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The Law of Command Responsibility$
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Guénaël Mettraux

Print publication date: 2009

Print ISBN-13: 9780199559329

Published to Oxford Scholarship Online: May 2009

DOI: 10.1093/acprof:oso/9780199559329.001.0001

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A Culpable State of Mind

A Culpable State of Mind

(p.193) 10 A Culpable State of Mind
The Law of Command Responsibility

Guenael Mettraux

Oxford University Press

This chapter discusses each and every aspect of the relevant mens rea or state of mind relevant to the doctrine of superior responsibility both under customary international law and in the Statute of the International Criminal Courts. It reviews the three different categories of knowledge which, depending on the applicable law, would suffice to render a superior liable under that doctrine: ‘knew’, ‘had reason to know’, and ‘should have known’. It further makes it clear that knowledge of crimes committed by subordinates is not itself sufficient to engage a superior's criminal responsibility and that it would have to be established that he intentionally failed to fulfil his duties thereby demonstrating his acquiescent with the crimes. Simple negligence on his part would not be sufficient to engage his responsibility; only gross negligence would.

Keywords:   mens rea, Yamashita, objective liability, International Criminal Court, intentional failure to act, acquiescence, gross negligence

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