A Study On The Article 28 "Command Responsibility" Of The Rome Statute Of The International Criminal Court

“Command responsibility” originates from the international humanitarian law and is embodied in the texts of various statutes and in the jurisprudence of international ad hoc criminal tribunals.The theory of commander responsibility is developing towards the trend of maturity and perfection.One of the most obvious characteristics is that the standard of conviction is more and more strict.There is an increasing tendency to move away from arbitrary individual responsibility of commanders and from the arbitrary imposition of war crimes on individual commanders.In this trend,whether it indicates that the development of the command responsibility theory has reached the end and is dying out,thus denying the research value of the theory.Although the development of the specific elements of command responsibility has been tortuous,from Articles 8 of the Conventions for the Amelioration of the Condition of the Wounded in Armies in the Field to Article 28 of the Rome Statute of the International Criminal Court,and for the duration of the tribunal’s decisions,the command responsibility has experienced the transition from ambiguity to concrete.In practice,especially when looking back at large-scale armed conflicts in the modern history of the world and analyzing international crimes such as war crimes,crimes against humanity and genocide,the commission of such crimes always involves individuals such as commanders,who either operate within an organization or organizational structure or perform their duties under the control of one or more superiors.For a country’s traditional armed forces,it is always a commander-in-chief,as well as brigade,battalion,company commanders.Similarly,irregular armed groups have some form of centralized or decentralized power structure composed of commanders or leaders.The corresponding responsibility of this subject in armed conflict is contained in Article 28 of the Rome Statute of the International Criminal Court.This provision provides for the application by the International Criminal Court of the principle of command responsibility,according to which,in certain circumstances,military commanders,persons effectively acting as military commanders and other non-military commanders are responsible for crimes committed by their subordinates or,more accurately,for crimes committed in connection with their subordinates.Although the command responsibility has been generally accepted by the international community,there are still many difficulties in determining the responsibility of commanders on a case-by-case basis in the application of the command responsibility.From the discussion of the nature of the command responsibility,to the dispute of its constitutive elements and to the analysis of sentencing factors,it is not difficult to see that the command responsibility is still in a lot of disputes.From the ambiguity before World War II to the gradual development after World War II,from the Yamashita case to the Bemba case,the nature of the command responsibility has always been contradictory.After clarifying the pattern of responsibility and the distinction between command and individual responsibility,the application and differentiation of subjective and objective elements are especially prominent in concrete cases.At the same time,the question of whether the causality,as a special element,needs to be supplemented by the traditional dualism of command responsibility has been raised continuously.Only on the basis of answering these questions well can we further analyze the applicable contradictions and existing problems of command responsibility,and make some reflections and suggestions for further understanding and using of command responsibility.However,the issue of succession,attempt and concurring responsibility still challenges the stability of the command responsibility,and the standard of sentencing also examines whether the command responsibility is complete or not.To determine the factors of the sentencing of thecommand responsibility based on the international humanitarian law system represented by the Rules of Procedure and Evidence,and to learn from the corresponding international and national practices,are conducive to the further improvement of command responsibility,which eventually helps to further develop international humanitarian law and international criminal law.