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Commentary of 1987 
Failure to act
[p.1005] Article 86 -- Failure to act

3524 A failure to act (omission) consists of failing to do or say something. In a legal sense it consists of failing in a duty to act. Paragraph 1 covers all breaches resulting [p.1006] from a failure to act, contrary to a duty to act, while paragraph 2 is devoted to the special responsibility of a superior who has not taken measures which he was able to take to prevent or repress a breach committed by a subordinate.

3525 Article 13 of the Third Convention already contains a categorical provision:

"Any unlawful act or omission by the Detaining Power causing death or seriously endangering the health of a prisoner of war in its custody is prohibited and will be regarded as a serious breach of the present Convention."

In trials following the Second World War, Allied tribunals had indeed convicted several persons in cases where they had not intervened to prevent a breach or to put a stop to it. However, it was accepted that this rested only on national legislation, either on explicit provisions, or on the application of general principles found in criminal codes. In any case, Article 129 of the Third Convention does not explicitly provide that Contracting Parties must enact penal sanctions for failure to act, but deals with such cases only by prohibiting protected persons being deprived of their right to a fair and proper trial.

3526 From the beginning of the preparatory work to the Diplomatic Conference, numerous experts and even some governments were anxious to introduce a rule of international law on omission. (1) The ICRC took this into account. The draft it presented to the Diplomatic Conference contained Article 76, (2) which was devoted to omission and which was based on proposals submitted by experts, particularly by experts in criminal law convened by the ICRC for this purpose from 29 January to 2 February 1973, and on those submitted by a restricted meeting of government experts consulted during March of the same year. With one exception (3) the ICRC proposal did not meet with opposition on points of substance. It is not for the first time that international treaty law provides for criminal responsibility of those who have failed in their duty to act. In this context we would refer to the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity of 26 November 1968, of which Article 2 explicitly seeks to bring to trial representatives of the State authority who "tolerate" the commission of

"war crimes as they are defined in the Charter of the
International Military Tribunal, Nuremberg, of 8 August 1945 [...] particularly the "grave [p.1007] breaches" enumerated in the Geneva Conventions of 12 August 1949 for the protection of war victims." (Article I) (4)

3527 The articles of the Conventions devoted to penal sanctions apply only to persons "committing, or ordering to be committed" (5) grave breaches of the Conventions. It was therefore also necessary in the article under consideration here to harmonize "the law of Geneva" with the above-mentioned Convention and with the latest trends in the field of the codification of international law. (6) We should, however, point out right from the start that determining the limits of responsibility for acts of omission gives rise to a number of problems of criminal law which have not yet been resolved. (7)

3528 Article 86 was adopted by consensus both in Committee and in plenary (8)

Paragraph 1 -- General obligation to repress or suppress breaches resulting from a failure to act

3529 The importance of this provision cannot be doubted. The fact that a breach of the rules of applicable international law may consist of an omission, i.e., a failure to act, just as well as an act by a State organ, is uncontested nowadays and follows both from State practice and from case-law and legal literature. It may even be said that international responsibility of States (and this was not a matter of responsibility of individuals) has perhaps been invoked more often for omissions than for acts. (9)

3530 As regards breaches of the law of armed conflict, the responsibility of those who have refrained from taking the requisite measures to prevent or repress them, has been dealt with explicitly only since the end of the First World War. (10)

[p.1008] 3531 The London Agreement of 8 August 1945, which was designed to serve as a basis for the prosecutions instituted after the Second World War, particularly for breaches of the law of armed conflict, does not refer to breaches consisting of omissions. Nevertheless, as we said above, people were convicted for omissions, (11) in particular on the basis of Article 1 of the 1907 Hague Regulations which provides that members of the armed forces must "be commanded by a person responsible for his subordinates". (12) And Article 43 of the Protocol ' (Armed forces) ' is indeed just as unequivocal, since it provides that armed forces must be placed "under a command responsible [...] for the conduct of its subordinates".

3532 Specific provisions of the 1907 Regulations relating to occupation and the duties of the occupying forces were also invoked. (13)

3533 Under the Conventions there are far more situations which may give rise to breaches consisting of failure to act. (14)

3534 It may also be emphasized that the paramount breach, which encompasses all others, consists of refraining from allowing the implementation of the Conventions when the conditions for their application are met.

[p.1009] 3535 Article 85 ' (Repression of breaches of this Protocol) ' of the Protocol, paragraph 4(e), is a confirmation of the Conventions; it qualifies as a grave breach the act of depriving a person protected y the Conventions or by Articles 44 ' (Combatants and prisoners of war), ' 45 ' (Protection of persons who have taken part in hostilities) ' or 73 ' (Refugees and stateless persons) ' of the Protocol of the rights of fair and regular trial, in accordance with the provisions thereof and with Article 75 of the Protocol ' (Fundamental guarantees). ' As we have said, this breach can easily result from a failure to act.

3536 However, the Protocol also imposes on Contracting Parties and on Parties to the conflict, and consequently, as the case may be, on members of their armed forces, "obligations to act", i.e. to adopt a particular positive conduct. (15) This is the case with regard to new weapons (Article 36 -- ' New weapons '), the liberation of prisoners of war captured under unusual conditions of combat (Article 41 -- ' Safeguard of an enemy hors de combat, ' paragraph 3), the obligation for combatants to distinguish themselves from the civilian population, either by means of their uniform, a distinguishing sign or by carrying arms openly (Article 44 -- ' Combatants and prisoners of war, ' paragraphs 3 and 7), the obligation to make a distinction in the conduct of military operations, on the one hand, between combatants and civilians, and on the other, between civilian objects and military objectives (Articles 48 -- ' Basic rule, ' and 52 -- ' General protection of civilian objects ') and to always ensure in the conduct of such operations that the natural environment is protected against widespread, long-term and severe damage (Articles 35 -- ' Basic rules, ' and 55 -- ' Protection of the natural environment ') and to spare the civilian population, civilians and civilian objects (Article 57 -- ' Precautions in attack ') by taking a series of measures: ensuring that the objectives to be attacked are actually military objectives, choosing methods of attack likely to avoid or minimize incidental damage to the civilian population, and when appropriate, warning the population of attacks which may affect it, taking certain precautions against the effects of attacks (Article 58 -- ' Precautions against the effects of attacks '). Wehould also point to the duties of the Occupying Power vis-à-vis occupied territories (Article 69 -- ' Basic needs in occupied territories '), those of Parties to the conflict and of High Contracting Parties vis-à-vis relief actions (Article 70 -- ' Relief actions '), the provisions relating to the special protection of certain categories of persons, for example, women and children (Articles 76 -- ' Protection of women, ' and 77 -- ' Protection of children '), the obligation to disseminate the Conventions and the Protocol in such a way that these instruments are known to the armed forces and the civilian population (Article 83 -- ' Dissemination '), the obligation to create posts for legal advisers (Article 82 -- ' Legal advisers in armed forces ') and to take all necessary measures for the proper application of the rules which have been adopted (Article 80 -- ' Measures for execution '). This list gives some idea of the many breaches which may be committed in international humanitarian law simply by a failure to act.

[p.1010] 3537 Yet, responsibility for a breach consisting of a failure to act can only be established if the person failed to act when he had a duty to do so. The text of this paragraph should certainly be understood in this way since it prescribes Contracting Parties or Parties to the conflict to deal with any "failure to act when under a duty to do so". This concept includes lack of due diligence having regard to the circumstances and amounting to a violation of therequirements indicated above. This concept of a "duty to act" raises the complex problem of the attribution of powers and duties which is not a matter of international law but is governed by the national law of the Parties to the Protocol. However, once national law has attributed powers and duties, the duty resulting therefrom with regard to international humanitarian law has to be interpreted in the light of treaty instruments. In other words, the national law of a State establishes the powers and duties of civilian or military representatives of that State (16) but international law lays downthe way in which they may be exercised within the area governed by it. In the provision under consideration here the Contracting Parties and the Parties to the conflict undertake to ensure that this will indeed occur and that the powers and duties that have been attributed will actually be exercised in accordance with the requirements imposed by treaty rules.

3538 As regards the measures of application to be taken to prevent or repress breaches resulting from a failure to act when there is a duty to do so, the Protocol adopts a solution similar to that laid down by the Conventions in cases where a breach is caused by an act committed or ordered to be committed. (17) It distinguishes breaches from grave breaches. Grave breaches must be repressed, which implies the obligation to enact legislation laying down effective penal sanctions for perpetrators of such breaches. According to Article 85 ' (Repression of breaches of this Protocol), ' paragraph 1, the provisions of the Conventions also apply to grave breaches of the Protocol. (18) On the other hand, the text of the present paragraph is silent on the other requirements of the Conventions, the application of which ensues from the same Article 85 ' (Repression of breaches of this Protocol), ' i.e., the search for the perpetrators, regardless of their nationality, and the obligation either to bring them before the courts of the Detaining Power or to hand them over to another contracting Party concerned in order that it may try them. (19) It is self-evident, when a Detaining Power tries a prisoner belonging to the adverse Party, that the "duty to act" of the accused must be interpreted in the light of the powers and duties attributed to him under his own national legislation. (20)

[p.1011] 3539 For breaches of the Protocols other than grave breaches the terms are the same as those used by the Conventions for breaches of the Conventions other than grave breaches: the Parties to the Protocol undertake to ' suppress ' them, which means that any "repression" that might be undertaken ultimately by penal or disciplinary sanctions are the responsibility of the authority on which those committing such breaches depend or the Power to which they belong. However, this does not detract from the right of States under customary law, as reaffirmed in the writings of a number of publicists, to punish serious violations of the laws of war under the principle of universal jurisdiction. With regard to other measures, administrative sanctions or change of assignment, they can, by the nature of things, only be taken by their own authorities. Finally, it should be added that this provision supplements (cf. Article 85 -- ' Repression of breaches of this Protocol, ' paragraph 1) the provisions of the Conventions relating to the repression of breaches, and is consequently without prejudice to the application thereof as and when the case arises.

Paragraph 2 -- Responsibility of superiors

3540 Taking up one of the conditions laid down in Article 1 of the 1907 Hague Regulations, (21) Article 43 ' (Armed forces), ' paragraph 1, of the Protocol provides, as we have seen, that armed forces must be placed "under a command responsible [...] for the conduct of its subordinates". Article 39 of the Third Convention even makes this a specific obligation for the administration of prisoner-of-war camps. (22) The recognition of the responsibility of superiors who, without any excuse, fail to prevent their subordinates from committing breaches of the law of armed conflict is therefore by no means new in treaty law. However, this principle was not specifically governed by provisions imposing penal sanctions. (23)

3541 This provision, which should be read in conjunction with paragraph 1 and Article 87 ' (Duty of commanders), ' which lays down the duties of commanders, raises a number of difficult questions. The strongest objection which could be raised against this provision perhaps consists in the difficulty of establishing intent ' (mensrea) ' (24) in case of a failure to act, particularly in the case of negligence. For [p.1012] that matter, this last point gave rise to some controversy during the discussions in the Diplomatic Conference, particularly due to the fact that the Conventions do not contain any provision qualifying negligent conduct as criminal. (25) However, one delegate, referring to the concept expressly reflected in the English version (which was not included in the French text, curiously enough, see infra, p. 1013), namely information which "should have" enabled them to conclude that a subordinate was committing or was going to
commit a breach, remarked that this was undoubtedly a case of responsibility incurred by negligence, and that it was important to make this clear. (26) However, this does not mean that every case of negligence may be criminal. For this to be so, the negligence must be so serious that it is tantamount to malicious intent, (27) apart from any link between the conduct in question and the damage that took place. (28). This element in criminal law is far from being clarified, but it is essential, since it is precisely on the question of intent that the system of penal sanctions in the Conventions is based. This applies both in the field of breaches resulting from a failure to act in general and with regard to breaches resulting from negligence. However, since the postwar tribunals succeeded in satisfying the requirement of justice in these very difficult situations, the Conference probably thought that there was no reason to believe the same would not happen again in the future.

3542 It should be clearly noted that this paragraph condemns failure to act of superiors in case of breaches which are not grave breaches as well as in case of grave breaches. In the first case the sanction can be disciplinary or penal, while universal jurisdiction understood as ' aut dedere aut judicare ' applies in the second case, i.e., in case of a grave breach.

3543 Under the terms of this provision three conditions must be fulfilled if a superior is to be responsible for an omission relating to an offence committed or about to be committed by a subordinate:

a) the superior concerned must be the superior of that subordinate ("his superiors"); [p.1013]
b) he knew, or had information which should have enabled him to conclude that a breach was being committed or was going to becommitted;
c) he did not take the measures within his power to prevent it.

a) ' The qualification of superior '

3544 This is not a purely theoretical concept covering any superior in a line of command, but we are concerned only with the superior who has a personal responsibility with regard to the perpetrator of the acts concerned because the latter, being his subordinate, is under his control. (29) The direct link which must exist between the superior and the subordinate clearly follows from the duty to act laid down in paragraph 1. Furthermore, only that superior is normally in the position of having information enabling him to conclude in the circumstances at the time that the subordinate has committed or is going to commit a breach. (30) However, it should not be concluded from this that this provision only concerns the commander under whose direct orders the subordinate is placed. The role of commanders as such is dealt with in Article 87 ' (Duty of commanders). ' The concept of the superior is broader and should be seen in terms of a hierarchy encompassing the concept of control.

b) ' Knowledge, or information from which knowledge can be derived '

3545 There is no problem if the superior knew that a breach had beencommitted or was going to be committed and if this can be proved (Article 75 -- ' Fundamental guarantees, ' paragraph 4(d)). This could be the case, for example, if the superior knew of preparatory actions or of previous breaches. On the other hand, the clause by which penal or disciplinary responsibility of superiors will arise if they "had information which should have enabled them to conclude in the circumstances at the time" that a breach had been committed or was going to be committed, raises problems of judgment. (31) In the first place, it should be noted that there is a significant discrepancy between the English version, "information which should have enabled them to conclude", and the French version, "des informations leur permettant de conclure", which means "information enabling them to conclude". (32) In such a case the rule is to adopt the meaning which best [p.1014] reconciles the divergent texts, having regard to the object and purpose of the treaty, (33) and therefore the French version should be given priority since it covers both cases. (34) It seems to be established that a superior cannot absolve himself from responsibility by pleading ignorance of reports addressed to him, (35) or by invoking temporary absence as an excuse. (36) According to post-war judicial decisions, the tactical situation, the level of training and instruction of subordinate officers and their troops, and their character traits are also pieces of information of which the superior cannot claim to be ignorant. (37) Such information available to a superior may enable him to conclude either that breaches have been committed or that they are going to be committed (examples would be information on lack of any instruction for the troops on the Geneva Conventions and the Protocol, on the means of attack allocated or available in an area densely populated by civilians, on lack of medical services and absence of instructions relating to prisoners of war). Every case must be assessed in the light of the situation of the superior concerned at the time in question, in particular distinguishing the time that the information was available and the time at which the breach was committed, also taking into account other circumstances which claimed his attention at that point, etc. (38)

3546 What is the position if the superior concerned persists in maintaining that he was not aware of the breaches committed or of information enabling him to conclude that they had been committed or were going to be committed, and if no proof can be furnished to the contrary? It is not possible to answer this question in the abstract; something that is true may, depending on circumstances, seem unlikely. It is not impossible for a superior actually to be ignorant of breaches committed by his subordinates because he deliberately wishes to remain ignorant. The fact is that in several flagrant cases the tribunals which were established to try war crimes after the Second World War did not accept that a superior could wash his hands of an affair in this way, and found that, taking into account the circumstances, a knowledge of breaches committed by subordinates could be presumed. (39)

c) ' The obligation to take measures to prevent or repress
breaches '

3547 This last clause deals with the central purpose of this paragraph: the superior who is responsible and who is aware of the facts must act to prevent or repress the breach. This rule concerns both the immediate commander and his superiors. However, the specific duties of commanders are further dealt with in the detailed provisions which will be examined under Article 87 ' (Duties of commanders). ' The present provision merely poses the principle of the indictment of superiors who have tolerated breaches of the law of armed conflict. This rule is not without precedent in national law. (40)

3548 Using relatively broad language, the clause requires both preventive and repressive action. However, it reasonably restricts the obligation upon superiors to "feasible" measures, since it is not always possible to prevent a breach or punish the perpetrators. In addition, it is a matter of common sense that the measures concerned are described as those "within their power" and only those. These requirements correspond exactly to the judgments in post-war cases. n illustration can be found in the judgment given by the International Military Tribunal of Tokyo regarding the treatment of prisoners of war and civilian internees and the reasons given in that judgment may serve as a corroboration. The Tribunal stated that it was the duty of those responsible to ensure that prisoners were well treated, that ill-treatment was avoided, and to establish and guarantee an effective and permanent system for this purpose. If they refrain from taking the requisite measures, or if, having taken them, they do not ensure their constant and effective application, they fail in their duties and incur responsibility. Such responsibility continues if, while knowing that breaches are committed, they refrain from taking the appropriate measures that are in their power to prevent further breaches in the future. Ignorance does not absolve them from responsibility if it can be attributed to a fault on their part. The fact that the [p.1016] breaches have widespread public notoriety, are numerous and occur over a long period and in many places, should be taken into consideration in reaching a presumption that the persons responsible could not be ignorant of them. (41)
' J. de P. '

NOTES$ (1) [(1) p.1006] See CE 1972, Report, Vol. I, pp. 188-189, para. 4.122, 4.126-4.127; Vol. II, p. 107, CE/COM IV/45-46. See also ' Government Replies ', pp. 150 and 152;

(2) [(2) p.1006] This draft article read as follows: "1. The High contracting Parties undertake to repress breaches of the Conventions or of the present Protocol resulting from a failure to perform a duty to act. 2. The fact that a breach of the Conventions or of the present Protocol was committed by a subordinate does ot absolve his superiors from penal responsibility if they knew or should have known that he was committing or would commit such a breach and if they did not take measures within their power to prevent or repress the breach.";

(3) [(3) p.1006] O.R. III, p. 328, CDDH/I/303; however, see also, O.R. IX, p. 45, CDDH/I/SR.45, para. 9;

(4) [(4) p.1007] In the same sense we may refer to the convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment adopted by the United Nations General Assembly at the 93rd plenary meeting on 10 December 1984. Article 1 of this Convention condemns acts of torture "inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity";

(5) [(5) p.1007] Cf. First and Second Conventions, Art. 50; Third Convention, Art. 129; Fourth Convention, Art. 146. However, it should be noted that at least one of the grave breaches included in Articles 130 of the Third Convention and 147 of the Fourth Convention may well result literally from a failure to act, namely, the grave breach which consists of depriving a protected person of his right to a fair and regular trial;

(6) [(6) p.1007] See introduction to this Section, supra, p. 973;

(7) [(7) p.1007] On this subject, see "Le projet de code pénal international, commentaires", ' Revue internationale de droit pénal ', 1981, pp. 553-556. A distinction is made in particular between "infractions d'omission proprement dites", "les infractions de commission par omission" and "la conduite omissive et participation";

(8) [(8) p.1007] O.R. IX, p. 278, CDDH/I/SR.61, para. 59, and O.R. VI, p. 307, CDDH/SR.45. Only one delegation expressed some reservation in his explanations (ibid., pp. 308-309);

(9) [(9) p.1007] See "State responsibility", ' Yearbook of the International Law Commission ', 1973, Vol. I, pp. 19 and 21-22;

(10) [(10) p.1007] See the Report of the "Commission on the responsibility of the authors of the [first World] War and on enforcement of penalties" of 29 March 1919, which provided for the prosecution of all those who had given orders for action in violation of the laws and customs of war or those who knowingly and while they had the power to intervene, abstained from preventing or taking measures to prevent, terminate or repress such acts, ' International Law Studies ', Vol. 60, "Documents on prisoners of war", Newport, Rhode Island, 1979, pp. 158 ff.;

(11) [(11) p.1008] This was especially the case in the western theatre of operations in "The German High Command Trial" (cf. 12 ' Law Reports '), and in the Far East in the "Trial of General Tomoyuki Yamashita" (cf. 4 ' Law Reports ');

(12) [(12) p.1008] "The German High Command Trial", op. cit., p. 108;

(13) [(13) p.1008] Ibid.; these include in particular Article 42, which states that "territory is considered occupied when it is actually placed under the authority of the hostile army", and Article 43, which urges the occupant to take "all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country";

(14) [(14) p.1008] By way of example, we refer to the obligation to respect and ensure respect for the Conventions in all circumstances (Art. 1), to use the services of a Protecting Power (Art. 8/8/8/9), and failing that, of a substitute (Art. 10/10/10/11), in particular to make various notifications through their intermediary, to ensure that the wounded and sick are cared for (FirstConvention, Art. 12), and that the shipwrecked are cared for (Second Convention, Art. 12), to ensure compliance with provisions relating to the dead (First Convention, Arts. 16-17, Second Convention, Arts. 19-20), to permit repatriation of neutral medical personnel (First Convention, Art. 30), to provide free of charge for the maintenance of prisoners of war (Third Convention, Art. 15) and to ensure their safety (ibid., Art. 13), to undertake an enquiry in the case of the death of prisoners in special circumstances (ibid., Art. 121), to take all sanitary measures necessary to ensure their health (ibid., Art. 29), to grant them a monthly advance of pay (ibid., Art. 60), to establish an information bureau (ibid., Art. 122), to ensure that prisoners are able to contact the outside world (ibid., Arts. 69-77), to release and repatriate them after the cessation of hostilities (ibid., Art. 118), while any unjustified delay in this is qualified by the Protocol as a grave breach (Art. 85, para. 4(b)). The Fourth Convention lays down requirements in favour of civilian internees similar to those provided for prisoners of war, and urges the Occupying Power to ensure and maintain public health and hygiene in occupied territory (Art. 56) and to ensure food and medical supplies for the population (Art. 55). In all these circumstances, and in many others covered in particular by the Protocol (for example, Art. 11, para. 4, which expressly provides that any wilful act or omission which serious endangers the physical or mental health or integrity of any person who is in the power of a Party other than the one on which he depends, is a grave breach of the Protocol) which extends the protection of the Conventions to the civilian wounded and sick, civilian health services and new categories of prisoners of war, failure to take the necessary measures for fulfilling the obligations of the Conventions is tantamount to committing a breach of such obligations;

(15) [(15) p.1009] On this point see Ph. Bretton, "Le problème des "méthodes et moyens de guerre et de combat" dans les Protocoles...", op. cit., pp. 31-38;

(16) [(16) p.1010] Unfortunately history is full of examples of civilian authorities which have been guilty of war crimes; thus not only military authorities are concerned (cf. O.R. IX, p. 131, CDDH/I/SR.51, para. 40);

(17) [(17) p.1010] First Convention, Art. 49; Second Convention, Art. 50; Third Convention, Art. 129; Fourth Convention, Art. 146;

(18) [(18) p.1010] In this respect see also introduction to this Section, supra, p. 973, and commentary Art. 85, para. 1, supra, p. 992;

(19) [(19) p.1010] On extradition, see commentary Art. 88, infra, p. 1025;

(20) [(20) p.1010] We refer also to Art. 88, which provides for the broadest possible mutual assistance in criminal matters in any proceedings brought in respect of grave breaches;

(21) [(21) p.1011] Taken up in Art. 4A(2) of the Third Convention;

(22) [(22) p.1011] This provides that every prisoner-of-war camp will be placed under the immediate authority of a responsible commissioned officer who will ensure that the provisions of the Conventions are known to the camp staff under his orders and will be responsible for its application, under the direction of his government. A similar rule is contained in Article 99 of the Fourth Convention;

(23) [(23) p.1011] A proposal was submitted on this subject during the second session of the Conference of Government Experts (' CE 1972, Report ', Vol. II, p. 107, CE/COM IV/45), and the ICRC inserted a provision to this end in the draft presented to the Diplomatic Conference (Art. 76, para. 2, cf. supra, note 2, p. 1006). This text was the object of various amendments (cf. O.R. III, p. 328, CDDH/I/74, CDDH/I/303, CDDH/I/306, and for the discussions, O.R. IX, pp. 113-119, CDDH/I/SR.50), before being adopted by consensus both in Committee and in plenary meeting (see supra, note 8, p. 1007);

(24) [(24) p.1011] On this subject in general, see B.V.A. Röling, "Criminal Responsibility for Violations of the Law of War", 12 ' RBDI ', 1976/1, and, by the same author, "Aspects of the Criminal Responsibility...", op. cit., pp.213-220;

(25) [(25) p.1012] See O.R. IX, p. 161, CDDH/I/SR.50, para. 41;

(26) [(26) p.1012] Ibid., p. 118, paras. 59-60. This is an important point; cf. for example, Article 16 of the Swiss Military Penal Code which provides that "Celui qui pouvait éviter l'erreur (sur les faits) en usant des précautions voulues est punissable par négligence si la loi réprime son acte comme délit de négligence" (anyone who could have avoided the fault (as to the facts) by using the necessary precautions, is punishable for negligence if the law qualified his act as an offence (translated by the ICRC));

(27) [(27) p.1012] In a 1952 trial (' USA v. Schultz ') the United States Court of Military Appeals decided that mere negligence did not constitute a universally recognized basis for criminal responsibility (cf. B.M. Carnaham, "The Law of War in the United States Court of Military Appeals", XX 3-4, ' RDPMDG ' 1981, pp. 343-344). Article 15 of the Swiss Military Penal Code provides that "commet un crime ou un délit par négligence celui qui, par une imprévoyance coupable, agit sans se rendre compte ou sans tenir compte des conséquences de son acte. L'imprévoyance est coupable quand l'auteur de l'acte n'a pas usé des précautions commandées par les circonstances et par sa situation personnelle" (anyone who, as a result of criminal negligence, acts without realizing or taking into account the consequences of his act is committing an offence. Such lack of foresight is criminal when the perpetrator of the act has not used precautions required by the circumstances and by his personal situation (translated by the ICRC)). For examples relating to the airforce, see J.M. Spaight, op. cit., p. 58;

(28) [(28) p.1012] See in particular, M.C. Bassouni, ' International Criminal Law, a Draft Criminal Code ', Leyden, 1980, pp. 58, 149, 155;

(29) [(29) p.1013] See in this sense, "The German High Command Trial", op. cit., p. 76, and "Trial of General Tomoyuki Yamashita", op. cit., pp. 35, 87;

(30) [(30) p.1013] In this sense, O.R. IX, p. 117, CDDH/I/SR.50, para. 48;

(31) [(31) p.1013] This clause underwent considerable changes during the ' travaux préparatoires '. The proposal submitted to the Conference of Government Experts mentioned "breaches of the laws of war which were, or ought to have been, within their [civil and military authorities] knowledge". (' CE 1972, Report ', Vol. II, p. 107, CE/COM IV/45). Article 76 of the ICRC draft contains the expression "he should have known". The amendment proposed by the United States contained the following wording: "If they knew or should reasonably have known in the circumstances at the time" (O.R. III, p. 328, CDDH/I/306);

(32) [(32) p.1013] On this point see the remarks by K.J. Partsch, in M. Bothe, K.J. Partch, W.A. Solf, op. cit., p. 525, and O.R. IX, p. 278, CDDH/I/SR.61, paras. 53-59;

(33) [(33) p.1014] Cf. Art. 33, para. 4, of the Vienna Convention on the Law of Treaties;

(34) [(34) p.1014] In this sense, see supra, note 32;

(35) [(35) p.1014] See "The Hostages' Trial", 8 ' Law Reports ', p. 89;

(36) [(36) p.1014] Ibid;

(37) [(37) p.1014] See the Yamashita case, 4 ' Law Reports ', p. 35, and in this respect, the observations made by M.C. Bassiouni in "Repression of Breaches...", op. cit., pp. 207-208;

(38) [(38) p.1014] In this sense, O.R. IX, pp. 131-132, CDDH/I/SR.51, para. 43;

(39) [(39) p.1014] In the case of the "High Command Trial" the Tribunal found that the responsibility of a superior was involved "where his failure to properly supervise his subordinates constitutes criminal negligence on his part. In the latter case, it must be a personal neglect amounting to a wanton, immoral disregard of the action of his subordinates amounting to acquiescence." (12 ' Law Reports ', p. 76). In the Yamashita case, the Tribunal declared: "Where murder and rape and vicious, revengeful actions are widespread offences and there is no effective attempt by a commander to discover and control the criminal acts, such a commander may be held responsible, even criminally liable, for the lawless acts of his troops, depending upon their nature and the circumstances surrounding them" (4 Law Reports, p. 35). In another case the Tribunal clearly based its verdict on the fact that "it was inconceivable that he [the commander] should not have been aware of the acts of atrocity committed by his subordinates [...]" (ibid., p. 88). In other circumstances the Tribunals seemed to have found that at least some proof must be furnished before accepting that a superior was aware of the acts of his subordinates (ibid., p. 89). When depositing its instrument of ratification on 13 August 1982, Austria made the following reservation: "Pour juger toute décision prise par un commandant militaire, les articles 85 et 86 du Protocole I seront appliqués pour autant que les impératifs militaires, la possibilité raisonnable de les reconnaître et les informations effectivement disponibles au moment de la décision soient déterminants." ("In order to judge any decision taken by military commanders, Articles 85 and 86 of Protocol I will be applied with military imperatives, the reasonable possibility of recognizing them and information actually available at the time of the decision, being decisive." (Translated by the ICRC));

(40) [(40) p.1015] Cf. for example, Article 4 of the French Decree on repression of war crimes of 8 August 1944: "Lorsqu'un subordonné est poursuivi comme auteur principal d'un crime de guerre et que ses supérieurs hiérarchiques ne peuvent être recherchés comme coauteurs, ils sont considérés comme complices dans la mesure où ils ont organisé ou toléré les agissements criminels de leurs subordonnés." ("When a subordinate is prosecuted as the person primarily responsible for a war crime and it is not possible to look upon his superiors in the hierarchy as jointly responsible, they will be treated as accomplices insofar as they organized or tolerated the criminal activities of their subordinates." (translated by the ICRC)). For other examples, see 4 ' Law Reports ', pp. 87-88;

(41) [(41) p.1016] For the complete text, see M. Greenspan, op. cit., p. 483;