It has been widely evidenced that international crimes are collective in nature and involve individuals acting through an organized structure. Thus, besides punishing the physical perpetrators, an important task for international criminal law is to develop the proper doctrines to attribute responsibility to those on top of such organizations. In this direction, the concept of superior responsibility becomes highly relevant, attributing liability to military or civilian superiors for their failure to prevent the crimes of their subordinates. Nevertheless, international criminal law has not yet developed a concrete approach to the nature and application of the superior responsibility doctrine. To overcome this shortcoming, this article identifies the links between the superior responsibility doctrine and the theoretical framework of attributing criminal responsibility to the individual for the commission of international crimes. Developing on omission theory, it suggests an alternative theoretical approach to the superior responsibility doctrine, which combines the theory of control already applied in the case law of the International Criminal Court (ICC) with the mens rea requirements of the ICC Statute.

Modes of liability, such as ordering, instigation, superior responsibility, and joint criminal liability, are arguably the most-discussed topics in modern international criminal justice. In recent years, a wide range of scholars have rebuked some of these modes of liability for compromising basic concepts in liberal notions of blame attribution, thereby reducing international defendants to mere instruments for the promotion of wider sociopolitical objectives. Critics attribute this willingness to depart from orthodox concepts of criminal responsibility to international forces, be they interpretative styles typical of human rights or aspirations associated with transitional justice. Strangely, however, complicity has avoided these criticisms entirely, even though it, too, fails the tests international criminal lawyers use as benchmarks in the deconstruction of other modes. Moreover, the source of complicity's departures from basic principles is not international as previously suggested – it stems from international criminal law's emulation of objectionable domestic criminal doctrine. If, instead of inheriting the dark sides of domestic criminal law, we apply international scholars’ criticisms across all modes of liability, complicity disintegrates (as do all other modes of liability) into a broader notion of perpetration. A unitary theory could also attach to all prosecutions for international crimes, both international and domestic, transcending the long-endured fixation on modes of liability within the discipline.

The recent jurisprudence of the ICTY concerning the proper interpretation of the doctrine of superior responsibility under Article 7(3) of the ICTY Statute has been stifled by division and uncertainty. In particular, the question of the responsibility of successor superiors for crimes committed by their subordinates prior to taking command has led to a number of 3–2 majority decisions. This paper seeks to reconcile the divergent judicial opinions by moving away from a narrow analysis of successor superior responsibility, instead focusing on the determination of the underlying nature of the doctrine of superior responsibility. While a polarity of opinions also exists in relation to the nature of the doctrine of superior responsibility, this paper argues that the opinions can be reconciled by adopting a more principled approach to customary international law, an approach justified by the international criminal law context. Such an approach involves two elements: first, ensuring that a clear distinction is drawn between international humanitarian and international criminal legal concepts; and, second, the invocation of the principle of individual culpability as a standard against which the weight to be attributed to authorities evidencing custom ought to be assessed. A principled approach would enable the identification of the nature of the doctrine of superior responsibility while ensuring that the doctrine reinforces international criminal law principles rather than acts as an exception to them; in addition, by determining the nature of the doctrine of superior responsibility, the principled approach would unravel the confusion concerning successor superior responsibility in the ICTY jurisprudence.

In certain quarters of the former Yugoslavia, the ICTY judgment issued on 30 June 2006 in Prosecutor v. Naser Orić has been strongly criticized for meting out a two-year prison sentence to the Bosnian Muslim wartime commander of Srebrenica. After a short sketch of the factual background which the trial chamber considered to be the pivotal sentencing factor, this note focuses on the legal issues underlying his conviction for having failed to prevent the murder and cruel treatment of a number of Serb prisoners. In particular, the trial chamber's interpretation of the standard of ‘reason to know’ of these crimes deserves attention. The judgment also gave rise to other significant developments, such as the approach to repeated prosecutorial violations of its disclosure obligations and an important clarification regarding the scope and nature of crimes committed by subordinates of a superior.

This case note focuses on two aspects of the January 2005 Strugar Judgment of the ICTY. The first is the trial chamber's finding that the accused was not aiding and abetting his subordinates in the commission of the crimes charged through his failure to discharge his duty to prevent the crimes and/or punish the perpetrators. The second is the trial chamber's definition of one of the alternative mental states a superior must possess before a conviction can be entered against him on the basis of Article 7(3).

Commonly accepted distinctions between state and individual responsibility have created a conceptual chasm between the two sets of legal rules, which is in turn reinforced by different underlying theoretical conceptions of the international system. As a result of this conceptual chasm, current understandings of responsibility fail to describe adequately either the sources of harm to individuals or groups within states, or the changing relationships between individuals, non-state groups, and states. The doctrine of superior responsibility, however, offers the possibility for reconciliation of state and individual responsibility rules, by providing a theoretical basis and a practical method of developing understandings of liability for breaches of fundamental norms that more accurately reflect the channels of responsibility in contemporary conflict situations.

With Milošević on trial, the work of the International Criminal Tribunal for the former Yugoslavia (hereinafter: ICTY) continues as does the need to solve insufficiently answered questions of international law. As most of the accused used to hold positions of high authority in the military or in the civil sphere, the doctrine of superior responsibility has been considered in several of the cases decided by the Tribunal. These cases, together with cases decided by the International Criminal Tribunal for Rwanda (hereinafter: ICTR), have led to a discussion of whether also civilian superiors can incur responsibility under the doctrine of superior responsibility. Namely, the doctrine used to be applied more in the military sphere to commanders that were part of the hierarchical command structure, and was as such of less importance to considerations of responsibility of non-military leaders.

The Statute of the ICTY incorporates the customary international law principle of superior responsibility. Where a superior knew or had reason to know that subordinates were about to commit or committed a crime, he/she is under an obligation to take preventative or punitive measures against subordinates. The mens rea, or knowledge, of a superior is pivotal in determining his/her criminal responsibility. However, despite the customary law status of the principle of Superior Responsibility, the definition and standard of mens rea applied has varied. The ICTY Trial Chambers in the Čelebići and Blaškić cases reached opposite findings on the definition of the term “had reason to know” under customary law. The Appeals Chamber has rendered its definition of mens rea. However, the standard applied appears inconsistent with the principle of Superior Responsibility.

This article discusses the contribution made by the jurisprudence of the Yugoslavia Tribunal to the articulation of the body of international humanitarian law that applies to all armed conflicts, regardless of whether they are international or internal. The Tadić Jurisdiction Decision rendered by the Appeals Chamber in 1995 set the stage for a substantial “rapprochement” of the regulatory content of war crimes committed in international and internal armed conflict, using Common Article 3 of the Geneva Conventions as the main vehicle. The first judgements have contributed greatly to the expansion of the body of “Geneva law” applicable to all armed conflicts. More recently, the Tribunal has started to examine cases of armed conflicts per se, in which perpetrators have been charged with violation of the “Hague law”, i.e., the law relating to the conduct of hostilities. The end result of this development will be elaboration of a common core of Geneva law and Hague law applicable to all armed conflicts that have reached the threshold of Common Article 3 of the Geneva Conventions.