Superior responsibility and crimes of specific intent : a disconnect in legal reasoning?

Abstract

This dissertation examines the nature of superior responsibility, as a mode of criminal responsibility, and its applicability to crimes of specific intent. Specifically, the mens rea of superior responsibility is analysed in relation to the mens rea of crimes that require specific intent. Thus, the question arises whether a superior may be held accountable, in terms of superior responsibility, for crimes of specific intent. It is argued that a superior cannot be held accountable for specific intent crimes committed by her subordinates because not only does she not share the same specific intent required for the fulfilment of the definitional elements of the offence, but also because the basis of superior responsibility rests on negligence. In other words, a superior who acted negligently cannot be said to have acted with specific intent. The introduction serves to introduce the issue and provide context to the thesis question at hand. The study commences with an examination of the doctrine of superior responsibility in Chapter 1 – The nature and application of superior responsibility. The purpose of this chapter is to establish a thorough understanding of the doctrine and how it has been applied in practice. By doing so the core elements of superior responsibility are identified. Focus then shifts in Chapter 2 – Mens rea, the ad hoc Tribunals and the International Criminal Court - from superior responsibility to the broader concept of mens rea within international criminal law. Because of the importance of the subjective element the degrees of intent and negligence are discussed in detail. The purpose of this is to contrast the differing degrees of mens rea. Like Chapter 1, Chapter 2 provides a foundation of understanding of the subjective elements in the various statutes; and how it is applied by the ad hoc Tribunals and the International Criminal Court. The previous two chapters act as groundwork to build the argument presented in Chapter 3 – A superiors fault: the disconnect in reasoning. It is argued that with a proper understanding of superior responsibility, combined with the nature of mens rea applicable to specific crimes, a superior cannot be held criminally responsible for a crime of specific intent by means of the doctrine of superior responsibility. Specifically, it is argued that the two ideas in question are contradictory, and violates the principle of personal culpability. It is one thing to criticise ideas and concepts, and another to find solutions. Chapter 4 – The criminal responsibility of a superior: a solution –proposes a solution. In light of the principle of personal culpability, it is argued that convicting a superior for the crimes of her subordinates is incorrect and rather a superior should be held accountable for what she did wrong, that is, her failure to perform the duties required of her. Thus, she will be charged and convicted for her dereliction of duty. Further, anticipated difficulties that may arise from the solution will also be discussed. Lastly, Chapter 5 provides a summary of the dissertation