Practice Relating to Rule 153. Command Responsibility for Failure to Prevent, Punish or Report War Crimes
Côte d’Ivoire’s Teaching Manual (2007) provides in Book I (Basic instruction):
I.1 Basic rules
[Basic Rule No. 12]
Endeavour to prevent any violation of these commands, report to your superior violations committed. Every violation of the laws of war is punishable.
- If you do not report violations, you make yourself an accomplice in them.
In Book II (Instruction of non-commissioned officers and officers), The Teaching Manual provides:
Lesson 2. Behaviour in action
I.2. Duties of the non-commissioned officer and officer
After the action, he must:
- report any violation of the rules of IHL
- have the perpetrators of violations of rules of IHL arrested and handed over to the superior level.
Lesson 4. Breaches and responsibilities
II.1.2. Responsibilities of the non-commissioned officer and officer
Respect for IHL in the theatre of operations lies mainly with the military leader. In case of a violation of the rules of IHL by one of his soldiers, the leader must stop the breach, arrest the perpetrator or the perpetrators, or have him/them arrested, and put them at the disposal of the courts, if there is reason for it. If he does not do this, he can be prosecuted.
In this respect, the non-commissioned officer or officer is responsible
- for acts in violation of the rules of IHL committed by his subordinates before his eyes, without reaction from his side,
- for acts in violation of the rules of IHL committed by his subordinates without his knowledge, but of which he has become aware and to which he has not reacted at all,
- treatment inflicted on detained persons by the units under his command.
In Book III, Volume 2 (Instruction of second-year trainee officers), the Teaching Manual provides:
III.2 Individual responsibility
International humanitarian law has also established individual and criminal responsibility for the respect of humanitarian obligations.
This responsibility lies with all; everyone must answer for his conduct in this way. Military commanders have a very special responsibility. They indeed have the duty to do everything to prevent breaches of the Conventions and Additional Protocol I from being committed in their area of responsibility. If a commander neglects orders or does not take all the measures of control necessary, he, if grave breaches have been committed under his command, will have to answer for them on the criminal law level.
Every member of the armed forces, whatever his rank, is personally responsible to respect the law of armed conflicts, to ensure that others respect it, and to act in case of a violation.
III.3. Responsibility of the commander
[C]ommanders can be called to answer for their acts in criminal proceedings if they knew or should have known that subordinates were about to commit war crimes and did nothing to prevent them from committing them, or if they knew or should have known that their subordinates had committed war crimes and did nothing to punish or report the culprits.
Members of the armed forces holding command functions have the duty:
- to maintain strict but fair discipline;
- to fully use the mechanisms at their disposal to investigate and prosecute violations of the law, and to make their subordinates understand that the fact of attacking an illegal objective is just as punishable as the fact of being absent without leave, and that that concerns all ranks;
- to report soldiers guilty of violations to superior officers who have the competence to punish them;
- to notify to a higher authority every violation committed by their own side, by friendly forces or by the enemy
A superior cannot be systematically held responsible for all forms of criminal behaviour shown by their subordinates. For this responsibility to be effective, he must have had knowledge of that breach in advance, or, at least, must have been in possession of sufficient information on that matter and have omitted to do what was in his power to prevent or repress that breach.
It is therefore vital that military commanders are sufficiently informed as regards the acts which are considered as “breaches” of these instruments.
Côte d’Ivoire’s Penal Code (1981), as amended in 2015, states:
In all the cases set out in the present chapter [including war crimes]:
1° A military commander or person effectively acting as a military commander shall be criminally responsible for crimes committed by forces under his or her effective command and control, or effective authority and control as the case may be, as a result of his or her failure to exercise control properly over such forces, where:
- that military commander or person either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes;
- and that military commander or person failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.
2° With respect to superior and subordinate relationships not described in 1°, a superior shall be criminally responsible for crimes committed by subordinates under his or her effective authority and control, as a result of his or her failure to exercise control properly over such subordinates, where:
- the superior either knew, or consciously disregarded information which clearly indicated, that the subordinates were committing or about to commit such crimes;
- the crimes concerned activities that were within the effective responsibility and control of the superior;
- and the superior failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.
The penalty is 15 to 20 years’ imprisonment and a fine of 1,000,000 to 10,000,000 francs.