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In this chapter, I examine a different controversy in command responsibility: the mental element. Scholars and jurists have raised powerful, principled objections to the modified fault standards in command responsibility, such as the ‘should have known’ standard in the ICC Statute. They are absolutely right to raise such questions, because a negligence standard in a mode of accessory liability seems to chafe against our normal analytical and normative constructs. However, I advance, in three steps, a culpability-based justification for command responsibility. I argue that the intuition of justice underlying the doctrine is sound.
I argue that the ‘should have known’ standard in the ICC Statute, rather than being shunned, should be embraced. I argue that the ‘should have known’ standard actually maps better onto personal culpability than the rival formulations developed by the Tribunals.
This chapter gives an example of the two-way conversation and illumination in the encounter between criminal law theory and ICL. This is an instance where ICL, by highlighting special contexts and problems, can lead us to reconsider some of our initial reactions and conclusions. Command responsibility delineates a set of circumstances where our normal reflexes about the lesser culpability of criminal negligence may be unsound.
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