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Towards a unified approach to superior responsibility in international criminal law: Establishing the links between participation to the crime and the superior responsibility doctrine

Abstract 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.