Rule 152. Commanders and other superiors are criminally responsible for war crimes committed pursuant to their orders.
State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts.
The rule that persons are responsible for war crimes committed pursuant to their orders is contained in the Geneva Conventions and the Hague Convention for the Protection of Cultural Property and its Second Protocol, which require States to prosecute not only persons who commit grave breaches or breaches respectively but also persons who order their commission.
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, all of which apply in both international and non-international armed conflicts, also contain this rule.
Many military manuals provide that commanders and other superiors are responsible for war crimes committed pursuant to their orders.
This rule is also set forth in the legislation of many States.
There is national case-law dating from the First World War to the present day which confirms the rule that commanders are responsible for the war crimes committed pursuant to their orders.
Further practice is contained in official statements.
The UN Security Council, UN General Assembly, UN Secretary-General and UN Commissions of Experts Established pursuant to Security Council Resolutions 780 (1992) and 935 (1994) have recalled this rule.
This rule has been reaffirmed in various cases before the International Criminal Tribunals for the former Yugoslavia and for Rwanda.
While some practice refers specifically to orders issued by commanders,
other practice refers more generally to orders issued by any person.
International case-law has held, however, that while no formal superior-subordinate relationship is required, “ordering” implies at least that a superior-subordinate relationship exists de facto
With respect to the actions undertaken by subordinates in accordance with an order to commit war crimes, three situations must be distinguished. First, in case the war crimes are actually committed
, State practice is clear that there is command responsibility, as stated in this rule. Secondly, when the war crimes are not actually committed but only attempted
, State practice tends to indicate that there is also command responsibility. The Statute of the International Criminal Court and UNTAET Regulation No. 2000/15 for East Timor specify that there is command responsibility for ordering the commission of a war crime when the crime in fact occurs or is attempted.
Some national legislation specifies that a commander who gives an order to commit a crime is guilty, even if the subordinate only attempts to carry out the crime.
Thirdly, in case the war crimes are neither carried out nor attempted, a few States do attribute criminal responsibility to a commander merely ordering the commission of a war crime.
But most practice indicates no command responsibility in such cases. It is clear, however, that if a rule consists of a prohibition on giving an order, for example, the prohibition on ordering that there be no survivors (see Rule 46), then the commander who gives the order is guilty, even if the order is not carried out.