Charting the Course of the Book: Themes and Components
摘要
Since its formulation in the jurisprudence of the International Military Tribunals (IMTs) and the Subsequent Nuremberg Trials (SNTs), and even earlier in antiquity, the doctrine of superior responsibility has been widely debated by scholars, particularly in efforts to justify its nature by drawing parallels with principles of domestic criminal law. As noted by a judge in the NMTs, this doctrine remains, in many respects, a “strange” legal construct. Its conceptual ambiguities contribute to persistent challenges in its (in)consistent application to superiors at the international level. Debate continues along two primary lines: first, regarding its legal characterization; and second, though less frequently addressed, the inconsistent jurisprudence concerning its constitutive elements. This book provides an accessible and comprehensive examination of the doctrine, with a focus on clarifying its conceptual components. It undertakes two main tasks: (1) a pragmatic and critical analysis of how the doctrine’s components have been—or ought to be—interpreted in international jurisprudence; and (2) a normative proposal to reconceptualize superior responsibility not as personal culpability, but as consequential culpability. This approach is justified through the doctrine’s historical roots, the structural gravity of hierarchical authority, the normative force of entrusted obligations, and its evolving interpretation in international law. While prior scholarship has sought to analogize superior responsibility with domestic criminal law, this book contends that it should instead be understood as an autonomous and foundational principle of international criminal law (ICL). This chapter, however, outlines the key parameters of the book and provides a roadmap of its structure.