Icl Essay

To what extent should a military commander be culpable?
An examination of the Constructive Knowledge Requirement in Article 28(a) of Rome Statute

Article 28 of Rome Statute of the International Criminal Court (ICC Statute) in 1998, by its wordings, seemed to provide for a new constructive knowledge requirement to military commanders (“should have known” standard), which are substantially different from case law development and customary international law[1]. Also, historically, the usefulness of command responsibility appears to be restrained in recent decades when we traced into case laws of ad hoc Tribunals, for its relatively short sentencing (than criminal liability as principal/accomplice/co-perpetrator) and failure to convict[2]. Further doubts arises when scholars suggested that other doctrines like joint criminal enterprise and aiding/abetting may be able to replace the use of command responsibility doctrine[3]. These two factors motivated me to explore in this controversial field of law.

This essay, apart from examining and critically evaluating the revolutionary changes brought by Article 28 of ICC Statute, thus, also hopes to examine the possibility to revitalise this long-existed doctrine. It is argued that given the concern of absence of culpability and its incoherence with general principles of superior responsibility evolved from customary law and cases, the “should have known” standard, which de facto posed a duty to acquire knowledge to superiors, was “a step backward”[4] from the development progress from objective to a culpable liability requirement, and it should be revised. This paper will be consisted of 3 sections. A sketch of the development of the general nature of command responsibility and various types of knowledge requirement and standard thereof will set the backdrop for an analysis of difference between customary law and the “should have known” standard proposed in Article 28(a) of ICC Statute and identification of the...