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Florida State University Journal of Transnational Law & Policy

Joshua L. Root

Abstract

The Rome Statute of the International Criminal Court provides for Command Responsibility. The provision addressing this is ambiguous and raises a number of interpretive issues. Command responsibility can either be understood as a mode of liability-a way of holding commanders vicariously responsible for the acts of their subordinates, or it can be understood as a separate, distinct crime based on the commander's dereliction of his supervisory duties. The Rome Statute is not clear on the matter and points in both directions. In recent years, the mode of liability approach has come under increasing scrutiny by academics and by judges, particularly at the ICTY. This is rightly so, because the mode of liability approach offends basic notions of justice and accountability for personal responsibility. The separate crime theory conversely, serves to punish commanders for their omissions and comports with modern notions of due process and fundamental fairness. A mode of liability approach is particularly problematic in the context of specific intent crimes, like genocide, because the Rome Statute only requires that a military superior be negligent to be punishable under command responsibility. If command responsibility is a distinct crime, there is no conflict here; however, if command responsibility is a mode of liability, it effectively nullifies the element of genocidal intent, the hallmark of the "crime of crimes." This dissertation explores some of the interpretive issues the Court must address in order to construe command responsibility in the Rome Statute as a distinct crime. The conclusion here is that there is sufficient foundation in the Rome Statute to construe command responsibility as a separate, distinct crime, and still maintain the Court's jurisdiction over that crime

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