Command Responsibility Beyond Hierarchy: Organizational Knowledge, Effective Control, and the Evidentiary Reconstruction of Superior Omission in International Criminal Law
Year: 2026
Type: preprint
Abstract: Command responsibility occupies a distinctive position in international criminal law because it addresses the criminal significance of a superior's failure to exercise control over subordinate forces or personnel. Its application, however, raises a persistent evidentiary difficulty: organizational hierarchy, institutional access to information, and the commission of crimes by subordinates do not necessarily establish that a particular superior possessed effective control, acquired the legally required knowledge, or failed to take measures that were genuinely available in the circumstances. This article examines that difficulty through an interdisciplinary framework combining international criminal doctrine, organizational criminology, behavioral psychology, and evidentiary analysis. The central argument is that superior responsibility must be reconstructed through three analytically independent but interconnected dimensions: the architecture of effective control, the transmission and interpretation of organizational information, and the practical availability of preventive or punitive measures. The article develops an evidentiary model designed to distinguish formal authority from operational capacity, organizational information from individual knowledge, and institutional failure from personally attributable omission. It also examines the implications of the jurisprudence of the International Criminal Tribunal for the former Yugoslavia and the International Criminal Court, particularly Čelebići, Halilović, and Bemba. The proposed framework rejects both hierarchical presumptions of guilt and excessively restrictive approaches that make organizationally mediated knowledge practically impossible to prove. It argues for a contextual, temporally sensitive, and individually attributable assessment of superior omission, with particular attention to the risks of hindsight reasoning, information fragmentation, and the retrospective reconstruction of command capacity.
Source: Figshare
Author: Sergio Pommier Gallo, PhD.
Language: English
Field: Social Sciences
Domain: Social Sciences
Open Access status: green
OpenAlex ID: W7225751568
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