Stepping Forward or Stumbling Back? Command Responsibility for Failure to Act, Civilan Superiors and the International Criminal Court

The application of the doctrine of command responsibility (“CR”) to civilian leaders is unsettled under international law. Jurisprudence which has applied CR to civilian leaders has been inconsistent, unprincipled and potentially unjust. International decisions such as the Celebici case at the ICTY suggest that CR can theoretically apply to civilians, but the subsequent Kordic decision indicates that international jurists are extremely wary of extending CR to civilian leaders. The Rome Statute of the nascent International Criminal Court is the first codified international law that explicitly provides for individual criminal liability for civilians on the basis of CR. This paper argues that, given the unsettled status of civilian CR under customary international law, the Rome Statute is an improvement for the mere fact that it explicitly provides CR for civilians. As such, criticisms that the ICC provisions weaken the doctrine in relation to civilian leaders are incorrect because they misconstrue the status quo under international custom. It is not settled under international law whether and to what extent command responsibility even applies to civilians. Moreover, in the few cases in which command responsibility has been used to hold civilians responsible for international crimes, the doctrine has resulted in injustice. As such, the explicit codification of the doctrine in relation to civilians is an improvement on, rather than a regression of, the status quo of CR