ADVISORY SERVICE ON INTERNATIONAL HUMANITARIAN LAW ______

Command responsibility and failure to act

International humanitarian law provides a system for repressing violations of its rules based on the individual criminal responsibility of those responsible. The violations can also result from a failure to act. In armed conflict situations, armed forces or groups are generally placed under a command that is responsible for the conduct of subordinates. Accordingly, in order to make the repression system effective, superiors should be held individually responsible when they fail to take proper measures to prevent their subordinates from committing serious violations of International humanitarian law. It is the duty of States to incorporate punishment for the commander’s failure to act into their domestic legislation.

Introduction to command have allowed a grave breach to essence, the commander acquires responsibility happen can also be held criminally liability by default or omission. liable. Just as it is possible to kill The responsibility of commanders someone by withholding food or The trials held after the Second includes two concepts of criminal proper care, the grave breach of World War responsibility. depriving a prisoner of war of his right to a fair and regular trial can be and Command responsibility became an usually is committed simply by failing important issue during the Second First, the commander can be held to take action. World War. Although the Charter of directly responsible for ordering his the Nurnberg International Military subordinates to carry out unlawful Additional Protocol I of 1977 is more Tribunal contained no rules on this acts. In this context, subordinates who explicit. Article 86.1 specifies that: subject, the decisions in the various invoke the defence of superior orders trials held after the war laid down may avoid liability depending on “The High Contracting Parties and the broad outlines. whether, in the circumstances, they Parties to the conflict shall repress should have obeyed or disobeyed the grave breaches, and take measures The mechanism of command order of superiors. necessary to suppress all other responsibility, which imposes criminal breaches, of the Conventions or of responsibility for a superior’s failure to This is to be distinguished from the this Protocol which result from a act when under a duty to do so, may second concept, called command or failure to act when under a duty to do be summarized as follows: superior responsibility, where the so”. commander may be held liable for a · it involves a superior, i.e. a subordinate’s unlawful conduct. This The grave breaches referred to in person having authority over a concept of command responsibility is Article 85 of Additional Protocol I also subordinate; a form of indirect responsibility and is include those generally committed by · the superior knew or should have based on the commander’s failure to a failure to act, such as the unjustified known that the crime had been act. delay in repatriating prisoners of war committed or was about to be or civilians. committed; Perpetrator responsibility for failing · the superior had the ability to to act Command responsibility for failing prevent the criminal conduct; and to act · the superior failed to take all The system established in the necessary and reasonable Geneva Conventions of 1949 for At issue is the responsibility of a measures within his power to repressing grave breaches targets superior who fails in his duty by doing prevent or punish the criminal persons who have committed or nothing to prevent or punish conduct. ordered the commission of such a subordinates committing violations of breach. Persons who by failing to act international humanitarian law. In The Geneva Conventions of 1949 superior de jure of the direct Rule 153 of the ICRC Customary perpetrator of a crime to be held The Geneva Conventions are silent International Humanitarian Law criminally responsible for his actions; on this point and it is for national Study1 states that commanders and it is sufficient to exercise authority legislation to regulate the matter by other superiors are criminally over such a person de facto. What express provision or by application of responsible for war crimes committed really matters is to determine whether the general rules of criminal law. by their subordinates if they knew, or the superior has actual powers to had reason to know, that the control the actions of his Additional Protocol I of 1977 subordinates were about to commit or subordinates, and in this regard ad were committing such crimes and did hoc international tribunals apply an Principles that came out of the trials not take all necessary and reasonable “effective control” test based on the held after the Second World War were measures in their power to prevent specific evidence of each case, which incorporated in Article 86.2 of their commission, or if such crimes aims to identify if the superior has the Additional Protocol I: had been committed, to punish the material ability to prevent and punish persons responsible. State practice criminal conduct. “The fact that a breach of the establishes this rule as a norm of Conventions or of this Protocol was customary international law applicable The case law has also made it clear committed by a subordinate does not in both international and non- that belonging to the military is not a absolve his superiors from penal or international armed conflicts. necessary condition, as political disciplinary responsibility, as the case leaders or civilian, hierarchical may be, if they knew, or had A superior’s failure to act superiors can also be held information which should have considered as a grave breach responsible for war crimes committed enabled them to conclude in the by subordinates. Finally, the case law circumstances at the time, that he The limits to criminal responsibility for has confirmed that there need be no was committing or was going to failing to act are not clearly specified direct causal relationship between a commit such a breach and if they did in criminal law. In International superior failing to take action and a not take all feasible measures within humanitarian law, a further difficulty subordinate committing a crime for their power to prevent or repress the stems from the fact that failure to act the superior to be held responsible. breach.” on the part of a superior is not expressly qualified as a grave breach, Command responsibility according Article 87 of Additional Protocol I whereas the obligation of States to to the Statute of the International spells out the duties and obligations of repress offences or extradite persons Criminal Court (ICC) military commanders with respect to in the exercise of universal jurisdiction their subordinates. The superiors applies to grave breaches only. The Statute of the International must prevent and, where necessary, Criminal Court distinguishes two kinds suppress and report to competent In the system of repression of ‘superior’ responsibility. authorities grave breaches committed established by International by their subordinates. Only in the humanitarian law, the superior's Responsibility of military event that he failed in these duties criminal liability is considered as a commanders does a commander risk being held form of participation in the criminally responsible for taking no commission of the crime. Article 28 of the Statute lays down action. that a military commander or a person Case law of the Ad Hoc “effectively” acting as a military A ‘superior’ is understood as International Criminal Tribunals commander is criminally responsible someone personally responsible for for crimes within the jurisdiction of the the acts committed by subordinates Firstly, the case law of the ad hoc ICC committed by forces or persons placed under his control. international criminal tribunals has under his effective command and specified the degree of responsibility control, or effective authority and The issue of how much knowledge of a superior who has failed to act control, where: the superior should have of the acts over his subordinate, mentioning that or intentions of his subordinates is the imposition of responsibility upon a · he either knew, or owing to the difficult to resolve. The knowledge of commander for breach of his duty is circumstances, should have the superior cannot be presumed, but to be weighed against the crimes of known that the forces or persons only established through his subordinates; a commander is were committing or about to circumstantial evidence. Actual responsible not as though he had commit such crimes; and knowledge of the crimes by the committed the crime himself, but his · he failed to take all necessary superior is not necessarily required, responsibility is considered in and reasonable measures within constructive knowledge may be proportion to the gravity of the his power to prevent or repress sufficient. It should be borne in mind offences committed. their commission or to submit the that the superior who fails to keep matter to the competent himself informed can also be held The case law has also clarified the authorities for investigation and liable to be held responsible. conditions under international prosecution. Command responsibility is not a type humanitarian law for holding superiors of strict liability. The superior’s duty to responsible for offences committed by Responsibility of civilian superiors act consists in initiating such steps as their subordinates. are necessary or reasonable to In particular, it establishes that it is not Similarly, a hierarchical superior in a prevent or suppress the crimes of his necessary to be the hierarchical non-military relationship with subordinates. Only those steps that subordinates is criminally responsible are within his power are required. 1 for crimes within the jurisdiction of the See http://www.icrc.org/customary- ICC committed by subordinates under Customary Law ihl/eng/docs/home. his effective authority and control, for Sierra Leone in Articles 3 and 4 of where: its Statute; in addition, the Court has jurisdiction in respect of other · he knew, or consciously specified serious violations of disregarded information which international humanitarian law clearly indicated, that the committed within the country. Article subordinates were committing or 8.2(c) and (e) of the ICC Statute about to commit such crimes; asserts the ICC’s jurisdiction in · the crimes concerned activities respect of serious violations of that were within his effective Article 3 common to the Geneva responsibility and control; and Conventions and of other serious · he failed to take all necessary violations of the laws and customs and reasonable measures within applicable in armed conflicts not of an his power to prevent or repress international character, for which a their commission or to submit the hierarchical superior can therefore be matter to the competent held responsible. authorities for investigation and prosecution. Finally, as mentioned above, Rule 153 of the ICRC Customary International Humanitarian Law Study Responsibility for failing to act is applicable to non-international during a non-international armed armed conflicts. conflict

The Geneva Conventions and Additional Protocol II of 1977 make no explicit mention of any criminal responsibility on the part of hierarchical superiors for breaches committed by their subordinates during a non-international armed conflict. It should be noted, however, that the principle of responsible command within armed groups is one of the terms of application of Additional Protocol II. In addition, national criminal legislation in an increasing number of States provides for holding superiors criminally responsible for all war crimes, regardless of whether the armed conflict in which they are committed is international or non-international.

The Statutes of the International Criminal Tribunal for the former Yugoslavia (Art. 7.3), the International Criminal Tribunal for Rwanda (Art. 6.3), the Special Court for Sierra Leone (Art. 6.3), UNTAET Regulation No. 2000/15 for East Timor and the ICC (Art. 28) expressly state that superiors bear responsibility, in particular if they fail to take action, for crimes committed by their subordinates in a non-international armed conflict.

That form of responsibility applies to all the crimes submitted to the jurisdiction of those tribunals. Article 4 of the Statute of the International Criminal Tribunal for Rwanda expressly asserts the Tribunal’s power to prosecute grave breaches of Article 3 common to the Geneva Conventions and of Additional Protocol II, which apply to non- international armed conflict. The same power is claimed by the Special Court 04/2014