Superior Responsibility in Estonian Criminal Law and its Compliance with International Law

Author:Andres Parmas
Pages:64-78
 
FREE EXCERPT
64 JURIDICA INTERNATIONAL 28/2019
Andres Parmas
Judge, Tallinn Circuit Court
Assistant of Criminal Law
University of Tartu
Superior Responsibility
in Estonian Criminal Law
and its Compliance with
International Law*1
1. Introduction
The concept of superior responsibility, or command responsibility, is an original creation of international
law that has no exact counterpart in domestic legal systems.*2 As superior responsibility has been regulated
in detail in Art. 28 of the Rome Statute, it is crucial to analyse the accordance of domestic rules with this,
because states parties to the Rome Statute have a strong incentive to bring their domestic law into com-
pliance with that statute so as to e ectuate the complementarity principle under which the International
Criminal Court is acting.*3
In this article, I will rstly give an overview of the state of international law on the responsibility of the
superior (both in customary international law and in respect of the Rome Statute). With this grounding,
the respective regulation of the Estonian Penal Code is outlined. Further discussion assesses whether and
in what respect the Estonian regulation di ers from international law and what legal consequences such
di erence would bring about. On the basis of this assessment, I will propose some amendments to Estonian
regulation of the responsibility of the superior.
2. The responsibility of the superior in international law
The doctrine of superior responsibility crystallised in customary international criminal law soon after
the Second World War.*4 Although neither the statute for International Military Tribunal use nor that of
the International Military Tribunal for the Far East (IMTFE) contained a speci c provision on superior
The research for this article was conducted in the Law Faculty of Georg-August-University of Göttingen and supported
through partnership agreement between University of Tartu and Georg-August-University of Göttingen.
R. Cryer et al., An Introduction to International Criminal Law and Procedure (rd ed., Cambridge University Press ),
p. . – DOI: https://doi.org/./CBO.
Holding this view are, for instance, R. Cryer et al. (ibid.), p. .
A. Cassese, Cassese’s International Criminal Law (rd ed., OUP ), p. . – DOI: https://doi.org/./
he/...
https://doi.org/10.12697/JI.2019.28.08

To continue reading

REQUEST YOUR TRIAL