Vadų atsakomybės mens rea elementas tarptautinėje paprotinėje teisėje ir Romos statute
Mens Rea Element in Superior Responsibility under Customary International Law and the Rome Statute

Summary/Abstract: Superior responsibility has been a widely recognised form of responsibility for omission in both treaty and customary international law. Superiors are held responsible for the acts of their subordinates when they fail in fulfilling their duties to prevent or punish crimes of subordinates. Duties to prevent and punish arise only after the superior knows about the subordinate’s crimes or has a reason to know about it. ‘Has a reason to know’ is a form of constructive knowledge and could be defined as absence of actual knowledge about subordinates’ crimes where that knowledge should exist because of information available to the superior from the content of which it could be easily concluded that there is a possibility that subordinates intend to commit, are committing or have already committed crimes and the lack of that knowledge is a cause of willful disregard of his duties or at least disregard based on gross negligence. According to the ‘should have known’ standard applied to military or military-like commanders under the Rome statute of International Criminal Court (ICC), there is a general duty to apprise themselves with information about activities of subordinates and failure to obtain that information could lead to criminal responsibility of superiors. Different from the practice of ad hoc tribunals, the Rome statute dilutes the principle of personal guilt by rejecting the fact that information should give a warning that there is a possibility of crimes to be committed. Duty to be constantly informed detracts duties to prevent or punish and erases the third element of the doctrine of superior responsibility. According to the jurisprudence of the ICC, negligence is a sufficient form of guilt. However, it is hardly compatible with international customary law. Some international crimes, such as genocide, require special intent. Since superiors are held responsible for subordinates’ crimes, they cannot be accused of failing to prevent or punish them for the crime of genocide simply by being negligent. There should be gross negligence amounting to wanton and immoral disregard of superiors’ duties and such failure to act should be tantamount to malicious intent or acquiescence. The ICC has not yet established any criteria that could separate military or militarylike superiors from civilian superiors. This means that in some cases prosecutors could easily prove that civilian superiors should be regarded as military-like superiors and their guilt could be proved by applying a looser ‘should have known’ standard. Due to that reason, the fundamental right of defence of the superiors is narrowed in the Rome statute.

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