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Superior or Command Responsibility: a Doubtful Theory of Criminal Responsibility at the Ad Hoc Tribunals

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Chapter Summary

According to the author, there is at least grave doubt about the correctness of the view that at the International Criminal Tribunals for the former Yugoslavia (ICTY) and the International Criminal Tribunals for Rwanda (ICTR) an accused may be found guilty solely on the basis of the so-called theory of superior or command responsibility, as found in articles 7(3) and 6(3) respectively of the ICTY and ICTR Statutes. The critique rather is strictly limited to the correctness of the view that the notion may be found within the walls of the ICTR and ICTY Statutes, such that a prosecution and conviction may be founded solely on the basis of such a theory, as has been done in Hadžihasanović. The concept of superior or command responsibility is strongly grounded in customary international law - certainly so for superiors in a military hierarchy.

Keywords: ad hoc tribunals; article 6(3) of ICTR statute; article 7(3) of ICTY Statute; command responsibility; criminal responsibility; Hadžihasanović



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