The Command Responsibility in International Criminal Law and Islamic Law: A Comparative Study

Abstract

During armed conflicts, it is witnessed that civilians are subject to inhumane treatment by the members of the opponent’s armed forces. They become victims of torture, persecution, molestation, biological attacks, enforced prostitution, slavery, and rape. These are the frequent crimes whose commission takes place during a conflict mostly when the territory has been occupied by the forces of an adversary state. These crimes are chiefly committed by the subordinates, as the commanders would not participate in the actual combat in many instances. In International Criminal Law, the doctrine of command responsibility plays an imperative role, in determining and prosecuting the perpetrators of these crimes. According to ICL, “A Commander shall be held criminally responsible for the acts of his subordinates if he had the effective control and was in the authority to punish or prevent them”. However, according to Islamic principles, “a leader shall be held liable for the acts of those whom he led”. The aim of this research is to compare the concept of command responsibility in Islamic Law and ICL. In addition, it examines the different perpetrators' prosecution modes under ICL and Islamic Law. It will further inquire into the status of subordinates in both Islamic Law and ICL. This research paper will be based on doctrinal research methodology. The data would be collected from international treaties, conventions, and sources of Islamic Law.