The interests of States versus the doctrine of superior responsibility

The doctrine of superior responsibility prescribes the criminal liability of those persons who, being in positions of command, have failed to either prevent or punish the crimes of their subordinates.1 This concept does not differentiate between military officers and civilians placed in positions of command, since the duty to prevent and punish the offences of their subordinates in situations of armed conflict is considered to be incumbent upon both. This duty is well recognized both in customary and treaty law as far back as the Leipzig trials following World War I. Its contemporary formulation is found in a plethora of legal instruments, such as Articles 7, paragraph 3, and 6, paragraph 3, of the Statutes of the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) respectively, Article 28, paragraph 2, of the Statute of the International Criminal Court (ICC), and Article 86 of 1977 Protocol I additional to the Geneva Conventions.