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The transposition of military commanders discretion onto International Criminal responsibility for military commanders: An increasing legal-political dilemma within International Criminal justice

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Chapter Summary

Criminal trials either at a domestic level or before international criminal courts whereby military commanders are held accountable for (international) crimes conducted by their subordinates is an emerging topic of perennial concern. This chapter examines how international criminal responsibility for military commanders can be vested in the presence of military commanders discretion. It shows that the imposition of superior responsibility on military commanders provokes several questions of legal-political nature. The chapter appeals to military commanders discretion in general and it positions the mens rea element within a legal-political dilemma, namely the choice a military commander sometimes has to make between military operational goals and responsibilities, such as forced protection, on the one hand and legal responsibilities on the other hand.

Keywords: international criminal courts; international criminal responsibility; legal-political dilemma; mens rea ; military commanders



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