Command Responsibility of Non- Military Superiors in the International Criminal Court (ICC)

The international community enacted the treaty establishing the world's first permanent International Criminal Court (ICC) in July of 1998. As a bold new institution in international law, the ICC has caused much debate. Two of the many issues thus raised include: (1) whether the treaty's novel command responsibility standard for civilian superiors will help or hinder the efficacy of the court; and (2) whether the treaty's new standard will influence the command responsibility doctrine in customary international law. The ICC treaty's command responsibility provision provides a separate standard for military commanders and a different standard for non-military superiors.

This Article first argues that these separate standards hinder the deterrent power of the doctrine for civilian leaders. To support this contention, the Article analyzes the facts of several past cases against the ICC civilian command responsibility standard to illustrate how the new ICC civilian standard would produce a different outcome. Second, the Article discusses how the ICC's new standard will influence the command responsibility doctrine in customary international law. This second issue is especially important because recent decisions by the Rwanda and Yugoslavia international tribunals are somewhat in equipoise on the scope of the command responsibility doctrine as applied to civilian superiors.

This Article examines the ICC's innovation in light of the recent Rwanda and Yugoslavia decisions and discusses the potential influence the ICC standard may have on the doctrine.