![handle is hein.journals/jicj18 and id is 1 raw text is: Punish and Be Punished?
The Paradox of Command Responsibility in Armed
Groups
Alessandra Spadaro*
Abstract
Pursuant to the doctrine of command responsibility, military commanders can be
found criminally responsible for having failed to take necessary and reasonable
measures to prevent or punish the crimes of their subordinates. Focusing on the
duty of commanders of organized armed groups to punish the war crimes committed
by their subordinates, this article enquires whether the commanders'duty is subject
to any limit under international law. By analysing the imposition of disciplinary
and criminal measures, including prosecution in armed group courts and detention,
the article argues that a commander cannot fulfil their duty to punish through un-
lawful measures and can only be required to take punitive measures which are not
themselves illegal or criminal under international law. Otherwise, the commander
would face a paradoxical choice: not punish their subordinates and be punished for
having failed to do so or punish them and nonetheless be punished for having done
so through illegal or criminal measures. Courts should be mindful of this when hold-
ing an individual responsible for failing to take certain punitive measures pursuant
to the doctrine of command responsibility.
1. Introduction
As applied by international criminal courts and tribunals, superior or com-
mand responsibility is a mode of liability pursuant to which civilian and mili-
tary superiors may be held individually responsible for not having prevented
or punished the crimes of their subordinates.1 In particular, for military
* PhD Candidate, Graduate Institute of International and Development Studies; Teaching
Assistant, Geneva Academy of International Humanitarian Law and Human Rights.
[alessandra. spadaro@ graduateinstitute. ch]
1 On the expansion of the doctrine to civilian superiors, see A. Cassese and P. Gaeta, Cassese's
International Criminal Law (3rd edn., Oxford University Press, 2013), at 184-186. See also Art.
28(1)(b) ICCSt. The scope of this article is limited to military commanders, although the
Journal of International Criminal Justice 18 (2020), 1-30 doi:10.1093/jicj/mqz059
© The Author(s) (2020). Published by Oxford University Press. All rights reserved. Advance Access publication 29 January 2020
For permissions, please email: journals.permissions@oup.com](ViewImageLocal?handle=hein.journals/jicj18&div=1&collection=&method=preview&ext=.png&size=3)
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