In this article, I advance a culpability-based justification for command responsibility. Command responsibility has attracted powerful, principled criticisms, particularly that its controversial “should have known” fault standard may breach the culpability principle. Scholars are right to raise such questions, as a negligence-based mode of accessory liability seems to chafe against our analytical constructs. However, I argue, in three steps, that the intuition of justice underlying the doctrine is sound. An upshot of this analysis is that the “should have known” standard in the ICC Statute, rather than being shunned, should be embraced. While Tribunal jurisprudence shied away from criminal negligence due to culpability concerns, I argue that the “should have known” standard actually maps better onto personal culpability than the rival formulations developed by the Tribunals.

中文翻译：

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指挥责任的理由

在这篇文章中，我提出了一个基于过错的指挥责任理由。指挥责任引起了强有力的、有原则的批评，特别是其有争议的“应该知道”过错标准可能违反了过错原则。学者提出此类问题是正确的，因为基于疏忽的从属责任模式似乎与我们的分析结构相冲突。然而，我分三个步骤论证，该学说背后的正义直觉是合理的。这种分析的一个结果是，国际刑事法院规约中的“应该知道”标准，而不是被回避，应该被接受。虽然法庭判例由于过失责任而回避了刑事疏忽，