An Analysis Of Article 28 Of The Rome Statute Of The International Criminal Court

As a very important legal concept in International Criminal Law, commandresponsibility establishes the legal base for the responsibility of commanders whentheir subordinates commit a crime. However, command responsibility in practice facea lot of challenges.First of all, due to the difference rising from the understanding of criminalresponsibility system in International Criminal Law, the practice of commandresponsibility and individual responsibility when applying with related provisions ledto a paradox, which obviously is a huge challenge to the criminal responsibilitysystem. Apart from it, the establishment of the superior-subordinate relationship, anecessary and unique element of command responsibility would need to be furtherexamined in some certain situations.This article would start from the concept of command responsibility, withcomparative method to find the difference and similarity of command responsibilityand individual responsibility in their concept, theoretic base, and practice, then thearticle concludes with the problem lying in the concept and theoretic base ofcommand responsibility. This article goes further to analyze different theories talkingabout behaviors in the criminal system and combine those theories with the behaviorsin armed-conflicts, solves the problem aforesaid and finally gives advice on how toapply the provisions relating to command responsibility in practice.Besides, in the establishment of superior-subordinate relationship, this articlestudies the basic element, the power of control. And with further study, this articlefound in the establishment of command responsibility in particular, the core elementof superior-subordinate relationship would be the power of supervision andpunishment. On this ground, the article further studies two specific situations in whichthe establishment of superior-subordinate relationship needs to be specified.After the analysis aforesaid, this article finally determines the way that is suitablefor the development of command responsibility, so that we can make sure thecommand responsibility would make contribution to balancing the power and responsibility of a commander in armed-conflicts.