Open AccessSUPERIOR RESPONSIBILITY UNDER THE ROME STATUTE AND ITS APPLICABILITY TO CONSTITUTIONAL MONARCHY: AN APPRAISAL
Author(s) -
Abdul Hamid,
Mohd Hisham Mohd Kamal,
Muhannad Munir Lallmahamood,
Areej Torla
Publication year - 2021
Publication title -
iium law journal
Language(s) - English
Resource type - Journals
eISSN - 2289-7852
pISSN - 0128-2530
DOI - 10.31436/iiumlj.v29i2.670
Subject(s) - statute , law , political science , monarchy , doctrine , constitutional court , constitution , politics
The doctrine of superior responsibility has been embedded in Article 28 of the Rome Statute of the International Criminal Court, which enunciates the responsibility of both military commanders and civilian superiors. Although constitutional monarchs are civilians entrusted with the position of commanders in chief, there are States that opposed accession to the Rome Statute on the simple ground that their respective monarchs could be indicted and punished under the Rome Statute. The main objective of this paper, therefore, is to examine whether constitutional monarchs could be responsible under the doctrine of superior responsibility. The paper focuses on the analysis of the elements of superior responsibility by referring to the authoritative commentaries of Article 28 and constitutional practices of three selected constitutional monarchies: the United Kingdom, Japan, and Malaysia. The paper finds that constitutional monarchs could not be held responsible because they have to act on the advice of the government and do not possess the effective and operational control over the armed forces as required under the Rome statute.