The concept of command responsibility, also known as superior responsibility, stems from IHL (see Amann), being rooted in Article 1(1) of the 1899 Hague Regulations and eventually codified in 1977 in Articles 86(2) and 87 of Additional Protocol I (AP I). It is now deemed a norm of customary nature applicable to all States (see Commentary to Rule 153 of the International Committee of the Red Cross (ICRC) Study on Customary International Humanitarian Law).
While the Allies prosecuted commanders after the Second World War (e.g., Yamashita, von Leeb) one had to await the Statute of the International Criminal Tribunal for the former Yugoslavia (ICTY) (Article 7(3)) and that of the International Criminal Tribunal for Rwanda (Article 6(3)) for a codified and refined definition of command responsibility. The latest international iteration is found in Article 28 of the Statute of the ICC. The Court has clearly stated that command responsibility is a sui generis mode of liability used to hold criminally responsible military superiors for the crimes committed by their subordinates (paras 171, 174).
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