Command Responsibility and the Defence of Superior Orders.
thesisposted on 06.07.2009, 11:13 by Koji Kudo
The thesis analyses how the two notions of superior responsibility and the defence of superior orders are related under current international criminal law. Superior responsibility and the defence of superior orders have been developed independently since the Nuremberg Trial. However, both doctrines have been categorized into a singular notion called individual responsibility, which seem to have emerged simultaneously after World War II. The two doctrines are sometimes heard in one case, where a commander charged with a crime who actually ordered such behaviour may raise a superior order defence. Sometimes a superior who issued illegal orders has to take responsibility for his own actions but also for his subordinates’ actions. The reason for this complication is that both doctrines only focus on one aspect of individual responsibility. Are the two concepts inter-related or inter-dependent? There is no fixed solution to this question. The focus of this thesis is to examine the relation between these different concepts. The aim of the paper is to address the reality and problems of the new concepts of individual responsibility established at Nuremberg and also assess the validity of the principles under current international criminal law. Although the individual approach, dealing with defendants independently, is widely accepted, the balance issue should be examined. To strike a balance between superiors and subordinates, superiors should also have opportunities to be mitigated under certain circumstances. This idea would be necessary to contribute a balanced approach. The possible conditions are presented to strike a balance between superiors and subordinates.