The article deals with the distinction between military and non-military superiors. As Article 28 of the Rome Statute sets forth different requirements of superior responsibility for military and non-military superiors, it has become necessary to distinguish between the two types of superiors. In the recent confirmation of charges decision in the Bemba case before the International Criminal Court, the Pre-Trial Chamber qualified Bemba as a military commander. The author analyses this decision and discusses the distinguishing features of military and non-military superiors and their appropriateness for the purposes of Article 28. The author argues that the military or non-military status of the superior is dependent on the unit or entity in which the superior is incorporated. A military commander may be defined as a superior in a unit whose underlying rationale is to act or be deployed as a party to an armed conflict, whereas a non-military superior belongs to an entity that does not have such a purpose.
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