Practice Relating to Rule 153. Command Responsibility for Failure to Prevent, Punish or Report War Crimes
The Soldier’s Rules (1989) of the Philippines, providing a list of the most basic principles of behaviour for soldiers, states that a soldier must “endeavour to prevent any breach of the above rules. Report any violations to your superior.”
The Handbook on Discipline (1989) of the Philippines states:
The immediate CO [commanding officer] of errant military personnel is held accountable either as conduct unbecoming pursuant to AW 96, or as accessory after the fact in cases where he refuses to act, delays or otherwise aids or abets the wrong doing of his subordinates which is the subject of a valid complaint or duly issued warrant of arrest.
The Code of Ethics (1991) of the Philippines provides: “Commanders shall exercise their authority over their subordinates with prudence and shall accept responsibility for their actions.”
The Joint Circular on Adherence to IHL and Human Rights (1991) of the Philippines provides:
a. Commanders shall be responsible for the conduct and behavior of AFP [Armed Forces of the Philippines] and PNP [Philippine National Police] personnel under their control and supervision. They will be held accountable under pertinent provisions of the Articles of War in the case of military personnel and PNP Rules and Regulations and the Revised Penal Code for PNP personnel, or as accessory after the fact in cases where they refuse to act, delay or otherwise aid or abet the wrongdoing of their subordinate, the subject of a valid complaint or warrant of arrest.
b. Commanders shall ensure that all participants in security/police operations shall be briefed and de-briefed before and after every operation to insure proper behavior of personnel and understanding of their mission as well as to assess the over-all impact of the operation to AFP/PNP goals and objectives and whenever necessary immediately undertake corrective legal measures on any misconduct committed by AFP/PNP personnel.
In 1988, in a memorandum on “Respect for Human Rights and Improvement of Discipline in the AFP” addressed to the Chief of Staff of the Armed Forces of the Philippines (AFP), the Department of National Defence of the Philippines reiterated that:
The [Department of National Defence’s] long standing directive to take the necessary bold steps to weed out and punish, as warranted by proper investigation, not only the military personnel who directly commit the acts complained, but also, with equal vigor, the commanders who countenance such abuse by way of summarily dropping the case, intimidating the complainant and his witnesses “cover-up” of the incidents, failure to report to superior authorities, and/or sheer inaction on the complaint. I would also like to re-stress the instruction that “the commanding officer of an erring military personnel shall be similarly held accountable either as conduct unbecoming an officer or as accessory after the fact in cases where he refuses to act, delays action or otherwise aids and abets the wrongdoing of his subordinate which is the subject of a valid complaint.
The Guidelines on Human Rights and Improvement of Discipline in the AFP, issued in 1989 by the Office of the Chief of Staff of the Armed Forces of the Philippines (AFP), provides:
Commanders who are proven through due process to have countenanced human rights abuses by way of summarily dropping complaints, intimidating the complainant and/or witnesses, “cover-up” of the incidents, failure to report to superiors, and/or shows inaction on the complaint, shall be held accountable either as conduct unbecoming an officer or as accessory.
Commanders of Major Services, Area Commanders and AFPWSSUS shall devise a system which offers investigators and prosecutors convenient means of identifying and prosecuting personnel engaged in gun-for-hire or protection racket, extortion, condonation of vices, and other felonious activities designed to discredit the government in general and the AFP in particular.
The Philippine press has reported several cases in which commanding officers were relieved of their duties or accused on the basis of command responsibility.
In a directive issued in 2007 on strict adherence to the doctrine of command responsibility, the Chief of Staff of the Armed Forces of the Philippines (AFP) stated:
2. This refers to the doctrine of command responsibility that should be strictly adhered to and applied in connection with the exercise by all military commanders of command and control over all units and personnel under their authority.
3. Command responsibility refers to the “accountability or responsibility or answerability of the commander of a Military Force or Unit for the acts of his men, inclusive of the authority to order, to direct, to prevent or control the acts of his men.” People v Lucero, et al., GR No. 64323-24, 31 May 1991.]
For the purpose of this letter directive, the term commanders refers to the following: Major Service Commanders, Area Commanders, Division Commanders, Brigade Commanders, Battalion Commanders, Company Commanders, Platoon Leaders and Detachment commanders and their equivalent in the PN, PAF and AFPWSSUs [AFP-Wide Support and Separate Units].
4. It should be stressed that a commander is duty-bound to closely monitor, supervise, direct, coordinate, and control the overall activities of his subordinates within his area of operations, and can and shall be held administratively accountable for neglect of duty in taking appropriate action to discipline his men. [See Executive Order Nr. 226, 17 February 1995.]
5. AFP commanders at all levels shall retain command responsibility over all their personnel, units and offices detached and placed under operational control of other commands, offices and agencies pursuant to directives from competent authority. [See Sec. 5, Administrative Order 219 – 04 Oct 1995.]
6. Neglect of Duty Under the Doctrine of “Command Responsibility”
. – Any AFP Officer shall be held accountable for neglect of duty under the doctrine of command responsibility if he has knowledge that a crime or offence shall be committed, or is being committed, or has been committed by his subordinates, or by others within his area of responsibility and, despite such knowledge, he did not take preventative or corrective action either before, during, or immediately after its commission. [See Sec. 1, Executive Order 226.]