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The Law of Command Responsibility$
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Guénaël Mettraux

Print publication date: 2009

Print ISBN-13: 9780199559329

Published to Oxford Scholarship Online: May 2009

DOI: 10.1093/acprof:oso/9780199559329.001.0001

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Command Responsibility as a Sui Generis Form of Liability for Omission

Command Responsibility as a Sui Generis Form of Liability for Omission

(p.37) 4 Command Responsibility as a Sui Generis Form of Liability for Omission
The Law of Command Responsibility

Guenael Mettraux

Oxford University Press

This chapter outlines the discussion surrounding the debate over the nature of the doctrine of superior responsibility as a form of criminal liability. It argues that command or superior responsibility constitutes a sui generis form of liability for omission. A superior is, therefore, held criminally responsible for a grave failure (attributable to him) to adopt necessary measures to prevent or punish crimes of subordinates. The chapter also traces the origin of that doctrine in the concept of ‘responsible command’ and discusses the division of labour operated between international law and national law as regard the scope and nature of duties of superiors. It details the nature of the duties that lie upon a superior to act to prevent and punish crimes, and why those duties must be distinguished from those of his subordinates or of that State of which he may be an official. The chapter discusses the necessary relationship that exists between the culpable conduct of the superior and the underlying crimes that form the basis of the charges against him. Finally, it touches upon the question of overlaps between different forms of liability and the important issue of sentencing in cases of superior responsibility.

Keywords:   dereliction of duty, accomplice liability, complicity, attributability, duty to act, responsible command, causation, sentencing

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