Ilias Bantekas
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Ascertainment of superior status in international humanitarian law
in Principles of direct and superior responsibility in international humanitarian law
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This chapter describes the historical survey of superior responsibility. It examines who may be subjected to the doctrine, seeking to ascertain whether the concept of superior is a fixed one, or whether it fluctuates in accordance with certain identifiable parameters. The chapter also examines the existence of a meaningful difference between the terms 'command' and 'control'. Army officers do not argue that the doctrine is misconceived, they simply refuse to subject their military to it, as far as this is possible without showing forthright contempt for international humanitarian law. Incarceration of a culprit, after judicial ascertainment of the underlying crimes and motives, serves in the minds of the victims to restore truth and ultimately allow them to continue their lives. The chapter considers the procedural aspects of the doctrine under what circumstances natural persons are deemed to possess such authority over others as to incur criminal liability for their crimes.

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