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The attached article looks at the concept of command responsibility “ the idea that a commander may be held liable for crimes committed by his or her soldiers, even if the commander did not order these crimes to be committed, and may not have been aware of the criminal activity at all. It examines command responsibility prosecutions attached to a number of different conflicts: World War II, the Yugoslavian and Rwandan genocides, and the Sierra Leonean civil war. It also discusses proposed standards for command responsibility prosecutions set out by the African Union and the UN (both in the International Criminal Court and in UN peacekeeping operations). As the article demonstrates, the standards used for prosecuting command responsibility cases in these various settings have differed significantly, making for important differences in the ability to hold the accused accountable. I propose one factor that helps predict how easy or difficult it will be to prosecute command responsibility cases: the extent to which those who write the standards have reason to fear that they themselves could be held liable under the standards they are establishing. If they have little to fear, then the rule setters will make it relatively easy to prosecute these cases. If they are worried, then it will be correspondingly harder to bring command responsibility prosecutions. I then discuss the implications of this conclusion for the legitimacy of international law in this area.

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Northern Illinois University Law Review

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Michael J. Sherman, Standards in Command Responsibility Prosecutions: How Strict, and Why?, 38 N. Ill. U. L. Rev. 298 (2018).

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