In this chapter, I examine a different controversy in command responsibility: the mental element. Scholars and jurists have raised powerful, principled objections to the modified fault standards in command responsibility, such as the ‘should have known’ standard in the ICC Statute. They are absolutely right to raise such questions, because a negligence standard in a mode of accessory liability seems to chafe against our normal analytical and normative constructs. However, I advance, in three steps, a culpability-based justification for command responsibility. I argue that the intuition of justice underlying the doctrine is sound.

I argue that the ‘should have known’ standard in the ICC Statute, rather than being shunned, should be embraced. I argue that the ‘should have known’ standard actually maps better onto personal culpability than the rival formulations developed by the Tribunals.

This chapter gives an example of the two-way conversation and illumination in the encounter between criminal law theory and ICL. This is an instance where ICL, by highlighting special contexts and problems, can lead us to reconsider some of our initial reactions and conclusions. Command responsibility delineates a set of circumstances where our normal reflexes about the lesser culpability of criminal negligence may be unsound.

This chapter examines some versions of the coherence theory of justification, and arguments for and against the coherence theory of justification.

There are good reasons to endorse scientific realism and good reasons to endorse common-sense realism. However, it has sometimes been suggested that there is a tension between the two which makes it difficult to endorse both. Can the common-sense picture of the world be reconciled with the strikingly different picture presented to us by our best confirmed theories of science? This chapter critically examines proposals for doing so, and it offers a new one, which is essentially this. It is a psychological fact that we have certain common-sense beliefs. In the framework of reductive physicalism, all beliefs, including the common-sense ones, are nothing but brain states and processes. Being scientifically realist about these brain states and accepting the reductive-physicalist view of the mind, we can account for the psychological fact that we have certain common-sense beliefs with certain contents, without committing to the idea that the contents of these common-sense beliefs have to be true of the world. In this coherentist approach we are not required to relinquish our common-sense beliefs, since although they are false according to science, this very same science shows that holding those beliefs is fully rational.