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Causality, a Separate Element of the Doctrine of Superior Responsibility as Expressed in Article 28 Rome Statute?

  • Otto Triffterer

Abstract

The jurisprudence of the ICTY and the ICTR has denied this question, but accepts causality as a basic principle of criminal responsibility. Since the relevant articles in the Statute of the ICTY (Article 7(3)) and the ICTR (Article 6(3)), differ from Article 28 of the Rome Statute, which demands “a result of his or her failure to exercise control properly,” a comparative study is desirable. It has to include the question, whether this failure overlaps with the omission “to take all necessary or reasonable measures within his or her power,” and whether the last alternative “failed […] to submit,” requires at all a causal nexus.

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The character of a separate element was denied with respect to Art. 7(3) of the ICTY Statute in Prosecutor v. Delalić, Mucić, Delić and Landžo (‘Čelebići’), Judgment Case No. IT-96-21-T, T.Ch. II, 16 November 1998, see para. 400.

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