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(p. 180) 10. Omission liability and superior responsibility 

(p. 180) 10. Omission liability and superior responsibility
(p. 180) 10. Omission liability and superior responsibility

Antonio Cassese

, Paola Gaeta

, Laurel Baig

, Mary Fan

, Christopher Gosnell

, and Alex Whiting

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date: 07 July 2020

This chapter discusses the notions of omission liability and superior responsibility. International criminal liability may arise not only as a result of a positive act but also from an omission; that is, the failure to take the required action. Omission is only criminalized when the law imposes a clear obligation to act and the person fails to do what is legally required. The post-Second World War tribunals recognized that both action and omission to act in accordance with a legal duty could fulfil the physical element (actus reus) of a crime. Additionally, the doctrine of superior responsibility (also referred to as command responsibility, since it originally developed in a military context) emerged in its modern form as a discrete and important type of omission liability in the post-war case law. Pursuant to this doctrine, a superior who omits to prevent or punish his subordinate’s criminal acts may be held criminally responsible.

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