The relations between hierarchical-servant which are so relevant to International Criminal Law are not developed in every case. The one who has the “dominant” position expects that the servant would do whatever action he demands. This principle is reflected in every relation between a commander and his subordinates. So, according to this principle, there is a such important possibility that, if the dominant position demands the servant an omission (for example, inside a crime), probably he would do so.

Nevertheless, the responsibility for being a chief is not connected with the act of avoid a result. Even, no all the responsible hierarchy persons are able to avoid an action are at the same time allowed by the law to do so, and not all of them are forced to realize an act which could be consider as “guilty” by the result.

The responsibility from superior hierarchical starts in their position of guarantor or as the obligation to avoid a result. But this issue is not general neither extensive, I mean, it does not operate in all circumstances. If it would be so, the dogmatical and judicial creation of hierarchical participatory offenses would not be meaningful. Simply, we could say that a hierarchical superior is guilty for just not avoiding a criminal act. This idea is completely contrary in both criminal law and general responsibility and escapes as a figure of “guiltiness by rule” as the International Criminal Court verdicts.

To accomplish a real cooperation between superior-servant, the superiority should be based in a complex organizational structure which has the ability of assign different roles inside of it, with an independent position from the one who holds it in a specific moment. This is the principle reason of why, according to International Criminal Law, to determine the nature of both participatory offenses and severe actions it is required an existence of an organization which pursues it. This structure refers to terrorist and armed groups which are capable to do these kind of issues. The international community recognizes how dangerous these organizations are, so one of the main objectives is avoid or limit all the acts performed by the chiefs or superiors. According to this context, it is not about the “superiority” one individual has over another but the cooperation of these roles inside the structural organization. Thus, the fact of having a hierarchical position which allows the necessary power over the servants.

So, the relations outside the institutional context, could never develop a cooperation between superior-servant which justifies the responsibility by the hierarchical. For example: a leader who does not belongs to the organization but is look up by the members of it. Inside this context, there is a chance where the leader can possibly avoid all the crimes committed by those members. Nevertheless, the fact that he is not even a true leader inside of a solid structured organization, he does not has the commitment of avoid all the illegal acts performed, so it is not possible sentencing him guilty for this acts. The conduct should not being imposed just for the status leader.

Inside this complex issue about Philosophy of Law, I want to know your opinion because this the main debate we have in the hispanic courts (as Spain, Paraguay, Argentina or Chile) where judging the leader (dictatorship) and their servants seems to be pretty difficult.