The jurisprudential conception of effective control is rooted in
outmoded conc- tions of hierarchical organizational structure. By
extension, the current template for evaluating effective control
poses an increasing risk that culpable commanders will escape
liability by exploiting the lacunae in current case law. This
article p- poses that jurists should analyze command/superior
responsibility cases with full cognizance of modern command and
control theory in order to sustain its viability as a practical
prosecutorial tool to regulate the crimes committed by loosely knit
groups and non-state actors conducting atrocities in chaotic
circumstances. The Composite Theory proposed herein would support
liability for the acts of subor- nates on the theory that
commanders who field fighting organizations without the proper
methods for enforcing compliance with the laws and customs of war -
sume the risk of criminal sanction where criminal violations occur
by their sub- dinates, regardless of the nature of the
organization. Despite its broad acceptance and frequent
regurgitation in jurisprudence, the doctrine of effective control
drawn from the essence of the leader's authority is increasingly
inapplicable to non-state actors who conduct hostilities in
non-tra- tional conflicts. The independent emergence of the
principle that the commander's orders operate with the force of law
to limit the application of violence in widely disparate cultures
and historical periods suggests that it is more than just a legal
technicality, but instead is fundamental to the nature of warfare
itself.
General
Imprint: |
T.M.C. Asser Press
|
Country of origin: |
Netherlands |
Series: |
Netherlands Yearbook of International Law, 40 |
Release date: |
December 2010 |
First published: |
July 2010 |
Adapted by: |
I.F. Dekker
• E Hey
|
Dimensions: |
235 x 155 x 38mm (L x W x T) |
Format: |
Hardcover
|
Pages: |
538 |
Edition: |
2009 |
ISBN-13: |
978-90-6704-310-6 |
Categories: |
Books >
Law >
International law >
Public international law >
General
|
LSN: |
90-6704-310-9 |
Barcode: |
9789067043106 |
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