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

• Author: Andres Parmas
• Pages: 64-78

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 fi 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 specifi 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