Rule 153. Commanders and other superiors are criminally responsible for war crimes committed by their subordinates if they knew, or had reason to know, that the subordinates were about to commit or were committing such crimes and did not take all necessary and reasonable measures in their power to prevent their commission, or if such crimes had been committed, to punish the persons responsible.
Volume II, Chapter 43, Section C.
State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts.
The criminal responsibility of commanders for war crimes committed by their subordinates, based on the commanders’ failure to take measures to prevent or punish the commission of such crimes is a long-standing rule of customary international law. It is on this basis that a number of commanders were found guilty of war crimes committed by their subordinates in several trials following the Second World War.
This rule is to be found in Additional Protocol I, as well as in the Statutes of the International Criminal Court and of the International Criminal Tribunal for the former Yugoslavia.
It has also been confirmed in several cases before the International Criminal Tribunal for the former Yugoslavia.
Military manuals, military instructions and the legislation of a number of States specify the responsibility of commanders for the crimes of their subordinates, including States not, or not at the time, party to Additional Protocol I.
This rule was recalled in resolutions on the conflict in the former Yugoslavia adopted by the UN General Assembly and UN Commission on Human Rights.
Practice with respect to non-international armed conflicts is less extensive and more recent. However, the practice that does exist indicates that it is uncontroversial that this rule also applies to war crimes committed in non-international armed conflicts. In particular, the Statutes of the International Criminal Court, of the International Criminal Tribunals for the former Yugoslavia and for Rwanda and of the Special Court for Sierra Leone and UNTAET Regulation No. 2000/15 for East Timor explicitly provide for this rule in the context of non-international armed conflicts.
The fact that this rule would also apply to crimes committed in non-international armed conflicts did not occasion any controversy during the negotiation of the Statute of the International Criminal Court.
In the Hadžihasanović and Others case
the International Criminal Tribunal for the former Yugoslavia held that the doctrine of command responsibility, as a principle of customary international law, also applies with regard to non-international armed conflicts.
This rule has also been confirmed in several cases brought before the International Criminal Tribunal for Rwanda.
There is national case-law applying this rule to situations outside international armed conflicts. A US Federal Court in Florida applied it in the Ford v. García case
in 2000, which concerned a civil lawsuit dealing with acts of extra-judicial killing and torture committed in El Salvador.
The Ad Hoc Tribunal on Human Rights for East Timor applied it in the Abilio Soares case
in 2002 in which the Tribunal considered that the conflict in East Timor was an internal one within the meaning of common Article 3 of the Geneva Conventions.
In the Boland case
in 1995, Canada’s Court Martial Appeal Court found a superior guilty of having neglected to prevent the death of a prisoner even though he had grounds to fear that his subordinate would endanger the prisoner’s life.
In the Military Junta case
, Argentina’s Court of Appeal based its judgment on the failure of commanders to punish perpetrators of torture and extra-judicial killings.
Other practice to this effect includes the report of the UN Commission on the Truth for El Salvador in 1993, which pointed out that the judicial instances failed to take steps to determine the criminal responsibility of the superiors of persons guilty of arbitrary killings.
This rule has been interpreted in case-law following the Second World War and also in the case-law of the International Criminal Tribunals for the former Yugoslavia and for Rwanda. This includes, but is not limited to, the following points:
(i) Civilian command authority.
Not only military personnel but also civilians can be liable for war crimes on the basis of command responsibility. The International Criminal Tribunal for Rwanda, in the Akayesu case
in 1998 and in the Kayishema and Ruzindana case
in 1999, and the International Criminal Tribunal for the former Yugoslavia, in the Delalić case
in 1998, have adopted this principle.
It is also contained in the Statute of the International Criminal Court.
The Statutes of the International Criminal Tribunals for the former Yugoslavia and for Rwanda and of the Special Court for Sierra Leone refer in general terms to a “superior,
as do many military manuals and national legislation.
(ii) Commander/subordinate relationship.
The relationship between the commander and the subordinate does not necessarily need to be a direct de jure
one. De facto
command responsibility is sufficient to occasion liability of the commander. This principle is recognized in various judgments of the International Criminal Tribunals for the former Yugoslavia and for Rwanda.
The Tribunals identified the actual possession of control over the actions of subordinates, in the sense of material ability to prevent and punish the commission of crimes, as the crucial criterion.
The same idea is reflected in Article 28 of the Statute of the International Criminal Court.
(iii) The commander/superior knew, or had reason to know.
Practice confirms that command responsibility is not limited to situations where the commander/superior has actual knowledge of the crimes committed or about to be committed by his or her subordinates, but that constructive knowledge is sufficient. The latter idea is expressed in various sources with slightly different formulations: “had reason to know”,
“had information which should have enabled [the commander/superior] to conclude in the circumstances at the time”,
the commander/superior “(owing to the circumstances at the time,) should have known”,
the commander/superior was “at fault in having failed to acquire such knowledge”,
and the commander/superior was “criminally negligent in failing to know”.
These formulations essentially cover the concept of constructive knowledge.
For superiors other than military commanders, the Statute of the International Criminal Court uses the language: “consciously disregarded information which clearly indicated”.
This standard was used by the International Criminal Tribunal for Rwanda in the Kayishema and Ruzindana case
in 1999 to delineate the meaning of “had reason to know” for non-military commanders.
(iv) Investigation and reporting.
Failure to punish subordinates who commit war crimes can result from a failure to investigate
possible crimes and/or failure to report
allegations of war crimes to higher authorities. This is set forth in Additional Protocol I and in the Statute of the International Criminal Court.
It is also the standard in many military manuals, national legislation, national case-law and other practice.
In its final report on grave breaches of the Geneva Conventions and other violations of international humanitarian law committed in the former Yugoslavia, the UN Commission of Experts Established pursuant to Security Council Resolution 780 (1992) recalled this basis of command responsibility.
In its judgment in the Blaškić case
in 2000, the International Criminal Tribunal for the former Yugoslavia specified, however, that a commander must give priority, where he or she knows or has reason to know that his or her subordinates are about to commit crimes, to prevent these crimes from being committed and that “he cannot make up for the failure to act by punishing the subordinates afterwards”.
(v) Necessary and reasonable measures.
In the Delalić case
in 1998, the International Criminal Tribunal for the former Yugoslavia interpreted the term “necessary and reasonable measures” to be limited to such measures as are within someone’s power, as no one can be obliged to perform the impossible.
With respect to necessary and reasonable measures to ensure the punishment of suspected war criminals, the Tribunal held in the Kvočka case
in 2001 that the superior does not necessarily have to dispense the punishment but “must take an important step in the disciplinary process”.
In its judgment in the Blaškić case
in 2000, the Tribunal held that “under some circumstances, a commander may discharge his obligation to prevent or punish an offence by reporting the matter to the competent authorities”.