Abstract
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.
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Queen’s University, Faculty of Law. I am grateful for the insightful comments received from Kai Ambos, Alexander Greenawalt, and from participants in workshops at Queen’s University and at William & Mary Law School. Excellent research assistance was provided by Gillian MacNeil. This research was facilitated by funding from the Social Sciences and Humanities Research Council of Canada. Contact E-mail: darryl.robinson@queensu.ca.
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Robinson, D. A Justification of Command Responsibility. Crim Law Forum 28, 633–668 (2017). https://doi.org/10.1007/s10609-017-9323-x
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DOI: https://doi.org/10.1007/s10609-017-9323-x