: doi
  40. (2000). Obedience of Orders and the Law of War: Judicial Application in American Forums’,
  41. (1998). Obeying Orders: Atrocity, Military Discipline, and the Law of War’, doi
  42. (1994). Obstacles to the Creation of a Permanent War Crimes Tribunal’,
  43. (1948). of the Laws of War,
  44. (2000). of the Nuremberg Principles provided that defence of superior orders is not available if moral choice was possible. However, the principles did not mention superior responsibility issues.
  45. (2000). Prosecutor v. Zejnil Delalic (The Celebici Case),
  46. (1993). Report of the Secretary-General Pursuant to Paragraph 2 of Security Counsel doi
  47. Reports of Trials of War Criminals, doi
  48. Reports of Trials of War Criminals, United Nations War Crimes Commission,1949. 3 Law Reports of Trials of War Criminals, United Nations War Crimes Commission. doi
  49. Some International Law Problems Related to Prosecutions before the International Criminal Tribunal for the Former Yugoslavia’,(1995)6Duke Journal of Comparative
  50. (1999). Subordinates’ Exceeding Acts When superior A issued a legitimate order but the subordinates intentionally ignored it and killed a number of civilians, who would take responsibility? As to the superior, he himself 51 Prosecutor v.
  51. (1999). Superior Orders and the International Criminal Court: Justice Delivered or Justice Denied’,
  52. Superior Orders as a Defense to Violations
  53. (1986). Superior Orders VS. Command Responsibility’, doi
  54. (1998). Superior Orders---Time for a New Realism?’,
  55. (1961). Superior Orders, Nuclear Warfare, and the Dictates of Conscience: the Dilemma of Military Obedience in the Atomic Age’, doi
  56. (2002). Superior Responsibility” doi
  57. (1945). Table of Statutes Allied Control Council Law No.
  58. (1995). The Defence of Superior Orders doi
  59. (1993). The Defence of Superior Orders in the Modern Law of Armed Conflict’,
  60. (1985). The Defence of Superior Orders',
  61. (1998). The Defences of Reprisals, Superior Orders and Duress in the Priebke Case before the Italian Military Tribunal’, doi
  62. the Defense of Obedience to Superior Orders: the Mens Rea Requirement’,(1989) 17,
  63. (1946). The Disciplinary Cord of the Armed Forces of the Union of Soviet Socialist Republics doi
  64. (2000). The Evolution and Scope of Command Responsibility’ doi
  65. (1999). The International Criminal Court…The Making of the Rome Statute Issues, Negotiations, Result doi
  66. (1946). the International Military Tribunal for the Trial of German Major War Criminals, His Majesty’s Stationery Office
  67. (1944). The Law of Nations and the Punishment of War crimes’,
  68. (1970). The Law of War, Command Responsibility and Vietnam’,
  69. (1993). The Report of the Working Group on a Draft Statute for an International Criminal Court,
  70. (1974). The Responsibility of the Individual for War Crimes’’, doi
  71. The rise and fall of an internationally codified denial of the defense of superior orders',(1991)Vol. 31, Revue internationale de droit militaire et de droit de laguerre,pp.183 ff.
  72. (1998). The Statute of the International Criminal Court: A Documentary History, doi
  73. (1946). The Tokyo Judgment,The International Military Tribunal for the Far East (I.M.T.F.E) doi

To submit an update or takedown request for this paper, please submit an Update/Correction/Removal Request.