Netherlands Yearbook of International Law

Netherlands Yearbook of International Law - 2009

Editors: Dekker, I. F., Hey, E. (Eds.)

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About this book

The jurisprudential conception of effective control is rooted in outmoded conc- tions of hierarchical organizational structure. By extension, the current template for evaluating effective control poses an increasing risk that culpable commanders will escape liability by exploiting the lacunae in current case law. This article p- poses that jurists should analyze command/superior responsibility cases with full cognizance of modern command and control theory in order to sustain its viability as a practical prosecutorial tool to regulate the crimes committed by loosely knit groups and non-state actors conducting atrocities in chaotic circumstances. The Composite Theory proposed herein would support liability for the acts of subor- nates on the theory that commanders who field fighting organizations without the proper methods for enforcing compliance with the laws and customs of war - sume the risk of criminal sanction where criminal violations occur by their sub- dinates, regardless of the nature of the organization. Despite its broad acceptance and frequent regurgitation in jurisprudence, the doctrine of effective control drawn from the essence of the leader’s authority is increasingly inapplicable to non-state actors who conduct hostilities in non-tra- tional conflicts. The independent emergence of the principle that the commander’s orders operate with the force of law to limit the application of violence in widely disparate cultures and historical periods suggests that it is more than just a legal technicality, but instead is fundamental to the nature of warfare itself.

Buy this book

Hardcover $149.00
price for USA
  • ISBN 978-90-6704-310-6
  • Free shipping for individuals worldwide
  • This title is currently reprinting. You can pre-order your copy now.

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Bibliographic Information

Bibliographic Information
Book Title
Netherlands Yearbook of International Law - 2009
Editors
  • I. F. Dekker
  • E. Hey
Series Title
Netherlands Yearbook of International Law
Series Volume
40
Copyright
2010
Publisher
T.M.C. Asser Press
Copyright Holder
T.M.C. Asser Press
Hardcover ISBN
978-90-6704-310-6
Series ISSN
0167-6768
Edition Number
1
Number of Pages
X, 538
Topics