Practice Relating to Rule 153. Command Responsibility for Failure to Prevent, Punish or Report War Crimes
Argentina’s Law of War Manual (1989) states:
Military commanders must ensure the prevention of breaches of the [1949 Geneva] Conventions and [the 1977 Additional Protocol I] and, when necessary, report them to the competent authority and repress them.
The manual further refers to Article 86 of the 1977 Additional Protocol I and states:
Breaches [of the 1949 Geneva Conventions or the 1977 Additional Protocol I] committed by a subordinate do not absolve his superiors from penal or disciplinary responsibility, as the case may be, if they knew that the subordinate was committing or was going to commit the breach and if they did not take the measures within their power to prevent or repress the breach.
In the Military Junta case
in 1985, Argentina’s Court of Appeal drew attention to the lack of investigations into and punishment of numerous proven acts, even though such acts had been the object of claims. Referring to the 1949 Geneva Conventions, the Court further pointed out that it was the responsibility of the commanders-in-chief of each party to ensure observance of the Conventions.
At the CDDH, Argentina stated that “a superior, indeed, should always have knowledge of any breach committed by his subordinates, in order to repress it” and that “if a superior knew of preparations for an act liable to constitute a breach, he was obviously responsible”.
The Report on the Practice of Argentina notes that in the trial of the commanders which was brought to determine responsibility for the 1982 events in the Falkland/Malvinas Islands, the National Court for Criminal and Correctional Cases “emphasized that the powers accorded to the command by the Code of Military Justice to enhance organization within the military, including the authority to decide when immediate punishment for crimes is necessary, are [optional] in nature”.