Netherlands Yearbook of International Law - 2009

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.

Contenu
Articles.- Why Criminal Culpability Should Follow the Critical Path: Reframing the theory of 'Effective Control'.- Dimensions under International Law Linked to the Dissolution of the Netherlands Antilles.- The Continental Shelf in the Polar Regions: Cold War or Black-Letter Law?.- Interaction between EU Law and International Law in the Light of Intertanko and Kadi: The Dilemma of Norms Binding the Member States but Not the Community.- Documentation.- Classification Scheme.- Netherlands State Practice for the Parliamentary Year 20072008.- Treaties and Other International Agreements to Which the Kingdom of the Netherlands is a Party.- Netherlands Municipal Legislation Involving Questions of Public International Law, 2008.- Netherlands Judicial Decisions Involving Questions of Public International Law, 20072008.