Practice Relating to Rule 153. Command Responsibility for Failure to Prevent, Punish or Report War Crimes

Hague Regulations (1899)
Article 1(1) of the 1899 Hague Regulations lays down as a condition which an armed force must fulfil in order to be accorded the rights of belligerents “to be commanded by a person responsible for his subordinates”. 
Regulations concerning the Laws and Customs of War on Land, annexed to Convention (II) with Respect to the Laws and Customs of War on Land, The Hague, 29 July 1899, Article 1(1).
Hague Regulations (1907)
Article 1(1) of the 1907 Hague Regulations lays down as a condition which an armed force must fulfil in order to be accorded the rights of belligerents “to be commanded by a person responsible for his subordinates”. 
Regulations concerning the Laws and Customs of War on Land, annexed to Convention (IV) respecting the Laws and Customs of War on Land, The Hague, 18 October 1907, Article 1(1).
Hague Convention (X)
Article 19 of the 1907 Hague Convention (X) provides:
The commanders-in-chief of the belligerent fleets must see that the above articles are properly carried out; they will have also to see to cases not covered thereby, in accordance with the instructions of their respective Governments and in conformity with the general principles of the present Convention. 
Hague Convention (X) for the Adaptation to Maritime Warfare of the Principles of the Geneva Convention, The Hague, 18 October 1907, Article 19.
Geneva Convention (1929)
Article 26 of the 1929 Geneva Convention provides:
The Commanders-in-Chief of belligerent armies shall arrange the details for carrying out the preceding articles as well as for cases not provided for in accordance with the instructions of their respective Governments and in conformity with the general principles of the present Convention. 
Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field, Geneva, 27 July 1929, Article 26.
Additional Protocol I
Article 86(2) of the 1977 Additional Protocol I provides:
The fact that a breach of the Conventions or this Protocol was committed by a subordinate does not absolve his superiors from penal or disciplinary responsibility, as the case may be, if they knew, or had information which should have enabled them to conclude in the circumstances at the time, that he was committing or was going to commit such a breach and if they did not take all feasible measures within their power to prevent or repress the breach. 
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), Geneva, 8 June 1977, Article 86(2). Article 86 was adopted by consensus. CDDH, Official Records, Vol. VI, CDDH/SR.45, 30 May 1977, p. 307.
Additional Protocol I
Article 87 of the 1977 Additional Protocol I provides:
1. The High Contracting Parties and the Parties to the conflict shall require military commanders, with respect to members of the armed forces under their command and other persons under their control, to prevent and, where necessary, to suppress and report to competent authorities breaches of the Conventions and of this Protocol.
3. The High Contracting Parties and Parties to the conflict shall require any commander who is aware that subordinates or other persons under his control are going to commit or have committed a breach of the Conventions or of this Protocol, to initiate such steps as are necessary to prevent such violations of the Conventions or this Protocol, and, where appropriate, to initiate disciplinary or penal action against violators thereof. 
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), Geneva, 8 June 1977, Article 87. Article 87 was adopted by consensus. CDDH, Official Records, Vol. VI, CDDH/SR.45, 30 May 1977, p. 307.
Additional Protocol I (draft)
Article 76(2) of the draft Additional Protocol I (now Article 86(2)) submitted by the ICRC to the CDDH provided:
The fact that a breach of the Conventions or of the present Protocol was committed by a subordinate does not absolve his superiors from penal responsibility if they knew or should have known that he was committing or would commit such a breach and if they did not take measures within their power to prevent or repress the breach. 
CDDH, Official Records, Vol. I, Part Three, Draft Additional Protocols, June 1973, p. 25.
This proposal was subject to amendments and referred to Working Group A of Committee I. 
CDDH, Official Records, Vol. X, CDDH/234/Rev.1, 21 April–11 June 1976, p. 119, § 24.
Working Group A of Committee I adopted draft Article 76(2) of the Additional Protocol I with the following wording:
The fact that a breach of the Conventions or of the present Protocol was committed by a subordinate does not absolve his superiors from penal or disciplinary responsibility as the case may be, if they knew or had the possibility of knowing in the circumstances at the time that he was committing or was going to commit such a breach and if they did not take all feasible measures within their power to prevent or repress the breach. 
CDDH, Official Records, Vol. X, CDDH/I/321/Rev.1, 21 April–11 June 1976, p. 153. (After the meetings some delegations informed the Chairman of Committee I that they wished to have the words “or had possibility of knowing” replaced by the words “or had information on the basis of which he should have concluded”.)
Agreement on Cessation of Hostilities in Viet Nam
Article 22 of the 1954 Agreement on Cessation of Hostilities in Viet Nam provides: “The Commanders of the Forces of the two parties shall ensure that persons under their respective commands who violate any provisions of the present Agreement are suitably punished.” 
Agreement on the Cessation of Hostilities in Viet-Nam, concluded between France and the Democratic Republic of Vietnam, Geneva, 20 July 1954, Article 22.
ICC Statute
Article 28 of the 1998 ICC Statute provides:
In addition to other grounds of criminal responsibility under this Statute for crimes within the jurisdiction of the Court:
(a) A military commander or person effectively acting as a military commander shall be criminally responsible for crimes within the jurisdiction of the Court 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:
(i) 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
(ii) 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.
(b) With respect to superior and subordinate relationships not described in paragraph (a), a superior shall be criminally responsible for crimes within the jurisdiction of the Court 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:
(i) The superior either knew, or consciously disregarded information which clearly indicated, that the subordinates were committing or about to commit such crimes;
(ii) The crimes concerned activities that were within the effective responsibility and control of the superior; and
(iii) 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. 
Statute of the International Criminal Court, adopted by the UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Rome, 17 July 1998, UN Doc. A/CONF.183/9, Article 28.
Second Protocol to the Hague Convention for the Protection of Cultural Property
Article 15 of the 1999 Second Protocol to the Hague Convention for the Protection of Cultural Property, which also contains a list of the acts considered as offences within the meaning of the Protocol, provides:
Each Party shall adopt such measures as may be necessary to establish as criminal offences under its domestic law the offences set forth in this Article and to make such offences punishable by appropriate penalties. When doing so, Parties shall comply with general principles of law and international law, including the rules extending individual criminal responsibility to persons other than those who directly commit the act. 
Second Protocol for the Protection of Cultural Property in the Event of Armed Conflict, The Hague, 26 March 1999, Article 15.
Second Protocol to the Hague Convention for the Protection of Cultural Property
Article 22(1) of the 1999 Second Protocol to the Hague Convention for the Protection of Cultural Property provides: “This Protocol shall apply in the event of an armed conflict not of an international character, occurring within the territory of one of the Parties.” 
Second Protocol for the Protection of Cultural Property in the Event of Armed Conflict, The Hague, 26 March 1999, Article 22(1).
Statute of the Special Court for Sierra Leone
Article 6(3) of the 2002 Statute of the Special Court for Sierra Leone, dealing with “Individual criminal responsibility”, provides:
The fact that any of the acts referred to in articles 2 to 4 of the present Statute [crimes against humanity, violations of common Article 3 of the 1949 Geneva Conventions and the 1977 Additional Protocol II, and other serious violations of international humanitarian law] was committed by a subordinate does not relieve his or her superior of criminal responsibility if he or she knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior had failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof. 
Statute of the Special Court for Sierra Leone, annexed to the 2002 Agreement on the Special Court for Sierra Leone, Freetown, 16 January 2002, annexed to Letter dated 6 March 2002 from the UN Secretary-General to the President of the UN Security Council, UN Doc. S/2002/246, 8 March 2002, p. 29, Article 6(3).
Convention on Enforced Disappearance
Article 6(1) of the 2006 Convention on Enforced Disappearance provides:
Each State Party shall take the necessary measures to hold criminally responsible at least:
(b) A superior who:
(i) Knew, or consciously disregarded information which clearly indicated, that subordinates under his or her effective authority and control were committing or about to commit a crime of enforced disappearance;
(ii) Exercised effective responsibility for and control over activities which were concerned with the crime of enforced disappearance; and
(iii) Failed to take all necessary and reasonable measures within his or her power to prevent or repress the commission of an enforced disappearance or to submit the matter to the competent authorities for investigation and prosecution;
(c) Subparagraph (b) above is without prejudice to the higher standards of responsibility applicable under relevant international law to a military commander or to a person effectively acting as a military commander. 
International Convention for the Protection of all Persons from Enforced Disappearance, adopted by the UN General Assembly, Res. 61/177, 20 December 2006, Annex, Article 6(1).
Statute of the Special Tribunal for Lebanon
Article 3(2) of the 2007 Statute of the Special Tribunal for Lebanon provides:
With respect to superior and subordinate relationships, a superior shall be criminally responsible for any of the crimes set forth in article 2 of this Statute 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:
(a) The superior either knew, or consciously disregarded information that clearly indicated that the subordinates were committing or about to commit such crimes;
(b) The crimes concerned activities that were within the effective responsibility and control of the superior; and
(c) 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. 
Statute of the Special Tribunal for Lebanon, attached to the Agreement between the UN and the Lebanese Republic on the Establishment of a Special Tribunal for Lebanon annexed to UN Security Council Resolution 1757 of 30 May 2007, Article 3(2).
Basic Principles on the Use of Force and Firearms by Law Enforcement Officials
Paragraph 24 of the 1990 Basic Principles on the Use of Force and Firearms by Law Enforcement Officials provides:
Governments and law enforcement agencies shall ensure that superior officers are held responsible if they know, or should have known, that law enforcement officials under their command are resorting, or have resorted, to the unlawful use of force and firearms, and they did not take all measures in their power to prevent, suppress or report such use. 
Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, 27 August–7 September 1990, UN Doc. A/CONF.144/28/Rev.1, 1990, p. 112, § 24.
ILC Draft Code of Crimes against the Peace and Security of Mankind (1991)
Article 12 of the 1991 ILC Draft Code of Crimes against the Peace and Security of Mankind, entitled “Responsibility of the superior”, provides:
The fact that a crime against the peace and security of mankind was committed by a subordinate does not relieve his superiors of criminal responsibility, if they knew or had information enabling them to conclude, in the circumstances at the time, that the subordinate was committing or was going to commit such a crime and if they did not take all feasible measures within their power to prevent or repress the crime. 
Draft Code of Crimes against the Peace and Security of Mankind, adopted by the International Law Commission, reprinted in Report of the International Law Commission on the work of its forty-third session, 29 April–19 July 1991, UN Doc. A/46/10, 1991, Article 12.
ICTY Statute
Article 7(3) of the 1993 ICTY Statute provides:
The fact that any of the acts referred to in articles 2 to 5 of the present Statute was committed by a subordinate does not relieve his superior of criminal responsibility if he knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof. 
Statute of the International Criminal Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, adopted by the UN Security Council, Res. 827, 25 May 1993, as amended by Res. 1166, 13 May 1998 and by Res. 1329, 30 November 2000, Article 7(3).
Guidelines on the Protection of the Environment in Times of Armed Conflict
Section 20 of the 1994 Guidelines on the Protection of the Environment in Times of Armed Conflict provides:
In the event of breaches of rules of international humanitarian law protecting the environment, measures shall be taken to stop any such violation and to prevent further breaches. Military commanders are required to prevent and, where necessary, to suppress and to report to competent authorities breaches of these rules. 
Revised Guidelines for Military Manuals and Instructions on the Protection of the Environment in Times of Armed Conflict, prepared by the International Committee of the Red Cross and presented to the UN Secretary-General, annexed to Report of the Secretary-General on the United Nations Decade of International Law, UN Doc. A/49/323, 19 August 1994, pp. 49–53, Section 20.
ICTR Statute
Article 6(3) of the 1994 ICTR Statute provides:
The fact that any of the acts referred to in articles 2 to 4 of the present Statute was committed by a subordinate does not relieve his or her superior of criminal responsibility if he or she knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof. 
Statute of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law in the Territory of Rwanda and Rwandan citizens responsible for genocide and other such violations committed in the territory of neighbouring States between 1 January 1994 and 31 December 1994, adopted by the UN Security Council, Res. 955, 8 November 1994, as amended by Res. 1165, 30 April 1998, and by Res. 1329, 30 November 2000, Article 6(3).
ILC Draft Code of Crimes against the Peace and Security of Mankind (1996)
Article 2(3) of the 1996 ILC Draft Code of Crimes against the Peace and Security of Mankind, entitled “Individual responsibility”, provides:
An individual shall be responsible for a crime set out in article 17, 18, 19 or 20 if that individual:
(c) Fails to prevent or repress the commission of such a crime in the circumstances set out in article 6. 
Draft Code of Crimes against the Peace and Security of Mankind, adopted by the International Law Commission, reprinted in Report of the International Law Commission on the work of its forty-eighth session, 6 May–26 July 1996, UN Doc. A/51/10, 1996, Article 2(3).
ILC Draft Code of Crimes against the Peace and Security of Mankind (1996)
Article 6 of the 1996 ILC Draft Code of Crimes against the Peace and Security of Mankind, entitled “Responsibility of the superior”, provides:
The fact that a crime against the peace and security of mankind was committed by a subordinate does not relieve his superiors of criminal responsibility, if they knew or had reason to know, in the circumstances at the time, that the subordinate was committing or was going to commit such a crime and if they did not take all necessary measures within their power to prevent or repress the crime. 
Draft Code of Crimes against the Peace and Security of Mankind, adopted by the International Law Commission, reprinted in Report of the International Law Commission on the work of its forty-eighth session, 6 May–26 July 1996, UN Doc. A/51/10, 1996, Article 6.
UNTAET Regulation No. 2000/15
Section 16 of the UNTAET Regulation No. 2000/15 provides:
In addition to other grounds of criminal responsibility under the present regulation for serious criminal offences referred to in Sections 4 to 7 of the present regulation [i.e. genocide, crimes against humanity, war crimes and torture], the fact that any of the acts referred to in the said Sections 4 to 7 was committed by a subordinate does not relieve his superior of criminal responsibility if he knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof. 
Regulation on the Establishment of Panels with Exclusive Jurisdiction over Serious Criminal Offences, UN Doc. UNTAET/REG/2000/15, Dili, 6 June 2000, Section 16.
Argentina
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. 
Argentina, Leyes de Guerra, PC-08-01, Público, Edición 1989, Estado Mayor Conjunto de las Fuerzas Armadas, aprobado por Resolución No. 489/89 del Ministerio de Defensa, 23 April 1990, § 8.02.
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. 
Argentina, Leyes de Guerra, PC-08-01, Público, Edición 1989, Estado Mayor Conjunto de las Fuerzas Armadas, aprobado por Resolución No. 489/89 del Ministerio de Defensa, 23 April 1990, § 8.07.
Australia
Australia’s Commanders’ Guide (1994) states:
ADF [Australian Defence Force] members are obliged to report LOAC breaches to their superior commanders and, where available, ADF legal advisers. Commanders must ensure that processes for reporting LOAC breaches are detailed in standing operating procedures. ADF members who receive reports about alleged breaches are responsible for ensuring that the suspected breach is properly recorded, documented, investigated and any relevant evidence preserved. 
Australia, Law of Armed Conflict, Commanders’ Guide, Australian Defence Force Publication, Operations Series, ADFP 37 Supplement 1 – Interim Edition, 7 March 1994, § 1301.
Australia
Australia’s Defence Force Manual (1994) refers to the “Yamashita principles” and states:
The principles of this doctrine are that the commander will be held responsible if the commander:
a. knows subordinates are going to commit war crimes and does not prevent them,
b. knows subordinates have committed war crimes and does not punish them,
c. should know subordinates are going to commit war crimes and does not prevent them, or
d. should know subordinates have committed war crimes and does not punish them. 
Australia, Manual on Law of Armed Conflict, Australian Defence Force Publication, Operations Series, ADFP 37 – Interim Edition, 1994, § 1303; see also Law of Armed Conflict, Commanders’ Guide, Australian Defence Force Publication, Operations Series, ADFP 37 Supplement 1 – Interim Edition, 7 March 1994, § 1203.
The manual also states:
Specifically, a commander will be held accountable if [he] knows that a breach is occurring and fails to intervene. A commander is also liable for prosecution if the commander fails to act to prevent a breach of LOAC of which the commander should have known. 
Australia, Manual on Law of Armed Conflict, Australian Defence Force Publication, Operations Series, ADFP 37 – Interim Edition, 1994, § 1304; see also Law of Armed Conflict, Commanders’ Guide, Australian Defence Force Publication, Operations Series, ADFP 37 Supplement 1 – Interim Edition, 7 March 1994, § 1204.
The manual further states:
Each ADF [Australian Defence Force] member is also responsible for ensuring that breaches are properly reported and documented. Reporting of LOAC breaches, whether committed by the enemy or ADF members, should be made to superiors. Commanders must ensure that processes for reporting LOAC breaches are detailed in standard operating procedures. 
Australia, Manual on Law of Armed Conflict, Australian Defence Force Publication, Operations Series, ADFP 37 – Interim Edition, 1994, § 1307; see also Commanders’ Guide (1994), § 1208.
Australia
Australia’s LOAC Manual (2006) refers to a doctrine known as the “Yamashita principles”:
The principles of this doctrine are that the commander will be held responsible if the commander:
• knows subordinates are going to commit war crimes and does not prevent them,
• knows subordinates have committed war crimes and does not punish them,
• should know subordinates are going to commit war crimes and does not prevent them, or
• should know subordinates have committed war crimes and does not punish them. 
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, § 13.5.
The manual further states that “a commander will be held accountable … for failing to intervene if the commander knows that a breach is occurring. A commander is also accountable if the commander fails to prevent a breach of the LOAC of which the commander should have known.” 
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, § 13.6.
The LOAC Manual (2006) replaces both the Defence Force Manual (1994) and the Commanders’ Guide (1994).
Belgium
Belgium’s Disciplinary Regulations (1991) states: “Superiors may be criminally or disciplinarily liable if they knew or should have known that a subordinate was committing or going to commit an offence and failed to take all measures to prevent, suppress or punish this offence.” 
Belgium, Règlement de Discipline pour l’Armée, Etat-Major Général, Division Personnel, 18 November 1991, § 404; see also § 402.
Benin
Benin’s Military Manual (1995) provides: “Each military commander is responsible for respect for the law of war in his sphere of command.” 
Benin, Le Droit de la Guerre, III fascicules, Forces Armées du Bénin, Ministère de la Défense nationale, 1995, Fascicule II, p. 14.
The manual adds:
In case of breach of the law of war, [the military commander] shall ensure that the breach ceases and that a disciplinary or criminal action is engaged. In any case, the responsibility of the military commander regarding violations committed by his subordinates is total if it is established that he has not taken any measure to prevent or repress these violations. 
Benin, Le Droit de la Guerre, III fascicules, Forces Armées du Bénin, Ministère de la Défense nationale, 1995, Fascicule II, p. 15.
The manual also instructs soldiers to “prevent any breach of these instructions. Report to your superior any violation [of IHL] of which you are aware. Any breach of the laws of war is punishable.” 
Benin, Le Droit de la Guerre, III fascicules, Forces Armées du Bénin, Ministère de la Défense nationale, 1995, Fascicule II, p. 19.
Burundi
Burundi’s Regulations on International Humanitarian Law (2007) states:
The fact that a breach of the law of war was committed by a subordinate does not absolve his superiors from penal or disciplinary responsibility … :
- if they knew or possessed information which would have enabled them to conclude, in the circumstances at the time, that this subordinate committed or was going to commit such a breach; and
- if they have not taken all feasible measures in their power to prevent or repress this breach. 
Burundi, Règlement n° 98 sur le droit international humanitaire, Ministère de la Défense Nationale et des Anciens Combattants, Projet “Moralisation” (BDI/B-05), August 2007, Part I bis, p. 66; see also Part I bis, pp. 43, 67 and 97.
The Regulations also states:
[E]ach commander at any level [within the military hierarchy] must, in case of a violation of the law of war, ensure … that the violation stops … [and] that disciplinary or penal action is taken. Command responsibility extends to violations of the law of war which result from a failure to act when under duty to do so. 
Burundi, Règlement n° 98 sur le droit international humanitaire, Ministère de la Défense Nationale et des Anciens Combattants, Projet “Moralisation” (BDI/B-05), August 2007, Part I bis, p. 114; see also Part I bis, p. 43.
Cameroon
Cameroon’s Instructor’s Manual (1992) provides: “Any act contrary to respect for the Law of War must be punished. Any commander who shows weakness or indulgence in that field shoulders the responsibility.” 
Cameroon, Droit international humanitaire et droit de la guerre, Manuel de l’instructeur en vigueur dans les Forces Armées, Présidence de la République, Ministère de la Défense, Etat-major des Armées, Troisième Division, Edition 1992, p. 25, § 121(1).
Cameroon
Cameroon’s Instructor’s Manual (2006) states:
Military commanders must prevent members of the armed forces from committing grave breaches [of IHL] and, if necessary, punish them and report them to higher authorities. They become criminally responsible if they have not taken all necessary and reasonable measures … to impede or punish the execution [of such crimes] or refer them to the competent authorities for inquiry or prosecution. 
Cameroon, Droit des conflits armés et droit international humanitaire, Manuel de l’instructeur en vigueur dans les forces de défense, Ministère de la Défense, Présidence de la République, Etat-major des Armées, 2006, p. 296, § 662.
The manual also states:
The repression of grave breaches [of IHL] applies to persons who have committed or ordered to commit a grave breach. The criminal responsibility is also engaged if a grave breach is provoked by a failure to act. 
Cameroon, Droit des conflits armés et droit international humanitaire, Manuel de l’instructeur en vigueur dans les forces de défense, Ministère de la Défense, Présidence de la République, Etat-major des Armées, 2006, p. 296, § 662.
The manual further states with regard to command responsibility: “Any act contrary to … the law of armed conflict and international humanitarian law must be punished. Any commander who shows … leniency in this respect may become personally liable.” 
Cameroon, Droit des conflits armés et droit international humanitaire, Manuel de l’instructeur en vigueur dans les forces de défense, Ministère de la Défense, Présidence de la République, Etat-major des Armées, 2006, p. 99, § 361; see also p. 141, § 421.
Canada
Canada’s LOAC Manual (1999) states:
Commanders may be held personally and criminally liable in respect of illegal acts committed by those under their command, especially if they knew or should have known that such acts were being committed or were likely to be committed. 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 15-1, § 7.
The manual also states:
Heads of state as well as members of the administration may be held personally and criminally responsible for illegalities committed … by persons under their authority if they knew, should have known or acquiesced in such behaviour. 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 15-2, § 10.
The manual further states:
The fact that any such crime [i.e. a war crime] was committed by a subordinate does not relieve a superior of criminal responsibility if the superior knew or had reason to believe that the subordinate was about to commit a war crime, and the superior failed to take the necessary and reasonable measures to prevent or to punish the crime. 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 16-4, § 27.
In addition, the manual states:
A commander who is aware that subordinates or other persons under his control are about to commit or have committed a breach of the LOAC is required to initiate such steps as are necessary to prevent violations of the LOAC and, where appropriate, to initiate disciplinary or penal action against these persons. 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 16-7, § 51.
The manual also states:
The fact that a subordinate committed a breach of the LOAC does not absolve superiors from penal or disciplinary responsibility. Superiors are guilty of an offence if they knew, or had information which should have enabled them to conclude, in the circumstances ruling at the time, that the subordinate was committing or about to commit a breach of the LOAC, and they did not take all feasible measures within their power to prevent or repress the breach. 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 16-7, § 53.
The manual also provides: “Commanders are responsible, with respect to members of the armed forces under their command and other persons under their control, to prevent and, where necessary, to suppress and to report to competent authorities, breaches of the LOAC.” 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 16-7, § 49.
Canada
Canada’s Code of Conduct (2001) contains the rule: “Report and take appropriate steps to stop breaches of the Law of Armed Conflict and these rules. Disobedience of the Law of Armed Conflict is a crime.” 
Canada, Code of Conduct for CF Personnel, Office of the Judge Advocate General, 4 June 2001, Rule 11.
The Code of Conduct goes on to say:
It is also of the utmost importance that any breach of the Code of Conduct or other provision of the Law of Armed Conflict be reported without delay. A failure to comply with the Code of Conduct represents a failure in the “habit of obedience’, the cornerstone of discipline. 
Canada, Code of Conduct for CF Personnel, Office of the Judge Advocate General, 4 June 2001, Rule 11, § 1.
The Code of Conduct adds:
If a CF [Canadian Forces] member believes that the Law of Armed Conflict or these rules are being breached, the member must take the appropriate steps to stop the illegal action. If the CF member is not in a position to stop the breach, then the member shall report to the nearest military authority who can take appropriate action. It is recognized that it may sometimes be difficult to report a breach, for example when a junior believes a breach has been committed by a higher ranking member. However, there is always a way to report a breach. The member can report to his or her superiors in the chain of command, the military police, a chaplain, a legal officer or any other person in authority. If a breach of the Law of Armed Conflict or these rules has already occurred, the member shall report that breach. The old adage “bad news doesn’t get better with time” definitely applies to these types of breaches. Any attempt to cover up a breach of the Law of Armed Conflict or these rules is in itself an offence under the Code of Service Discipline. Experience has shown that isolated breaches committed by a few members of the force, even a momentary lapse in one’s duty, could dishonour the country and adversely affect the accomplishment of the overall mission.
It is essential that any alleged breaches of these rules and the Law of Armed Conflict be investigated rapidly in as impartial a manner as possible. An impartial investigation will not only assist in bringing violators to justice, thereby maintaining discipline, but will also provide the best opportunity to clear anyone who has not acted improperly. In most cases that investigation will be carried out by the military police or National Investigation Service. 
Canada, Code of Conduct for CF Personnel, Office of the Judge Advocate General, 4 June 2001, Rule 11, §§ 2–3.
Canada
Canada’s LOAC Manual (2001) states in its chapter on the treatment of prisoners of war (PWs):
1014. Responsibility
1. The responsibility for the treatment of PWs rests upon the Detaining Power. Failure to properly care for PWs may make that power liable to pay compensation, while the individuals responsible for such ill-treatment or for allowing it to occur, are liable to be tried as war criminals. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1014.
In its chapter entitled “Preventative and enforcement measures and the role of protecting powers”, the manual states:
1504. Command responsibility
1. Commanders have a responsibility to ensure that forces under their command are aware of their responsibilities related to the LOAC and that they behave in a manner consistent with the LOAC. Commanders may be held personally and criminally liable in respect of illegal acts committed by those under their command, especially if they knew or should have known that such acts were being committed or were likely to be committed …
1506. State responsibility
1. Heads of state as well as members of the administration may be held personally and criminally responsible for illegalities committed in the performance of their official duties or by persons under their authority if they knew, should have known or acquiesced in such behaviour. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, §§ 1504 and 1506.1 [sic].
In its chapter on “War crimes, individual criminal liability and command responsibility”, the manual states:
The fact that any such crime [i.e. a war crime] was committed by a subordinate does not relieve a superior of criminal responsibility if the superior knew or had reason to believe that the subordinate was about to commit a war crime, and the superior failed to take the necessary and reasonable measures to prevent or to punish the crime. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1610.4.
In the same chapter, the manual further states:
1621. Duty of commanders
1. Commanders are responsible, with respect to members of the armed forces under their command and other persons under their control, to prevent and, where necessary, to suppress and to report to competent authorities, breaches of the LOAC.
3. A commander who is aware that subordinates or other persons under his control are about to commit or have committed a breach of the LOAC is required to initiate such steps as are necessary to prevent violations of the LOAC and, where appropriate, to initiate disciplinary or penal action against these persons.
1622. Failure to act
1. The fact that a subordinate committed a breach of the LOAC does not absolve superiors from penal or disciplinary responsibility. Superiors are guilty of an offence if they knew, or had information which should have enabled them to conclude, in the circumstances ruling at the time, that the subordinate was committing or about to commit a breach of the LOAC, and they did not take all feasible measures within their power to prevent or repress the breach. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, §§ 1621.1 and 3 and 1622.
Canada
Canada’s Prisoner of War Handling and Detainees Manual (2004) states:
Any evidence or allegation of grave breaches of the [the 1949 Geneva Conventions and the 1977 Additional Protocol I] are to be reported to an appropriate authority for further investigation. Such reporting shall be through the chain of command for a member of the Armed Forces, and through the PW Camp Commandant for a PW [prisoners of war]. 
Canada, Prisoner of War Handling, Detainees, Interrogation and Tactical Questioning in International Operations, B-GJ-005-110/FP-020, National Defence Headquarters, 1 August 2004, § 103.1.
Canada
Canada’s Code of Conduct After Capture Manual (2004) states:
The responsibility for the treatment of PWs [prisoners of war] rests upon the detaining power. Failure to care for PWs properly may make that power pay compensation, while the individuals responsible for such ill-treatment or for allowing it to occur are liable to be tried as war criminals. 
Canada, The Code of Conduct After Capture for the Canadian Forces, B-GJ-005-110/FP-010, National Defence Headquarters, 28 October 2004, § 301.
Canada
Rule 11 of Canada’s Code of Conduct (2005) states:
Report and take appropriate steps to stop breaches of the Law of Armed Conflict and these rules. Disobedience of the Law of Armed Conflict is a crime.
1. … It is also of the utmost importance that any breach of the Code of Conduct or other provision of the Law of Armed Conflict be reported without delay. A failure to comply with the Code of Conduct represents a failure in the “habit of obedience,” the cornerstone of discipline.
2. … If a CF [Canadian Forces] member believes that the Law of Armed Conflict or these rules are being breached, the member must take the appropriate steps to stop the illegal action. If the CF member is not in a position to stop the breach, then the member shall report to the nearest military authority who can take appropriate action. It is recognized that it may sometimes be difficult to report a breach, for example when a junior member believes a breach has been committed by a higher ranking member. However, there is always a way to report a breach. The member can report to his or her superiors in the chain of command, the military police, a chaplain, a legal officer or any other person in authority. If a breach of the Law of Armed Conflict or these rules has already occurred, the member shall report that breach. The old adage “bad news doesn’t get better with time” definitely applies to these types of breaches. Any attempt to cover up a breach of the Law of Armed Conflict or these rules is in itself an offence under the Code of Service Discipline. Experience has shown that isolated breaches committed by a few members of the force, even a momentary lapse in one’s duty, could dishonour the country and adversely affect the accomplishment of the overall mission.
3. It is essential that any alleged breaches of these rules and the Law of Armed Conflict be investigated rapidly in as impartial a manner as possible. An impartial investigation will not only assist in bringing violators to justice, thereby maintaining discipline, but will also provide the best opportunity to clear anyone who has not acted improperly. In most cases that investigation will be carried out by the military police or National Investigation Service. 
Canada, Code of Conduct for CF Personnel, Office of the Judge Advocate General, 2005, Rule 11, §§ 1–3.
Central African Republic
The Central African Republic’s Instructor’s Manual (1999) states in Volume 2 (Instruction for group and patrol leaders):
In the event of a violation of the law of war military commanders must ensure that:
- the violation ceases;
- that a disciplinary or criminal action is engaged.
In any case, the responsibility of the military commander regarding violations committed by his subordinates is total if it is established that he has not taken any measure to prevent or repress these violations. 
Central African Republic, Le Droit de la Guerre, Fascicule No. 2: Formation pour l’obtention du certificat technique No. 2 (Chef de Groupe), du certificat Inter-Armé (CIA), du certificat d’aptitude de Chef de Patrouille (CACP), Ministère de la Défense, Forces Armées Centrafricaines, 1999, Chapter IV, Section II.
Central African Republic
The Central African Republic’s Disciplinary Regulations (2009) lists as an offence against honour, integrity and general military duties: “permitting the accomplishment of an act that is manifestly unlawful”. 
Central African Republic, Décret 09.411 portant règlement de discipline générale dans les Armées, Ministre de la Défense Nationale, des Anciens Combattants, des Victimes de Guerre, du Désarmement et de la Restructuration de l’Armée, 10 December 2009, Article 38(12).
Chad
Chad’s Instructor’s Manual (2006) states that a commander is criminally liable if he fails to:
- prevent the violation when he knows, or must know, that it is to be committed;
- repress the violation if it is not criminal in nature;
- denounce the violation to the legal authority if it is criminal in nature. 
Chad, Droit international humanitaire, Manuel de l’instructeur en vigueur dans les forces armées et de sécurité, Ministère de la Défense, Présidence de la République, Etat-major des Armées, 2006, p. 110; see also pp. 70 and 76.
Colombia
Colombia’s Instructors’ Manual (1999) states that to prevent violations of human rights, it is necessary “to report to the superior any irregularity which may constitute a violation of Human Rights [and] to report violations of Human Rights to the superior”. 
Colombia, Derechos Humanos & Derecho Internacional Humanitario – Manual de Instrucción de la Guía de Conducta para el Soldado e Infante de Marina, Ministerio de Defensa Nacional, Oficina de Derechos Humanos, Fuerzas Militares de Colombia, Santafé de Bogotá, 1999, p. 13.
Côte d’Ivoire
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.
[Observation]:
- If you do not report violations, you make yourself an accomplice in them. 
Côte d’Ivoire, Droit de la guerre, Manuel d’instruction, Livre I: Instruction de base, Ministère de la Défense, Forces Armées Nationales, November 2007, pp. 21 and 23; see also Droit de la guerre, Manuel d’instruction, Livre II: Instruction du gradé et du cadre, Manuel de l’instructeur, Ministère de la Défense, Forces Armées Nationales, November 2007, p. 16; Droit de la guerre, Manuel d’instruction, Livre III, Tome 1: Instruction de l’élève officier d’active de 1ère année, Manuel de l’élève, Ministère de la Défense, Forces Armées Nationales, November 2007, p. 39; Droit de la guerre, Manuel d’instruction, Livre IV: Instruction du chef de section et du commandant de compagnie, Manuel de l’élève, Ministère de la Défense, Forces Armées Nationales, November 2007, p. 66.
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. 
Côte d’Ivoire, Droit de la guerre, Manuel d’instruction, Livre II: Instruction du gradé et du cadre, Manuel de l’instructeur, Ministère de la Défense, Forces Armées Nationales, November 2007, pp. 17-18 and 30; see also Droit de la guerre, Manuel d’instruction, Livre III, Tome 1: Instruction de l’élève officier d’active de 1ère année, Manuel de l’élève, Ministère de la Défense, Forces Armées Nationales, November 2007, p. 40; Droit de la guerre, Manuel d’instruction, Livre IV: Instruction du chef de section et du commandant de compagnie, Manuel de l’élève, Ministère de la Défense, Forces Armées Nationales, November 2007, p. 65.
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, Droit de la guerre, Manuel d’instruction, Livre III, Tome 2: Instruction de l’élève officier d’active de 2ème année, Manuel de l’instructeur, Ministère de la Défense, Forces Armées Nationales, November 2007, pp. 37 and 38–41; see also Droit de la guerre, Manuel d’instruction, Livre IV: Instruction du chef de section et du commandant de compagnie, Manuel de l’élève, Ministère de la Défense, Forces Armées Nationales, November 2007, pp. 68–69.
Croatia
Croatia’s Commanders’ Manual (1992) provides: “The commander makes sure that violations of the law of war cease and ensures that disciplinary action is taken.” 
Croatia, Basic Rules of the Law of Armed Conflicts – Commanders’ Manual, Republic of Croatia, Ministry of Defence, 1992, § 20.
Djibouti
Djibouti’s Manual on International Humanitarian Law (2004) states:
Means of repression
These are means which implement the obligation of parties to a conflict to prevent and stop any violation [of IHL]. Concerning mechanisms of repression, the following are stressed in particular:
- The criminal and disciplinary responsibility of superiors and the obligation which military commanders or commanders of the police force have to repress and denounce violations [of IHL]. 
Djibouti, Manuel sur le droit international humanitaire et les droits de l’homme applicables au travail du policier, Ministère de l’Intérieur, Direction Générale de la Police, 2004, p. 14.
Dominican Republic
The Dominican Republic’s Military Manual (1980) tells soldiers:
You must report crimes immediately through your chain of command. If the crime involves your immediate superiors, report to their superior. You may also report violations of the laws of war to the inspector general, provost marshal, chaplain or judge advocate. In any case, the law requires that you report actual or suspected violations immediately so that evidence will not be misplaced or disappear. 
Dominican Republic, La Conducta en Combate según las Leyes de la Guerra, Escuela Superior de las FF. AA. “General de Brigada Pablo Duarte”, Secretaría de Estado de las Fuerzas Armadas, May 1980, p. 12.
El Salvador
El Salvador’s Human Rights Charter of the Armed Forces provides: “All violations must be reported to the immediate superior.” 
El Salvador, Derechos Humanos. Decálogo de la Fuerza Armada de El Salvador, Ministerio de la Defensa Nacional, Departamento de Derecho Humanitario, undated, p. 16.
France
France’s LOAC Summary Note (1992) provides: “The commander shall ensure, by exerting his control, that violations of the law of war cease and that disciplinary or penal action is initiated when necessary.”  
France, Fiche de Synthèse sur les Règles Applicables dans les Conflits Armés, Note No. 432/DEF/EMA/OL.2/NP, Général de Corps d’Armée Voinot (pour l’Amiral Lanxade, Chef d’Etat-major des Armées), 1992, § 5.1.
France
France’s LOAC Manual (2001) provides:
Each individual is responsible for the violations of the law of armed conflicts for which he/she is guilty, whatever the circumstances may be … The commanders are responsible both for the acts they commit [themselves] and for the orders they give, as well as for the breaches which they allow their subordinates to perform, knowingly, for lack of control or for not having taken the necessary measures to oppose them. 
France, Manuel de droit des conflits armés, Ministère de la Défense, Direction des Affaires Juridiques, Sous-Direction du droit international humanitaire et du droit européen, Bureau du droit des conflits armés, 2001, p. 113.
Germany
Germany’s Military Manual (1992) states that the superior “is obliged to prevent and, where necessary, to suppress or to report to competent authorities breaches of international law”. 
Germany, Humanitarian Law in Armed Conflicts – Manual, DSK VV207320067, edited by The Federal Ministry of Defence of the Federal Republic of Germany, VR II 3, August 1992, English translation of ZDv 15/2, Humanitäres Völkerrecht in bewaffneten Konflikten – Handbuch, August 1992, § 138.
The manual further states:
When a disciplinary superior learns about incidents substantiating suspicion that international humanitarian law has been violated, he shall clear up the facts and consider as to whether disciplinary measures are to be taken. If the disciplinary offence constitutes a criminal offence, he shall refer the case to the appropriate criminal prosecution authority when criminal prosecution seems to be indicated. 
Germany, Humanitarian Law in Armed Conflicts – Manual, DSK VV207320067, edited by The Federal Ministry of Defence of the Federal Republic of Germany, VR II 3, August 1992, English translation of ZDv 15/2, Humanitäres Völkerrecht in bewaffneten Konflikten – Handbuch, August 1992, § 1213.
Hungary
Hungary’s Military Manual (1992) provides that it is the “responsibility of every commander [to] ensure knowledge of the law of war”. It adds: “In cases of breaches [the commander] shall ensure that they cease and take disciplinary or penal action.” 
Hungary, A Hadijog, Jegyzet a Katonai, Föiskolák Hallgatói Részére, Magyar Honvédség Szolnoki Repülötiszti Föiskola, 1992, p. 40.
Italy
Italy’s LOAC Elementary Rules Manual (1991) provides: “The commander makes sure that violations of the law of war cease and ensures that disciplinary action is taken.” 
Italy, Regole elementari di diritto di guerra, SMD-G-012, Stato Maggiore della Difesa, I Reparto, Ufficio Addestramento e Regolamenti, Rome, 1991, § 20.
Madagascar
Madagascar’s Military Manual (1994) provides: “The commander shall ensure that breaches of the law of war cease and that disciplinary or penal action is initiated.” 
Madagascar, Le Droit des Conflits Armés, Ministère des Forces Armées, August 1994, Fiche No. 4-O, § 20.
Mexico
Mexico’s Army and Air Force Manual (2009) states: “Military commanders … are … responsible for preventing any breaches of these provisions, suppressing them and, if necessary, reporting them to the competent authorities.” 
Mexico, Manual de Derecho Internacional Humanitario para el Ejército y la Fuerza Área Mexicanos, Ministry of National Defence, June 2009, § 173.
Netherlands
The Military Manual (1993) of the Netherlands refers to Article 86 of the 1977 Additional Protocol I and states: “A superior is not automatically criminally liable for every criminal behaviour of his subordinates. He must have known about it or at least have had the necessary information about it and he must have neglected to do all in his power to prevent or suppress the criminal behaviour”. 
Netherlands, Toepassing Humanitair Oorlogsrecht, Voorschift No. 27-412/1, Koninklijke Landmacht, Ministerie van Defensie, 1993, p. IX-6.
Referring to Article 87 of the 1977 Additional Protocol I, the manual further states:
Commanders are also obliged to take measures in order to prevent their subordinates from committing war crimes. They must take measures to stop the committing of war crimes … This can involve criminal or disciplinary proceedings against the acts committed, but also administrative measures (for example suspension or transfer). 
Netherlands, Toepassing Humanitair Oorlogsrecht, Voorschift No. 27-412/1, Koninklijke Landmacht, Ministerie van Defensie, 1993, p. IX-7.
Netherlands
The Military Handbook (1995) of the Netherlands states:
Commanders … are obliged to take measures to prevent that their subordinates commit war crimes. Every soldier has the duty to prevent the commission of war crimes, to stop them and to report them. The report shall be made to the Royal Military Police. In addition, report should be made to the commander. 
Netherlands, Handboek Militair, Ministerie van Defensie, 1995, p. 7–44.
Netherlands
The Military Manual (2005) of the Netherlands states:
The commanding officer is responsible for the behaviour of the unit(s) under his orders. A commanding officer (and any other senior military officer) is bound to prevent planned and actual violations and to take measures where necessary, and where they may be expected of him, to prevent repetition and/or make punishment possible. A commanding officer, like those who break these rules, may be punished if he does not properly fulfil his duty as a commanding officer. 
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 1074.
The manual further states:
1121. Individual personal responsibility and the responsibility of senior military figures and commanding officers
Every member of the military is personally responsible for compliance with the humanitarian law of war. Senior military officers should emphasize this by their exemplary personal behaviour. They should make it clear that everyone must be guided by conscience in upholding the humanitarian law of war.
1122. Action against violations, personal penal liability, the penal liability of the senior and/or commanding officer and the punishment of violations contribute to compliance with the humanitarian law of war. This will be dealt with in more detail below.
Section 4 - War Crimes
1136. Commanding officers are bound to take measures to prevent their subordinates from committing war crimes. They must therefore counter war crimes and report them to the competent authorities for settlement. This may mean dealing with the acts committed, in terms of penal law or discipline any action, but also administrative measures (e.g., suspension or dismissal from a position).
A war crime is punishable in Dutch law. A possible breach of the humanitarian law of war must therefore be reported to the Royal Marechaussee or Public Prosecutor’s Office, regardless of where it happened and the suspected perpetrator. At the same time, reporting up the line of command is possible.
Section 6 - Penal liability
1146. Any member of the armed forces holds personal responsibility to act in accordance with the humanitarian law of war. Moreover, he must do everything within his power to ensure that others so act. Lastly, he should take measures whenever he becomes aware of breaches of the humanitarian law of war.
1147. The humanitarian law of war is not binding on States alone, but also on individuals. Penal liability exists not only for crimes an individual has committed, but for connivance in the crimes of others, as an accessory, perpetrator, accomplice or inciter.
1148. Attempts and preparation of war crimes (e.g., by providing means of transport or accommodation) are also punishable.
1149. The fact that a violation of the humanitarian law of war is committed by a subordinate does not release his superior from his penal or disciplinary responsibility. What matters is whether the superior knew that the subordinate was committing such a violation, and whether he took suitable measures to prevent or counter such violation. A superior is therefore not automatically legally liable for every misdemeanour of his subordinates: he must have known of them or anyway have held the necessary information about them, and must have omitted to do what he actually could to prevent or counter the misdemeanour.
Liability for criminal offences committed by subordinates in (military) penal law
Article 9 of the International Criminal Offences Act
1. A superior who acts as follows shall be punished with the same penalty as set for acts as in §2:
a. who deliberately allows one of his subordinates to commit such an act;
b. who wilfully omits to take measures where necessary and reasonably expected of him if one of his subordinates has committed, or plans to commit, such an act.
2. Whoever culpably fails to take measures where necessary and reasonably expected of him if he has reasonable grounds to suspect that one of his subordinates has committed, or is planning to commit, such an offence, shall be punished by a penalty not exceeding two-thirds of the maximum main penalties set for acts as defined in §2.
3. If, in the case of the second paragraph life imprisonment is set for the act, a custodial sentence not exceeding fifteen years shall be imposed.
Article 148 of the Military Criminal Code
A member of the military who deliberately permits a subordinate to commit a crime or who, having witnessed a crime committed by a subordinate, deliberately omits to take such measures as may be necessary and reasonably expected of him, shall be punished as an accomplice.
Article 149 of the Military Criminal Code
A member of the military who wilfully omits to take such steps as may be necessary and reasonably expected of him if he has reasonable grounds to suspect that a member of the military under his orders is committing or planning to commit a crime shall be punished by up to six months’ imprisonment or a category-three fine.
1150. The law relating to military discipline contains a corresponding provision concerning the liability of military superiors for disciplinary offences.
Article 27 of the Military Discipline Act
A member of the military who, knowing that a subordinate is committing or has committed an infringement of a rule of behaviour under this Act, omits to take measures has acted in breach of military discipline.
1151. The superior’s liability for (international) penal offences committed by subordinates is governed by Article 9 of the International Criminal Offences Act. The current term internationally is “command superior responsibility”.
1152. This liability of superior ranks has long been recognized in the humanitarian law of war. In the last years of the 20th century, it gained importance through legal precedents, especially of the International Criminal Tribunal for the former Yugoslavia (ICTY).
1153. The concept of superior rank’s responsibility originates from the humanitarian law of war and from the great responsibility which military commanders bear for the behaviour of the forces under their command, with the commensurate supervisory task and power.
1154. The crux of the matter is that a hierarchical relationship exists between two persons. One (the superior or leader) can exercise effective control over the other’s behaviour. The other is the subordinate. The term “superior” in the WIM [the International Criminal Offences Act] contains two elements. The military commander, or whoever de facto acts as such, is the person who actually exercises command or control over, or actually leads, one or more subordinates. This also applies to any person in a civilian capacity who exercises actual leadership over one or more subordinates. It should be noted that military commander is a broader term than its civilian counterpart. Moreover, more is expected of a military superior than a civilian superior. Formal legal command/subordination is not necessary, and even not sufficient if the leader can in fact exercise effective control. Such command relations in fact may suffice for responsibility of the commander. They may also exist outside the conventional State armies, in all kinds of less ordered and regulated armed groups, or in situations where the official and legal leaders are merely puppets of the true leaders behind the scenes. However, holding considerable influence but no effective control over the behaviour of others is not deemed sufficient for command superior responsibility.
1155. A superior who has knowledge or serious suspicion of crimes planned or executed by subordinates, but who fails to take the measures against them which lie within his power, may be liable to prosecution on the grounds of superior responsibility. This is a separate, independent liability, without prejudice to the possibility of punishment of the commander, in some circumstances, as a “common” perpetrator, e.g., an inciter or accomplice. A peculiar feature of superior responsibility is also that it sometimes arises only after the subordinate has committed the crime. The superior’s obligations, if preventive measures had no effect, or were ignored without the superior’s knowledge, require that the superior must take adequate repressive measures later, after the crimes have been committed, in order to ensure that the crimes are brought to justice, and to enforce the disciplinary measures within his power against the offender. In other words, the issue is “failure to prevent or punish”.
1156. The superior may also be liable to criminal prosecution for gross negligence and recklessness if he did not actually know, but must reasonably have suspected that a subordinate had committed, or was planning to commit, a crime and failed to take the necessary (preventive or repressive) measures within his power. Such culpable liability of superiors is based on international law, in treaties (“should have known”) and in legal precedents.
1157. The severity of the punishment reflects the difference in culpability between liability based on deliberate misconduct and liability based on gross negligence (culpa). If the liability is of the latter kind, the maximum penalty is reduced by one-third.
1158. Staff officers may also be held legally liable, even though they hold no power of command or may not act in the place of a commander. Working from headquarters, they may become aware of the planning or committing of war crimes at lower hierarchical levels. If they then omit to draw the matter to the commanding officer’s attention or to report it to other authorized bodies for (legal) investigation, they share legal liability (see point 1147 on accomplices). 
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, §§ 1121–1122, 1136, 1146–1158 and pp. 183 and 187.
[emphasis in original]
New Zealand
New Zealand’s Military Manual (1992) provides:
The commander is personally liable in respect of illegal acts committed by those under his command if he knew or should have known that such acts were being committed or were likely to be committed, and it is part of his responsibility to ensure that the troops under his command are aware of their obligations. 
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 1603(2).
The manual further states:
[The commander] is also liable to punishment if he knew or had information which should have enabled him to conclude, in the circumstances at the time, that a subordinate was committing or going to commit a breach of the law, and failed to take all feasible steps to prevent or repress that breach. 
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 1706(1).
Nigeria
Nigeria’s Military Manual (1994) provides:
Article 87 [of the 1977 Additional Protocol I] thereby enjoins the parties and the parties to the conflict to request Commanders of their troops under control to prevent, and where necessary, to suppress and to report to competent authorities breaches of the conventions and the Protocols. 
Nigeria, International Humanitarian Law (IHL), Directorate of Legal Services, Nigerian Army, 1994, p. 30, § 3.
The manual adds that commanders “should initiate such steps as are necessary to prevent any violations and, where appropriate, to initiate disciplinary or penal action against violators thereof”. 
Nigeria, International Humanitarian Law (IHL), Directorate of Legal Services, Nigerian Army, 1994, p. 30, § 3.
Nigeria
Nigeria’s Military Manual (1994) provides:
Article 87 [of the 1977 Additional Protocol I] thereby enjoins the parties and the parties to the conflict to request Commanders of their troops under control to prevent, and where necessary, to suppress and to report to competent authorities breaches of the [1949 Geneva] conventions and the [1977 Additional] Protocols. 
Nigeria, International Humanitarian Law (IHL), Directorate of Legal Services, Nigerian Army, 1994, p. 30, § 3.
Nigeria
Nigeria’s Manual on the Laws of War provides:
In some cases, commanders are responsible for war-crimes committed by their subordinates. For example, when soldiers commit acts of massacre against the civilian population of an occupied territory or against prisoners of war the responsibility for such acts may rest not only with the actual perpetrators but also with the commander. Such responsibility arises when the acts in question have been committed in pursuance of an order of the commander, when the act is done with the commander’s knowledge or when the commander ought to have known about the act and failed to use all necessary means at his disposal to ensure compliance with the Laws of War. 
Nigeria, The Laws of War, by Lt. Col. L. Ode PSC, Nigerian Army, Lagos, undated, § 8.
Peru
Peru’s Human Rights Charter of the Security Forces (1991) provides: “All alleged violations must immediately be reported to the superior.” 
Peru, Derechos Humanos: Decálogo de las Fuerzas del Orden, Comando Conjunto de las Fuerzas Armadas, Ministerio de Defensa, Ejército Peruano, 1991, p. 21.
Peru
Peru’s IHL Manual (2004) states:
The commander of the theatre of operations assumes and bears overall responsibility for ensuring strict compliance with international humanitarian law. Respect for international humanitarian law is a matter of order and discipline, and this must be taken into account when formulating plans and operational directives. 
Peru, Manual de Derecho Internacional Humanitario para las Fuerzas Armadas, Resolución Ministerial Nº 1394-2004-DE/CCFFAA/CDIH-FFAA, Lima, 1 December 2004, § 24.a.(1).
The manual also states:
In the event of violations of international humanitarian law, commanders must ensure that:
(a) violations cease and appropriate measures are taken to ensure that they do not occur in the future;
(b) disciplinary or criminal action is taken against those responsible for the violations.
It should be understood that, ultimately, responsibility is incurred when violations of international humanitarian law are committed as the result of a failure to act when there is a duty to act. 
Peru, Manual de Derecho Internacional Humanitario para las Fuerzas Armadas, Resolución Ministerial Nº 1394-2004-DE/CCFFAA/CDIH-FFAA, Lima, 1 December 2004, § 24.b.(2).
The manual further states:
Report acts or facts that constitute war crimes and enforce criminal and disciplinary responsibility for such crimes committed by superiors and subordinates, applying article 87 of Protocol I additional to the Geneva Conventions. 
Peru, Manual de Derecho Internacional Humanitario para las Fuerzas Armadas , Resolución Ministerial Nº 1394-2004-DE/CCFFAA/CDIH-FFAA, Lima, 1 December 2004, § 10.c.(2).
Peru
Peru’s IHL and Human Rights Manual (2010) states: “The commander must personally make sure that his subordinates know the obligations stemming from international humanitarian law and that they respect them.” 
Peru, Manual de Derecho Internacional Humanitario y Derechos Humanos para las Fuerzas Armadas, Resolución Ministerial No. 049-2010/DE/VPD, Lima, 21 May 2010, § 19, p. 419.
The manual also states:
The commander of the theatre of operations assumes and bears overall responsibility for ensuring strict compliance with international humanitarian law. Respect for international humanitarian law is a matter of order and discipline, and this must be taken into account when formulating plans and operational directives. 
Peru, Manual de Derecho Internacional Humanitario y Derechos Humanos para las Fuerzas Armadas, Resolución Ministerial No. 049-2010/DE/VPD, Lima, 21 May 2010, § 25(a)(1), p. 225–226.
The manual further states:
In the event of violations of international humanitarian law, commanders must ensure that:
(a) violations cease and appropriate measures are taken to ensure that they do not occur in the future;
(b) disciplinary or criminal action is taken against those responsible for the violations.
It should be understood that, ultimately, responsibility is incurred when violations of international humanitarian law are committed as the result of a failure to act when there is a duty to act. 
Peru, Manual de Derecho Internacional Humanitario y Derechos Humanos para las Fuerzas Armadas, Resolución Ministerial No. 049-2010/DE/VPD, Lima, 21 May 2010, § 25(b)(2), pp. 227–228.
The manual also states:
Report acts or facts that constitute war crimes and enforce criminal and disciplinary responsibility for such crimes committed by superiors and subordinates, applying article 87 of [the 1977 Additional] Protocol I additional to the [1949] Geneva Conventions. 
Peru, Manual de Derecho Internacional Humanitario y Derechos Humanos para las Fuerzas Armadas, Resolución Ministerial No. 049-2010/DE/VPD, Lima, 21 May 2010, § 10(c)(1), p. 222.
Philippines
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.” 
Philippines, Soldier’s Rules, in Handbook on Discipline, Annex C(I), General Headquarters, Armed Forces of the Philippines, Camp General Emilio Aguinaldo, Quezon City, 1989, § 12.
Philippines
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. 
Philippines, Handbook on Discipline, Armed Forces of the Philippines, 1989, Part IV, p. 7.
Philippines
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.” 
Philippines, Armed Forces of the Philippines Code of Ethics, 1991, Section 2.3.
Philippines
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. 
Philippines, Implementation Guidelines for Presidential Memorandum Order No. 393, dated 9 September 1991, Directing the Armed Forces of the Philippines and the Philippines National Police to Reaffirm their Adherence to the Principles of Humanitarian Law and Human Rights in the Conduct of Security/Police Operations, Joint Circular Number 2-91, Department of National Defense, Department of Interior and Local Government, 1991, § 3(a)–(b).
Republic of Korea
The Republic of Korea’s Military Operations Law of War Compliance Regulation (1993) states that commanders of United Nations Command/Combined Forces Command (UNC/CFC) are responsible for securing respect for the laws of war. 
Republic of Korea, Military Operations Law of War Compliance Regulation, Regulation No. 525-8, 1 November 1993, Statute 525-8 of United Nations Command/Combined Force Command (UNC/CFC), Statute of Observing Laws of War of 15 December 1988, p. 230, § E.
Russian Federation
The Russian Federation’s Military Manual (1990) provides that, during an armed conflict, a commander is obliged “to put an end to any violation of the rules of IHL [and] to prosecute persons having committed a violation of the rules of IHL”. 
Russian Federation, Instructions on the Application of the Rules of International Humanitarian Law by the Armed Forces of the USSR, Appendix to Order of the USSR Defence Minister No. 75, 1990, § 14(b).
Russian Federation
The Russian Federation’s Combat Manual (2005) states: “Every serviceman must prevent his subordinates and comrades from violating the norms of International humanitarian law, and report to their superior if such violations take place.” 
Russian Federation, Combat Manual on the Preparation and Conducting of Combined-Arms Battles (Boevoi ustav po podgotovke i vedeniu obshevoiskovogo boya), Part 3, Platoon, Subdivision, Tank, endorsed by Order of the Commander-in-Chief of the Ground Forces No. 19, 24 February 2005, § 24.
Russian Federation
The Internal Service Regulations of the Armed Forces of the Russian Federation (2007) provides:
General Obligations of Commanders (Superiors)
77. … In the course of carrying out combat missions by a military unit, the commander (superior), guided by requirements of field manuals, must take measures aimed at respecting IHL rules and bring to disciplinary responsibility those guilty of breaching them. In the event of discovering constituent elements of a criminal offence in the actions (omissions) of his subordinates, the commander of the unit shall institute criminal proceedings, in accordance with the legislation of the Russian Federation. 
Russian Federation, Internal Service Regulations of the Armed Forces of the Russian Federation (Ustav vnutrennei sluzhbi vooruzhennikh sil Rossiskoi Federacii), approved by Decree No. 1495 of the President of the Russian Federation, 10 November 2007, § 77.
Sierra Leone
Sierra Leone’s Instructor Manual (2007) states:
Responsibilities of Staff Officers
- they are criminally liable if they are aware of current or pending war crimes at a subordinate level and fail to refer the matter to a commander or other appropriate authority for investigation.
Commanders
They are criminally responsible if:
- He knows or ought to know that his subordinates are going to commit war crimes but fails to take steps to prevent them or
- if he knows or ought to know that his subordinates have committed war crimes and he fails to punish them or report offenders. 
Sierra Leone, The Law of Armed Conflict. Instructor Manual for the Republic of Sierra Leone Armed Forces (RSLAF), Armed Forces Education Centre, September 2007, p. 66.
South Africa
South Africa’s Medical Services Military Manual refers to Article 87 of the 1977 Additional Protocol I and provides: “Commanders will prevent [and] suppress and report breaches of humanitarian law.” 
South Africa, Medical Services Military Manual – Humanitarian Law, South African Medical Service Academy in Voortrekkerhoogte, s.d, p. 5.
South Africa
South Africa’s LOAC Manual (1996) states:
All soldiers must be aware of their responsibility to report war crimes which are breaches of the LOAC. Normally the report should be made to the next superior in the chain of command. A report may also be made to the Military Police, a Legal Officer or a Chaplain. 
South Africa, Presentation on the South African Approach to International Humanitarian Law, Appendix A, Chapter 4: International Humanitarian Law (The Law of Armed Conflict), National Defence Force, 1996, § 43.
South Africa
South Africa’s Revised Civic Education Manual (2004) states:
Every commander who is aware that subordinates or other persons under his/her control/command are going to commit or have committed a breach of the LOAC, are to initiate the necessary steps to prevent such a breach; and/or take the necessary disciplinary or penal action against those committing such a breach of the LOAC. 
South Africa, Revised Civic Education Manual, South African National Defence Force, 2004, Chapter 4, § 58 [the first of two consecutive sections designated as “58”]; see also § 93.
The manual also states:
All soldiers must be aware of their responsibility to report war crimes, which are breaches of the LOAC. Normally report should be made to the next senior in the chain of command. A report may also be made to the Military Police, a Legal Officer or a Chaplain. 
South Africa, Revised Civic Education Manual, South African National Defence Force, 2004, Chapter 4, § 58 [the second of two consecutive sections designated as “58”].
South Africa
South Africa’s LOAC Teaching Manual (2008) states:
1.2 Reasons for compliance with LOAC [law of armed conflict] and basic principles thereof.
Individuals’ Interests
Military Interests
Nations’ Interests
Legal Considerations. Apart from the abovementioned interests that are addressed by compliance with the LOAC, it must be borne in mind that non-compliance will have legal implications in that it will result in criminal as well as civil liability for both the offender and their commanders. 
South Africa, Advanced Law of Armed Conflict Teaching Manual, School of Military Justice, 1 April 2008, as amended to 25 October 2013, Learning Unit 1, pp. 13–16.
The manual also states:
5.1 War Crimes and Grave Breaches of the LOAC
- Not only the commission of an act, but also the failure to act, may be a war crime or a grave breach. The Yamashita case laid down three prerequisites for a condemnation in case of a failure to act:
- That the superior ought to have known of the breach committed by his subordinate.
- That he had the power to prevent it.
- That he did nothing to do so.
- Commander’s Responsibility regarding War Crimes and Grave Breaches.
Command responsibility is the topic of our next lecture. However, suffice it to say at this stage that all commanders can be held personally criminally and civilly []liable for war crimes and grave breaches committed by their subordinates. This responsibility also covers staff officers.
- Examples of Punishments that can be Imposed for War Crimes or Grave Breaches
- For superior officers who failed to prevent or suppress grave breaches, where it was reasonably expected of them to do so: 14 to 30 years imprisonment.
5.2 Command Responsibility
General Command Responsibilities
The command responsibilities extend to all military operations, movements and locations, whether on or in land, sea and/or air and to all areas of military operations. ([1977] Additional Protocol [I] articles 86 and 87.)
Additional Protocol I article 87 places the following responsibilities on commanders with respect to members of the armed forces under their command and other persons under their control:
- To prevent breaches of the LOAC.
- Where necessary, to suppress breaches of the LOAC.
- To report breaches of the LOAC to the competent authorities.
- To initiate steps to prevent and punish violations of the LOAC by subordinates.
This responsibility placed upon commanders by Additional Protocol I article 87[] is a personal responsibility. This means that[:]
- The commanders themselves must ensure that their subordinates are aware of their obligations under the LOAC and the necessary measures are taken to prevent violations of the LOAC.
- The commanders themselves must ensure that their subordinates respect the LOAC; and
- They can be held personally accountable and liable if all members of the armed forces under their command are not aware of their obligations under the LOAC, do not respect the LOAC and if all necessary measures are not taken to prevent violations of the LOAC.
In this regard, it is of the utmost importance to take note of the international agreement creating the International Criminal Court (known as “the Rome Statute”). This topic will be covered in a later lecture. This statute determines that a commander who does not control his/her troops in the execution of their duties, is in breach of the Law.
In the case of a breach of the LOAC, each commander must ensure that[:]
- The breach ceases; and
- Disciplinary or penal action is taken.
The term “commander” is interpreted widely and is regarded to cover the whole command chain, i.e. All those persons who have command responsibility from commanders at the highest level to leaders with only a few men.
The general command responsibility also extends to the civilian field in so far as the LOAC requires this, particularly with regard to co-operation with civilian authorities. (Additional Protocol I articles 1 and 58).
The LOAC binds all commanders and individual soldiers in the armed forces of any State engaged in international armed conflicts, regardless of whether or not they have been instructed in LOAC.
Additional Protocol I article 86 provides that a commander is to be held accountable by a State if he fails to act to prevent a breach of the LOAC, of which
- The commander knew, or
- Had information about which should have enabled him to conclude that the breach was to occur. (Yamashita principles)
Commanders are bound by similar rules of engagement in a non-international conflict.
Conclusion
Commanders have personal responsibilities in terms of the LOAC to:
- Prevent breaches of the LOAC;
- Suppress breaches of the LOAC, where necessary;
- Report breaches of the LOAC to the competent authorities;
- Initiate steps to prevent or punish violations of the LOAC by subordinates.
A commander is to be held accountable by a State if he fails to act to prevent a breach of the LOAC, of which he knew, or had information about which should have enabled him to conclude, that the breach was to occur. 
South Africa, Advanced Law of Armed Conflict Teaching Manual, School of Military Justice, 1 April 2008, as amended to 25 October 2013, Learning Unit 5, pp. 236, 237–238, 239–241 and 246.
Spain
Spain’s LOAC Manual (1996) provides: “The commander must ensure that the violations cease and that disciplinary or penal action is taken.” 
Spain, Orientaciones. El Derecho de los Conflictos Armados, Publicación OR7-004, 2 Tomos, aprobado por el Estado Mayor del Ejército, Division de Operaciones, 18 March 1996, Vol. I, § 10.8.c.(1).
The manual further imposes on commanding officers the obligation “not to order or tolerate breaches of the humanitarian rules of war”. 
Spain, Orientaciones. El Derecho de los Conflictos Armados, Publicación OR7-004, 2 Tomos, aprobado por el Estado Mayor del Ejército, Division de Operaciones, 18 March 1996, Vol. I, § 11.4.b.
Spain
Spain’s LOAC Manual (2007) states:
2.2.c. DUTY TO PREVENT AND SUPPRESS BREACHES
Commanders must take the necessary measures to prevent and suppress breaches of the law of armed conflict. …
When a breach occurs, they must ensure that:
- a stop is put to the breach;
- disciplinary or legal action is taken against those who commit violations.
2.2.d. OMISSION
… Criminal and disciplinary responsibility also extends to commanders if they knew or had information that should have enabled them to conclude that a subordinate had committed or was going to commit a violation and did not take all the measures in their power to prevent or suppress it. 
Spain, Orientaciones. El Derecho de los Conflictos Armados, Tomo 1, Publicación OR7–004, (Edición Segunda), Mando de Adiestramiento y Doctrina, Dirección de Doctrina, Orgánica y Materiales, 2 November 2007, §§ 2.2.c and 2.2.d; see also § 11.4.b.
The manual also states:
The fact that a breach was committed by a subordinate does not absolve his superiors from criminal or disciplinary responsibility, as the case may be, if they knew, or had information which should have enabled them to conclude in the circumstances at the time, that he was committing or was going to commit such a breach and if they did not take all feasible measures within their power to prevent it. 
Spain, Orientaciones. El Derecho de los Conflictos Armados, Tomo 1, Publicación OR7–004, (Edición Segunda), Mando de Adiestramiento y Doctrina, Dirección de Doctrina, Orgánica y Materiales, 2 November 2007, § 7.6.b.(1).(b).
Sweden
Sweden’s IHL Manual (1991) provides:
The fact that a breach of the [1949 Geneva] Conventions or of [the 1977 Additional Protocol I] was committed by a subordinate does not absolve his superior from penal or disciplinary responsibility. This applies, however, only if the superiors knew, or had received intelligence enabling them to deduce, that the subordinate had committed or was about to commit such a breach, and if they had not taken all feasible steps in their power to prevent or punish the breach.
The Additional Protocol further clearly states that military commanders shall prevent breaches and if necessary punish and report such cases … Naturally, it is also very important that both commanders and men discover and report transgressions committed by units of the adversary. 
Sweden, International Humanitarian Law in Armed Conflict, with reference to the Swedish Total Defence System, Swedish Ministry of Defence, January 1991, Section 4.2, p. 94.
Switzerland
Switzerland’s Basic Military Manual (1987) provides that commanders “are responsible to ensure that their troops respect the Conventions as well as for the punishment of possible breaches”. 
Switzerland, Lois et coutumes de la guerre (Extrait et commentaire), Règlement 51.7/II f, Armée Suisse, 1987, Article 196(2).
Switzerland
Switzerland’s Regulation on Legal Bases for Conduct during an Engagement (2005) states:
5 Superiors must only give orders that can be carried out legally. Other than the individual criminal responsibility of the authors, superiors are also criminally responsible. In fact, the criminal responsibility of the superior is engaged when he orders, does not hinder or does not subject to disciplinary sanction a violation of the international law of armed conflict or of national law, or if he does not report the case of grave breaches to the prosecution authorities. He is also responsible for misbehaviour of which he could have or should have known, insofar as he does not take any measure to hinder them.
152 War crimes, i.e. violations of the international law of armed conflict, must in serious cases be reported to the investigating military authorities by the competent superior. Sanctions are the responsibility of the military justice system. The competent commander is responsible for disciplinary sanctions for minor offences.
17.3 Responsibility of superiors
247 Superiors are not only responsible for their own acts and omissions but also for acts and omissions committed under their area of responsibility of which they were aware – or should have been aware – and against which they did not intervene. 
Switzerland, Bases légales du comportement à l’engagement (BCE), Règlement 51.007/IVf, Swiss Army, issued based on Article 10 of the Ordinance on the Organization of the Federal Department for Defence, Civil Protection and Sports of 7 March 2003, entry into force on 1 July 2005, §§ 5, 152 and 247.
[emphasis in original]
Togo
Togo’s Military Manual (1996) states: “Each military commander is responsible for respect for the law of war in his sphere of command.” 
Togo, Le Droit de la Guerre, III fascicules, Etat-major Général des Forces Armées Togolaises, Ministère de la Défense nationale, 1996, Fascicule II, p. 14.
The manual adds:
In case of breach of the law of war [the military commander] shall ensure that the breach ceases; that a disciplinary or criminal action is engaged. In any case, the responsibility of the military commander regarding violations committed by his subordinates is total if it is established that he has not taken any measure to prevent or repress these violations. 
Togo, Le Droit de la Guerre, III fascicules, Etat-major Général des Forces Armées Togolaises, Ministère de la Défense nationale, 1996, Fascicule II, p. 15.
The manual also instructs soldiers to “prevent any breach of these instructions. Report to your superior any violation [of IHL] of which you are aware. Any breach of the laws of war is punishable.” 
Togo, Le Droit de la Guerre, III fascicules, Etat-major Général des Forces Armées Togolaises, Ministère de la Défense nationale, 1996, Fascicule II, p. 19.
Ukraine
Ukraine’s IHL Manual (2004) states:
The fact that a violation of the law of armed conflicts was committed by a subordinate person shall not relieve his/her commanders of disciplinary or criminal responsibility provided that they were aware of the subordinate’s intentions and failed to take all possible precautionary measures to prevent violations. 
Ukraine, Manual on the Application of IHL Rules, Ministry of Defence, 11 September 2004, § 1.8.8.
United Kingdom of Great Britain and Northern Ireland
The UK Military Manual (1952) provides:
In some cases military commanders may be responsible for war crimes committed by subordinate members of the armed forces or other persons subject to their control. Thus, for example, when troops commit, or assist in the commission of, massacres and atrocities against the civilian inhabitants of occupied territory, or against prisoners of war, the responsibility may rest not only with the actual perpetrator but also with the commander.
The commander is also responsible, if he has actual knowledge or should have knowledge, through reports received by him or through other means, that troops or other persons subject to his control are about to commit or have committed a war crime and if he fails to use the means at his disposal to ensure compliance with the law of war. 
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 631.
United Kingdom of Great Britain and Northern Ireland
The UK LOAC Manual (2004) states:
16.36. Military commanders are responsible for preventing violations of the law (including the law of armed conflict) and for taking the necessary disciplinary action. A commander will be criminally responsible if he participates in the commission of a war crime himself …, particularly if he orders its commission. However, he also becomes criminally responsible if he “knew or, owing to the circumstances at the time, should have known” that war crimes were being or were about to be committed and 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 authority for investigation and prosecution”.
16.36.1. The concept of command responsibility was first enunciated in the case of General Yamashita. In that case, General Yamashita was held to have failed to exercise “effective control” of his troops who were carrying out widespread atrocities in the Philippines. The Tribunal held that the nature of the crimes themselves provided prima facie evidence of knowledge and laid down a test that was reflected in the text of the Manual of Military Law Part III of 1958. According to that test, a commander was considered responsible if “he has actual knowledge or should have knowledge, through reports received by him or through other means”.
16.36.2. The Statute of the International Criminal Tribunal for the Former Yugoslavia dealt with command responsibility as follows:
the fact that any of the acts … was committed by a subordinate does not relieve his superior of criminal responsibility if he knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.
16.36.3. The Statute of the International Criminal Court deals with command responsibility as follows:
(i) 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
(ii) That military commander or person failed to take all necessary and reasonable measures within his or her power to prevent or suppress their commission or to submit the matter to the competent authorities for investigation and prosecution.
(b) With respect to superior and subordinate relationships not described in paragraph (a), 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:
(i) The superior either knew, or consciously disregarded information which clearly indicated, that the subordinates were committing or about to commit such crimes;
(ii) The crimes concerned activities that were within the effective responsibility and control of the superior; and
(iii) 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.
16.36.3. Despite the various formulations of the test, there is general agreement on the nature of command and the degree of knowledge required.
16.36.5. The test of command in this context is one of “effective control” over a subordinate. There need not be proof of command in the sense of formal organisational structures “so long as the fundamental requirement of an effective power to control the subordinate, in the sense of preventing or punishing criminal conduct is satisfied”.
16.36.6. Similarly, it is now accepted that an element of knowledge has to be proved, as command responsibility is not a form of strict liability. Actual knowledge is clearly sufficient, but it is also sufficient if a commander “had reason to know”. This has been described as “where he had in his possession information of a nature, which at the least, would put him on notice of the risk of such offences by indicating the need for additional investigation in order to ascertain whether such crimes were committed or were about to be committed by his subordinates”. It follows that possession of the means of knowledge may be regarded, in appropriate circumstances, as being the same as knowledge itself.
Responsibility of civilian authorities
16.37. Civilian superiors will also be liable for the acts of their subordinates in the same way as military commanders, though the difference in the command relationship means that a court is likely to require evidence of actual knowledge or a conscious disregard of information which would have enabled him to know.
Responsibility of states
16.38. Parties to a conflict are obliged to instruct military commanders to prevent breaches of the law of armed conflict and ensure that their subordinates know of their obligations under that law. This provision is based on the principle that an effective disciplinary system to prevent breaches is the best way of ensuring compliance with the law of armed conflict. But failure to do so does not of itself give rise to criminal responsibility.
16.38.1. Heads of state and their ministers are not immune from prosecution and punishment for war crimes. Their liability is governed by the same principles as those governing the responsibility of civilian authorities. 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, §§ 16.36–16.38.1.
United States of America
The US Field Manual (1956) states:
In some cases, military commanders may be responsible for war crimes committed by subordinate members of the armed forces, or other persons subject to their control. Thus, for instance, when troops commit massacres and atrocities against the civilian population of occupied territory or against prisoners of war, the responsibility may rest not only with the actual perpetrators but also with the commander … The commander is also responsible if he has actual knowledge, or should have knowledge, through reports received by him or through other means, that troops or other persons subject to his control are about to commit or have committed a war crime and he fails to take the necessary and reasonable steps to insure compliance with the law of war or to punish violators thereof. 
United States, Field Manual 27-10, The Law of Land Warfare, US Department of the Army, 18 July 1956, as modified by Change No. 1, 15 July 1976, § 501.
United States of America
The US Air Force Pamphlet (1976) states:
An important illustration of the mens rea requirement relates to a commander’s responsibility to maintain discipline and preclude violations by members of his command …
Command responsibility for acts committed by subordinates arises when the specific wrongful acts in question are knowingly ordered or encouraged. In addition, the Commander is responsible if he has the actual knowledge, or should have had knowledge through reports received by him or through other means, that combatants under his control have or are about to commit criminal violations, and he culpably fails to take reasonably necessary steps to ensure compliance with the law and punish violators thereof. 
United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, § 15-2(d).
United States of America
The US Air Force Pamphlet (1976) provides: “an important illustration of the mens rea requirement relates to a commander’s responsibility to maintain discipline and preclude violations by members of his command”. 
United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, § 15-2(d).
United States of America
The US Soldier’s Manual (1984) tells soldiers:
You must report crimes immediately through your chain of command. If the crime involves your immediate superiors, report to their superior. You may also report violations of the laws of war to the inspector general, provost marshal, chaplain, or judge advocate. In any case, the law requires that you report actual or suspected violations immediately so that evidence will not be misplaced or disappear. 
United States, Your Conduct in Combat under the Law of War, Publication No. FM 27-2, Headquarters Department of the Army, Washington, November 1984, p. 27; see also p. 25.
United States of America
The US Naval Handbook (1995) provides:
Officers in command are not only responsible for ensuring that they conduct all combat operations in accordance with the law of armed conflict; they are also responsible for the proper performance of their subordinates. While a commander may delegate some or all of his authority, he cannot delegate responsibility for the conduct of the forces he commands. The fact that a commander did not order, authorize, or knowingly acquiesce in a violation of the law of armed conflict by a subordinate will not relieve him of responsibility for its occurrence if it is established that he failed to exercise properly his command authority or failed otherwise to take reasonable measures to discover and correct violations that may occur. 
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-2.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Transportation, US Coast Guard, October 1995 (formerly NWP 9 (Rev. A)/FMFM 1-10, October 1989), § 6.1.3.
The manual also states: “All members of the naval service have a duty to comply with the law of armed conflict and, to the utmost of their ability and authority, to prevent violations by others.” 
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-2.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Transportation, US Coast Guard, October 1995 (formerly NWP 9 (Rev. A)/FMFM 1-10, October 1989), § 6.1.4.
The manual further states:
It is the responsibility of the Chief of Naval Operations and the Commandant of the Marine Corps to ensure that:
3. alleged violations of the law of armed conflict, whether committed by or against United States or enemy personnel, are promptly reported, thoroughly investigated, and where appropriate, remedied by corrective actions. 
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-2.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Transportation, US Coast Guard, October 1995 (formerly NWP 9 (Rev. A)/FMFM 1-10, October 1989), § 6.1.2.
The manual further provides: “All members of the naval service … have an affirmative obligation to report promptly violations of which they become aware.” 
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-2.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Transportation, US Coast Guard, October 1995 (formerly NWP 9 (Rev. A)/FMFM 1-10, October 1989), § 6.1.4.
United States of America
The Annotated Supplement to the US Naval Handbook (1997) states:
A commander at any level is personally responsible for the criminal acts of warfare committed by a subordinate if the commander knew in advance of the breach about to be committed and had the ability to prevent it, but failed to take the appropriate action to do so. In determining the personal responsibility of the commander, the element of knowledge may be presumed if the commander had information which should have enabled him or her to conclude under the circumstances that such a breach was to be expected. Officers in command are also personally responsible for unlawful acts of warfare performed by subordinates when such acts are committed by order, authorization, or acquiescence of a superior. Those acts will each be determined objectively. 
United States, Annotated Supplement to the Commander’s Handbook on the Law of Naval Operations, prepared by the Oceans Law and Policy Department, Center for Naval Warfare Studies, Naval War College, Newport, Rhode Island, November 1997, § 6.1.3, footnote 13.
The Annotated Supplement also states:
Where U.S. personnel are involved, military personnel with supervisory authority have a duty to prevent criminal acts. Any person in the naval service who sees a criminal act about to be committed must act to prevent it to the utmost of his or her ability and to the extent of his or her authority … Possible actions include moral arguments to dissuade, threatening to report the criminal act, repeating orders of superiors, stating personal disagreement, and asking the senior individual on scene to intervene as a means of preventing the criminal act. In the event the criminal act directly and imminently endangers a person’s life (including the life of another person lawfully under his or her custody), force may be used to the extent necessary to prevent the crime. However, the use of deadly force is rarely justified; it may be used only to protect life and only under conditions of extreme necessity as a last resort when lesser means are clearly inadequate to protect life. 
United States, Annotated Supplement to the Commander’s Handbook on the Law of Naval Operations, prepared by the Oceans Law and Policy Department, Center for Naval Warfare Studies, Naval War College, Newport, Rhode Island, November 1997, § 6.1.4, footnote 14.
United States of America
The US Manual for Military Commissions (2007), Part IV, Crimes and Elements, states:
Any person is punishable as a principal under this chapter who –
(1) commits an offense punishable by this chapter, or aids, abets, counsels, commands, or procures its commission;
(2) causes an act to be done which if directly performed by him would be punishable by this chapter; or
(3) is a superior commander who, with regard to acts punishable under this chapter, knew, had reason to know, or should have known, that a subordinate was about to commit such acts or had done so and who failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof. 
United States, Manual for Military Commissions, published in implementation of the Military Commissions Act of 2006, 10 U.S.C. §§ 948a, et seq., 18 January 2007, Part IV, § 1(a), p. IV-1.
United States of America
The US Naval Handbook (2007) states:
A naval commander may delegate some or all of his authority; however, he cannot delegate his accountability for the conduct of the forces he commands. Under the law of armed conflict, a commander may be held … responsible for the acts of subordinates when the commander knew, or should have known, that subordinates under his control were going to commit or had committed violations of the law of armed conflict and he failed to exercise properly his command authority or failed otherwise to take reasonable measures to discover and correct violations that may occur. 
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-12.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Homeland Security, US Coast Guard, July 2007, § 6.1.3.
The Handbook also states:
DOD [Department of Defense] Directive 2311.01E, DOD Law of War Program is the DOD source for law of war reporting requirements. This directive defines a reportable incident as “a possible, suspected, or alleged violation of the law of war, for which there is credible information, or conduct during military operations other than war that would constitute a violation of the law of war if it occurred during an armed conflict.” Such incidents must be “promptly reported, thoroughly investigated, and, where appropriate, remedied by corrective action.”
All military and U.S. civilian employees and contractor personnel assigned to or accompanying a DOD component shall report incidents through the chain of command. The commander of any unit that obtains information about a reportable incident shall immediately report the incident through command channels to operational and military department higher authorities. 
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-12.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Homeland Security, US Coast Guard, July 2007, § 6.3.
United States of America
The US Manual for Military Commissions (2010), Part IV, Crimes and Elements, states:
Principals
Any person punishable under this chapter who—
(1) commits an offense punishable by this chapter, or aids, abets, counsels, commands, or procures its commission;
(2) causes an act to be done which if directly performed by him would be punishable by this chapter; or
(3) is a superior commander who, with regard to acts punishable under this chapter, knew, had reason to know, or should have known, that a subordinate was about to commit such acts or had done so and who failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof is a principal. 
United States, Manual for Military Commissions, published in implementation of Chapter 47A of Title 10, United States Code, as amended by the Military Commissions Act of 2009, 10 U.S.C, §§ 948a, et seq., 27 April 2010, § 2, p. IV-2.
Uruguay
Uruguay’s Disciplinary Regulations (1980) states: “No superior shall be absolved of his responsibility by his subordinates’ omission or carelessness in matters that he must and can supervise himself.” 
Uruguay, Reglamento General de Servicios No. 21 (1a y 2a Parte), Reglamento de Disciplina y Servicio Interno, 4ta. Edición, Publicación del Centro Militar, Vol. 61, Suplemento No. 58, April 1980, Article 26.
Yugoslavia, Socialist Federal Republic of
The Socialist Federal Republic of Yugoslavia’s Military Manual (1988) states that a superior who was aware of preparations for acts that would violate certain norms and did not prevent their occurrence or carry out appropriate disciplinary measures is personally responsible. A superior officer shall especially be responsible as an accomplice or instigator in case of repeated violations by subordinates. 
Yugoslavia, Socialist Federal Republic of, Propisi o Primeri Pravila Medjunarodnog Ratnog Prava u Oruzanim Snagama SFRJ, PrU-2, Savezni Sekretarijat za Narodnu Odbranu (Pravna Uprava), 1988, § 20.
Afghanistan
Afghanistan’s Criminal Procedure Code for Military Courts (2006) states:
Commanders notified of military crimes committed by service members under their command are obliged to conduct a preliminary inquiry into the facts and circumstances surrounding the alleged crime. If the commander’s inquiry reveals that there is good cause for continued disciplinary proceedings, he will, in appropriate cases, refer the matter to the prosecutor for further investigation. 
Afghanistan, Criminal Procedure Code for Military Courts, 2006, Article 17.
Armenia
Under Armenia’s Penal Code (2003), a commander or an official commits a crime against the peace and security of mankind
if he knew, or had information which should have enabled him to conclude in the circumstances at the time, that his subordinate was committing or was going to commit an offence [the use of a prohibited method of warfare or a serious breach of international humanitarian law, as defined in Articles 387 and 390 of the Code] and if he did not take all feasible measures within his power to prevent or repress the offence. 
Armenia, Penal Code, 2003, Article 391(1).
Australia
Australia’s Criminal Code Act (1995), as amended to 2007, states:
Responsibility of commanders and other superiors
(2) A military commander or person effectively acting as a military commander is criminally responsible for offences under this Division 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 those forces, where:
(a) the military commander or person either knew or, owing to the circumstances at the time, was reckless as to whether the forces were committing or about to commit such offences; and
(b) the 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.
(3) With respect to superior and subordinate relationships not described in subsection (2), a superior is criminally responsible for offences against this Division committed by subordinates under his or her effective authority and control, as a result of his or her failure to exercise control properly over those subordinates, where:
(a) the superior either knew, or consciously disregarded information that clearly indicated, that the subordinates were committing or about to commit such offences; and
(b) the offences concerned activities that were within the effective responsibility and control of the superior; and
(c) 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. 
Australia, Criminal Code Act, 1995, as amended to 2007, Chapter 8, § 268.115, p. 379.
Azerbaijan
Azerbaijan’s Criminal Code (1999), in a provision entitled “Negligence or giving criminal orders in time of armed conflict”, states:
Failure to use in time of armed conflict all the opportunities by the commander or the person in charge in the framework of their responsibilities in order to prevent that persons under their command commit crimes considered in articles 115–116 of the present Code [i.e. “violations of [the] laws and customs of war” and “violations of the norms of international humanitarian law in time of armed conflict”] … will be punished. 
Azerbaijan, Criminal Code, 1999, Articles 117(1).
Bangladesh
Bangladesh’s International Crimes (Tribunal) Act (1973) provides:
The following acts or any of them are crimes within the jurisdiction of a Tribunal for which there shall be individual responsibility, namely: –
(h) … failure to prevent commission of any such crimes [i.e. crimes against humanity, crimes against peace, genocide, war crimes, “violations of any humanitarian rules applicable in armed conflicts laid down in the Geneva Convention of 1949” or any other crimes under international law]. 
Bangladesh, International Crimes (Tribunal) Act, 1973, Section 3(2).
Bangladesh
Bangladesh’s International Crimes (Tribunal) Act (1973) provides:
Any commander or superior officer … who fails or omits to discharge his duty to maintain discipline, or to control or supervise the actions of the persons under his command or his subordinates, whereby such persons or subordinates or any of them commit any such crimes [crimes against humanity, crimes against peace, genocide, war crimes, “violations of any humanitarian rules applicable in armed conflicts laid down in the Geneva Convention of 1949” or any other crimes under international law], or who fails to take necessary measures to prevent the commission of such crimes, is guilty of such crimes. 
Bangladesh, International Crimes (Tribunal) Act, 1973, Section 4(2).
Belarus
Belarus’s Criminal Code (1999) provides:
If, in a situation of armed conflict, a superior or officer intentionally does not take all the measures possible in his power in order to prevent or repress the commission by his subordinates of the crimes set out in articles 134, 135 and 136 of this Code [i.e. “use of weapons of mass destruction”, “violations of the laws and customs of war” and “criminal infringement of the norms of international humanitarian law during armed conflicts”] he is punishable. 
Belarus, Criminal Code, 1999, Article 137(1).
Belgium
Belgium’s Penal Code (1867), as amended in 2003, provides:
The punishment for the following shall correspond to the punishment for the consummated offence:
5. omitting to act within the limits of one’s abilities when there is knowledge of orders given to execute such an offence or of facts inciting the execution thereof and when the commission thereof could have been prevented or ended. 
Belgium, Penal Code, 1867, as amended on 5 August 2003, Chapter III, Title I bis, Article 136 septies, § 5.
Belgium
Belgium’s Law concerning the Repression of Grave Breaches of the Geneva Conventions and their Additional Protocols (1993), as amended in 1999, which applies to both international and non-international armed conflicts, provides:
The following shall be punishable by the penalty provided for completed breaches:
failure to act to the extent available to them by persons who had knowledge of the orders given to commit such a breach or of acts initiating the commission thereof and who were able to prevent or put an end to such breach. 
Belgium, Law concerning the Repression of Grave Breaches of the Geneva Conventions and their Additional Protocols, 1993, as amended in 1999, Article 4.
Bosnia and Herzegovina
Bosnia and Herzegovina’s Criminal Code (2003) states:
The fact that any of the criminal offences referred to in Article 171 through 175 and Article 177 through 179 of this Code [Articles 171 (Genocide), 172 (Crimes against Humanity), 173 (War Crimes against Civilians), 174 (War Crimes against the Wounded and Sick), 175 (War Crimes against Prisoners of War), 177 (Unlawful Killing or Wounding of the Enemy), 178 (Marauding the Killed and Wounded at the Battlefield) and 179 (Violating the Laws and Practices of Warfare)] was perpetrated by a subordinate does not relieve his superior of criminal responsibility if he knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof. 
Bosnia and Herzegovina, Criminal Code, 2003, Article 180(2).
Cambodia
Cambodia’s Law on the Establishment of the ECCC (2001), in a provision dealing with individual responsibility, states:
The fact that any of the acts referred to in Articles 3 through 8 of this law was committed by a subordinate does not relieve the superior of personal criminal responsibility if the superior had effective command and control or authority and control over the subordinate, and the superior knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators.
The articles referred to deal with “any of the crimes set forth in the 1956 Penal Code” such as: homicide, torture and religious persecution (Article 3); genocide (Article 4); crimes against humanity (Article 5); grave breaches of the 1949 Geneva Conventions (Article 6); destruction of cultural property during armed conflict pursuant to the 1954 Hague Convention for the Protection Cultural Property (Article 7); and crimes against internationally protected persons as set forth in the 1973 Convention on Crimes against Internationally Protected Persons (Article 8), all of these acts being committed during the period 1975–1979. 
Cambodia, Law on the Establishment of the ECCC, 2001, Article 29.
Cambodia
Cambodia’s Law on the Establishment of the ECCC (2001), as amended in 2004, provides:
The fact that any of the acts referred to in Articles 3 new, 4, 5, 6, 7 and 8 of this law were committed by a subordinate does not relieve the superior of personal criminal responsibility if the superior had effective command and control or authority and control over the subordinate, and the superior knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators. 
Cambodia, Law on the Establishment of the ECCC, 2001, as amended in 2004, Article 29.
The articles referred to, provided that the acts were committed during the period from 17 April 1975 to 6 January 1979, deal with: homicide, torture and religious persecution as set forth in Cambodia’s Penal Code of 1956 (Article 3 new); genocide (Article 4); crimes against humanity (Article 5); grave breaches of the 1949 Geneva Conventions (Article 6); destruction of cultural property during armed conflict pursuant to the 1954 Hague Convention for the Protection of Cultural Property (Article 7); and crimes against internationally protected persons pursuant to the 1961 Vienna Convention on Diplomatic Relations (Article 8). 
Cambodia, Law on the Establishment of the ECCC, 2001, as amended in 2004, Articles 3 new–8.
Canada
Canada’s Crimes against Humanity and War Crimes Act (2000) provides that military commanders and “superiors” may commit indictable offences if they meet all of the following conditions: (a) fail to “exercise control properly over a person under their effective command and control” and as a result that person commits a war crime; (b) know or are “criminally negligent in failing to know, that the person is about to commit or is committing such an offence”; and (c) subsequently fail to take “as soon as practicable, all necessary and reasonable measures within their power to prevent or repress the commission of the offence, or the further commission of offences” or fail “to take, as soon as practicable, all necessary and reasonable measures within their power to submit the matter to the competent authorities for investigation and prosecution”. 
Canada, Crimes against Humanity and War Crimes Act, 2000, Article 7(1) and (2).
Croatia
Croatia’s Criminal Code (1997), as amended to 2006, states:
A military commander or another person acting in effect as a military commander or as a civilian in superior command or any other person who in a civil organization has the effective power of command or supervision shall be punished for the criminal offences referred to … if he knew that his subordinates had committed these criminal offences or were about to commit them and failed to take all reasonable measures to prevent them. 
Croatia, Criminal Code, 1997, as amended to 2006, Article 167a.
Democratic Republic of the Congo
The Democratic Republic of the Congo’s Military Judiciary Code (2002) provides:
When a subordinate is prosecuted as principal perpetrator of one of the offences contained in article 80, and his hierarchical superiors cannot be prosecuted as co-perpetrators, they are considered as accomplices insofar as they have organized or tolerated the criminal actions of their subordinate. 
Democratic Republic of the Congo, Military Judiciary Code, 2002, Article 81.
Democratic Republic of the Congo
The Democratic Republic of the Congo’s Military Penal Code (2002) provides:
When a subordinate is prosecuted as principal perpetrator of a war crime and when his hierarchical superiors cannot be investigated as co-perpetrators, they are considered as accomplices insofar as they have tolerated the criminal actions of their subordinate. 
Democratic Republic of the Congo, Military Penal Code, 2002, Article 175.
Egypt
Under Egypt’s Military Criminal Code (1966), commanders have the duty to investigate allegations of military offences. 
Egypt, Military Criminal Code, 1966, Article 23.
Estonia
Estonia’s Penal Code (2001) provides:
Besides the author of one of the crimes set out in this chapter [i.e. crimes against humanity, crimes against peace and war crimes], the representative of the public administration or the military commander who has issued the order to commit such crime, with the consent of whom it has been committed or who has failed to prevent it although it was in his or her power to do so, shall also be punished. 
Estonia, Penal Code, 2001, § 88(1).
Finland
Finland’s Criminal Code (1889), as amended in 2008, states:
Section 12 - Responsibility of the superior
A military or other superior shall be sentenced for the offence or the attempt of an offence referred to in section 1, 3–7 or 13 in the same way as the offender or participant if forces or subordinates that are factually under the command and supervision of the superior have been guilty of an act as a consequence of the failure of the superior to properly supervise the actions of the forces or subordinates, and if
1) the superior knew or on the basis of the circumstances he or she should have known that the forces or subordinates committed or intended to commit said offences, and
2) the superior did not undertake the necessary measures available to him or her and that could have been reasonably expected of him or her in order to prevent the completion of the offences.
Section 13 – Failure to report the offence of a subordinate
(1) A military or other superior who neglects to undertake the necessary measures that can be reasonably expected of him or her in order to submit to the authorities for investigation an offence referred to in section 1 or sections 3–7 or the present section suspected to have been committed by a person factually under his or her command and supervision, shall be sentenced for failure to report the offence of subordinate to a fine or to imprisonment for at most two years.
(2) However, a superior who is a participant in the offence committed by his or her subordinate or under the conditions referred to in section 12 is an offender or participant in the offence committed by his or her subordinate shall not be sentenced for failure to report the offence of the subordinate. 
Finland, Criminal Code, 1889, as amended in 2008, Chapter 11, Sections 12–13.
France
France’s Code of Military Justice (1982) provides: “When a subordinate is tried as the chief actor in an offence … and his hierarchical superiors cannot be sought as co-actors, they are considered to be accessories in that they organized or tolerated the criminal acts of their subordinate.” 
France, Code of Military Justice, 1982, Article 71.
France
France’s Code of Military Justice (2006), in a chapter entitled “In times of war”, states:
If a subordinate is prosecuted as the main perpetrator of one of the offences stipulated in Article L. 122-3, and if his or her hierarchical superiors cannot be sought as co-perpetrators, they are considered accomplices to the extent that they have organized or tolerated the criminal acts of their subordinate. 
France, Code of Military Justice, 2006, Article L. 122-4.
France
France’s Penal Code (1992), as amended in 2010, states:
[T]he military commander or person acting as a military commander who either knew or, owing to the circumstances, should have known that subordinates under his or her effective authority and control were committing or were about to commit a war crime … and who failed to take all necessary and reasonable measures within his or her power to prevent or repress its commission, or to submit the matter to the competent authorities for investigation and prosecution, is considered to be an accomplice of such war crime.
… [T]he superior not performing a function of military commander who either knew that the subordinates under his or her effective authority and control were committing or were about to commit a war crime … or who consciously disregarded information which clearly indicated so, and who failed to take all necessary and reasonable measures within his or her power to prevent or repress its commission or to submit the matter to the competent authorities for investigation and prosecution, while the crime concerned activities that were within his or her effective responsibility and control, is also considered to be an accomplice of such war crime. 
France, Penal Code, 1992, as amended in 2010, Article 462-7.
Germany
Germany’s Law Introducing the International Crimes Code (2002) contains a provision entitled “Responsibility of military commanders and other superiors” which states:
(1) A military commander or civilian superior who omits to prevent his or her subordinate from committing an offence pursuant to this Law inter alia, genocide, crimes against humanity and war crimes] shall be punished in the same way as a perpetrator of the offence committed by that subordinate …
(2) Any person effectively giving orders or exercising command and control in a unit shall be deemed equivalent to a military commander. Any person effectively exercising command and control in a civil organization or in an enterprise shall be deemed equivalent to a civilian superior. 
Germany, Law Introducing the International Crimes Code, 2002, Article 1, Section 4.
The Law contains a further provision entitled “Violation of the duty of supervision” which states:
(1) A military commander who intentionally or negligently omits properly to supervise a subordinate under his or her command or under his or her effective control shall be punished for violation of the duty of supervision if the subordinate commits an offence pursuant to this Law, where the imminent commission of such an offence was discernible to the commander and he or she could have prevented it.
(2) A civilian superior who intentionally or negligently omits properly to supervise a subordinate under his or her authority or under his or her effective control shall be punished for violation of the duty of supervision if the subordinate commits an offence pursuant to this Law, where the imminent commission of such an offence was discernible to the superior without more and he or she could have prevented it.
(3) [Article 1] Section 4 subsection (2) shall apply mutatis mutandis. 
Germany, Law Introducing the International Crimes Code, 2002, Article 1, Section 13.
The Law also contains a provision entitled “Omission to report a crime” which provides:
(1) A military commander or a civilian superior who omits immediately to draw the attention of the agency responsible for the investigation or prosecution of any offence pursuant to this Law [inter alia, genocide, crimes against humanity and war crimes], to such an offence committed by a subordinate, shall be punished …
(2) [Article 1(4)(2)] shall apply mutatis mutandis. 
Germany, Law Introducing the International Crimes Code, 2002, Article 1(14).
Hungary
Hungary’s Order of the Minister of Defence on the Adoption of Service Regulations (2005) states that the commander “shall comply with and enforce the rule of law, regulations related to warfare and humanitarian rules, shall not tolerate arbitrary action, brutality or violations of the obligations regulated in laws and internal provisions”. 
Hungary, Order of the Minister of Defence on the Adoption of Service Regulations, 2005, § 22(e).
India
India’s Army Act (1950) provides that it is an offence for a commander “receiving a complaint that any one under his command has beaten or otherwise maltreated or oppressed any person … [to] fail to have due reparation made to the injured person or to report the case to the proper authority”. 
India, Army Act, 1950, Section 64(a).
Iraq
Iraq’s Law of the Supreme Iraqi Criminal Tribunal (2005) states:
A superior is not relieved of the criminal responsibility for crimes committed by his subordinates, if he knew or had reason to know that the subordinate had committed, or was about to commit such acts, and the superior failed to take the necessary and reasonable measures to prevent such acts or to refer the matter to the competent authorities for investigation and prosecution. 
Iraq, Law of the Supreme Iraqi Criminal Tribunal, 2005, Article 15(4).
Italy
Under Italy’s Penal Code (1930), a person who fails to prevent someone from committing an act that he or she had the duty to prevent may incur criminal responsibility. 
Italy, Penal Code, 1930, Article 40.
Luxembourg
Luxembourg’s Law on the Repression of War Crimes (1947) provides:
Without prejudice to the provisions of Articles 66 and 67 of the Penal Code, the following may be charged, according to the circumstances, as co-authors or as accomplices in the crimes and offences set out in Article 1 of the present law [i.e. war crimes]: superiors in rank who have tolerated the criminal activities of their subordinates, and those who, without being superiors in rank of the principal authors, have aided those crimes or offences. 
Luxembourg, Law on the Repression of War Crimes, 1947, Article 3.
Luxembourg
Luxembourg’s Law on the Punishment of Grave Breaches (1985) provides:
Without prejudice to the provisions of Articles 66 and 67 of the Penal Code, the following may be charged, according to the circumstances, as co-authors or as accomplices in the crimes set out in Articles 1 and 3 of the present law [i.e. grave breaches of the 1949 Geneva Conventions and acts related thereto]: superiors in rank who have tolerated the criminal activities of their subordinates, and those who, without being superiors in rank of the principal authors, have aided those crimes. 
Luxembourg, Law on the Punishment of Grave Breaches, 1985, Article 5.
The Law further provides for the punishment of persons
who, having knowledge of orders given with regard to the commission of crimes set out in Articles 1 and 3 [i.e. grave breaches of the 1949 Geneva Conventions and acts related thereto] or of facts being at the beginning of the commission thereof, and who could have prevented the completion or could have terminated it, did not act within their scope of action. 
Luxembourg, Law on the Punishment of Grave Breaches, 1985, Article 6.
Netherlands
The Military Criminal Code (1964), as amended in 1990, of the Netherlands provides:
Art. 148. A soldier who intentionally allows a subordinate to commit a crime, or who witnesses a crime committed by a subordinate and intentionally omits to take measures, to the extent they are necessary and required from him, will be punished as an accomplice.
Art. 149. A soldier who intentionally omits to take measures, to the extent they are necessary and required from him, [will be punished] when his subordinate commits, or plans to commit a crime, which he reasonably must have presumed. 
Netherlands, Military Criminal Code, 1964, as amended in 1990, Articles 148–149.
Netherlands
The International Crimes Act (2003) of the Netherlands provides:
1. A superior shall be liable to the penalties prescribed for the offences referred to in [Article] 2 [genocide, crimes against humanity, war crimes and torture] if he:
(a) intentionally permits the commission of such an offence by a subordinate;
(b) intentionally fails to take measures, in so far as these are necessary and can be expected of him, if one of his subordinates has committed or intends to commit such an offence.
2. Anyone who culpably neglects to take measures, in so far as these are necessary and can be expected of him, where he has reasonable grounds for suspecting that a subordinate has committed or intends to commit such an offence, shall be liable to no more than two-thirds of the maximum of the principal sentences prescribed for the offences referred to in [Article] 2. 
Netherlands, International Crimes Act, 2003, Article 9.
Norway
Norway’s Penal Code (1902), as amended in 2008, states:
A military or civilian commander or person effectively acting as such is liable to punishment for breach of superior responsibility if persons under his authority and control commit a crime mentioned in sections 101 to 107[genocide, crimes against humanity and war crimes], when the crime is a result of the commander or person’s failure to exercise control properly over them, and the commander or person
a) knew or should have known that the subordinates were committing or were about to commit such a crime, and
b) failed to take necessary and reasonable measures within his power to prevent or stop the crime, or to report the matter to a competent authority for prosecution. 
Norway, Penal Code, 1902, as amended in 2008, § 109.
Peru
Peru’s Code of Military and Police Justice (2006) states:
A military commander or person effectively acting as a military commander who commits a crime described in the present Title [of this law] shall be subjected to the same penalty as the one applicable to those under his or her command or effective authority and control provided that:
This person knew that his or her subordinates were committing or were about to commit such crimes; and
He or she 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. 
Peru, Code of Military and Police Justice, 2006, Article 84.
Peru
Peru’s Decree on the Use of Force by the Armed Forces (2010) states:
The superior is responsible for violations of the present Legislative Decree and its Regulations [which set forth IHL obligations] if the superior knew that his or her subordinates committed such violations and if the superior failed to take the adequate available measures to prevent or punish the violations. 
Peru, Decree on the Use of Force by the Armed Forces, 2010, Article 29.
Peru
Peru’s Military and Police Criminal Code (2010) states:
In cases concerning crimes against International Humanitarian Law, the punishment shall be lessened for individuals who carried out an order by a government, authority or superior, whether civilian or military, as long as:
a. The perpetrator did not know that the order was unlawful; and
b. The order was not manifestly unlawful. 
Peru, Military and Police Criminal Code, 2010, Article 77.
Republic of Korea
The Republic of Korea’s ICC Act (2007) provides:
Article 5 (Responsibility of military commanders and other superiors)
A military commander (the term “commander” hereinafter includes any person effectively acting as a commander) or a superior of a group or an organization (the term “superior” hereinafter includes any person effectively acting as a superior) who omits to prevent a subordinate under his or her effective command and control from committing [genocide, crimes against humanity or war crimes] shall be punished in the same way as a perpetrator of the offence committed by that subordinate. 
Republic of Korea, ICC Act, 2007, Article 5; see also Article 15 (Violation of the duty of supervision).
The legislation also provides:
A military commander or a civilian superior who fails to draw attention of the authority responsible for the investigation or prosecution to the commission of [genocide, crimes against humanity, or war crimes] by his or her subordinate shall be punished by imprisonment for up to five years. 
Republic of Korea, ICC Act, 2007, Article 15(3).
Rwanda
Rwanda’s Law Setting up Gacaca Jurisdictions (2001) aims
to organize the putting on trial of persons prosecuted for having, between 1 October 1990 and 31 December 1994, committed acts qualified and punished by the Penal Code and which constitute: a) … crimes of genocide or crimes against humanity as defined by the [1948 Genocide Convention], by the [1949 Geneva Convention IV and the 1977 Additional Protocols], as well as in the [1968 UN Convention on the Non-Applicability of Statutory Limitation to War Crimes and Crimes against Humanity]. 
Rwanda, Law Setting up Gacaca Jurisdictions, 2001, Article 1.
The Law provides:
The fact that any of the acts aimed at by this organic law has been committed by a subordinate does not free his superior from his criminal responsibility if he knew or could know that his subordinate was getting ready to commit this act or had done it and that the superior has not taken necessary and reasonable measures to punish the authors or prevent that the mentioned act be not committed when he had means. 
Rwanda, Law Setting up Gacaca Jurisdictions, 2001, Article 53(2).
Rwanda
Rwanda’s Presidential Order Establishing Army General Statutes (2002) provides:
Any officer and/or man heading a service shall be answerable to his hierarchical superiors for the smooth functioning of that service. He shall be required, therefore, to punish or cause to be punished all abuses, negligence or breaches of laws and regulations that may come to his notice in the exercise of his functions. 
Rwanda, Presidential Order Establishing Army General Statutes, 2002, Article 31.
Rwanda
Rwanda’s Law Repressing the Crime of Genocide, Crimes against Humanity and War Crimes (2003) provides:
The fact that one of the crimes provided for by this law has been committed by a subordinate does not free the authority which is his superior from its criminal responsibility if it knew or had reasons to know that the subordinate was preparing to commit that act or had committed it and if the authority superior in hierarchy did not take the necessary and reasonable measures to prevent the said act from being committed or to punish its perpetrators, and to inform the relevant authorities. 
Rwanda, Law Repressing the Crime of Genocide, Crimes against Humanity and War Crimes, 2003, Article 18.
Serbia
Serbia’s Criminal Code (2005) states:
(1) A military commander or person who in practice is discharging such function, knowing that forces under his command or control are preparing or have commenced committing offences specified [genocide, crimes against humanity and war crimes] … fails to undertake measures that he could have taken or was obliged to take to prevent commission of such crimes, and this results in actual commission of that crime, shall be punished by the penalty prescribed for such offence.
(2) Any other superior who knowing that forces under his command or control are preparing or have commenced committing offences specified [genocide, crimes against humanity and war crimes] … fails to undertake measures that he could have taken or was obliged to take to prevent commission of such crimes, and this results in actual commission of that crime, shall be punished by the penalty prescribed for such offence. 
Serbia, Criminal Code, 2005, Article 384(1)–2.
Sierra Leone
Sierra Leone’s Geneva Conventions Act (2012) states:
Part 1 – Preliminary
1. Interpretation.
In this Act, unless the context otherwise requires –
“Conventions” means
(i) the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the field, done at Geneva on 12th August 1949;
(ii) the Geneva Convention related to the Amelioration of Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea, done at Geneva on 12th August 1949;
(iii) the Geneva Convention related to the Treatment of Prisoners of War, done at Geneva on 12th August 1949;
(iv) the Geneva Convention related to the Protection of Civilian Persons in Time of war, done at Geneva on12th August 1949;
“Protocols” means –
(i) the Protocol, additional to the Geneva Conventions of 12th August 1949, relating to the Protection of Victims of International Armed Conflicts (Protocol I) done on 10th June 1977;
(ii) the Protocol, additional to the Geneva Conventions of 12th August 1949, relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II) done on 10th June 1977.
Part II - Offences in Contravention of the Conventions and Protocol I and Other Related Matters
2. Grave breaches of the Conventions and the First Protocol.
(1) A person of whatever nationality commits an offence if that person, whether within or outside Sierra Leone[,] commits, aids, abets or procures any other person to commit a grave breach specified in –
(a) article 50 of the First Geneva Convention;
(b) article 51 of the Second Geneva Convention;
(c) article 130 of the Third Geneva Convention;
(d) article 147 of the Fourth Geneva Convention;
(e) paragraph 4 of article 11 or paragraph 2, 3 or 4 of Article 85 of the First Protocol.
(3) A person who in Sierra Leone commits, abets, aids or procures any other person to commit a breach of the Conventions or Protocols not covered under subsection (1) commits an offence and is liable on conviction to imprisonment for a term not less than 10 years and not exceeding twenty five years.
(4) A citizen of Sierra Leone who outside Sierra Leone commits or aids, abets or procures the commission by another person of a breach of any of the Conventions or Protocols not covered under subsection (1) commits an offence and is liable on conviction to imprisonment for a term not less than 10 years and not exceeding 25 years.
(5) Where a person commits an offence under this section outside Sierra Leone, that person may be tried and punished as if the offence was committed in Sierra Leone.
4. Responsibility of commanders and other superiors.
(1) A military commander or a person effectively acting as a military commander shall be responsible for an offence under section 2 committed by forces under his effective command and control if he fails to exercise such command and control over such forces where –
(a) he knew or owing to the circumstances at the time should have known that the forces were committing or about to commit such offence and
(b) he failed to take all necessary and reasonable measures within his powers to prevent or repress the commission of the offence or to submit the matter to the competent authorities for investigation and prosecution.
(2) A superior officer who does not fall under subsection (1) shall be responsible for an offence under section 2 committed by subordinates under his effective command and control if he fails to exercise such authority and control over his subordinates where –
(a) he knew or consciously disregarded information which clearly indicated that the subordinates were committing or about to commit such offence;
(b) the offence concerns activities that were within his command and control;
(c) he failed to take necessary and reasonable measures within his power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.
(3) A person responsible under this section for an offence under section 2 shall, for the purposes of this Part be regarded as having aided, abetted, counselled or procured the commission of the offence, and is liable on conviction to imprisonment for a term not less than ten years and not exceeding 25 years. 
Sierra Leone, Geneva Conventions Act, 2012, Sections 1, 2(1), (3)–(5) and 4.
Somalia
Somalia’s Military Criminal Code (1963) states:
372. Unlawful appropriation of goods. – 1. A soldier or other person serving in or accompanying the armed forces of the State who takes possession, needlessly and without authorization, of food, clothing or equipment, or who has them handed over to him, shall be punished by military confinement for up to five years.
2. If the act is committed by two or more people in concert, the penalty shall be increased by one third to one half.
3. If violence is used, a penalty of military confinement for one to eight years shall be applied.
373. Failure to prevent unlawful appropriation of goods An officer or a non-commissioned officer who does not do everything in his power to prevent the act specified in the preceding article shall be punished by military confinement for up to one year.
414. Failure to prevent particular military offences. 1. … [A] soldier who, for fear of danger or for some other inexcusable reason, does not do everything possible to prevent the commission of one of the offences provided for in Articles 370 [looting], 371 [fire, destruction or serious damage in an enemy country], 376 [ill-treatment of the sick, wounded or shipwrecked] [and] 377 [dispossession of the sick, wounded or shipwrecked] … shall be punished:
(a) by confinement for not less than 10 years, in the case of an offence for which the law prescribes a penalty of death with demotion or of life imprisonment;
(b) in other cases, by the penalty prescribed for the offence, reduced by one half to two thirds.
2. If the guilty party is higher in rank, or, being of the same rank, is higher in command or more senior, the penalty prescribed by law for the offence whose commission was not prevented shall be applied. The judge may nevertheless reduce the penalty. 
Somalia, Military Criminal Code, 1963, Articles 372–373 and 414.
Somalia
Somalia’s Act of Military Discipline (1975) states:
65. … Every Commanding Officer who conceals or ignores disciplinary failures [by] his subordinates will … himself [be considered to have committed a] … disciplinary failure of his duties.
291. … If a Commanding Officer does not [impose the] appropriate penalty [for] a disciplinary failure [by a subordinate], he will be liable for such [a] failure; it means failing to act [in view of] a disciplinary failure is a failure [in] itself and against the rules. 
Somalia, Act of Military Discipline, 1975, Articles 65 and 291; see also Article 138.
South Africa
South Africa’s Implementation of the Geneva Conventions Act (2012) states:
5. Breach of Conventions and penalties
(1) Any person who, whether within or outside the Republic, commits a grave breach of the [1949 Geneva] Conventions, is guilty of an offence.
(2) For the purposes of subsection (1), “a grave breach” means –
(a) a grave breach referred to in Article 50 of the First Convention;
(b) a grave breach referred to in Article 51 of the Second Convention;
(c) a grave breach referred to in Article 130 of the Third Convention;
(d) a grave breach referred to in Article 147 of the Fourth Convention; or
(e) a grave breach referred to in Article 11 or 85 of [the 1977 Additional] Protocol I.
(3) Any person who within the Republic contravenes or fails to comply with a provision of the Conventions not covered by subsection (2), is guilty of an offence.
(4) Any citizen of the Republic who outside the Republic contravenes or fails to comply with a provision of the Conventions not covered by subsection (2), is guilty of an offence.
6. Failure to prevent breaches of Conventions
(1) A military superior officer is guilty of an offence if –
(a) forces under his or her effective command, authority and control, whether within or outside the borders of the Republic, commit a grave breach contemplated in section 5(1) or commit an offence contemplated in section 5(3) or (4);
(b) he or she knew, or in the circumstances ought to have reasonably known, that the forces contemplated in paragraph (a) were committing such a grave breach or offence; and
(c) he or she failed –
(i) to exercise effective command, authority and control over the forces contemplated in paragraph (a);
(ii) to take all necessary and reasonable measures within his or her power to prevent or repress the commission of any breach or offence contemplated in paragraph (a); or
(iii) to submit the commission of the breach or offence contemplated in paragraph (a) to the competent authorities for investigation and prosecution.
2) Any person, whether within or outside the borders of the Republic, who fails to act when under a duty to do so in order to prevent the commission of a grave breach contemplated in section 5(1) or an offence contemplated in section 5(3) or (4) by any other person, is guilty of an offence.
(4) For the purposes of this section, a “military superior officer” includes any person –
(a) acting as a military superior officer; or
(b) in a superior position, including a civilian position, in relation to those forces. 
South Africa, Implementation of the Geneva Conventions Act, 2012, Sections 5(1)–(4), 6(1)–(2) and (4).
Spain
Spain’s Military Criminal Code (1985) imposes a prison sentence on any military officer who does not maintain due discipline in the forces under his command, who tolerates any abuse of authority or power in his subordinates, or who does not take the necessary steps to prevent a military offence among those listed under “Offences against the Laws and Customs of War”. 
Spain, Military Criminal Code, 1985, Article 137.
Spain
According to the Report on the Practice of Spain, Article 11 of Spain’s Penal Code (1995), which provides for responsibility by omission, would be applicable in regard to the commander’s duty to prevent breaches of the 1949 Geneva Conventions and the 1977 Additional Protocol I. 
Report on the Practice of Spain, 1998, Chapter 6.7, referring to Penal Code, 1995, Article 11.
Spain
Spain’s Penal Code (1995), as amended in 2003, states:
1. A military authority or commander, or any person who acts as such, who fails to adopt the measures at his or her disposal to prevent the commission of any of the crimes in Chapters II, II bis and III of the present title [which is entitled “Crimes against the International Community” and includes war crimes] by the forces under his or her command or effective control shall be punished with the same penalty as the perpetrators.
2. If the above is due to serious negligence, the penalty shall be lowered by one or two degrees.
3. A military authority or commander, or any person who acts as such, who fails to adopt the measures at his or her disposal in order to allow the prosecution of the crimes defined in Chapters II, II bis and III of the present title [which is entitled “Crimes against the International Community” and includes war crimes] committed by persons under his or her command or effective control, shall be punished with the same penalty as the perpetrators.
4. The superior not covered by the sub-sections above who within his or her mandate fails to adopt measures at his or her disposal to prevent the commission by his or her subordinates of any of the crimes defined in Chapter II, II bis and III of the present title [which is entitled “Crimes against the International Community” and includes war crimes] shall be punished with the same penalty as the perpetrators.
5. The superior who fails to adopt the measures at his or her disposal in order to allow for the prosecution of the crimes defined in Chapters II, II bis and III of the present title [which is entitled “Crimes against the International Community” and includes war crimes] committed by his or her subordinates shall be punished with a penalty two degrees lower than the perpetrators.
6. The officer or authority who, without committing any of the above and who despite his or her duties failed to promote the prosecution of any of the crimes defined in chapters II, II bis and III of the present title [which is entitled “Crimes against the International Community” and includes war crimes] within his or her knowledge, shall be punished with two to six years’ special suspension from holding any public office or employment. 
Spain, Penal Code, 1995, as amended on 25 November 2003, Article 615bis.
Spain
Spain’s Royal Ordinances for the Armed Forces (2009) states in the article on criminal responsibility for offences against international humanitarian law:
[The superior] must be aware of the grave responsibility that he or she is under and [must] assume in order to avoid the commission, by [members of] the forces under his or her command or effective control, of crimes … against protected persons and objects in the context of an armed conflict. 
Spain, Royal Ordinances for the Armed Forces, 2009, Article 56.
Sweden
Sweden’s Penal Code (1962), as amended in 1998, provides: “If a crime against international law has been committed by a member of the armed forces, his lawful superior shall also be sentenced in so far as he was able to foresee the crime but failed to perform his duty to prevent it.” 
Sweden, Penal Code, 1962, as amended in 1998, Chapter 22, § 6.
Switzerland
Switzerland’s Military Criminal Code (1927), taking into account amendments entered into force up to 2011, states in the common provisions for the chapters on genocide and crimes against humanity and on war crimes:
Art. 114 a
1 A superior who knows that a subordinate commits or will commit one of the acts under … chapter 6bis [war crimes] and who does not take appropriate measures to prevent him from it is liable to the same penalty as the perpetrator of the act. If the superior acts negligently, the penalty shall be a custodial sentence not exceeding three years or a monetary penalty.
2 A superior who knows that a subordinate has committed one of the acts under … chapter 6bis and who does not take appropriate measures to ensure the punishment of the perpetrator of the act shall be liable to a custodial sentence not exceeding three years or a monetary penalty. 
Switzerland, Military Criminal Code, 1927, taking into account amendments entered into force up to 2011, Article 114a.
The Code also states:
Art. 5
1 In times of war, in addition to the persons mentioned in art. 3 and 4, the following are subject to military criminal law:
1. Civilians who make themselves culpable of one of the following offences:
d. … war crimes (Part 2, chapter 6bis and art. 139);
5. foreign military persons who make themselves culpable of … a war crime (Part 2, chapter 6bis and art. 139).
2 The provisions on the punishability of superiors (art. 114a) are applicable to the cases under paragraph 1, number 1(d) and number 5. 
Switzerland, Military Criminal Code, 1927, taking into account amendments entered into force up to 2011, Articles 5(1)(1)(d) and (5) and (2).
[footnotes in original omitted]
Switzerland
Switzerland’s Penal Code (1937), taking into account amendments entered into force up to 2011, which also contains a title on war crimes, states in the common provisions for the titles on genocide and crimes against humanity and on war crimes:
Art. 264k
1 A superior who knows that a subordinate commits or will commit one of the acts under … chapter 6bis [war crimes] and who does not take appropriate measures to prevent him from it is liable to the same penalty as the perpetrator of the act. If the superior acts negligently, the penalty shall be a custodial sentence not exceeding three years or a monetary penalty.
2 A superior who knows that a subordinate has committed one of the acts under … chapter 6bis and who does not take appropriate measures to ensure the punishment of the perpetrator of the act shall be liable to a custodial sentence not exceeding three years or a monetary penalty. 
Switzerland, Penal Code, 1937, taking into account amendments entered into force up to 2011, Article 264k.
Ukraine
Ukraine’s Criminal Code (2001) provides for a fine or imprisonment for the “intentional non-stopping of a crime committed by a subordinate”, as well as for the failure by a military service official, who is an investigation authority, of carrying out investigations against a subordinate for alleged crimes. 
Ukraine, Criminal Code, 2001, Article 426.
United Kingdom of Great Britain and Northern Ireland
The UK ICC Act (2001), as amended in 2009, states:
Responsibility of commanders and other superiors
(1) This section applies in relation to—
(a) offences under this Part [i.e. genocide, crimes against humanity and war crimes], and
(b) offences ancillary to such offences.
(2) A military commander, or a person effectively acting as a military commander, is responsible for offences committed by forces under his effective command and control, or (as the case may be) his effective authority and control, as a result of his failure to exercise control properly over such forces where—
(a) he either knew, or owing to the circumstances at the time, should have known that the forces were committing or about to commit such offences, and
(b) he failed to take all necessary and reasonable measures within his power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.
(3) With respect to superior and subordinate relationships not described in subsection (2), a superior is responsible for offences committed by subordinates under his effective authority and control, as a result of his failure to exercise control properly over such subordinates where—
(a) he either knew, or consciously disregarded information which clearly indicated, that the subordinates were committing or about to commit such offences,
(b) the offences concerned activities that were within his effective responsibility and control, and
(c) he failed to take all necessary and reasonable measures within his power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.
(4) A person responsible under this section for an offence is regarded as aiding, abetting, counselling or procuring the commission of the offence.
(5) In interpreting and applying the provisions of this section (which corresponds to article 28 [of the 1998 ICC Statute]) the court shall take into account any relevant judgment or decision of the ICC.
Account may also be taken of any other relevant international jurisprudence.
(6) Nothing in this section shall be read as restricting or excluding—
(a) any liability of the commander or superior apart from this section, or
(b) the liability of persons other than the commander or superior. 
UK, ICC Act, 2001, as amended in 1 September 2009, Section 65.
United States of America
The US Regulations Governing the Trials of Accused War Criminals in the Pacific Region I (1945), establishing provisions for the punishment of a list of more specific offences and also of “all other offences against the laws or customs of war”, provided for the punishment of “participation in a common plan or conspiracy to accomplish any of [these acts]”. It stated:
Leaders, organizers, instigators, accessories and accomplices participating in the formulation or execution of any such common plan or conspiracy will be held responsible for all acts performed by any person in execution of that plan or conspiracy. 
United States, Regulations Governing the Trials of Accused War Criminals in the Pacific Region I, 1945, Regulation 5.
United States of America
The US Military Commissions Act (2009) amends Chapter 47A of Title 10 of the United States Code as follows:
§ 950q. Principals
“Any person punishable under this chapter who—
“(1) commits an offense punishable by this chapter, or aids, abets, counsels, commands, or procures its commission;
“(2) causes an act to be done which if directly performed by him would be punishable by this chapter; or
“(3) is a superior commander who, with regard to acts punishable by this chapter, knew, had reason to know, or should have known, that a subordinate was about to commit such acts or had done so and who failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof, is a principal. 
United States, Military Commissions Act, 2009, § 950q.
Uruguay
Uruguay’s Law on Cooperation with the ICC (2006) states:
The hierarchical superior, who may be a civilian or military official, irrespective of his or her official tasks or government, is criminally responsible for the crimes set out in Titles I to III of Part II of the present law [i.e. genocide, crimes against humanity and war crimes] committed by persons under his or her authority if for reasons of his or her position, task or function, he or she knew that they were participating in some form in the commission of the aforementioned crime or offences and if he or she, despite being able to do so, has not adopted all reasonable and necessary measures within his or her reach to impede, denounce or repress the commission of such crimes and offences. 
Uruguay, Law on Cooperation with the ICC, 2006, Article 10.
Yemen
Yemen’s Military Criminal Code (1998) states:
In the case of the commission of any of the crimes set out under this chapter [i.e. war crimes], the commander … will be held responsible for the crime and will not be released from the punishment provided for, except if the acts have been committed against [his] choice, or without [his] knowledge, or if [he] did not have the possibility to prevent them. 
Yemen, Military Criminal Code, 1998, Article 23.
Argentina
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. 
Argentina, Court of Appeal, Military Junta case (Appeal), 9 December 1985.
Australia
In 2009, in the Snedden case – an action for defamation related to an article in a national newspaper alleging that the plaintiff had committed or condoned atrocities in Bosnia-Herzegovina in 1991 – Australia’s New South Wales Supreme Court held:
124 … [T]here is overwhelming evidence of the commission of torture and the war crime of torture by members of the Serbian paramilitary units under the plaintiff’s command. Much of this evidence was not seriously challenged. As I have already noted, the real challenge was directed to the evidence of the plaintiff’s presence during these events and the extent to which the plaintiff can be held accountable for the actions of his men. Once the witness’ evidence of the plaintiff’s presence during the various assaults is accepted, it follows that the plaintiff condoned the commission of torture by failing to act to prevent it.
125 Given the tenor of the plaintiff’s evidence, it is also beyond doubt that he must be held accountable for the assaults perpetrated by his men. According to that evidence, he was in command at the Knin fortress and enjoyed a legendary status among his men. He exercised absolute authority and was kept very well informed, to the extent that “nothing could have happened there without me knowing it”. The plaintiff went so far as to say that it would be “impossible … absolutely” for anyone to have been beaten at the fortress without the plaintiff knowing. If beatings occurred then: “definitely if it happened, yes I would know of it.” In so far as the assaults committed at the hospital prison are concerned, there is no reason to doubt that the plaintiff’s authority over the guards, who wore the same uniform and the same insignia as the plaintiff, was any less than the authority he exercised at the fortress. One of the most striking features of the plaintiff’s evidence was the obvious pride he took in recounting the complete respect and adulation he enjoyed from his men and from Serbs generally. 
Australia, New South Wales Supreme Court, Snedden case, Judgment, 18 December 2009, §§ 124–125.
577. The Tribunal (ICT-2) agrees with the settled legal proposition that the presence of an accused at the crime site must be shown to have a significant legitimizing or encouraging effect on the principals. What we see in the case in hand? What the evidence of victimized detainees divulges?
578. First, neither the prosecution documents nor the documents submitted by the defence show that the accused Mir Quasem Ali had been in elsewhere, not in Chittagong during the period of execution of offences for which he has been charged with. Next, the documents relied upon by the prosecution chiefly provide support to the fact of accused’s position in ICS and affiliation of ICS with the AB force. Thus, absence of information as to accused’s presence in those reports published in the dailies does not render him ‘absent’ in Chittagong at the relevant time.
579. The learned defence counsel argued too that no fact has been set out in the charges framed to establish a superior-subordinate relationship between the accused and the members of AB the principal perpetrators and as such depriving the accused of detailed notice in the indictment he cannot be held responsible as ‘superior’ of the principals the AB members.
580. The Tribunal notes that the charges framed, as it appears, make the accused liable also under section 4(2) of the Act of 1973 which corresponds to the doctrine of civilian superior responsibility for the offences with which he has been indicted. It implies clearly that he had acted also in exercise of his superior position and authority over the AB men in addition to providing abetment and facilitation to the commission of crimes. … Rather, it appears … that the charges have been framed in compliance with the requirement of section 16(1) of the Act of 1973. Thus, mere non-mentioning the accused as ‘superior’ or ‘leader’ of the AB men, the principals in the charges framed does not debar the prosecution in agitating this contention. And the Tribunal also shall not be precluded from arriving at a decision in this regard, on the basis of evidence and facts revealed in trial.
581. We are not convinced with the defence argument that in absence of any documentary evidence the accused cannot be termed as a ‘commander’ or ‘superior’ of Al-Badar members who used to carry out the criminal activities at the camp implanted at Dalim Hotel. Even the circumstances revealed may be considered sufficient to show an individual’s position of authority and his position of ‘de facto commander’. It need not be proved strictly by any formal document. For the purpose of arriving at a finding on this crucial issue we deem it expedient to look at the evidence of detainee witnesses first and then to the authoritative sourced information.
595. P.W.19 … a co-detainee (victim of charge no. 9) in narrating his harrowing experience, during captivity at the AB camp at Dalim Hotel stated that he used to see the armed AB men going round at different rooms and Mir Quasem Ali often accompanied them. Extent of causing torture got intensified on arrival and in presence of Mir Quasem Ali at the camp when the AB men used to utter “commander’ has come, ‘Khan Saheb’ has come”.
596. The above version of a direct witness who had been in confinement at the prime execution site, the AB torture camp at Dalim Hotel could not be refuted by the defence in any manner. And even it remained undenied too. This unshaken piece of evidence based on traumatic experience provides force to the fact that accused Mir Quasem Ali was known as ‘Khan Saheb’, ‘Bangalee Khan’, ‘Sarder’ or ‘commander’ of the infamous AB torture & detention camp implanted at Dalim Hotel.
601. Who was Mir Quasem Ali in 1971? He was the president of ICS of Chittagong town unit and afterwards on 08 November same year he was elected as general secretary of the East Pakistan ICS. … Additionally, it emerges from the preceding findings that it has been proved beyond reasonable doubt that Mir Quasem Ali is criminally responsible, for having ordered, committed and, by his presence and his participation aided and abetted in the commission of crimes for which he has been charged with.
602. ICS and its potential leaders were thus fully cognizant about the criminal activities of Al-Badar. …
603. Therefore, there had been an effective tie between ICS and the AB force. Such linkage together with the potential position the accused Mir Quasem Ali had in the ICS offers unmistaken conclusion that he had culpable association with the AB force and its activities in Chittagong, particularly with the AB camp at Dalim Hotel. It was not required to provide evidence that the accused formally belonged to AB force. His position in the ICS by itself made him a person of domination and authority in carrying out activities by the AB men of the camp at Dalim Hotel in Chittagong town.
616. It is significant to note that a civilian superior may be held responsible under the theory of civilian superior responsibility only where he has effective control, be it de jure or merely de facto, over the persons committing violations of international humanitarian law. A superior’s or leader’s authority may be merely de facto, deriving from his influence or his indirect power. The determining question is the extent to which Mir Quasem Ali had power of control over the AB camp. No formal superior subordinate relationship was required, so long as the accused possessed de jure or de facto authority to order or that authority may be implied.
620. … [E]ven in absence of any formal document showing the accused as a ‘commander’ or ‘member’ of AB force or the AB camp at Dalim Hotel the nexus between him who was a potential ICS leader in Chittagong in 1971 by virtue of which he was in commanding position of AB and atrocious activities carried out by the AB force in Chittagong town offer valid inference that the accused Mir Quasem Ali, being in commanding position of the camp, was fully aware of criminal activities carried out there and had ‘effective control’ over the AB members of that camp. Hence, accused Mir Quasem Ali had acted as the ‘leader’ or ‘commander’ of the AB camp, an organised criminal enterprise.
624. All the charges excepting charge no. 11 and charge no. 12 involve the criminal acts of causing inhuman torture at the AB camp keeping the civilians captive there, on capture. Thus, the criminal acts consist of three phases – forcible capture, confinement at the AB camp and causing torture during confinement. Accused Mir Quasem Ali may not be found to have had direct participation to all the phases of criminal acts. But his act, conduct or position of authority over the AB camp must connect him with the criminal acts carried out by the principal perpetrators.
628. In relation to charge no. 4 the fact of presence of one ICS leader Afsar Uddin at the AB camp at Dalim Hotel, as stated by P.W.14 impels conclusion as to culpable association of ICS leaders of Chittagong with the AB camp[s] and activities carried out there. Admittedly, in 1971 till []6 November accused Mir Quasem Ali was the president of ICS, Chittagong town unit. Accused’s leading position in ICS together with the act and conduct revealed from evidence of other detainees so far as it relates to charge nos. 2 and 3 it may be lawfully presumed that the accused had substantial contribution in the form of approval and encouragement to the commission of criminal acts constituting the offence of confinement and torture of P.W.14.
634. Charge nos. 11 and 12 involves the event of killing of detainees at the AB camp. It has been found proved that the accused, by his conduct, act, and presence coupled with his position of authority was knowingly ‘concerned’ with the act of such killings.
635. Thus, the AB camp at Dalim hotel was a ‘criminal enterprise’ of which the accused Mir Quasem Ali was a ‘boss’. Accused’s active inducement, approval and endorsement effectively contributed to the commission of all those criminal activities carried out there, in furtherance of common purpose.
636. Accused Mir Quasem Ali had acted in such culpable and commanding manner sharing intent of the principals by virtue of his potential position in the ICS, although he had no formal relationship with the AB camp at Dalim hotel. But by his act and conduct he established himself as the ‘ring leader’ of the criminal enterprise. Accused’s conscious and active presence at the AB camp, his inducing sayings, act and conduct cumulatively suggest his ‘commanding position’ that had encouraging effect and approved to all the criminal activities carried out to the commission of abduction, confinement, torture and death. In this regard we may recall the observation of ICT[R] Trial Chamber rendered in the case of Ndindabahizi,
639. It has been argued too by the defence that section 4(2) of the 1973 Act only provides for holding military commanders and superiors responsible for criminal acts of subordinates; and it does not provide for civilian superiors to be held similarly accountable.
640. We are not with the above argument. We have already recorded our reasoned finding that the accused Mir Quasem Ali was in ‘commanding’ and ‘leading’ position of the AB members headquartered at the Dalim Hotel building. An accused incurs individual criminal liability for his act of abetment that encompasses moral support, assistance, instigation. At the same time he incurs liability under the theory of ‘civilian superior responsibility’ if he is found to have had authority and command over the principals. As per the amendment of section 3 of the Act of 1973, the Tribunal now has jurisdiction to try and punish any non-military person [civilian], whether superior or subordinate, who has direct or indirect involvement with the relevant crimes. In other words, the Tribunal now has jurisdiction to try an individual who was a non-military person, including a civilian superior, for the offences enumerated in the Act of 1973.
641. Section 4(2) of the 1973 Act generally asserts the superior’s liability for crimes. This section uses the terms ‘commander’ or ‘superior officer’ in general. But the said section does not preclude the liability of the civilian superiors. If the amended section 3 and the section 4(2) of the 1973 Act are read together it would affirm that liability for crimes under section 4(2) would also entail the liability of the civilian superior.
642. Prosecution is not required to show that the accused had ‘explicit legal capacity’ to prevent the commission of crimes. It is to be seen whether the accused Mir Quasem Ali had material ability to act. Accused was in de facto commanding position of the detention and torture camp of AB set up at Dalim Hotel. It is proved. He had substantial and material ability to control the AB men in the camp.
643. It is now settled that the doctrine of superior responsibility is applicable even to civilian superiors of paramilitary organizations. As a matter of policy, civilians should also be subject to the doctrine. Since AB, the ‘killing squad’ of JEI, was formed of workers of ICS, accused Mir Quasem Ali, by virtue of his leading position in ICS had acted as a potential member of AB ‘high command’ in setting up ‘AB torture and killing camp’ at Dalim Hotel in Chittagong, the facts revealed lead us to this conclusion. Accused’s recurrent cruel activities and acts carried out at the camp, as found proved by evidence, demonstrates that in exercise of his ‘commanding position’ he rather consciously induced the AB members in committing the untold recurrent torture and torture to death of civilians and non[-]combatant freedom fighters kept confined there on capture, to further the notorious purpose and plan of his parent organisation JEI that actively sided with the Pakistani occupation army.
644. … The duty to prevent arises when the commander acquires actual knowledge or has reasonable grounds to suspect that a crime is being or is about to be committed. It has been proved that the system criminal activities were carried out within knowledge of accused Mir Quasem Ali and despite being in commanding position of the AB camp accused failed to prevent the commission of crimes.
645. The decisive criterion for determining one’s position as ‘superior’ is not his formal status or formal authority but the “degree of control” he had on the perpetrators or the ‘group’ or the ‘organization’. ‘Power of influence’ is a key indicator that constitutes sufficient basis for the imposition of ‘superior responsibility’. Formal position or designation as a commander is not required, particularly in case of a de facto superior. Accused’s commanding position in the ICS naturally placed him in a position of authority even of AB members at the camp at Dalim Hotel. 
Bangladesh, International Crimes Tribunal-2, Mir Quasem Ali case, Judgment, 2 November 2014, §§ 573, 576–582, 587, 595–597, 601–604, 608, 612, 616–617, 620–621, 624–625, 628–629, 631, 634–637, and 639–645.
Canada
In the Boland case in 1995 involving the beating and killing of a Somali detainee by two Canadian soldiers, a Canadian Court Martial Appeal Court, increasing the sentence upon the accused who had been the superior of the soldiers who directly committed the acts, stated:
In his own examination-in-chief [the accused] confirmed on several occasions that he had been negligent. The sad but unalterable fact is that negligence led to the death of a prisoner. Even taking the view of the evidence most favorable to the respondent, the panel was bound to conclude that [the accused] had strong reason to be concerned about the conduct of [his subordinates] in respect of a helpless prisoner. Even if the panel believed he did not see [one of the subordinates] strike the prisoner on the first occasion and even if it concluded that [the accused] disbelieved [the] statement [of one of the subordinates] that [the other subordinate] had struck the prisoner after he, [the accused], had left, [the accused] had admitted that he considered [one of the subordinates] to be a “weak” soldier who could surely not be counted on to resist the initiatives [of the other subordinate]. He admitted having seen [one of the subordinates] do life-threatening acts to the prisoner by covering his nose and pouring water on him. He had subsequently heard [one of the subordinates] speak of intending to burn the prisoners with cigarettes. He thus had good grounds for apprehension as to [the] conduct [of one of the subordinates]. There was also evidence from even some defence witnesses that [the] reputation [of one of the subordinates] was well known. Yet, it was clear that [the accused] had said at least once and probably twice in the presence of [one of the subordinates]: “I don’t care what you do, just don’t kill the guy”. He gave no proper order to [one of the subordinates] as to safeguarding the prisoner and left him unsupervised. Nor was it in dispute that it was [the accused’s] responsibility to take all reasonable steps to see that the prisoner was held in a proper manner. [The accused] failed in the duty, with grave consequences.
I see nothing in the instructions of the Judge Advocate, nor in the sentence, to indicate the General Court Martial had a proper regard to the fundamental public policy which underlies the duty of a senior non-commissioned officer to safeguard the person or life of a civilian who is a prisoner of Canadian Forces, particularly from apprehended brutality or torture at the hands of our own troops. That is this case … No one can dispute the difficult and sometimes hazardous circumstances under which Canadian Forces were operating in Somalia in general, nor the physical problems which [the accused] himself was experiencing at this time. Nevertheless these circumstances call for the exercise of greater rather than less discipline particularly on the part of those in command of others. 
Canada, Court Martial Appeal Court, Boland case, Judgment, 16 May 1995.
Canada
In the Brocklebank case before the Canadian Court Martial Appeal Court in 1996, involving the question of the criminal responsibility of a Canadian soldier serving on a peacekeeping mission in Somalia for having negligently performed a military duty, the majority of the Court of Appeal stated:
The standard of care applicable to the charge of negligent performance of a military duty is that of the conduct expected of the reasonable person of the rank and in all the circumstances of the accused at the time and place the alleged offence occurred. In the context of a military operation, the standard of care will vary considerably in relation to the degree of responsibility exercised by the accused, the nature and purpose of the operation, and the exigencies of a particular situation. An emergency, or the heightened state of apprehension or urgency caused by the threats to the security of Canadian Armed Forces personnel or their material might mandate a more flexible standard than that expected in relatively non-threatening scenarios. Furthermore, in the military context, where discipline is the linchpin of the hierarchical command structure and insubordination attracts the harshest censure, a soldier cannot be held to the same exacting standard of care as a senior officer when faced with a situation where the discharge of his duty might bring him into direct conflict with the authority of a senior officer.
I agree with the prosecution … that Canadian soldiers should conduct themselves when engaged in operations abroad in an accountable manner consistent with Canada’s international obligations, the rule of law and simply humanity. There was evidence in this case to suggest that the respondent could readily have reported the misdeeds of his comrades. However, absent specific wording in the relevant international conventions and more specifically, the [Unit Guide (1990), I simply cannot conclude that a member of the Canadian Forces has a penally enforceable obligation to intervene whenever he witnesses mistreatment of a prisoner who is not in his custody.
In closing, I would remark that … it remains open to the chief of defence staff to define in more explicit terms the standards of conduct expected of soldiers in respect of prisoners who are in Canadian Forces custody. It is open to the chief of defence staff to … impose a military duty on Canadian Forces members either to report or take reasonable steps to prevent or arrest the abuse of prisoners not in their charge … This might prove a useful undertaking. 
Canada, Court Martial Appeal Court, Brocklebank case, Judgment, 2 April 1996.
Chile
In its judgment in the Episode of San Javier case in 2006, Chile’s Court of Appeals of Santiago stated:
According to Article 456 of the Criminal Procedure Code, nobody may be found guilty of a crime or simple delict unless the tribunal which is hearing the case is convinced, based on lawful evidence, not only that a punishable act has in fact been committed, but also that the accused has participated in this act in a way that gives rise to criminal responsibility and that is punished by the law. 
Chile, Court of Appeal of Santiago, Eighth Chamber, Episode of San Javier case, Case No. 2.182-1998, Judgment, 27 July 2007, § 7.
The State Attorney submits that the appealed Judgment suffers from general contradiction which, in his view, is reflected in that the first-instance court retained blanket norms from Articles 86 and 87 of the [1977] Additional Protocol I to the Geneva Conventions in the factual description of the offense, whereby it accepted the concept of responsibility based on the principles of command responsibility, which, apart from suppressive and repressive components, includes an extremely important preventive component of command responsibility requiring commanders to prevent potential crimes by their subordinates, which was the Prosecution’s intention. However, in the practical application of this modality to the established state of facts and in the Reasoning of its Judgment, the first-instance court acted, in the Prosecution’s view, inconsistently because it considered the acts of the Accused as those of mere omission equating them with commission, and thereby treating them as a form of “incomplete command responsibility” that de facto does not include an extremely important, from the Prosecution’s point of view, preventive component of command responsibility. The Prosecution submits that by the virtue of their retention in the factual description of the offense, provisions of Articles 86 and 87 of the Additional Protocol I have become an integral part of the legal norm contained in Article 120(1) as read with Article 28 of the BCCRC [Basic Criminal Code of the Republic of Croatia], which is why all criminal conduct by the field units subordinated to the accused should have been subsumed under this norm as a consequence of the failure of the accused, or their omission, to act preventively, suppressively or repressively in relation to their subordinates, which the court of the first instance failed to do. This, in the State Attorney’s view, resulted in the contradiction between the Enacting Clause of the appealed Judgment and its Reasoning. The Prosecution further submits that the first-instance court failed to give valid reasons as to why it favored “incomplete command responsibility”, upon which it relied in the Reasoning of its Judgment, over a comprehensive command responsibility with all its preventive, suppressive and repressive elements.
Democratic Republic of the Congo
In August 2006, in the Kahwa Panga Mandro case, the Military Garrison Court of Ituri at Bunia held:
c.) On the war crime by attack against protected objects according to Articles 8.2)b)ix) and 77 of the Rome Statute
Whereas for its realization, that charge requires the following elements:
1) That the perpetrator directed an attack;
Whereas in the present case it has been proven through the testimony of the victims that the troops of the chief Kahwa attacked Zumbe on his order, while he was the chief of the Hema militia called “Chui mobil force” …;
2) That the object of the attack was one or more buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals or places where the sick and wounded are collected, which were not military objectives.
3) That the perpetrator intended such buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals or places where the sick and wounded are collected, which were not military objectives, to be the object of the attack;
Whereas in the present case, when attacking all these objects, Kahwa’s men knew that these objects were not military objects; whereas from this follows the mental element; whereas, in fact, there was no military target for pretending that they attacked that building because it was occupied by armed men;
4) The conduct took place in the context of and was associated with an armed conflict not of an international character [compare ICC Elements of Crimes, Article 8(2)(e)(iv) ICC Statute],
5) That the perpetrator was aware of factual circumstances that established the existence of an armed conflict.
Whereas, in fact, the defendant Kahwa was aware of the existence of these conflicts …
Whereas it has been proven that Kahwa in his [passive] attitude had to tolerate the violations committed by his men during the attack of 15 to 16 October 2002; whereas his troops, in fact, operated in the territory controlled by him in his capacity as chief of the community, acts he cannot pretend not having been aware of;
Whereas, in consequence, his responsibility on the basis of Articles 85 to 87 of the Geneva Additional Protocol and Article 28 of the Rome Statute on the responsibility of superiors, which provides as follows, [is established]:
“Their (command) responsibility is only engaged if they failed to take all necessary and reasonable measures within their power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.”
Whereas Articles 85–87 of Additional Protocol I provide that:
“any commander who is aware that subordinates are going to commit or have committed a violation must:
- initiate such steps as are necessary to prevent such violations,
- initiate disciplinary or penal action against violators, [according to] his competences,
- report violations to the competent authorities”;
Whereas, in fact, the commander shares the responsibility with the perpetrator of the act;
Whereas Article 29 of the [1998 Statute of the] International Criminal Court speaks of the responsibility of the superior (military commander or civilian superior) in the following cases:
- If “the military commander either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes”;
- If “the superior either knew, or consciously disregarded information which clearly indicated, that the subordinates were committing or about to commit such crimes and these crimes concerned activities that were within the effective responsibility and control of the superior”;
Whereas, in the present case, Kahwa, in his capacity as chief of the Hema militia and leader of the Bahema Banyuagi community, while attacking the Lendu did nothing to hinder these dramas; whereas his silence thus constitutes approval or a tacit order. 
Democratic Republic of the Congo, Military Garrison Court of Ituri, Kahwa Panga Mandro case, Judgment, 2 August 2006.
Democratic Republic of the Congo
In November 2006, in the Bongi Massaba case, a case against a captain of the armed forces of the Democratic Republic of the Congo, the Military Court of the Eastern Province held:
Criminal responsibility of military commanders
Whereas, independent of the hypothesis of criminal participation, in the area of criminal repression the responsibility of the perpetrator of a punishable act remains, in principle, individual;
Whereas, however, this principle is under attack in international criminal law, where the guilt of a superior in the hierarchy for reprehensible acts of their subordinates can be upheld;
Whereas jurisprudence has set out three conditions which establish that borrowed criminal responsibility (Bagalishema case, ICTR, Trial Chamber, 7 June 2001);
… A link of subordination placing the perpetrator of the crime under the effective control of the accused;
It follows from the examination of the case that the fact that the defendant Blaise Bongi Massaba included his own bodyguard in the patrol platoon led by second lieutenant Kabesa and guided by his informers in the village of Tchekele sufficiently establishes the subordination required for establishing the violation;
Whereas the defendant Blaise Bongi Massaba has a functional pre-eminence, i.e. the material capacity to prevent and punish violations of humanitarian law; (in this sense, ICTY, Mucić et al. case, cited by the ICTR in the Kayishema and Ruzindana case, Trial Chamber, 15 May 2003);
Whereas the defendant Blaise Bongo Massaba, when the pillaged objects where brought in, instead of punishing the pillagers, on the contrary appropriated the objects by declaring to his wife and even in his complaint that they were war booty;
Whereas the defendant Blaise Bongi Massaba had reason not only to know but, above all, to make sure, that his soldiers went and, then, pillaged the locality of Tchekele;
Whereas the defendant Blaise Bongi Massaba failed to take all necessary or reasonable measures to prevent the said act from being committed;
Whereas the defendant Blaise Bongi Massaba failed to punish the original perpetrators;
Whereas, therefore, the defendant Blaise Bongi Massa must share the responsibility with his soldiers, perpetrators of these pillages;
Whereas article 28 of the Rome Treaty confirms that principle of co-responsibility in the following hypotheses:
- the defendant Blaise Bongo Massaba knew well that his troops would commit pillage, which is why his bodyguard Valaka and his informant had to be part of that patrol to make sure that the pillaged objects were brought;
Whereas, furthermore, he himself organized that pillage by taking into account information received from the [informant] from Tchekele, who had to take the members of the patrol to addresses already identified;
Whereas his co-responsibility, i.e. as co-perpetrator of the pillage in Tchekele, is therefore established. 
Democratic Republic of the Congo, Military Court of the Eastern Province, Bongi Massaba case, Judgment on Appeals, 4 November 2006.
Democratic Republic of the Congo
In 2009, in the Basele Lutula and Others case, the Military Garrison Court of Kisangani convicted Mai-Mai militia members of various crimes. Regarding the criminal responsibility of one of the defendants for the crime against humanity of rape, the Court stated:
The defendant Basele Lutula, alias Colonel Thoms, is charged of the crime against humanity of rape pursuant to article 28 of the [1998] Rome Statute, which states:
In addition to other grounds of criminal responsibility under this Statute for crimes within the jurisdiction of the Court:
a) a military commander or person effectively acting as a military commander shall be criminally responsible for crimes within the jurisdiction of the Court 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.
b) with respect to superior and subordinate relationships not described in paragraph a), a superior shall be criminally responsible for crimes within the jurisdiction of the Court 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 …
It follows from the above that all conditions should be met for the criminal responsibility of the superior to be engaged, namely:
1. the existence of an effective subordination and control.
The commander may be part of the State structure ( … chiefs of staff of different operations etc. …) or of unofficial military structures, such as rebel armies, insurgents [and] armed groups.
Article 38 of the … [1998 ICC] Statute makes a distinction between a de jure and a de facto command as it states: “a military commander or person effectively acting as a military commander”.
In the present case, the defence states, without referring to names, that those who would have committed the crime openly declare not to recognize the defendant Basele as a hierarchical chief. It results from the evidence produced in the hearing that the defendant [Basele Lutula] acknowledges having sent the defendants Kipeleka Nyembo Bumba, Osumaka Loleka, Okanga Likunda and Koti Okeke to cut down all trees in the sector of Yawende Loolo, where the locality Lieke Lesole is situated.
In view of the above, the fact that the defendant Basele Lutula, alias Colonel Thoms, gave orders for the defendants Kipeleka, Osumaka, Okanga and Koti Okeke to cut down the trees, and the fact that … the latters executed that order is sufficient proof that … [Basele Lutula] exercised de facto command over the others and that he controlled them effectively. Thus, … [the Court] concludes that the defendant Basele Lutula, alias Colonel Thoms, is indeed the superior of Kipeleka, Osumaka, Okanga and Koti Okeke, [who formed a] group send by him to Lieke Lesole in July 2007.
2. Moral element
Article 28(a)(i) [of the 1998 ICC Statute] states: “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”.
This provision suggests that the superior, in view of the scale of the crimes committed by his subordinates, could not have ignored them.
In the present case, the defendant Basele Lutula, alias Colonel Thoms, who was 26km from Lieke Lesole, more precisely in Lohumonoko, when Kipeleka and his group raped women … , could not have ignored what his men were doing, even more because he had effective control over them.
3. It must be proven that the superior did not take all necessary and reasonable measures within his power to prevent the commission [of the crimes] or to submit [the matter] to the competent authorities … In this regard, the defence argued that, as it was not an organised … [army] nor a rebellion, only the State was able to punish the above-mentioned defendants for their criminalized conduct … [or] to prevent it. The Court finds that the defendant Basele Lutula, alias Colonel Thoms, as a superior who has effective control over his men, played the role of a military commander … , that is, he could punish the commission [of crimes]. When he became aware of the mass rapes committed by … [his men], all he did was to send his brother, known by the pseudonym of “Avance”, to recover the two weapons of war carried by them. This is sufficient proof that he did not have the intention to prevent or to punish those crimes, nor to inform the competent authorities.
Therefore, [the Court] upholds the charge of crimes against humanity of rape pursuant to article 7(1)(g) [of the 1998 ICC Statute] against the defendant Basele Lutula in application of article 28 … [of the same statute]. 
Democratic Republic of the Congo, Military Garrison Court of Kisangani, Basele Lutula and Others case, Judgment, 3 June 2009, pp. 26–29.
Democratic Republic of the Congo
In 2010, in the Barnaba Yonga Tshopena case, the Military Garrison Court of Ituri-Bunia convicted a leader of the Front for Patriotic Resistance in Ituri (FRPI) of several war crimes based on command responsibility. The Court stated:
130 … [I]n principle, individual criminal liability is individual. However, some adjustments are needed for a better understanding of such principle. Indeed, some criminalize complicity and co-perpetration; others, in particular international criminal law and military criminal law, … provide that superiors can, in certain circumstances, be convicted for crimes committed by their subordinates.
131 … [O]n this matter, this Military Tribunal follows the view of the Pre-Trial Chamber II of the International Criminal Court, according to which “article 28 of the [1998 ICC] Statute reflects a different form of criminal responsibility than that found under article 25(3) (a) of the Statute in the sense that a superior may be held responsible for the prohibited conduct of his subordinates for failing to fulfil his duty to prevent or repress their unlawful conduct or submit the matter to the competent authorities. This sort of responsibility can be better understood ‘when seen against the principle that criminal responsibility for omissions is incurred only where there is a legal obligation to act’. Bemba case, Decision on the Confirmation of Charges, 15 June 2009, § 405]
132 … [I]n the present case, … the defendant … did not individually and materially commit the various war crimes for which he is charged, as the material perpetrators are formally identified as being the Ngiti combatants of the FRPI militia. [H]e was the founder, moral authority and spiritual leader [of the FRPI] and, by right, the commander and leader of the FRPI, as well as the Messiah of the Lendu people. [A]s such, he is the highest moral authority and the supreme spiritual leader. De facto, he is considered by his FRPI peers as the supreme leader of the Ngiti combatants of this political-military movement. In this capacity, together with other commanders of this political-military movement, he organized, planned or encouraged in any way the attacks … against Nyankunde and Groupement Musedzo by FRPI Ngiti combatants respectively on 5 and 12 September 2002.
133 … Below is the evidence of the defendant’s membership of the … FRPI since its foundation until his arrest:
- The accused … founded the tribal militia of Ngiti combatants which later became the armed political-military movement named Front for Patriotic Resistance in Ituri, FRPI;
- He invited [several of] the commanders who joined the tribal militia of Ngiti combatants … He knows all of them personally and individually. He demonstrated this [knowledge] during a public hearing of this Court …
- The accused … , after talking about those FRPI commanders at the public hearing, was asked by the Court how he knew them if he argued not to be member of the FRPI. He replied without hesitation that he knew them very well because they were his people. This means they were close collaborators within the FRPI.
- … [T]he accused … was the only person on guard at the Operational Area of Ituri … [on the occasion of the ceremony organized … when FRPI commanders joined the Armed Forces of the Democratic Republic of the Congo – FARDC], at the official gallery reserved for the high civil and military authorities … [T]he Court asked in which role he was present there, and he replied that it was in his role of director of the CODECO. [The Court] notes that this cooperative no longer exists since 2000 and that all its workers became combatants at the Ngiti militia, which later became the FRPI. Thus, he was present in the role of FRPI leader.
- … [T]he accused … was found to be circulating in the FRPI’s bastion … His justification was that he was there to show himself and contradict rumours about his death and to … [have a feast] for the occasion of his re-appearance. [The Court] deduces in view of the above that he was there as part of a tour for the inspection of military positions of the FRPI Ngiti combatants … , in the role of supreme moral and spiritual authority and de facto supreme commander of the FRPI Ngiti combatants. [H]is public appearances necessarily involved jubilant scenes and large festivities as admitted by him.
- … [T]he defendant … , in 2007, was fleeing the sweep operations launched by the FARD[C] against FRPI’s residual positions. When arrested, he was found in possession of an FRPI’s roadmap given to him by … [FRPI’s] Colonel Cobra Matata Banaloki so he could reach the latter’s residence in Nyavo.
134 … [T]he above-mentioned reasons constitute sufficient evidence … to establish substantial grounds to believe that the defendant … was not only a member of the FRPI, but also and mainly the highest civil authority who had an unquestionable authority within this political-military-tribal movement, including over the commanders.
135 … [T]his evidence gives the Court substantial grounds to believe that the defendant … should logically be considered criminally responsible for the charged acts, in the role of … a superior within the FRPI militia pursuant to article 28(b) of the … [1998 ICC] Statute, for the following reasons.
136 … [A]lthough he was not a commander within the FRPI militia, the defendant … was de facto its supreme commander, as he was not only the founder, but also the highest moral authority and supreme spiritual leader. As such, he is a superior having de facto under his authority and control the FRPI Ngiti combatants … (this is the spirit of article 28(2) of the … [1998 ICC] Statute, which provides that, regarding a civil superior, the Court must prove that he knew, or consciously disregarded, information which clearly indicated, that the subordinates were committing or about to commit such crimes).
137 … [T]herefore, since the foundation of the FRPI until the moment when the defendant was arrested, … [he] was not only supposed to exercise de facto authority and effective control over the FRPI militia and ipso facto, over the Ngiti combatants who have committed war crimes during the attacks against Collectivité Chefferie de Nyankunde and Groupement Musedzo respectively on 5 and 12 September 2002; but unfortunately he also omitted or neglected to exercise the appropriate control over the FRPI Ngiti combatants, as he knew that the latter would commit war crimes (in the Emil Muller case, … [an accused] was convicted for the first time by the German Supreme Court in Leipzig after World War II for not having prevented nor taken disciplinary action against the perpetrators: his responsibility lies in the omission … ; a superior is responsible for crimes committed by his subordinates and for his omission in preventing [the commission of those crimes] or in taking disciplinary action).
138 … [H]e was also supposed to exercise the power of giving orders, which were executed through the chain of command as, at the time of the facts of the present case, the FRPI was organized as a conventional army, with a General Staff directed by Kandro Ndekote, seconded by Cobra Matata Banaloki. [T]hese were the ones who headed up the bodies and structures of command, military operations … [and] administration, but unfortunately … [the accused] omitted or neglected to exercise the appropriate control over the Ngiti combatants of the FRPI militia through the chain of command, while he knew that the latter would commit war crimes.
139 … [H]e was also supposed to have and exercise the power and material capacity for preventing and punishing the commission of crimes, as there was a branch within the FRPI in charge of military justice … However, not only he omitted or neglected to exercise the appropriate control over the FRPI Ngiti combatants by giving orders with the aim of preventing the commission of war crimes through the chain of command, but he also did not punish their commission nor submitted them to the authority of the branch in charge of military justice within the FRPI for investigation and prosecution, while he knew that the latter were going to commit or had committed war crimes. 
Democratic Republic of the Congo, Military Garrison Court of Ituri-Bunia, Barnaba Yonga Tshopena case, Judgment, 9 July 2010, §§ 130–139.
[footnote in original omitted]
Ethiopia
In the Mengistu and Others case in 1995 concerning the prosecution and trial of Colonel Mengistu Haile Mariam and former members of the Derg for allegedly committing crimes against humanity and war crimes during the former regime between 1974 and 1991, the Special Prosecutor of Ethiopia, in a reply to the objection filed by counsels for the defendants, referred, inter alia, to the 1919 Treaty of Versailles, to the 1945 IMT Charter (Nuremberg) and Nuremberg trials and to the 1993 ICTY Statute. He stated:
Heads of State and other higher responsible government officials in any form of government are all required and obliged to know international crimes thereunder. They are also obliged to prevent the commission of these acts [i.e. of international crimes] and to ensure the observance of the international norms. 
Ethiopia, Special Prosecutor’s Office, Mengistu and Others case, Reply submitted in response to the objection filed by counsels for defendants, 23 May 1995, § 1.6.
Germany
In its judgment in the Superior Orders case in 1953, Germany’s Federal Court of Justice held that the superior giving an illegal order would be primarily responsible for it. 
Germany, Federal Court of Justice (Bundesgerichtshof), Superior Orders case, Judgment, 19 March 1953.
Germany
In 2010, in the DRC case, Germany’s Federal Court of Justice decided to remand in pre-trial custody a national of the Democratic Republic of the Congo (DRC) who had been living in Germany. The Court summarized the facts of the case as follows:
The subject of the arrest warrant is the allegation that as the president of the paramilitary militia organisation “Forces Démocratiques de Libération du Rwanda” [Democratic Forces for the Liberation of Rwanda] (hereafter FDLR), which is operating in the provinces North Kivu and South Kivu of the Democratic Republic of [the] Congo … , the accused is criminally liable because he is responsible as superior for crimes against humanity and war crimes and as the ringleader of a terrorist group abroad. 
Germany, Federal Court of Justice, DRC case, Decision, 17 June 2010, § 2.
The Court stated:
There is the strong suspicion that the members of the FDLR operating in the DRC have committed crimes against humanity under § 7 para. 1 numbers 1 and 6 VStGB [Germany’s International Crimes Code], war crimes against persons under § 8 para. 1 numbers 1, 3, 4 and 5 VStGB and war crimes against property and other rights under § 9 para. 1 VStGB, for which the accused is criminally liable as superior under § 4 VStGB. 
Germany, Federal Court of Justice, DRC case, Decision, 17 June 2010, § 23.
The Court further held:
35
dd) It is highly likely that the accused is criminally liable as a superior for the crimes committed by members of the FDLR under § 4 VStGB [Germany’s International Crimes Code]. Pursuant to this provision, military and civilian superiors are punished as perpetrators for crimes under the International Crimes Code committed by their subordinates if they consciously allowed these crimes to happen. In contrast to the general rules of German criminal law, [the International Crimes Codes provides that] if a superior supports the commission of a crime by a subordinate merely by refraining from taking any action, the superior is considered a perpetrator of the crime without it being necessary to distinguish between the commission of and participation in the crime in individual cases. Moreover, because of his particular responsibility, a superior who refrained from taking any action cannot rely on mitigating circumstances under § 13 Abs. 2 StGB [Germany’s Penal Code] …
36
(1) A military commander is understood as an individual who has the possibility of giving binding orders to subordinates, a possibility which must be practically exercisable and may be founded in law. If these conditions are fulfilled, every link of the chain of command within military hierarchy is to be considered a commander. Consequently, several superiors at different levels can all be equally responsible for the same crime committed by a subordinate pursuant to § 4 VStGB. Criminal responsibility under § 4 VStGB cannot be based solely on a superior’s title or formal legal position. In addition, it is always necessary that the superior has the possibility to in fact determine the conduct of his subordinates, in particular to effectively suppress the commission of crimes … Not all members of decision making bodies are necessarily superiors in the sense of § 4 VStGB. Also in this respect it is decisive whether an individual has the power to order subordinates to carry out the jointly taken decisions. … Persons such as field officers or military advisors who have actual influence on the decision-making process but no direct authority to issue orders do not fall within the scope of application of superior responsibility …
37
According to the aforementioned provisions, it is highly likely that the accused is to be considered a superior in the sense of § 4 VStGB. He was not only nominally the president of the FDLR, but also fulfilled the function of commander-in-chief as a matter of fact. According to the current state of the investigations it must be considered that he was in permanent contact with decision-makers on the ground and was, pursuant to the chain of command within the FDLR, in fact in a position to give orders concerning both strategic matters and regarding concrete means and methods of warfare.
38
(2) For an individual to incur criminal responsibility as a superior under § 4 VStGB, it is necessary for him to refrain from preventing the commission of a crime by a subordinate. These conditions are fulfilled here. It need not be decided whether the wording of § 4 VStGB means that a superior can only avoid incurring criminal liability for the acts of subordinates if he successfully takes action to the effect that the crime is not committed because of his intervention, or whether it suffices that the superior takes all appropriate and necessary measures within his power to dissuade the subordinate from committing the crime … According to the current state of the examinations, the accused did not take any serious or sustainable measures to prevent the violent assaults against the Congolese civilian population; he was aware of these assaults. To the contrary, these measures were part and parcel of the FDLR’s political strategy with which it intended to achieve its goals; the accused had a significant impact on the formulation of this strategy.
39
(3) As regards the subjective element of the crime, § 2 VStGB in conjunction with § 15 StGB requires at least conditional intent concerning the objective elements of the crime …
40
(a) In contrast to the responsibility of a superior under international criminal law, negligence does not suffice under § 4 VStGB, not even for military superiors. This provision of the International Crimes Code thus goes less far than Article 28 of the [1998] ICC Statute. The intent must concern the perpetrator’s status as superior and the knowledge that the person carrying out a concrete action is his subordinate; the superior also must know or consider it concretely possible that he can prevent the commission of the crime by the subordinate based on his authority to issue orders or directives.
41
Further, the superior must recognize or be aware of the real possibility that the subordinate plans to commit a crime under the VStGB. It suffices in any case if his conditional intent comprises the type of crime to be committed, for example killings under § 7 para. 1 no. 1 or § 8 para. 1 no. 1 VStGB, and also extends to such crimes being committed by troops under his command in areas where fighting is taking place. Additional detailed knowledge is not required. In light of the current state of the investigations, it is not necessary to examine whether the mere knowledge of an abstract possibility that a subordinate is committing crimes against humanity or war crimes are sufficient to substantiate the necessary intent of the superior …
42
If the aforementioned conditions are fulfilled, divergences regarding the way the crime is carried out or regarding the severity of the crime committed by the subordinate do not negate the responsibility of the superior. However, there is no responsibility of the superior under § 4 VStGB if the subordinate commits a crime which pursuant to the International Crimes Code is qualitatively different than his superior expected and than his superior was prepared to let happen (for example rape under § 8 para. 1 no. 4 VStGB instead of pillage under § 9 para. 1 VStGB which had been expected by the superior, or vice versa
43
Moreover, it is not necessary that the superior … have on his mind the main crime which, though not developed in all its details, is concretely developed in its main essential characteristics and basic features. Such a restrictive interpretation is not required by the wording of the rule. This undifferentiated transposal of the principles developed for the participation in crimes under the provisions of the General Part of the German Penal Code goes against the object and purpose of § 4 VStGB; it does not do justice to the specific particularities of attributing violations of the International Crimes Code in various respects. The International Crimes Code differs from the general Penal Code in particular by emphasizing the regularly collective character of the crimes covered. The central aspect of this criminal concept is specifically the participation of a number of individuals at different hierarchical levels in the commission of the crime. In view of the influence of international criminal law on this piece of legislation, it is indispensable to consider these particularities in its interpretation … It follows:
44
On the one hand, the obligation to prevent a subordinate’s crimes under the International Crimes Code is not only engaged if he is aware of the essential characteristics of the crime about to be committed. The reason for this is that the subordinate personnel regularly poses a great risk, particularly for the potential victims’ highly valued legal goods including physical integrity and life … This potential hazard justifies a particular responsibility of the superior … and makes it especially necessary that he ensures that his subordinates conduct their mission in accordance with the law. Therefore, the public must be able to rely on the commander controlling the dangers inherent in armed units in a timely way rather than waiting until he learns of concrete crimes having been committed.
45
On the other hand, the purpose of § 4 VStGB is not only to attribute the crimes of subordinates to those superiors who are responsible for the concrete acts on the ground to such an intensive degree that their conditional intent even encompasses the details of the potential violations of the International Crimes Code. Rather, it is intended that also those superiors who are at the top of the chain of command and are thus usually so far away from the actual events on the ground that they do not have detailed knowledge of the precise location, time and the concrete victims be held to account. The provision would mostly be void of any meaning and would only be able to fulfil the intended function in a very restricted way if the requirements for the intent of the superior regarding the crimes to be committed by the subordinate were set too high. Cases like the present one, whose characteristic is that the violations of the International Crimes Code are part of the organisation’s general strategy, make this particularly clear. These general directives are regularly issued by the leaders of the organisation, who would be exempt from criminal liability under § 4 VStGB if the requirements concerning the knowledge element of intent were set too high.
46
Finally and additionally, in the context of armed confrontation it typically only becomes clear at short notice precisely which crimes are to be committed. An attribution of the crimes under § 4 VStGB would only be possible in very limited situations if one were to require that the superior had detailed knowledge. 
Germany, Federal Court of Justice, DRC case, Decision, 17 June 2010, §§ 35–46.
Germany
In 2010, in the Democratic Forces for the Liberation of Rwanda case, the Federal Prosecutor General at Germany’s Federal Court of Justice issued a press release, which stated:
On 8 December 2010, the Federal Prosecutor General brought charges before the Senate on State Protection of the Higher Regional Court Stuttgart against:
- the 47-year-old Rwandese national Dr. Ignace M. and
- the 49-year-old Rwandese national Straton M.
for crimes against humanity and war crimes as well as membership in a foreign terrorist association “Forces Démocratiques de Libération du Rwanda” [Democratic Forces for the Liberation of Rwanda] (FDLR); in addition, there is sufficient suspicion that the accused Dr. Ignace M. was gang leader of the FDLR (§ 4, § 7 para. 1 nos. 1, 3, 6, 8 and 9, para. 3, § 8 para. 1 nos. 1 to 5, para. 4 sentence 1, § 9 para. 1 and § 11 para. 1 no. 4 VStGB [International Crimes Code], § 129b para. 1 in connection with § 129a paras. 1 and 4 StGB [Penal Code]).
In the charges, which have now been delivered and which are the first ones brought under the International Crimes Code, essentially the following facts are set out:
The … [FDLR] … is a rebel group mainly comprised of members of the ethnic Hutu group and was originally founded by individuals responsible for the genocide of the Tutsi who had fled from Rwanda in 1994. Its operational base is in the Eastern Democratic Republic of [the] Congo [DRC]. …
The accused Dr. Ignace M. has been president of the FDLR since December 2001. The accused Straton M. has been its first vice president since June 2004. Until their arrest in Germany on 17 November 2009, both accused steered the FDLR’s conduct, strategies and tactics from Germany together with Calixte M., who is residing in France and who has since been detained by the International Criminal Court in The Hague. Thus, they could have prevented the systematic commission of violent acts against the civilian population by the FDLR’s militiamen, which were part of the organisation’s strategy. Specifically, the accused are responsible for 26 crimes against humanity and 39 war crimes, which the militiamen under their control committed in the Democratic Republic of [the] Congo between January 2009 and 17 November 2009. These crimes inter alia include the killing of more than 200 people, rape of numerous women, using civilians as human shields against attacks by military opponents and incorporating children into the FDLR militia. 
Germany, Federal Prosecutor General, Democratic Forces for the Liberation of Rwanda case, Press release, 17 December 2010.
Indonesia
In the Abilio Soares case in 2002, the Ad Hoc Human Rights Tribunal for East Timor stated:
In considering, that ad hoc international criminal tribunal practices (ICTY and ICTR) and various international instruments have developed the above principles, through the description of individual responsibility parameters as follows:
- a crime against humanity perpetrated by a subordinate will not exonerate the leader or superior from criminal responsibility, if he was aware, or by the reasonable use of his faculties was aware, that the subordinate was about to perpetrate a crime and the leader or superior failed to take appropriate and reasonable measures to prevent him or failed to punish the perpetrator; …
In considering, that the doctrine of a superior’s responsibility that was later inserted in Article 42 verse (2) [of Law No. 26 of 2000 Concerning Human Rights Court] as a part of individual criminal responsibility according to international law, was developed by the international community in trying war criminals and crimes against humanity after World War II, that was eventually crystallized in the Rome Statute. This was intended as a means to demand accountability from military and non-military superiors, for crimes perpetrated by their subordinates or men because they failed to prevent or control their subordinates;
In considering, that the limits set forth by Hugo Grotius concerning a superior’s responsibility should meet three conditions as follows:
1) the person had the authority to control the actions of his subordinates, a simple example being: the attention of a father to his children, or of an employer to his employees;
2) there was knowledge, in which the person knows of the crime perpetrated by his subordinate, but he does not prevent the act;
3) there was ability to prevent a crime. This means that if a person is proved unable to take preventive measures, he is not liable for superior’s responsibility.
In considering, that the limits of the superior’s responsibility mentioned above underlie provisions for the superior’s responsibility in the Statute of International Criminal Tribunal for Former Yugoslavia (ICTY Statute), the Statute of International Criminal Tribunal for Rwanda (ICTR Statute) and the Rome Statute, that were later adopted in Law No. 26 Year 2000 concerning Human Rights Tribunal (Article 42 verse 2 (a) and (b)).
In considering, that application of the doctrine, in addition to being used in demanding accountability from a military superior for failure to act, as in the cases of Yamashita, High Command, Hostages and Meyer, in further developments in the Tokyo Tribunal it was later agreed that the responsibility of a superior could also include non-military superiors. This indicates that in certain cases analogies may be made between the responsibility of a military command and the responsibility of a non military superior or a civilian official. As additional legal basis, Article 86 Additional Protocol I to the 1949 Geneva Convention in 1977, stipulates that in certain cases all superiors shall be responsible for failure to act. Then Article 7 paragraph 3 of the ICTY Statute also points not only to military superiors but also includes non-military superiors. This provision was applied in the Celebici case.
Ad. 2 Concerning the Element of Having Subordinates, Having Authority To Exert Effective Control, Did Not Exert Appropriate And Proper Control Over His Subordinates
In considering, concerning the second element, namely the superior subordinate relationship, had the authority to exert effective control but did not exert appropriate and proper control over subordinates, the Panel will deliberate the following;
In considering, that essentially a superior subordinate relationship is a superior having the authority to exert proper control over his subordinates, by de jure or de facto. The superior must have the authority to control his subordinates and be able to command or direct his subordinates.
In considering, that the category of superior may include political leader, company leader, and senior civilian official (Celebici case). As in military organizations, superiors have a chain of responsibility from one superior to a lower superior. In the Rwanda case, for instance, Akayesu, a mayor (bourgmestre) who carried out executive functions and conducted public administration among the people, including wielding power over politicians, was found criminally responsible for the acts of his subordinates; although he was not a member of the military with the responsibility of a commander, he held legal mandate and was considered an official, agent or person with public authority, or by de facto represented Government in endorsing the violence perpetrated by the Hutu over the Tutsi. This was accompanied by the condition that he had proper knowledge that his subordinates were carrying out such acts, or were about to carry out such acts whereas the superior failed to act in a significant and reasonable manner to prevent these acts;
In considering, that the perception of a subordinate is each person with a direct superior who directs his actions or related activities. In a large organization a person may hold a position both as superior as well as subordinate.
In considering, that the denotation of effective authority and control is when a superior by de jure or de facto wields the power to issue directives to his subordinates to execute a certain task or a related activity.
In considering, that as contained in Article 86 Ist Additional Protocol of the Convention of 1977, that states that a superior shall create an effective reporting system to ensure that in executing his duties a subordinate complies with humanitarian laws, and if he should be aware of a potential violation or an actual violation then he should take measures to prevent or handle the violation. Therefore, a superior shall be responsible for serious human rights violations carried out by his subordinate, if:
- if the superior knew that a subordinate had or was about to perpetrate a serious human rights violation; or
- the superior had received information enabling him to conclude that his subordinate had or was about to perpetrate a serious human rights violation; and
- the superior did not take measures within the scope of his authority to prevent the serious human rights violation.
Ad. 3 The Element of Knowing or Consciously Disregarding Information
In considering, that the third element, namely knowing or consciously disregarding information, will be deliberated as follows:
In considering, that the denotation of “knowing” or “consciously disregarding information”, contains the elements: that there was actual knowledge to be found from direct evidence or should have been known because of the situation. Standards on “need to know” differ between military superiors and non-military superiors. For non-military (civilian) superiors, it must be proved that:
- the information clearly indicated significant risk that his subordinates were committing or were about to commit serious human rights violations, in the active and passive senses;
- the information was indeed available to the superior; and
- the superior knew the information existed, but failed to determine the category of the information.
Ad. 4 The element concerning not taking appropriate and necessary measures within the scope of his authority to prevent, halt acts, surrender to the relevant authorities for examination, investigation and prosecution
In considering, that with regard to this fourth element, namely not taking appropriate and necessary measures within the scope of his authority to prevent, halt acts, surrender to the relevant authorities for examination, investigation and prosecution, the Panel deliberated as follows:
In considering, that all superiors are obliged to take practical measures to ensure that their subordinates comply with rules in executing their duties. 
Indonesia, Ad Hoc Human Rights Tribunal for East Timor, Abilio Soares case, 7 August 2002, pp. 55–60.
Iraq
In its judgment in the Al-Dujail case in 2006, the Iraqi High Tribunal stated:
The highest president is not exempt from criminal responsibility for the crimes committed by people who work under his command, in case the president knew or had reason to know that his subordinates committed these acts or were on the verge of committing them, and if the president did not take the necessary and appropriate acts to prevent these actions from happening or to raise the matter with the appropriate authorities for the purpose of conducting an investigation and prosecution. 
Iraq, Iraqi High Tribunal, Trial Chamber, Al-Dujail case, Judgment, 5 November 2006, Part II, p. 43, based on a translation available at http://law.case.edu/saddamtrial/dujail/opinion.asp (last accessed on 1 April 2010).
The Tribunal further specified:
For this type of accountability to be established, three conditions must be available … prior to considering the supreme leader as criminally liable for the criminal acts that were carried out by his followers. These conditions are:
1. The existence of a leader-subordinate relation between the top official and his followers.
2. The top official had knowledge, or reason to know, that his subordinates were about to commit criminal acts, or they have [committed the criminal acts], but
3. The supreme leader, or the top official did not take the necessary and reasonable measures to prevent those acts, or to punish those who committed [these acts] during his time [of rule].
In regards to the first condition about the leader-subordinate relation, there must be an existence of a professional hierarchy relation between the leader and the subordinate. As the International Criminal Tribunal for the former Yugoslavia [ruled] in the case of Milorad Kornylak, it is not a prerequisite for the official character to override such a relation as well as it is unnecessary for it to be specified in only an official category. For instance, a hierarchal relation for the top official post might be available on the basis of the rule of power, not the rule of law. What must be proven is that the leader has an influential authority on the people who committed the alleged crimes. An influential authority means the practical ability to prevent crimes, or to punish the [criminals], if the crimes were committed. When the leader has an influential authority and he fails to employ it, he will be held accountable for the crimes that his subordinates commit. A leader, or two [leaders], might be held accountable for the same crime that was committed by one person if it has been proven that the original perpetrator has been under the authority of the two leaders during the event [of the crime].
The court does not see it necessary for a relation between the leader and subordinate to be direct, meaning that this relation is present even if it was indirect. For instance, this relation might be present between the supreme leader and the subordinate’s subordinate, [which means that] it is unnecessary for the subordinate to be the one who personally commits the crime, but it might be committed by [a person under him].
Article 15/4 [explains clearly] the accountability of the leader regarding acts committed by individuals who operate under his command. Normally, in a descending [order], the [secondary] subordinates are at the command of the [immediate] subordinate who has a direct relation with the supreme leader. Therefore, they and their [immediate] subordinates are at the command of the supreme leader. This is one of the conditions of establishing this accountability, which has become available to challenge Saddam Hussein since he is the supreme leader, not only to the defendants Barzan Ibrahim, Taha Yasin Ramadhan, and ‘Awwad Al-Bandar, but also a [supreme] leader to those who operate at the command of those [defendants] as well, which means that if the supreme leader was able to command his immediate subordinates, then he [primarily] can command the [secondary] subordinates of the [immediate] subordinates. 
Iraq, Iraqi High Tribunal, Trial Chamber, Al-Dujail case, Judgment, 5 November 2006, Part III, pp. 25–26, based on a translation available at http://law.case.edu/saddamtrial/dujail/opinion.asp (last accessed on 1 April 2010).
Iraq
In its judgment in the Al-Dujail appeal case in 2006, the Appeals Chamber of the Iraqi High Tribunal stated:
The responsibility of leaders and presidents for crimes committed by those who are under their command or authority is a responsibility for acts executed by forces under their command and authority, provided that the leader knows that his forces committed or were about to commit one of these crimes. Where the fact that the accused holds a high-ranking position in the government is by itself a serious situation, for it is assumed that he is aware of what goes on, and for exploiting his position in committing the crimes. Add to that that his failure to take necessary and reasonable measures within his power to prevent these crimes subjects him to legal accountability. Furthermore, condoning them is considered a signal to his subordinates to continue committing the crimes without fear of punishment. The premise is that the leader is committed to preventing his subordinates from committing international crimes.
The leader bears responsibility if he fails intentionally or due to negligence to prevent his subordinates from committing crimes without the need for proven intent of sanctioning such crimes. 
Iraq, Iraqi High Tribunal, Appeals Chamber, Al-Dujail appeal case, Judgment, 26 December 2006, p. 9, based on a translation available at http://law.case.edu/saddamtrial/documents/20070103_dujail_appellate_chamber_opinion.pdf (last accessed on 1 April 2010).
Italy
In its judgment in the Schintlholzer case in 1988, Italy’s Military Tribunal at Verona, with regard to the accused’s responsibility for the acts committed by soldiers under his command, stated that these acts were in conformity with
systematic activity which cannot as such be explained as the unusual and unforeseeable outcome of spontaneous actions by the combatants, but only as the expression of acts which specifically comply with (and put into effect) orders issued by the Commander [the accused] of the combat unit.
It should therefore be considered that in this case the person of the Commander who has operational and not hierarchical responsibility is a necessary point of reference and reflects the ad hoc organizational structure of composite combat units which, like the “Schintlholzer” combat unit, appear to be formed, used and intended solely for the purpose of a single military operation. This is perfectly consistent with the conviction that evidence of the effective causal contribution which can be attributed to Schintlholzer, at least on the conceptual level, has been obtained, as regards the undoubted contribution of the accused to the decision as to how the distressing facts to which the case relates should be put into effect …
It is … hardly necessary to point out even in this connection that if it was ever possible to establish any collateral responsibility by known or unknown SS officials at an operating level, this would not in any way raise any questions about the responsibility of Schintlholzer, which has been proven at this level and in the context which has to be assessed here and now. Thus, as far as criminal intent is concerned, evidence of awareness of the unlawful nature of the conduct involved in the barbaric images described in the preliminary reconstruction of the facts would appear to have been acquired. 
Italy, Military Tribunal at Verona, Schintlholzer case, Judgment, 15 November 1988.
Rwanda
In September 1997, in the Rwigamba case, Rwanda’s Military High Court stated:
- The Court finds that in the evening of 11/09/1995 at around 7h00 pm, in Kanama Commune, Kayove Sector, on the winding Nyakiriba road, enemies set up an ambush against a military Toyota Hilux pickup with Second Lieutenant RURAZA Claude on board, who was coming from Bigogwe military camp and heading to Gisenyi where he was transferred to, and shot at the car, causing the death of Second Lieutenant RURAZA.
- The Court finds that Lieutenant Maitre RUTINYWA arrived at the place of the incident right after the shooting at the car, and took the body of Second Lieutenant RURAZA Claude and guns that were in the car to the Bigogwe military camp, and informed its Commander Major RWIGAMBA of the incident.
- The Court finds that Major RWIGAMBA, who was the Commander of the 5th Battalion, before leaving the Bigogwe camp for where the incident had taken place, sent a message to the Commander of Gisenyi and Ruhengeri Zone, (Brigade CO) Colonel BAGIRE, informing him that Second Lieutenant RURAZA Claude had been shot dead by enemies in an ambush, and informing him that he was about to go to the place of the incident and would keep informing him on developments;
- The Court finds that in the report Colonel BAGIRE proved that he did not receive the message in that night due to a communication problem, that he got the message in the morning and immediately left for Kanama, where the incident had taken place.
- The Court finds that Major RWIGAMBA, Commander of the 5th Battalion, just after learning about the death of Second Lieutenant RURAZA Claude in an ambush, immediately prepared a military operation within his Battalion in order to search for those enemies, using the technique of surrounding the sectors of Kayove and Bisizi in Kanama Commune in the area where Second Lieutenant RURAZA Claude had been shot dead.
- The Court finds that Major RWIGAMBA used, in that Battalion military operation, two platoons under the command of Second Lieutenant Emmanuel RUTAYISIRE who moved into the Kayove sector together with Major Goodman BAGURETE RUZIBIZA (OPTO of the 5th Battalion), and another platoon under the command of Second Lieutenant SANO moved into the Bisizi sector close to the place where Major RWIGAMBA was staying because the platoon had no message radio.
- The Court finds that Major RWIGAMBA gave orders to start surrounding the area in the night and to seek the enemy in the morning.
- The Court finds that the conclusions issued by the National Commission set up by the Vice President and Minister of Defence to investigate the incident are relevant, especially Article 2 where it states that: “there has been a military operation led by soldiers in that area with the aim of finding and capturing the enemy”, and therefore shows that there was no malicious intention to kill civilians.[]
- The Court finds that the military operation to surround the area in the night and to track the enemy in the morning was not respected, because at around 2h00am the enemy shot at the soldiers and then fighting started, and because at around 4h00am Major RWIGAMBA gave orders to Major RUZIBIZA, Second Lieutenant RUTAYISIRE and Second Lieutenant SANO to tell people to go attend a meeting in Bisizi Sector, the meeting aiming at comforting them and informing them not to give support to the enemy.
- The Court finds that the conclusions of the report of the National Commission to investigate incidents that occurred in Kanama Commune are relevant, especially Article 5 whereby it stipulates that: “there was excess use of force […] in that military operation”, this means that some civilian people were killed during that fighting;
- The Court finds that when soldiers were calling people to attend the meeting, some soldiers, who could not be recognized, killed some of the civilian people;
- The Court finds that the conclusions of the report of the National Commission to investigate incidents that occurred in Kanama Commune [are relevant], especially in Article 5 whereby it stipulates that: “there was a lack of commanding authority over the soldiers during that military operation”, which led to the killing of a number of civilian persons by some soldiers;
- The Court finds that between 86 and 110 civilian people were killed, as set out by the National Commission to investigate incidents that occurred in Kanama Commune in its report, especially under Article 4;
- The Court finds that the crime of murder provided for and punished by Article 311 of the Rwandan Penal Code, with which Major RUZIBIZA, Second Lieutenant RUTAYISIRE and Second Lieutenant SANO are charged by the Military Prosecution, has not been committed, because there is no evidence proving beyond any reasonable doubt that they killed any civilians themselves or gave any order to kill civilians; therefore, the killings that happened were committed by some soldiers who were under their command but on their own behalf, and were done in secret;
- The Court finds that the crime of complicity for murder with which the Military Prosecution is charging Major RWIGAMBA, has not been committed, because there is no evidence beyond any reasonable doubt proving that he gave instructions to kill civilians to Major RUZIBIZA, Second Lieutenant RUTAYISIRE and Second Lieutenant SANO and that killings were committed by some soldiers who were under the command of Major RUZIBIZA, Second Lieutenant RUTAYISIRE and Second Lieutenant SANO on their own behalf and done in a secret way;
- The Court finds that Major RWIGAMBA, Major RUZIBIZA, Second Lieutenant RUTAYISIRE and Second Lieutenant SANO were negligent during that military operation in supervising soldiers who were under their command, [to prevent] them from killing civilians, in particular for the reason that there was no risk for them to do it because they have that authority; for that reason they have committed the crime of not providing assistance to a person in danger, provided for and punished by Article 256 paragraph one of the Rwandan Penal Code.
- The Court finds that the conclusion of the National Commission to investigate incidents that occurred in Kanama Commune is relevant, especially Article 5 whereby it stipulates that: “The Commission is of the view that the military commanders who carried out the military operation in Kanama Commune did not use sufficient diligence, they lacked supervision over soldiers in the operation”, so Major RUZIBIZA, Second Lieutenant RUTAYISIRE and Second Lieutenant SANO are convicted of the crime mentioned under the preceding paragraph.
FOR ALL THE ABOVE REASONS, IN THE PRESENCE OF ALL PARTIES:
Pursuant to the Rwandan Penal Code, especially in Article 256 paragraph one;
Decides that Major RUZIBIZA is not guilty of the crime of murder provided for and punished by Article 311 of the Rwandan Penal Code, with which the Office of the Military Prosecutor General is charging him;
Finds Second Lieutenant RUTAYISIRE not guilty of the crime of murder provided for and punished by Article 311 of the Rwandan Penal Code, with which the Office of the Military Prosecutor General is charging him;
Finds Second Lieutenant SANO not guilty of the crime of murder provided for and punished by Article 311 of the Rwandan Penal Code, with which the Office of the Military Prosecutor General is charging him;
Finds Major RWIGAMBA not guilty of the crime of complicity for murder provided for and punished by Article 91 and 311 of the Rwandan Penal Code, with which the Office of the Military Prosecutor General is charging him;
Finds Major RWIGAMBA guilty of the crime of not providing assistance to a person in danger, as provided for and punished by Article 256 of the Rwandan Penal Code paragraph one, and shall therefore be punished;
Finds Major RUZIBIZA guilty of the crime of not providing assistance to a person in danger, as provided for and punished by Article 256 of the Rwandan Penal Code paragraph one, and shall therefore be punished;
Finds Second Lieutenant RUTAYISIRE guilty of the crime of not providing assistance to a person in danger, as provided for and punished by Article 256 of the Rwandan Penal Code paragraph one, and shall therefore be punished;
Finds Second Lieutenant SANO guilty of the crime of not providing assistance to a person in danger, as provided for and punished by Article 256 of the Rwandan Penal Code paragraph one, and shall therefore be punished;
- Major RWIGAMBA is sentenced to twenty-eight (28) months of imprisonment.
- Major RUZIBIZA is sentenced to twenty-eight (28) months of imprisonment;
- Second Lieutenant RUTAYISIRE is sentenced to twenty-eight (28) months of imprisonment;
- Second Lieutenant SANO is sentenced to twenty-eight (28) months of imprisonment;
- The Court reminds all parties that appeal must be made within thirty (30) days from the date of the public pronouncement of the judgement. 
Rwanda, Military High Court, Rwigamba case, Judgment, 12 September 1997.
Rwanda
In December 1997, in the Rugambwa case, Rwanda’s Military High Court stated:
- The Court finds that in the evening of 02/03/1997 at around 06h30 p.m., near the Musanze school premises in Kigombe Commune, Ruhengeri Prefecture, the enemy set an ambush and shot at four vehicles, killed four people, injured seven others, attacked even the Musanze school, but failed as he was thwarted by the army.
- The Court finds that Major RUGAMBWA, who was the commander of the 5th Battalion that was in charge of Ruhengeri town and its surrounding areas, looked for means to carry out a military operation on the next morning in order to search for the enemy militiamen who had caused the incident the preceding day because they were still likely in that area.
- The Court finds that on 02/03/1997 Major RUGAMBWA, by walkie-talkie communication, called Lieutenant Colonel Laurent Munyakazi, Deputy Commander of the 211th Brigade, to tell him about the ambush; the latter immediately called Lieutenant Colonel Martin Nzaramba, Commander of the 211th Brigade, who ordered him to tell Major RUGAMBWA to give the Brigade Commander more details about that incident.
- The Court finds that Major RUGAMBWA did not observe that order and did not call Lieutenant Colonel Martin Nzaramba and that his allegations of not having been able to reach him are baseless because he had a variety of means of communication he could use, either telephone, walkie-talkie or radio, but that he did not use any of them;
- The Court finds that Major RUGAMBWA prepared the military operation without informing the 211th Brigade Commander who was the only person to authorize it, as Major RUGAMBWA had received clear instructions about it;
- The Court finds that Major RUGAMBWA, while preparing the military operation, got human support from EGENA [Ecole de la Gendarmerie Nationale – National Police School] school gendarmes and others from the Ruhengeri camp, in order to support his troops who were of a limited number because of their prior deployment to other places.
- The Court finds that soldiers from the 5th Battalion were deployed to Gashangiro, Gahondogo and Musanze sectors of Kigombe Commune, while gendarmes from EGENA and Ruhengeri camp were deployed to Kabaya sector of Kigombe commune and Kimonyi sector of Mukingo commune.
- The Court finds that instructions given to those soldiers were to move throughout these sectors, search in houses, and after that to take the population, mainly men, to the playing field of Musanze secondary school where a meeting was to be held chaired by Major RUGAMBWA.
- The Court finds that the soldiers and gendarmes received no instructions to kill civilians.
- The Court finds that the military operation started at the same time in the sectors mentioned above between 6h00 and 8h00 until 14h00.
- The Court finds that the national army fought the enemy in the operation and fought to the extent that even one soldier of the Ruhengeri camp called Pte Simon Muhirwa was shot in the Kabaya sector at around 12h00.
- The Court finds that in the above sectors where the operation was carried out 151 members of the civilian population were killed as follows: in Kabaya Sector 104 civilians lost their lives, 14 in Kimonyi Sector, 25 in Gahondogo sector, 4 in Gashangiro Sector and 4 in Musanze Sector.
- The Court finds that among the people who were killed were children, women and the elderly and some of the soldiers, as confirmed by some of the local population questioned who explained how their relatives and their neighbours were abusively killed by some soldiers who were unidentified, using bullets and traditional weapons.
- The Court finds that some of the soldiers who were in the operation have [been] questioned and affirmed that they have confirmed that their superiors did not closely supervise the operation and hence members of the civilian population were killed.
- The Court finds that Major RUGAMBWA, instead of following up the military operation, was moving around hearing gunshots;
- The Court finds that Major RUGAMBWA was informed by Lieutenant Kagarura that he had seen a big number of civilians killed but he did not do anything, he rather went on driving around.
- The Court finds that Major RUGAMBWA prepared the operation brutally and did not inform any of his superiors and did not even supervise his soldiers during the operation, but rather preferred to move around while he could hear gunshots everywhere. That negligence, gross recklessness and lack of diligence caused the death of many civilian people, that crime is provided for and punished by Articles 343 and 344 of the Rwandan penal code.
- The Court finds that Major RUGAMBWA in the course of the operation was told by Lieutenant Kagarura that there were some people killed by soldiers, but he ignored it and did not even take his soldiers before justice; that would be considered mitigating circumstances to the crime of murder and complicity for murder as provided for by Article 258 of the Rwandan Penal Code.
- The Court finds that there was a joint criminal enterprise as provided for by Article 94 paragraph 1 of the Rwandan Penal Code;
- The Court finds that on charges of which Major RUGAMBWA Claver was a good performing soldier, the fact that it was the first time he has committed such faults would serve as mitigating circumstances;
- The Court finds that some of the soldiers that were under the command of Lieutenant Jean Bosco RUTIKANGA, Second Lieutenant Deus KARAKASI, Second Lieutenant Sylvestre KABANGO, Second Lieutenant Evariste NSABIMANA, S/Sgt TUYISENGE Amiel killed some civilian people with the assistance of their commanders because they were watching what was happening and did nothing to stop the killing, they rather acted as blessing them, this facilitated the commission of that crime which is provided for and punished by Articles 89, 91 paragraph 3 and 311 of the Rwandan Penal Code.
- The Court finds that the fact that soldiers who killed civilian persons were not identified could not render Lieutenant Jean Bosco RUTIKANGA, Second Lieutenant Deus KARAKASI, Second Lieutenant Sylvestre KABANGO, Second Lieutenant Evariste NSABIMANA, S/Sgt TUYISENGE Amiel innocent of the crime of complicity for genocide.
- The Court finds that Lieutenant Jean Bosco RUTIKANGA, Second Lieutenant Deus KARAKASI, Second Lieutenant Sylvestre KABANGO, Second Lieutenant Evariste NSABIMANA, S/Sgt TUYISENGE Amiel knew that the soldiers under their command were killing civilian people and it was in their power to prevent or limit the consequences but they did not inform any judicial or administrative authorities in order to have those soldiers punished; the crime is provided for and punished by Article 258 of the Rwandan Penal Code.
- The Court finds that with regard to crimes committed by Lieutenant RUTIKANGA John Bosco, Second Lieutenant Deus KARAKASI, Second Lieutenant Sylvestre KABANGO, Second Lieutenant Evariste NSABIMANA, S/Sgt TUYISENGE Amiel, there is a joint criminal enterprise, that is provided for by Article 93 Book 1 of the Rwandan Penal Code.
- The Court considers that the fact that Lieutenant RUTIKANGA John Bosco, Second Lieutenant Deus KARAKASI, Second Lieutenant Sylvestre KABANGO, Second Lieutenant Evariste NSABIMANA, S/Sgt TUYISENGE Amiel were deployed in a region where they often had to fight against the enemy, had to stay under the trauma of fighting at anytime, which may even cause them lack of good control of soldiers under their command, shall be mitigating circumstances.
FOR ALL THE ABOVE REASONS, THE MILITARY HIGH COURT
- Pursuant to the Rwandan Penal Code, especially Articles 89, 91 paragraph 3; 93; 94 paragraph one, 343 and 344;
- Finds Major RUGAMBWA Claver guilty and liable for the crime of murder due to negligence, recklessness, imprudence and insubordination without malicious intent, provided for and punished by Articles 343 and 344 of the Rwandan Penal Code, a crime of which he was accused by the Office of the Military Prosecutor General;
- Finds Major RUGAMBWA Claver guilty and liable for the crime of having knowledge of an intention to commit a crime, and it was in his/her power to prevent or limit the consequences but he did not inform any judicial or administrative authorities, as provided for and punished by Article 258 of the Rwandan Penal Code, a crime of which he was accused by the Office of the Military Prosecutor General;
- Finds Lieutenant Jean Bosco RUTIKANGA guilty and liable for the crime of complicity for murder as provided for and punished by Articles 89, 91 paragraph 3, and 311 of the Rwandan Penal Code, a crime of which he was accused by the Office of the Military Prosecutor General;
- Finds Second Lieutenant Sylvestre KABANGO guilty and liable for the crime of complicity for murder as provided for and punished by Articles 89, 91 paragraph 3s and 311 of the Rwandan Penal Code, a crime of which he was accused by the Office of the Military Prosecutor General;
- Finds Second Lieutenant Deus KARAKASI guilty and liable for the crime of complicity for murder as provided for and punished by Articles 89, 91 paragraph 3, and 311 of the Rwandan Penal Code, a crime of which he was accused by the Office of the Military Prosecutor General;
- Finds Second Lieutenant Evariste NSABIMANA guilty and liable for the crime of complicity for murder as provided for and punished by Articles 89, 91 paragraph 3, and 311 of the Rwandan Penal Code, a crime of which he was accused by the Office of the Military Prosecutor General;
- Finds Second Sergeant TUYISENGE Amiel guilty and liable for the crime of complicity for murder as provided for and punished by Articles 89, 91 paragraph 3, and 311 of the Rwandan Penal Code, a crime of which he was accused by the Office of the Military Prosecutor General;
- Finds Lieutenant Jean Bosco RUTIKANGA guilty and liable for the crime of having knowledge of the commission or the intention to commit a crime, and it was in his/her power to prevent or limit the consequences but he did not inform any judicial or administrative authorities, as provided for and punished by Article 258 of the Rwandan Penal Code, a crime of which he was accused by the Office of the Military Prosecutor General;
- Finds Second Lieutenant Sylvestre KABANGO guilty and liable for the crime of having knowledge of the commission or the intention to commit a crime, and it was in his/her power to prevent or limit the consequences but he did not inform any judicial or administrative authorities, as provided for and punished by Article 258 of the Rwandan Penal Code, a crime of which he was accused by the Office of the Military Prosecutor General;
- Finds Second Lieutenant Deus KARAKASI guilty and liable for the crime of having knowledge of the commission or the intention to commit a crime, and it was in his/her power to prevent or limit the consequences but he did not inform any judicial or administrative authorities, as provided for and punished by Article 258 of the Rwandan Penal Code, a crime of which he was accused by the Office of the Military Prosecutor General;
- Finds Second Lieutenant Evariste NSABIMANA guilty and liable for the crime of having knowledge of the commission or the intention to commit a crime, and it was in his/her power to prevent or limit the consequences but he did not inform any judicial or administrative authorities, as provided for and punished by Article 258 of the Rwandan Penal Code, a crime of which he was accused by the Office of the Military Prosecutor General;
- Finds Staff Sergeant TUYISENGE Amiel guilty and liable for the crime of having knowledge of the commission or the intention to commit a crime, and it was in his/her power to prevent or limit the consequences but he did not inform any judicial or administrative authorities, as provided for and punished by Article 258 of the Rwandan Penal Code, a crime of which he was accused by the Office of the Military Prosecutor General;
- Sentences Major Claver RUGAMBWA to forty-four (44) months imprisonment;
- Sentences Lieutenant RUTIKANGA Jean Bosco to five (5) years’ imprisonment;
- Sentences Second Lieutenant Sylvestre KABANGO to five (5) years’ imprisonment;
- Sentences Second Lieutenant Deus KARAKASI to five (5) years’ imprisonment;
- Sentences Second Lieutenant Evariste NSABIMANA to five (5) years’ imprisonment;
- Sentences Staff Sergeant TUYISENGE Amiel to five (5) years’ imprisonment;
Reminds all the Parties that the period within which to appeal is thirty (30) days counting from the day of pronouncement of this judgement. 
Rwanda, Military High Court, Rugambwa case, Judgment, 1 December 1997.
South Africa
In 1987, in the Petane case, the Cape Provincial Division of South Africa’s Supreme Court dismissed the accused’s claim that the 1977 Additional Protocol I reflected customary international law. The Court stated:
The accused has been indicted before this Court on three counts of terrorism, that is to say, contraventions of s 54(1) of the Internal Security Act 74 of 1982. He has also been indicted on three counts of attempted murder.
The accused’s position is stated to be that this Court has no jurisdiction to try him.
… The point in its early formulation was this. By the terms of [the 1977 Additional] Protocol I to the [1949] Geneva Conventions the accused was entitled to be treated as a prisoner-of-war. A prisoner-of-war is entitled to have notice of an impending prosecution for an alleged offence given to the so-called “protecting power” appointed to watch over prisoners-of-war. Since, if such a notice were necessary, the trial could not proceed without it, Mr Donen suggested that the necessity or otherwise for giving such a notice should be determined before evidence was led. …
On 12 August 1949 there were concluded at Geneva in Switzerland four treaties known as the Geneva Conventions. …
South Africa was among the nations which concluded the treaties. … Except for the common art 3, which binds parties to observe a limited number of fundamental humanitarian principles in armed conflicts not of an international character, they apply to wars between States.
After the Second World War many conflicts arose which could not be characterised as international. It was therefore considered desirable by some States to extend and augment the provisions of the Geneva Conventions, so as to afford protection to victims of and combatants in conflicts which fell outside the ambit of these Conventions. The result of these endeavours was Protocol I and Protocol II to the Geneva Conventions, both of which came into force on 7 December 1978.
Protocol II relates to the protection of victims of non-international armed conflicts. Since the State of affairs which exists in South Africa has by Protocol I been characterised as an international armed conflict, Protocol II does not concern me at all.
The extension of the scope of art 2 of the Geneva Conventions was, at the time of its adoption, controversial. …
The article has remained controversial. More debate has raged about its field of operation than about any other articles in Protocol I. …
South Africa is one of the countries which has not acceded to Protocol I. Nevertheless, I am asked to decide, as I indicated earlier, as a preliminary point, whether Protocol I has become part of customary international law. If so, it is argued that it would have been incorporated into South African law. If it has been so incorporated it would have to be proved by one or other of the parties that the turmoil which existed at the time when the accused is alleged to have committed his offences was such that it could properly be described as an “armed conflict” conducted by “peoples” against a “ra[c]ist regime” in the exercise of their “right of self-determination”. Once all this has been shown it would have to be demonstrated to the Court that the accused conducted himself in such a manner as to become entitled to the benefits conferred by Protocol I on combatants, for example that, broadly speaking, he had, while he was launching an attack, distinguished himself from civilians and had not attacked civilian targets. …
… I am prepared to accept that where a rule of customary international law is recognised as such by international law it will be so recognised by our law.
To my way of thinking, the trouble with the first Protocol giving rise to State practice is that its terms have not been capable of being observed by all that many States. At the end of 1977 when the treaty first lay open for ratification there were few States which were involved in colonial domination or the occupation of other States and there were only two, South Africa and Israel, which were considered to fall within the third category of ra[c]ist regimes. Accordingly, the situation sought to be regulated by the first Protocol was one faced by few countries; too few countries in my view, to permit any general usage in dealing with armed conflicts of the kind envisaged by the Protocol to develop.
Mr Donen contended that the provisions of multilateral treaties can become customary international law under certain circumstances. I accept that this is so. There seems in principle to be no reason why treaty rules cannot acquire wider application than among the parties to the treaty.
Brownlie Principles of International Law 3rd ed at 13 agrees that non-parties to a treaty may by their conduct accept the provisions of a multilateral convention as representing general international law. …
I incline to the view that non-ratification of a treaty is strong evidence of non-acceptance.
It is interesting to note that the first Protocol makes extensive provision for the protection of civilians in armed conflict. …
In this sense, Protocol I may be described as an enlightened humanitarian document. If the strife in South Africa should deteriorate into an armed conflict we may all one day find it a cause for regret that the ideologically provocative tone of s 1(4) has made it impossible for the Government to accept its terms.
To my mind it can hardly be said that Protocol I has been greeted with acclaim by the States of the world. Their lack of enthusiasm must be due to the bizarre mixture of political and humanitarian objects sought to be realised by the Protocol. …
According to the International Review of the Red Cross (January/February 1987) No 256, as at December 1986, 66 States were parties to Protocol I and 60 to Protocol II, which, it will be remembered, deals with internal non-international armed conflicts. With the exception of France, which acceded only to Protocol II, not one of the world’s major powers has acceded to or ratified either of the Protocols. This position should be compared to the 165 States which are parties to the Geneva Conventions.
This approach of the world community to Protocol I is, on principle, far too half-hearted to justify an inference that its principles have been so widely accepted as to qualify them as rules of customary international law. The reasons for this are, I imagine, not far to seek. For those States which are contending with “peoples[’]” struggles for self-determination, adoption of the Protocol may prove awkward. For liberation movements who rely on strategies of urban terror for achieving their aims the terms of the Protocol, with its emphasis on the protection of civilians, may prove disastrously restrictive. I therefore do not find it altogether surprising that Mr Donen was unable to refer me to any statement in the published literature that Protocol I has attained the status o[f] customary international [law].
I have not been persuaded by the arguments which I have heard on behalf of the accused that the assessment of Professor Dugard, writing in the Annual Survey of South African Law (1983) at 66, that “it is argued with growing conviction that under contemporary international law members of SWAPO [South-West Africa People’s Organisation] and the ANC [African National Congress] are members of liberation movements entitled to prisoner-of-war status, in terms of a new customary rule spawned by the 1977 Protocols”, is correct. On what I have heard in argument I disagree with his assessment that there is growing support for the view that the Protocols reflect a new rule of customary international law. No writer has been cited who supports this proposition. Here and there someone says that it may one day come about. I am not sure that the provisions relating to the field of application of Protocol I are capable of ever becoming a rule of customary international law, but I need not decide that point today.
For the reasons which I have given I have concluded that the provisions of Protocol I have not been accepted in customary international law. They accordingly form no part of South African law.
This conclusion has made it unnecessary for me to give a decision on the question of whether rules of customary international law which conflict with the statutory or common law of this country will be enforced by its courts.
In the result, the preliminary point is dismissed. The trial must proceed. 
South Africa, Supreme Court, Petane case, Judgment, 3 November 1987, pp. 2–8.
South Africa
In 2010, in the Boeremag case, South Africa’s North Gauteng High Court stated:
In Petane, … Conradie J found that the provisions of [the 1977 Additional] Protocol I are not part of customary international law, and therefore are also not part of South African law.
Referring to the fact that in December 1986 only 66 of the 165 States party to the Geneva Conventions had ratified Protocol I, the Court [in Petane stated:
This approach of the world community to Protocol I is, on principle, far too half-hearted to justify an inference that its principles have been so widely accepted as to qualify them as rules of customary international law. The reasons for this are, I imagine, not far to seek. For those States which are contending with “peoples[’]” struggles for self-determination, adoption of the Protocol may prove awkward. For liberation movements who rely on strategies of urban terror for achieving their aims the terms of the Protocol, with its emphasis on the protection of civilians, may prove disastrously restrictive. I therefore do not find it altogether surprising that Mr Donen was unable to refer me to any statement in the published literature that Protocol I has attained the status of customary international law.
Important changes with respect to certain aspects applicable at the time of Petane have taken place. The ANC [African National Congress] has become South Africa’s ruling party and in 1995 ratified Protocol I. The total number of States that have ratified it, is now … 162.
This last aspect forms the basis on which the First Respondent [the State] and the applicants agree that Protocol I forms part of customary international law as well as of South African law. As requested, this position is accepted for the purposes of the decision, without deciding on the matter.
Despite these changes, it remains debatable whether the provisions of Protocol I have become a part of South African law in this way.
The consensus of both parties to the conflict is required. See Petane … and Article 96 of Protocol I. …
Parliament’s failure to incorporate Protocol I into legislation in accordance with Article 231(4) of the Constitution in fact points to the contrary, and is indicative that the requirements of usus and/or opinio juris have not been met. See Petane. 
South Africa, North Gauteng High Court, Boeremag case, Judgment, 26 August 2010, pp. 21–22.
[footnotes in original omitted]
The Court also held:
If the [1977 Additional Protocol I] applies in South Africa as customary international law, the two requirements that form the basis of customary law must be met. It is arguable that the requirement of usus has been met by the vast number of States that have acceded or ratified it. By ratifying Protocol I the Republic of South Africa has indicated its intention to apply the Protocol, thereby fulfilling the requirement of opinio juris. 
South Africa, North Gauteng High Court, Boeremag case, Judgment, 26 August 2010, p. 66.
United Kingdom of Great Britain and Northern Ireland
In the Rauer case in 1946, the British Military Court at Wuppertal found that none of the accused, among which were Major Rauer and other commanding officers, could be tried for having given an order to kill POWs for lack of evidence. However, it tried the accused for being guilty of “being concerned in the killing of the prisoners”. 
United Kingdom, Military Court at Wuppertal, Rauer case, Judgment, 18 February 1946.
United States of America
In its judgment in the Von Leeb case (The German High Command Trial) in 1947/48 relative to the duty of commanders in occupied territory, the US Military Tribunal at Nuremberg, under the heading “Responsibility of a Commanding Officer for Acts not Ordered by Him”, stated:
Criminality does not attach to every individual in [the] chain of command from that fact alone. There must be a personal dereliction. That can occur only where the act is directly traceable to [the commander] or where his failure to properly supervise his subordinates constitutes criminal negligence on his part. In the latter case, it must be a personal neglect amounting to a wanton, immoral disregard of the action of his subordinates amounting to acquiescence. Any other interpretation of International Law would go far beyond the basic principles of criminal law as known to civilized nations. 
United States, Military Tribunal at Nuremberg, Von Leeb case (The German High Command Trial), Judgment, 30 December 1947–28 October 1948.
However, the Tribunal also noted:
It is the opinion of this Tribunal that a State can, as to certain matters, under International Law, limit the exercise of sovereign powers by a military commander in an occupied area, but we are also of the opinion that under International Law and accepted usages of civilized nations, that he has certain responsibilities which he cannot set aside or ignore by reason of activities of his own State within his area … The situation is somewhat analogous to the accepted principle of International Law that the army which captures the soldiers of its adversary has certain fixed responsibilities as to their care and treatment. 
United States, Military Tribunal at Nuremberg, Von Leeb case (The German High Command Trial), Judgment, 30 December 1947–28 October 1948.
United States of America
In its judgment in the List case (The Hostages Trial) in 1947/48, the US Military Tribunal at Nuremberg stated:
We have herein before pointed out that it is the duty of the commanding general in occupied territory to maintain peace and order, punish crimes and protect lives and property. This duty extends not only to inhabitants of the occupied territory but to his own troops and auxiliaries as well … The duty and responsibility for maintaining peace and order, and the prevention of crime rests upon the commanding general. He cannot ignore obvious facts and plead ignorance as a defence … Those responsible for such crimes [i.e. violations of the 1907 Hague Regulations] by ordering or authorizing their commission, or by a failure to take effective steps to prevent their execution or recurrence, must be held to account if International Law is to be anything more than an ethical code, barren of any practical coercive deterrent. 
United States, Military Tribunal at Nuremberg, List case (The Hostages Trial), Judgment, 8 July 1947–19 February 1948.
With regard to the accused, a high-ranking officer charged with murder and deportation of civilians, the Tribunal stated:
Not once did he condemn such acts as unlawful. Not once did he call to account those responsible for these inhumane and barbarous acts. His failure to terminate these unlawful killings and to take adequate steps to prevent their recurrence constitutes a serious breach of duty and imposes criminal responsibility … [A] commanding general of occupied territory cannot escape responsibility by a claim of a want of authority. The authority is inherent in his position as commanding general of occupied territory. The primary responsibility for the prevention and punishment of crime lies with the commanding general, a responsibility from which he cannot escape by denying his authority over the perpetrators. 
United States, Military Tribunal at Nuremberg, List case (The Hostages Trial), Judgment, 8 July 1947–19 February 1948.
United States of America
In the Yamashita case in 1946 involving the trial of the military governor and commanding general of Japan in the Philippines between 9 October 1944 and 2 September 1945, the US Supreme Court was called upon to decide whether the accused could be held responsible for the violations of IHL committed by the troops under his command. The charge alleged that the accused, even though he did not commit or direct the commission of the acts,
while commander of armed forces of Japan at war with the United States of America and its allies, unlawfully disregarded and failed to discharge his duty as commander to control the operations of the members of his command, permitting them to commit brutal atrocities and other high crimes against the people of the United States and of its allies and dependencies, particularly the Philippines; and he … thereby violated the laws of war. 
United States, Supreme Court, Yamashita case, Judgment, 4 February 1946.
The Court, in upholding the finding of guilt by the Military Commission in Manila, emphasized that:
It is evident that the conduct of military operations by troops whose excesses are unrestrained by the orders or efforts of their commander would almost certainly result in violations which it is the purpose of the law of war to prevent. Its purpose to protect civilian populations and prisoners of war from brutality would largely be defeated if the commander of an invading army could with impunity neglect to take reasonable measures for their protection. Hence, the law of war presupposes that its violation is to be avoided through the control of the operations of war by commanders who are to some extent responsible for their subordinates. 
United States, Supreme Court, Yamashita case, Judgment, 4 February 1946.
The Court based its decision on Article 1 of the 1907 Hague Regulations, Article 19 of the 1907 Hague Convention (X), Article 26 of the 1929 Geneva Convention and Article 43 of the 1907 Hague Regulations and stated:
These provisions plainly imposed on petitioner, who at the time specified was military governor of the Philippines, as well as commander of the Japanese forces, an affirmative duty to take such measures as were within his power and appropriate in the circumstances to protect prisoners of war and the civilian population. 
United States, Supreme Court, Yamashita case, Judgment, 4 February 1946.
One of the judges, in his dissenting opinion, discussed the problem of finding upon a commander’s guilt in the case where the troops of a commander commit war crimes while under heavily adverse battle conditions. The judge stated:
There are numerous instances, especially with reference to the Philippines insurrection in 1900 and 1901, where commanding officers were found to have violated the laws of war by specifically ordering members of their command to commit atrocities and other war crimes … And in other cases officers have been held liable where they knew that a crime was to be committed, had the power to prevent it and failed to exercise that power … In no recorded instance, however, has the mere inability to control troops under fire or attack by superior forces been made the basis of a charge of violating the laws of war … No one denies that inaction or negligence may give rise to liability, civil or criminal. But it is quite another thing to say that the inability to control troops under highly competitive and disastrous battle conditions renders one guilty of a war crime in the absence of personal culpability. Had there been some element of knowledge or direct connection with the atrocities the problem would be entirely different … The only conclusion I can draw is that the charge made against the petitioner is clearly without precedent in international law or in the annals of recorded military history. This is not to say that enemy commanders may escape punishment for clear and unlawful failures to prevent atrocities. But that punishment should be based upon charges fairly drawn in light of established rules of international law and recognized concepts of justice. 
United States, Supreme Court, Yamashita case, Dissenting opinion of Mr. Justice Murphy, 4 February 1946.
Another judge, in his dissenting opinion, referred to the first dissenting opinion and stated that he had “discussed the charge with respect to the substance of the crime. With his conclusions in this respect I agree.” He further stressed that the findings on evidence did not suffice legal requirements:
There is no suggestion in the findings that petitioner personally participated in, was present at the occurrence of, or ordered any of these incidents … Nor is there any express finding that he knew of any one of the incidents in particular or of all taken together. The only inferential findings that he had knowledge, or that the commission so found, are in the statement that “crimes alleged to have been permitted by the accused in violation of the laws of war may be grouped into three categories” set out below. In the further statement that “the prosecution presented evidence to show that the crimes were so extensive and widespread, both as to time and area, that they must either have been wilfully permitted by the accused, or secretly ordered by” him; and in the conclusions of guilt and the sentence. Indeed, the commission’s ultimate findings draw no express conclusion of knowledge, but state only two things: (1) the fact of widespread atrocities and crimes; (2) that petitioner “failed to provide effective control … as was required by the circumstances” … In the state of things petitioner has been convicted of a crime in which knowledge is an essential element. 
United States, Supreme Court, Yamashita case, Dissenting opinion of Mr. Justice Rutledge, 4 February 1946.
United States of America
In the Toyoda case in 1949, a US military tribunal at Tokyo considered the essential elements of command responsibility to be:
1. That offenses, commonly recognized as atrocities, were committed by troops of his command;
2. The ordering of such atrocities.
In the absence of proof beyond reasonable doubt of the issuance of orders then the essential elements of command responsibility are:
1. As before, that atrocities were actually committed;
2. Notice of the commission thereof. This notice may be either:
a. Actual, …
b. Constructive …
3. Power of command. That is, the accused must be proved to have had actual authority over the offenders to issue orders to them not to commit illegal acts, and to punish offenders.
4. Failure to take such appropriate measures as are within his power to control the troops under his command and to prevent acts which are violations of the laws of war.
5. Failure to punish offenders.
In the simplest language, it may be said that this Tribunal believes the principle of command responsibility to be that, if this accused knew, or should by the exercise of ordinary diligence have learned, of the commission by his subordinates, immediate or otherwise, of the atrocities proved beyond a shadow of a doubt before this Tribunal or of the existence of a routine which would countenance such, and, by his failure to take any action to punish the perpetrators, permitted the atrocities to continue, he has failed in his performance of his duty as a commander and must be punished. 
United States, Military Tribunal, Tokyo, Toyoda case, Trial Transcript, 6 September 1949.
United States of America
In its judgment in the Karadžić case in 1995, the US Court of Appeals for the Second Circuit, recalling the judgment in the Yamashita case, stated: “International law imposes an affirmative duty on military commanders to take appropriate measures within their power to control troops under their command for the prevention of such atrocities [i.e. war crimes]”. 
United States, Court of Appeals for the Second Circuit, Karadžić case, Judgment, 13 October 1995.
United States of America
In the Ford v. García case in 2000, a civil lawsuit dealing with acts of torture and extrajudicial killing committed in 1980 in El Salvador, the US Federal Court of Florida gave instructions to the jury on the issue of the responsibility of commanders which read:
A commander may be held liable for torture and extrajudicial killing committed by troops under his command under two separate legal theories. The first applies when a commander takes a positive act, i.e., he orders torture and extrajudicial killing or actually participates in it. The second legal theory applies when a commander fails to take appropriate action to control his troops. This is called the doctrine of command responsibility … The doctrine of command responsibility is founded on the principle that a military commander is obligated, under international law and United States law, to take appropriate measures within his power to control the troops under his command and prevent them from committing torture and extrajudicial killing …
To hold a specific defendant/commander liable under the doctrine of command responsibility, each plaintiff must prove all of the following elements by a preponderance of the evidence.
(1) That persons under defendant’s effective command had committed, were committing, or were about to commit torture and extrajudicial killing, and
(2) The defendant knew, or owing to the circumstances at the time, should have known, that persons under his effective command had committed, were committing, or were about to commit torture and extrajudicial killing; and
(3) The defendant failed to take all necessary and reasonable measures within his power to prevent or repress the commission of torture and extrajudicial killing, or failed to investigate the events in an effort to punish the perpetrators.
“Effective command” means the commander has the legal authority and the practical ability to exert control over his troops. A commander cannot, however, be excused from his duties where his own actions cause or significantly contribute to the lack of effective control.
A commander may be relieved of the duty to investigate or to punish wrongdoers if a higher military or civilian authority establishes a mechanism to identify and punish the wrongdoers. In such a situation, the commander must do nothing to impede nor frustrate the investigation.
A commander may fulfil his duty to investigate and punish wrongdoers if he delegates this duty to a responsible subordinate. A commander has the right to assume that assignments entrusted to a responsible subordinate will be properly executed. On the other hand, the duty to investigate and punish will not be fulfilled if the commander knows or reasonably should know that the subordinate will not carry out his assignment in good faith, or if the commander impedes or frustrates the investigation. 
United States, Federal Court of Florida, Ford v. García case, Judgment, 3 November 2000.
[emphasis in original]
Yugoslavia, Federal Republic of
In the Trajković case in 2001, a Kosovo Serb and former chief of police was convicted, inter alia, of war crimes “against the civilian population and within a concerted plan aiming at systematic atrocities of which he had a complete knowledge”. The Court based its judgment on Article 142 of the Penal Code of the Socialist Federal Republic of Yugoslavia and noted that the acts had been committed “in time of war”. 
Yugoslavia, Federal Republic of, District Court of Gnjilan, Trajković case, Judgment, 6 March 2001.
However, on appeal of the accused, the Supreme Court of Kosovo overruled this judgment and ordered that the case be returned to the same court for retrial. The Supreme Court found that:
The state of facts was erroneously established in relation to all charges as there is no direct or conclusive evidence that the accused acted personally or gave orders leading to the alleged crimes or that he should be held liable under command responsibility duties concerning the above-mentioned crimes … During the retrial, the court of first instance should therefore assess … the issue of the accused[‘s] personal responsibility [for] participation in the crimes alleged. 
Yugoslavia, Federal Republic of, Supreme Court of Kosovo, Trajković case, Decision Act, 30 November 2001.
In a written opinion concerning this case, the International Prosecutor for the Office of the Public Prosecutor of Kosovo stated:
Trajković’s war crimes conviction [at the District Court of Gnjilan] based upon murder was apparently through his command responsibility, since there was no credible evidence based on any factual basis that he gave direct orders to do, or personally participated in, these acts … Trajković could be found guilty of war crimes under international law through his command responsibility. [Furthermore,] Trajković could have been found guilty through the doctrine of command influence of violating international law for the “grave” injuries to … non-combatants … [Furthermore,] the trial court found Trajković guilty of a war crime for arson [as a direct result of the police and military attack on the village] committed against the home … and bus of … but again it must be implied that the liability was from command responsibility …
The issue of command responsibility must be dealt with alongside that of individual/personal responsibility (“The Subsuming Rule”) … This Opinion assumes the court below relied on the command responsibility coming directly from being at the top of a hierarchy of police officers, even if the giving of orders to murder and shoot did not occur. This Opinion then concludes that as to his being responsible under the type of command responsibility – based on evidence of control over subordinates, knowledge of their crimes, and ability and failure to prevent or punish them – Momcilo Trajković may be liable under such command responsibility. His official position of authority over subordinate … policemen, buttressed by evidence of his actual authority over them and in the community in general; his possible knowledge of subordinates’ crimes; and his obvious failure to prevent and punish them bolster a finding of command responsibility for the acts of policemen under him. 
Yugoslavia, Federal Republic of, International Prosecutor for the Office of the Public Prosecutor of Kosovo, Trajković case, Opinion on Appeals of Convictions, 30 November 2001, Sections III(B)(2)(a), (b) and (c) and IV.
The International Prosecutor for the Office of the Public Prosecutor of Kosovo further pointed out the relation between individual responsibility and command responsibility and set forth, in a detailed way, the “requirements for findings of some individual responsibility in the context of determining command responsibility”. 
Yugoslavia, Federal Republic of, International Prosecutor for the Office of the Public Prosecutor of Kosovo, Trajković case, Opinion on Appeals of Convictions, 30 November 2001, Section IV.
Argentina
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”. 
Argentina, Statement at the CDDH, Official Records, Vol. IX, CDDH/I/SR.50, 4 May 1976, §§ 56 and 57.
Argentina
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”. 
Report on the Practice of Argentina, 1997, Chapter 6.7, referring to the action brought by Decree 2971/83 for Presumed Infractions, as stipulated by the Code of Military Justice and described in the legal proceedings and report by the Commission for the analysis and evaluation of the political responsibilities and military strategy of the armed conflict in the South Atlantic, National Court for Criminal and Correctional Cases in full session, 4 November 1988, Sheet 11.360.
Australia
In 1984, in an assessment of the military implications of the 1977 Additional Protocols, Australia’s Joint Military Operations and Plans Division, stated that Article 87(1) of the Additional Protocol I
imposes upon commanders the additional responsibility to prevent and, where necessary, to suppress and to report all breaches of the Geneva Conventions and [their Additional] Protocols. This requires that the constraints imposed by the Protocols and the law of armed conflict generally are understood and reflected in the conduct of operations by every level of military authority. 
Australia, Joint Military Operations and Plans Division, Assessment of the Military Implications of the Protocols Additional to the Geneva Conventions of 1949, Series No. AA-A1838/376, File No. AA-1710/10/3/1 Pt 2, September 1984, § 10.
Belgium
A Belgian manual containing directives for commanders notes that military discipline “grants respect for human rights and especially for the obligations required by the Geneva Convention”. 
Belgium, Etat-major Général, L’exercice du commandement. Directives pour un leadership moderne dans les forces armées, 1998, p. 41.
Bosnia and Herzegovina
The Report on the Practice of Bosnia and Herzegovina states: “The superior officer is obliged to instigate proceedings for taking legal sanctions against the persons violating the rules of the international law of war.” 
Report on the Practice of Bosnia and Herzegovina, 2000, Chapter 1.6.
Canada
At the CDDH, Canada stated that the word “feasible” when used in the 1977 Additional Protocol I, for example, in Articles 57 and 58, “refers to what is practicable or practically possible, taking into account all circumstances existing at the relevant time, including those circumstances relevant to the success of military operations”. 
Canada, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.42, 27 May 1977, p. 224.
Canada
Upon ratification of the 1977 Additional Protocol I, Canada stated: “The word ‘feasible’ means that which is practicable or practically possible, taking into account all circumstances ruling at the time, including humanitarian and military considerations.” 
Canada, Reservations and statements of understanding made upon ratification of the 1977 Additional Protocol I, 20 November 1990, § 5.
Canada
In 2012, in its written replies to the issues raised by the Committee against Torture with regard to Canada’s sixth periodic report, Canada stated:
Sections 5(1) and (2) and 7(1) and (2) [of the 2000 Crimes Against Humanity and War Crimes Act] also create offences for a military commander or superior whose breaches of responsibility result in a crime against humanity or war crime. 
Canada, Written replies by the Government of Canada to the Committee against Torture concerning the list of issues to be taken up in connection with the sixth periodic report of Canada, 2012, § 177.
Democratic Republic of the Congo
In 2008, a training manual by the prosecutor at the Military High Court for magistrates on techniques for investigating sexual crimes, including war crimes, was adopted as part of the Programme on Investigating Sexual Crimes of the Democratic Republic of the Congo. The training manual states:
We make a clear distinction between a first level [of responsibility composed] of the direct perpetrators of a crime, and other levels of responsibility [composed of] persons who, despite their distance and indirect link, have a participation in the commission of a crime …
The various levels of responsibility:
a. The first category is that of direct perpetrators of a crime: a person who attacks a victim and physically commits a crime against the latter. This group includes also the immediate superiors of direct perpetrators if they are directly implicated in the preparation, order, incitation or commission.
b. The second category comprises intermediate perpetrators … including distant perpetrators who … participate with knowledge about the commission of the crimes by the direct perpetrators.
c. The third category is composed of military, police and political leaders, who use their power to [initiate] the crimes committed by the direct perpetrators. They are the ones who conceive [the crime] …
d. The last group is of persons likely to be implicated in the operational chain of serious international crimes, [which is] composed of individuals who, in the exercise of their usual [legal] powers, involuntarily form an unavoidable [link] of the criminal chain. The perpetrators use persons as instruments.
The modes of “knowledge” by superiors:
One of the domains in which it is very difficult to [gather] evidence concerns the “knowledge” by a suspect or perpetrator of a crime before its commission. Article 30 of the … [1998 ICC] Statute requires evidence beyond reasonable doubt regarding the knowledge and intent of a person accused of a crime. It defines knowledge in paragraph 3 of that article: “knowledge means awareness that a circumstance exists or a consequence will occur in the ordinary course of events”.
The first category of evidence concerns the direct evidence of the knowledge by a superior … This category might include written or oral reports addressed to the person, [and] public or private declarations …
The second category includes evidence which indirectly establishes the knowledge by a suspect at a crucial moment … for example, when it is proven that a superior took a certain measure which indicates without doubt that he must have known about the crime or other important facts related to the crime.
The last category of evidence is composed of elements establishing the effective or supposed knowledge of a reasonable person who were to be in the same position as the suspect. This piece of evidence allows concluding that a superior could not have ignored a particular fact as he had easy access to relevant piece of information.
The modes of criminal participation:
… There are many ways in which a crime can be perpetrated. When a crime involves several perpetrators, each one may have participated in a different way. This applies notably to international crimes, which are not only caused by those who physically perpetrate them, but also by those who order, incite and support them.
The participation of a person in the commission of a crime might vary according to his or her position and to the nature of the crime.
b. Incitement
This mode includes all words, acts and gestures presented in public in view of driving another person to commit a criminal act. Incitement may also include the attitude of superiors who favour a lax environment which might encourage criminal inclinations of their subordinates. According to the case-law of the ICTY, the mens rea of incitement presupposes that the suspect had the intention to provoke the commission of a crime or was perfectly aware that the commission of the crime would be a probable consequence of his or her acts.
Incitement may be carried out by omission (for instance, if a superior officer intentionally omits to take all appropriate measures to punish or denounce the criminal conduct of his or her subordinates). In this case, it must be proven that there is a relation of cause and effect between the incitement and the effective commission of the crime.
d. Conspiracy or Joint Criminal Enterprise (JCE)
One of the most remarkable innovations of international criminal law is the … theory of the “joint criminal enterprise” as a mode of criminal participation. It characterises the criminal conduct of high officials which are not directly linked to the crimes committed or their victims. It was conceived by the ICTY … [I]t concerns the commission of acts by a group of persons who are all engaged in the implementation of a collective criminal plan.
This mode of responsibility means that, under certain circumstances, the members of a joint criminal enterprise are not only criminally responsible for the crime which was really intended, but also … for other crimes which result, in a predictable manner, from the joint criminal enterprise.
In these circumstances, a superior may be held criminally responsible for crimes committed by his or her subordinates if he or she does not succeed in preventing or punishing them. A superior is thus responsible for his or her omission or negligence in reacting at the moment when he became aware that a crime would be committed or had already been committed. 
Democratic Republic of the Congo, Training manual by the Prosecutor at the Military High Court for magistrates on techniques for investigating sexual crimes, adopted as part of the Programme on Investigating Sexual Crimes of the Democratic Republic of the Congo, Military Justice seminar, 2008, pp. 9–13.
The training manual further states:
Legal implications of sexual violence as an international crime
… International crimes imply … the responsibility of commanders and other superiors. This mode of responsibility is subject to the following conditions:
1. the superior must have effective control over persons under his command;
2. he must not have prevented or punished crimes brought to his knowledge, nor referred such crimes to the competent authority. 
Democratic Republic of the Congo, Training manual by the Prosecutor at the Military High Court for magistrates on techniques for investigating sexual crimes, adopted as part of the Programme on Investigating Sexual Crimes of the Democratic Republic of the Congo, Military Justice seminar, 2008, pp. 72–73.
Ethiopia
According to Ethiopia’s Office of the Special Public Prosecutor (SPO), which is in charge of prosecuting persons who allegedly committed crimes of genocide, crimes against humanity and war crimes between 1974 and 1991, since its establishment in 1992 by Proclamation 22/1992 of the transitional government of Ethiopia, by 1997 a total of 5,198 persons had been charged, of whom 2,433 were field commanders, “those who transmitted the orders of the [policy- and decision-makers] and also originated fresh orders of their own”. The charges were based on Ethiopia’s Penal Code. 
Ethiopia, Office of the Special Public Prosecutor, Statement of the Chief Special Public Prosecutor, Addis Ababa, 13 February 1997.
France
Upon ratification of the 1977 Additional Protocol I, France stated that it considered that the term “feasible” as used in the Protocol meant “that which can be realized or which is possible in practice, taking into account all circumstances ruling at the time, including humanitarian and military considerations”.  
France, Reservations and declarations made upon ratification of the 1977 Additional Protocol I, 11 April 2001, § 3.
Germany
Upon ratification of the 1977 Additional Protocol I, Germany stated that it understood the word “feasible” to mean “that which is practicable or practically possible, taking into account all circumstances ruling at the time, including humanitarian and military considerations”. 
Germany, Declarations made upon ratification of the 1977 Additional Protocol I, 14 February 1991, § 2.
Ireland
Upon ratification of the 1977 Additional Protocol I, Ireland stated: “The word ‘feasible’ means that which is practicable or practically possible, taking into account all circumstances at the time, including humanitarian and military considerations.” 
Ireland, Declarations and reservations made upon ratification of the 1977 Additional Protocol I, 19 May 1999, § 6.
Italy
Upon ratification of the 1977 Additional Protocol I, Italy declared: “The word ‘feasible’ means that which is practicable or practically possible, taking into account all circumstances ruling at the time, including humanitarian and military considerations.” 
Italy, Declarations made upon ratification of the 1977 Additional Protocol I, 27 February 1986, § 2.
Italy
In 1997, the final report of the Italian Government Commission of Inquiry into the events in Somalia referred to a provision of the Italian Penal Code in recalling that an officer who failed to control dutifully his subordinates could be responsible not only under disciplinary law but also under criminal law. 
Italy, Government Commission of Inquiry, Final report into the events in Somalia, 8 August 1997, p. 34.
Italy
In 2006, in reply to a question concerning the use of white-phosphorous weapons in Iraq, Italy’s Under-Secretary of State to the Presidency of the Council of Ministers stated:
Had the Government been informed or made aware somehow or, else, had it directly verified the use of prohibited weapons, it would not have hesitated to engage in the necessary initiatives. One needs only to recall that, according to the national operational rule of the operation “Antica Babilonia”, in case the Commander of the contingent is made aware of a crime against humanity and of war falling within the jurisdiction of the International Criminal Court, he or she shall inform the Italian judicial and military authorities with a view to the subsequent involvement of the Office of the Prosecutor of the International Criminal Court itself. Under this perspective, by way of meaningful example, one should set in this framework the initiative of the Commander of the national contingent, who, in August 2004, notified the International Committee of the Red Cross of the repeated violations of international humanitarian law by the Iraqi militiamen. 
Italy, Chamber of Deputies, Statement by the Under-Secretary of State to the Presidency of the Council of Ministers, 20 January 2006, published in Italian Yearbook of International Law, vol. XVI, 2006, pp. 361–362.
Jordan
According to the Report on the Practice of Jordan, under Jordanian law, “no sanctions are envisaged against a commander who neglects to give the necessary instruction or permits shortcomings in the required supervisions, if grave breaches occur in his area of command”. 
Report on the Practice of Jordan, 1997, Chapter 6.7.
Netherlands
At the CDDH, the Netherlands stated:
Recognition in written international law of individual responsibility of superiors who, without excuse, failed to do all in their power to prevent the commission of war crimes by their subordinates supplemented the principle contained in article 77 [of draft Additional Protocol I], according to which subordinates were individually responsible for war crimes which they had committed, even when acting under superior orders.
The principle set out in article 76 [of draft Additional Protocol I] was not a new one. Although it did not appear in the Charter and the Judgement of the Nürnberg tribunal it had nevertheless played an important part in post-war jurisprudence.
Nevertheless, it was difficult to specify the limits of responsibility in cases of failure to act, and the courts would reach their decision in each case only after taking into account all the relevant facts, even though the principle of individual responsibility was now recognized by a great number of States. 
Netherlands, Statement at the CDDH, Official Records, Vol. IX, CDDH/I/SR.50, 4 May 1976, §§ 31–32 and 35.
Netherlands
At the CDDH, the Netherlands stated:
The word “feasible” when used in [the 1977 Additional] Protocol I, for example in Articles 50 and 51 [57 and 58], should in any particular case be interpreted as referring to that which was practicable or practically possible, taking into account all circumstances at the time. 
Netherlands, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.42, 27 May 1977, p. 214, § 61.
Netherlands
Upon ratification of the 1977 Additional Protocol I, the Netherlands declared: “The word ‘feasible’ is to be understood as practicable or practically possible taking into account all circumstances ruling at the time, including humanitarian and military considerations.” 
Netherlands, Declarations made upon ratification of the 1977 Additional Protocol I, 26 June 1987, § 2.
Philippines
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. 
Philippines, Department of National Defence, Secretary, Memorandum to the AFP Chief of Staff on Respect for Human Rights and Improvement of Discipline in the AFP, 1 December 1988.
Philippines
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. 
Philippines, Ministry of National Defence, Office of the Chief of Staff, Guidelines on Human Rights and Improvement of Discipline in the AFP, 2 January 1989, § 2(1) and (2).
Philippines
The Philippine press has reported several cases in which commanding officers were relieved of their duties or accused on the basis of command responsibility. 
Manila Bulletin, “Basilan Officer Relieved”, 29 September 1995; Today, “Cotabato Folk Denounce Slay of Non-combatants”, 20 March 1997; Today, “Prosecution of Army Brass Involved in Shelling Urged”, 30 March 1997; Today, “Relieve Buldon Officers”, 2 April 1997 (as a result of the CHR’s investigation, a Vice Governor demanded the relief of military commanders responsible for the death of 11 civilians); Today, “Military Washes its Hands of Buldon Carnage: CHR Stung by AFP Rejection”, 12 April 1997, p. 12. (The report on the incident by the Philippine Commission on Human Rights (CHR) blamed the military for the bombing of a school. The armed forces, however, rejected these findings. To finally resolve the issue, the CHR and the AFP agreed to form an independent body to conduct an investigation.)
Philippines
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.] 
Philippines, Strict Adherence to the Doctrine of Command Responsibility, Directive issued by the Chief of Staff of the Armed Forces of the Philippines, 4 February 2007, §§ 2–6.
Slovenia
In 1992, in a note verbale with respect to the implementation of Security Council Resolution 780 (1992), Slovenia stated:
Not only those who have directly committed the crimes [i.e. “crimes committed against humanity and international humanitarian law”], but also those who gave orders or were otherwise engaged, should be prosecuted as perpetrators. Such consistent approach of the United Nations Commission of Experts would also include the question of the criminal responsibility of numerous high military officers and politicians; this would be in accordance with international criminal law and to date practice, especially the one applied in the Nuremberg trials. 
Slovenia, Note verbale dated 5 November 1992 to the UN Secretary-General, UN Doc. S/24789, 9 November 1992, p. 2.
Spain
Upon ratification of the 1977 Additional Protocol I, Spain interpreted the term “feasible” as meaning that “the matter to which reference is made is practicable of practically possible taking into account all circumstances at the time when the situation arises, including humanitarian and military considerations”. 
Spain, Interpretative declarations made upon ratification of the 1977 Additional Protocol I, 21 April 1989, § 3.
United Kingdom of Great Britain and Northern Ireland
Upon signature of the 1977 Additional Protocol I, the United Kingdom stated: “The word ‘feasible’ means that which is practicable or practically possible, taking into account all circumstances at the time including those relevant to the success of military operations.” 
United Kingdom, Declarations made upon signature of the 1977 Additional Protocol I, 12 December 1977, § b.
United Kingdom of Great Britain and Northern Ireland
Upon ratification of the 1977 Additional Protocol I, the United Kingdom stated that it understood the term “feasible” as used in the Protocol to mean “that which is practicable or practically possible, taking into account all circumstances ruling at the time, including humanitarian and military considerations”. 
United Kingdom, Reservations and declarations made upon ratification of the 1977 Additional Protocol I, 28 January 1998, § b.
United States of America
At the CDDH, the United States stated:
The word “feasible” when used in draft [Additional] Protocol I, for example in Articles 50 and 51 [57 and 58], refers to that which is practicable or practically possible, taking into account all circumstances at the time, including those relevant to the success of military operations. 
United States, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.42, 27 May 1977, p. 241.
United States of America
The 1979 version of the US Department of Defense Directive on the Law of War Program stated:
It is the policy of the Department of Defense to ensure that:
3. Alleged violations of the law of war, whether committed by or against U.S. or enemy personnel, are promptly reported, thoroughly investigated, and, where appropriate, remedied by corrective action.
4. Violations of the law of war alleged to have been committed by or against allied military or civilian personnel shall be reported through appropriate command channels for ultimate transmission to appropriate agencies of allied governments. 
United States, Department of Defense Directive on the Law of War Program No. 5100.77, 10 July 1979, Section C(3) and (4).
United States of America
In 1992, in its final report to Congress on the conduct of the Gulf War, the US Department of Defense stated:
[Department of Defense Directive on the Law of War Program No. 5100.77] is the foundation for the US military law of war program. It contains four policies:
• Alleged violations of the law of war, whether committed by or against US or enemy personnel, … [will/shall be] promptly reported, thoroughly investigated, and, where appropriate, remedied by corrective action.
• Violations of the law of war alleged to have been committed by or against allied military or civilian personnel shall be reported through appropriate military command channels for ultimate transmission to appropriate agencies of allied governments.
Army Chief of Staff Regulation 11-2 assigns to the Army Judge Advocate General (JAG) responsibility for investigating, collecting, collating, evaluating, and reporting in connection with war crimes alleged to have been committed against US personnel.
Criminal responsibility for violations of the law of war rests with a commander, including the national leadership, if he (or she):
● Orders or permits the offence to be committed, or
● Knew or should have known of the offence(s), had the means to prevent or halt them, and failed to do all which he was capable of doing to prevent the offences or their recurrence.
The crimes committed against Kuwaiti civilians and property, and against third party nationals, are offences for which Saddam Hussein, officials of the Ba’ath Party, and his subordinates bear direct responsibility. However, the principal responsibility rests with Saddam Hussein. Saddam Hussein’s C2 [command and control] of Iraqi military and security forces appeared to be total and unequivocal. There is substantial evidence that each act alleged was taken as a result of his orders, or was taken with his knowledge and approval, or was an act which he should have known. 
United States, Department of Defense, Final Report to Congress on the Conduct of the Persian Gulf War, 10 April 1992, Appendix O, The Role of the Law of War, ILM, Vol. 31, 1992, pp. 633–636.
United States of America
In 1992, the US report on Iraqi war crimes (Desert Shield/Desert Storm), prepared under the auspices of the US Secretary of the Army, noted:
Criminal responsibility for violations of the law of war rests with a commander, including the national leadership, who … knew or should have known of the offences, had the means to prevent or halt them, and failed to do all which he or she was capable of doing to prevent the offences or their recurrence. 
United States, Secretary of the Army, Report on Iraqi war crimes (Desert Shield/Desert Storm), unclassified version, 8 January 1992, p. 13.
United States of America
In 1993, during a debate in the UN Security Council following the unanimous vote on Resolution 827 (1993) establishing the International Criminal Tribunal for the former Yugoslavia (ICTY), the United States stated:
With respect to paragraph 1 of Article 7 [of the 1993 ICTY Statute], it is our understanding that individual responsibility arises in the case of … the failure of a superior – whether political or military – to take reasonable steps to prevent or punish [violations of IHL] by persons under his or her authority. 
United States, Statement before the UN Security Council, UN Doc. S/PV.3217 (Provisional), 25 May 1993, p. 16.
United States of America
The 1998 version of the US Department of Defense (DoD) Directive on the Law of War Program stated:
It is DoD policy to ensure that:
4.3. All reportable incidents committed by or against U.S. or enemy persons are promptly reported, thoroughly investigated, and, when appropriate, remedied by corrective action.
4.4. All reportable incidents committed by or against allied persons, or by or against other persons during a conflict to which the U.S. is not a party, are reported through command channels for ultimate transmission to appropriate U.S. Agencies, allied governments, or other appropriate authorities. 
United States, Department of Defence Directive on the Law of War Program No. 5100.77, 9 December 1998, Section 4(4)(3) and (4)(4).
A “reportable incident” is defined as “a possible, suspected, or alleged violation of the law of war”. 
United States, Department of Defence Directive on the Law of War Program No. 5100.77, 9 December 1998, Section 3(2).
As to responsibilities, the Directive provides:
The Secretaries of the Military Departments shall develop internal policies and procedures consistent with this Directive in support of the DoD Law of War Program to: … [p]rovide for the prompt reporting and investigation of reportable incidents committed by or against members of their respective Military Departments, or persons accompanying them. 
United States, Department of Defence Directive on the Law of War Program No. 5100.77, 9 December 1998, Section 5(5)(3).
The Directive further states that the Commanders of the Combatant Commands shall
issue directives to ensure that reportable incidents involving U.S. or enemy persons are reported promptly to appropriate authorities, are thoroughly investigated, and the results of such investigations are promptly forwarded to the applicable Military Department or other appropriate authorities. 
United States, Department of Defence Directive on the Law of War Program No. 5100.77, 9 December 1998, Section 5(8)(4).
Under a provision entitled “Reports of incidents”, the Directive states:
All military and civilian personnel assigned to or accompanying a DoD Component shall report reportable incidents through their chain of command. Such reports … may also be made through other channels, such as the military police, a judge advocate, or an Inspector General. Reports that are made to officials other than those specified in this subsection shall, nonetheless, be accepted and immediately forwarded through the recipient’s chain of command. 
United States, Department of Defence Directive on the Law of War Program No. 5100.77, 9 December 1998, Section 6(1).
United States of America
On 8 May 2004, during his weekly radio address, the US President spoke of recent public revelations regarding the abuse of detainees at Abu Ghraib prison in Iraq by US Army personnel:
In recent days, America and the world have learned of shocking conduct in Iraqi prisons by a small number of American servicemen and women. These individuals had been given the responsibility of overseeing Iraqis in American custody, and doing so in a decent and humane manner, consistent with U.S. law and the Geneva conventions. Instead we have seen shameful images of prisoners being subjected to abuse and humiliation. Such practices do not reflect our values. They are a stain on our country’s honor and reputation.
Shortly after reports of abuse became known to our military, an investigation was launched. Today several formal investigations, led by senior military officials, are underway. Some soldiers have already been charged with crimes. We will learn all the facts and determine the full extent of these abuses. Those involved will be identified; they will answer for their actions. All prison operations in Iraq will be thoroughly reviewed to make certain that similar disgraceful incidents are never repeated. 
United States, President George W. Bush, transcript of a weekly radio address which discussed the abuse of detainees at Abu Ghraib prison, Iraq, by US Army personnel, 8 May 2004.
United States of America
In 2005, the US Department of Defense (DoD) released a report of an investigation, dated 1 April 2005 (as amended 9 June 2005), commissioned by the Commander US Southern Command (USSOUTHCOM) and conducted by Lieutenant General R.M. Schmidt and Brigadier General J.T. Furlow, into FBI allegations of detainee abuse at the US Detention Facility, Joint Task Force Guantanamo Bay, Cuba. The executive summary of the report stated:
Detention and interrogation operations at Joint Task Force Guantanamo (JTF-GTMO) cover a three-year period and over 24,000 interrogations. This AR 15-6 [Army Regulation 15-6: Procedures for Investigating Officers and Boards of Officers, dated 30 September 1996] investigation found only three interrogation acts in violation of interrogation techniques authorized by Army Field Manual 34–52 [Intelligence Interrogation] and DoD guidance. The AR 15-6 also found that the Commander of JTF-GTMO failed to monitor the interrogation of one high value detainee in late 2002. The AR 15-6 found that the interrogation of this same high value detainee resulted in degrading and abusive treatment but did not rise to the level of being inhumane treatment. Finally, the AR 15-6 found that the communication of a threat to another high value detainee was in violation of SECDEF [US Secretary Department of Defense] guidance and the UCMJ [Uniform Code of Military Justice]. The AR 15-6 found no evidence of torture or inhumane treatment at JTF-GTMO. 
United States, Department of Defense, Commander United States Southern Command, Investigation into FBI Allegations of Detainee Abuse at Guantanamo Bay, Cuba Detention Facility, 1 April 2005 (as amended 9 June 2005).
Yugoslavia, Socialist Federal Republic of
In Order No. 985-1/91 issued in 1991, the Chief of General Staff of the Yugoslav People’s Army (YPA) stated:
Command structures and units have the duty to inform immediately their commanding officers on any violation of international law of warfare. Any information in this regard that may appear should be forwarded to the General Staff in regular reports. 
Yugoslavia, Socialist Federal Republic of (FRY), Chief of General Staff of the YPA, Legal Department, Order No. 985-1/91, 3 October 1991, § 4.
UN Security Council
In 1995, in a statement by its President on the conflict in Bosnia and Herzegovina, the UN Security Council stated:
The Council reaffirms its condemnation of all violations of international humanitarian law, and reiterates to all concerned that those who have committed or ordered the commission of such acts will be held individually responsible in respect of such acts. It reminds the military and political leaders of the Bosnian Serb party that this responsibility extends to any such acts committed by forces under their command. 
UN Security Council, Statement by the President, UN Doc. S/PRST/1995/33, 20 July 1995.
UN General Assembly
In a resolution adopted in 1993 on rape and abuse of women in the areas of armed conflict in the former Yugoslavia, the UN General Assembly:
Reaffirms that all persons who perpetrate or authorize crimes against humanity and other violations of international humanitarian law are individually responsible for those violations, and that those in positions of authority who have failed adequately to ensure that persons under their control comply with the relevant international instruments are accountable together with the perpetrators. 
UN General Assembly, Res. 48/143, 20 December 1993, § 5, adopted without a vote.
UN General Assembly
In a resolution adopted in 1994 on rape and abuse of women in the areas of armed conflict in the former Yugoslavia, the UN General Assembly:
Reaffirms that all persons who perpetrate or authorize crimes against humanity or other violations of international law are individually responsible for those violations and that those in positions of authority who have failed to ensure that persons under their control comply with the relevant international instruments are accountable, together with the perpetrators. 
UN General Assembly, Res. 49/205, 23 December 1994, § 6, adopted without a vote.
UN General Assembly
In a resolution adopted in 1995 on rape and abuse of women in the areas of armed conflict in the former Yugoslavia, the UN General Assembly:
Also reaffirms that all persons who perpetrate or authorize crimes against humanity or other violations of international humanitarian law are individually responsible for those violations and that those in positions of authority who have failed to ensure that persons under their control comply with the relevant international instruments are accountable, together with the perpetrators. 
UN General Assembly, Res. 50/192, 22 December 1995, § 4, adopted without a vote.
UN General Assembly
In a resolution adopted in 1996 on rape and abuse of women in the areas of armed conflict in the former Yugoslavia, the UN General Assembly:
Also reaffirms that all persons who perpetrate or authorize crimes against humanity or other violations of international humanitarian law are individually responsible for those violations and that those in positions of authority who have failed to ensure that persons under their control comply with the relevant international instruments are accountable, together with the perpetrators. 
UN General Assembly, Res. 51/115, 12 December 1996, § 4, adopted without a vote.
UN General Assembly
In a resolution adopted in 2003 on special assistance for the economic recovery and reconstruction of the Democratic Republic of the Congo, the UN General Assembly:
Strongly condemns the acts of violence, including the latest massacres in Ituri, systematically perpetrated against civilians … stresses the need to bring to justice those responsible, including those at the command level, and urges all parties, including the Government of the Democratic Republic of the Congo, to take all necessary steps to prevent further violations of human rights and international humanitarian law, in particular those committed against civilians. 
UN General Assembly, Res. 58/123, 17 December 2003, § 6, voting record: 169-1-0-21.
UN General Assembly
In a resolution adopted in 2003 on torture and other cruel, inhuman or degrading treatment or punishment, the UN General Assembly:
… [S]tresses in particular that all allegations of torture or other cruel, inhuman or degrading treatment or punishment should be promptly and impartially examined by the competent national authority [and] that those who encourage, order, tolerate or perpetrate acts of torture must be held responsible and severely punished, including the officials in charge of the place of detention where the prohibited act is found to have been committed. 
UN General Assembly, Res. 58/164, 22 December 2003, § 2, adopted without a vote.
UN General Assembly
In a resolution adopted in 2004 on torture and other cruel, inhuman or degrading treatment or punishment, the UN General Assembly:
Stresses that all allegations of torture or other cruel, inhuman or degrading treatment or punishment must be promptly and impartially examined by the competent national authority, that those who encourage, order, tolerate or perpetrate acts of torture must be held responsible and severely punished, including the officials in charge of the place of detention where the prohibited act is found to have been committed, and takes note in this respect of the Principles on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the Istanbul Principles) as a useful tool in efforts to combat torture.  
UN General Assembly, Res. 59/182, 20 December 2004, § 4, adopted without a vote.
UN General Assembly
In a resolution adopted in 2007 on torture and other cruel, inhuman or degrading treatment or punishment, the UN General Assembly:
Stresses that all allegations of torture or other cruel, inhuman or degrading treatment or punishment must be promptly and impartially examined by the competent national authority, and that those who encourage, order, tolerate or perpetrate acts of torture must be held responsible, brought to justice and severely punished, including the officials in charge of the place of detention where the prohibited act is found to have been committed. 
UN General Assembly, Res. 62/148, 18 December 2007, § 5, adopted without a vote.
UN Commission on Human Rights
In a resolution on civil defence forces adopted in 1994, the UN Commission on Human Rights:
Recommends that whenever armed civil defence forces are created to protect the civilian population, Governments establish, where appropriate, minimum legal requirements for them, within the framework of domestic law, including the following:
(d) Commanders shall have clear responsibility for their activities;
(e) Civil defence forces and their commanders shall be clearly accountable for their activities. 
UN Commission on Human Rights, Res. 1994/67, 9 March 1994, § 2, adopted without a vote.
UN Commission on Human Rights
In a resolution adopted in 1994 on rape and abuse of women in the areas of armed conflict in the former Yugoslavia, the UN Commission on Human Rights:
Reaffirms that all persons who perpetrate or authorize crimes against humanity and other violations of international humanitarian law are individually responsible for those violations, and … those in positions of authority who have failed adequately to ensure that persons under their control comply with the relevant international instruments are accountable together with the perpetrators. 
UN Commission on Human Rights, Res. 1994/77, 9 March 1994, § 5, adopted without a vote.
UN Commission on Human Rights
In a resolution adopted in 2003 on torture and other cruel, inhuman or degrading treatment or punishment, the UN Commission on Human Rights:
Stresses in particular that all allegations of torture or other cruel, inhuman or degrading treatment or punishment should be promptly and impartially examined by the competent national authority [and] that those who encourage, order, tolerate or perpetrate acts of torture must be held responsible and severely punished, including the officials in charge of the place of detention where the prohibited act is found to have taken place. 
UN Commission on Human Rights, Res. 2003/32, 23 April 2003, § 8, adopted without a vote.
UN Commission on Human Rights
In a resolution adopted in 2004 on torture and other cruel, inhuman or degrading treatment or punishment, the UN Commission on Human Rights:
Stresses in particular that all allegations of torture or other cruel, inhuman or degrading treatment or punishment should be promptly and impartially examined by the competent national authority, that those who encourage, order, tolerate or perpetrate acts of torture must be held responsible and severely punished, including the officials in charge of the place of detention where the prohibited act is found to have taken place, notes in this respect the Principles on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the Istanbul Principles) annexed to Commission resolution 2000/43 of 20 April 2000, and General Assembly resolution 55/89 of 4 December 2000 as a useful tool in efforts to combat torture, and reiterates its request to the Special Rapporteur, in the normal course of his work, to solicit views from Governments and nongovernmental organizations. 
UN Commission on Human Rights, Res. 2004/41, 19 April 2004, § 4, adopted without a vote.
UN Commission on Human Rights
In a resolution adopted in 2004 on impunity, the UN Commission on Human Rights:
Urges all States to ensure that all military commanders and other superiors are aware of their criminal responsibility under international law for genocide, crimes against humanity and war crimes, including, under certain circumstances, for those committed by subordinates under their effective authority and control. 
UN Commission on Human Rights, Res. 2004/72, 21 April 2004, § 5, adopted without a vote.
UN Commission on Human Rights
In a resolution adopted in 2005 on torture and other cruel, inhuman or degrading treatment or punishment, the UN Commission on Human Rights:
Stresses in particular that all allegations of torture or other cruel, inhuman or degrading treatment or punishment must be promptly and impartially examined by the competent national authority, that those who encourage, order, tolerate or perpetrate acts of torture must be held responsible and severely punished, including the officials in charge of the place of detention where the prohibited act is found to have been committed, and takes note in this respect of the Principles on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the Istanbul Principles) as a useful tool in efforts to combat torture. 
UN Commission on Human Rights, Res. 2005/39, 19 April 2005, § 3, adopted without a vote.
UN Commission on Human Rights
In a resolution adopted in 2005 on impunity, the UN Commission on Human Rights:
Urges all States to ensure that all military commanders and other superiors are aware of the circumstances in which they may be criminally responsible under international law for genocide, crimes against humanity and war crimes, including, under certain circumstances, for these crimes when committed by subordinates under their effective authority and control, and to ensure that all relevant personnel are informed of the limitations that international law places on the defence of superior orders. 
UN Commission on Human Rights, Res. 2005/81, 21 April 2005, § 6, adopted without a vote.
UN Sub-Commission on Human Rights
In a resolution adopted in 1993 on punishment of the crime of genocide, the UN Sub-Commission on Human Rights:
Affirms that all persons who perpetrate or authorize the commission of genocide and related crimes are individually responsible for such actions and … those in positions of authority who have failed adequately to ensure that persons under their control comply with the relevant principles of international law are accountable along with the perpetrators. 
UN Sub-Commission on Human Rights, Res. 1993/8, 20 August 1993, § 1.
UN Secretary-General
In 1993, in his report on the draft ICTY Statute, the UN Secretary-General stated that a person in a position of superior authority
should also be held responsible for failure to prevent a crime or to deter the unlawful behaviour of his subordinates. This imputed responsibility or criminal negligence is engaged if the person in superior authority knew or had reason to know that his subordinates were about to commit crimes or had committed crimes and yet failed to take the necessary and reasonable steps to prevent or repress the commission of such crimes or to punish those who had committed them. 
UN Secretary-General, Report pursuant to Paragraph 2 of Security Council Resolution 808 (1993), UN Doc. S/25704, 3 May 1993, § 56.
UN Secretary-General
In 2000, in his report on the establishment of a Special Court for Sierra Leone, the UN Secretary-General noted on the issue of the personal jurisdiction of the Court:
While those “most responsible” obviously include the political and military leadership, others in command authority down the chain of command may also be regarded “most responsible” judging by the severity of the crime or its massive scale. “Most responsible”, therefore, denotes both a leadership or authority position of the accused, and a sense of the gravity, seriousness or massive scale of the crime. 
UN Secretary-General, Report on the establishment of a Special Court for Sierra Leone, UN Doc. S/2000/915, 4 October 2000, § 30.
UN Commission on Human Rights (Special Rapporteur)
In 1997, in the recommendations of his second report on the situation of human rights in Burundi, the Special Rapporteur of the UN Commission on Human Rights called upon the de facto authorities in Burundi
to establish a firm chain of command within the army and the security forces, so that senior officers bear real responsibility for abusive acts committed by their subordinates. Military personnel, whether commissioned or non-commissioned officers, should be stripped of their rank when their involvement in such acts has been proved. 
UN Commission on Human Rights, Special Rapporteur on the Situation of Human Rights in Burundi, Second report, UN Doc. E/CN.4/1997/12, 10 February 1997, § 93.
UN Commission on Human Rights (Special Rapporteur)
In 1998, in her final report submitted to the UN Sub-Commission on Human Rights on systematic rape, sexual slavery and slavery-like practices during armed conflict, the Special Rapporteur of the UN Commission on Human Rights concluded that:
Individual perpetrators of slavery, crimes against humanity, genocide, torture and war crimes – whether State or non-State actors – must be held responsible for their crimes at the international level, depending on the circumstances of the case and on the capacity and availability of forums to adjudicate fairly and dispense justice adequately. A strict application of the international legal standards for command responsibility, which apply to all authorities within a given chain of command, may prevent future sexual or gender violence in conflict situations and will serve the goals of protection, enforcement and deterrence. 
UN Sub-Commission on Human Rights, Special Rapporteur on Systematic Rape, Sexual Slavery and Slavery-like Practices during Wartime, Final report, UN Doc. E/CN.4/Sub.2/1998/13, 22 June 1998, § 113.
UN Commission of Experts Established pursuant to Security Council Resolution 780 (1992)
In 1994, in its final report on grave breaches of the Geneva Conventions and other violations of IHL committed in the former Yugoslavia, the UN Commission of Experts Established pursuant to Security Council Resolution 780 (1992) recalled that it had addressed the issue of command responsibility in its first interim report as follows:
Superiors are … individually responsible for a war crime or crime against humanity committed by a subordinate if they knew, or had information which should have enabled them to conclude, in the circumstances at the time, that the subordinate was committing or was going to commit such an act and they did not take all feasible measures within their power to prevent or repress the act.
Military commanders are under a special obligation, with respect to members of the armed forces under their command or other persons under their control, to prevent and, where necessary, to suppress such acts and to report them to competent authorities. 
UN Commission of Experts Established pursuant to Security Council Resolution 780 (1992), Final report, UN Doc. S/1994/674, 27 May 1994, § 55.
The Commission noted with satisfaction that Article 7 of the 1993 ICTY Statute used an essentially similar formulation. 
UN Commission of Experts Established pursuant to Security Council Resolution 780 (1992), Final report, UN Doc. S/1994/674, 27 May 1994, § 56.
The Commission further stated:
58. It is the view of the Commission that the mental element necessary when the commander has not given the offending order is (a) actual knowledge, (b) such serious personal dereliction on the part of the commander as to constitute wilful and wanton disregard of the possible consequences, or (c) an imputation of constructive knowledge, that is, despite pleas to the contrary, the commander, under the facts and circumstances of the particular case, must have known of the offences charged and acquiesced therein …
59. The military commander is not absolutely responsible for all offences committed by his subordinates. Isolated offences may be committed of which he has no knowledge or control whatsoever … The arguments that a commander has a weak personality or that the troops assigned to him are uncontrollable are invalid. In particular, a military commander who is assigned command and control over armed combatant groups which have engaged in war crimes in the past should refrain from employing such groups in combat, until they clearly demonstrate their intention and capability to comply with the law in the future.
60. Lastly, a military commander has the duty to punish or discipline those under his command whom he knows or has reasonable grounds to know committed a violation. 
UN Commission of Experts Established pursuant to Security Council Resolution 780 (1992), Final report, UN Doc. S/1994/674, 27 May 1994, §§ 58–59.
With respect to practices of “ethnic cleansing”, sexual assault and rape during the conflict in the former Yugoslavia which, according to the Commission, would seem to have been carried out by some parties to the conflict “so systematically that they strongly appear to be the product of a policy”, the Commission noted:
313. … The consistent failure to prevent the commission of such crimes and the consistent failure to prosecute and punish the perpetrators of these crimes, clearly evidences the existence of a policy by omission. The consequence of this conclusion is that command responsibility can be established.
314. Knowledge of these grave breaches and violations of international humanitarian law can reasonably be inferred from consistent and repeated practices. 
UN Commission of Experts Established pursuant to Security Council Resolution 780 (1992), Final report, UN Doc. S/1994/674, 27 May 1994, §§ 313–314.
UN Commission on the Truth for El Salvador
In its 1993 report, the UN Commission on the Truth for El Salvador examined a case involving the execution of ten detained persons. The Commission found that:
7. There is sufficient evidence that [the superiors] knew about the order to execute the detainees and did nothing to prevent their execution.
8. There is substantial evidence that the Honour Commission of the armed forces, the Commission for the Investigation of Criminal Acts and the judge of the Criminal Court of First Instance of the city of San Sebastián failed to take steps to determine the responsibility of [the superiors]. 
UN Commission on the Truth for El Salvador, Report, UN Doc. S/25500, 1 April 1993, Annex, p. 86.
OIC Conference of Ministers of Foreign Affairs
In a resolution adopted in 1992, the OIC Conference of Ministers of Foreign Affairs stated that it held
the Serb leaders, those in Belgrade as well as those in the Republic of Bosnia-Herzegovina, responsible for the atrocities committed by the Yugoslav National Army and Serb irregular forces against Muslims and Croats of Bosnia-Herzegovina … and recalls that they will be considered guilty of war crimes. 
OIC, Conference of Ministers of Foreign Affairs, Fifth Extraordinary Session, 17–18 June 1992, Res. 1/5-EX, § 15.
Inter-Parliamentary Conference (1993)
In a resolution adopted in 1993, the 90th Inter-Parliamentary Conference called on “all States to remind military commanders that they are required … to make every effort to ensure that no violations [of IHL] are committed and, where necessary, to punish or report any violations to the authorities”. 
90th Inter-Parliamentary Conference, Canberra, 13–18 September 1993, Resolution on Respect for International Humanitarian Law and Support for Humanitarian Action in Armed Conflicts, § 2(e).
International Military Tribunal for the Far East
In the case of the Major War Criminals in 1948, the International Military Tribunal for the Far East stated regarding responsibility for war crimes against prisoners:
Responsibility for the care of prisoners of war and of civilians internees (all of whom we will refer to as “prisoners”) … is not limited to the duty of mere maintenance but extends to the prevention of mistreatment. In particular, acts of inhumanity to prisoners which are forbidden by the customary law of nations as well as by conventions are to be prevented by the Government having responsibility for the prisoners.
In the discharge of these duties to prisoners Governments must have resort to persons. Indeed the Governments responsible, in this sense, are those persons who direct and control the functions of Government. In this case and in the above regard we are concerned with the members of the Japanese Cabinet. The duty to prisoners is not a meaningless obligation cast upon a political abstraction. It is a specific duty to be performed in the first case by those persons who constitute the Government. In the multitude of duties and tasks involved in modern government there is of necessity an elaborate system of subdivision and delegation of duties. In the case of the duty of Governments to prisoners held by them in time of war those persons who constitute the Government have the principal and continuing responsibility for their prisoners, even though they delegate the duties of maintenance and protection to others.
In general, the responsibility for prisoners held by Japan may be stated to have rested upon:
(1) Members of the Government;
(2) Military or Naval Officers in command of formations having prisoners in their possession;
(3) Officials in those departments which were concerned with the well-being of prisoners;
(4) Officials, whether civilian, military, or naval, having direct and immediate control of prisoners.
It is the duty of all those on whom responsibility rests to secure proper treatment of prisoners and to prevent their ill-treatment by establishing and securing the continuous and efficient working of a system appropriate for these purposes. Such persons fail in this duty and become responsible for ill-treatment of prisoners, if:
(1) They fail to establish such a system.
(2) If having established such a system, they fail to secure its continued and efficient working.
Each of such persons has a duty to ascertain that the system is working and if he neglects to do so he is responsible. He does not discharge his duty by merely instituting an appropriate system and thereafter neglecting to learn of its application. An Army Commander or a Minister of War, for example, must be at the same pains to ensure obedience to his orders in this respect as he would in respect of other orders he has issued on matters of the first importance.
Nevertheless, such persons are not responsible if a proper system and its continuous efficient functioning be provided for and conventional war crimes be committed unless:
(1) They had knowledge that such crimes were being committed, and having such knowledge they failed to take such steps as were within their power to prevent the commission of such crimes in the future, or
(2) They are at fault in having failed to acquire such knowledge.
If, such a person had, or should, but for negligence or supineness, have had such knowledge he is not excused for inaction if his Office required or permitted him to take any action to prevent such crimes. On the other hand it is not enough for the exculpation of a person, otherwise responsible, for him to show that he accepted assurances from others more directly associated with the control of the prisoners if having regard to the position of those others, to the frequency of reports of such crimes, or to any other circumstances he should have been put upon further inquiry as to whether those assurances were true or untrue. That crimes are notorious, numerous and widespread as to time and place are matters to be considered in imputing knowledge.
A member of a Cabinet which collectively, as one of the principal organs of the Government, is responsible for the care of prisoners is not absolved from responsibility if, having knowledge of the commission of the crimes … and omitting or failing to secure the taking of measures to prevent the commission of such crimes in the future, he elects to continue as a member of the Cabinet. This is the position even though the Department of which he has the charge is not directly concerned with the care of prisoners. A Cabinet member may resign. If he has knowledge of ill-treatment of prisoners, is powerless to prevent future ill-treatment, but elects to remain in the Cabinet thereby continuing to participate in its collective responsibility for protection of prisoners he willingly assumes responsibility for any ill-treatment in the future.
Army or Navy Commanders can, by order, secure proper treatment and prevent ill-treatment of prisoners. So can Ministers of War and of the Navy. If crimes are committed against prisoners under their control, of the likely occurrence of which they had, or should have had knowledge in advance, they are responsible for those crimes. If, for example, it be shown that within the units under his command conventional war crimes have been committed of which he knew or should have known, a commander who takes no adequate steps to prevent the occurrence of such crimes in the future will be responsible for such future crimes. 
International Military Tribunal for the Far East, Case of the Major War Criminals, Judgment, 4–12 November 1948, Chapter II(b).
In the part of the judgment dealing with “conventional war crimes (atrocities)”, the International Military Tribunal stated:
The Japanese Government condoned ill-treatment of prisoners of war and civilian internees by failing and neglecting to punish those guilty of ill-treating them or by prescribing trifling and inadequate penalties for the offence. [Various examples] are evidence that the War Ministry knew there was ill-treatment of prisoners. The trifling nature of the punishments imposed implies condonation. The Government actively concealed the ill-treatment to which prisoners of war and civilian internees were subjected by refusing visits by representatives of the Protecting Power designated by the Allies. 
International Military Tribunal for the Far East, Case of the Major War Criminals, Judgment, 4–12 November 1948, Chapter VIII.
International Military Tribunal for the Far East
In the case of the Major War Criminals before the International Military Tribunal for the Far East in 1948, the then Japanese Foreign Minister, Koki Hirota, was held criminally responsible in relation to the so-called “Rape of Nanking” or “Nanking massacre” which had occurred in 1937/1938. The International Military Tribunal stated:
As Foreign Minister [Hirota] received reports of these atrocities immediately after the entry of Japanese forces into Nanking. According to the Defence evidence credence was given to these reports and the matter was taken up with the War Ministry. Assurances were accepted from the War Ministry that the atrocities would be stopped. After these assurances had been given reports of atrocities continued to come in for at least a month. The Tribunal is of the opinion that HIROTA was derelict in his duty in not insisting before the Cabinet that immediate action be taken to put an end to the atrocities, failing any other action open to him to bring about the same result. He was content to rely on assurances which he knew were not being implemented while hundreds of murders, violations of women, and other atrocities were being committed daily. His inaction amounted to criminal negligence. 
International Military Tribunal for the Far East, Case of the Major War Criminals, Judgment, 4–12 November 1948, Chapter X (Verdicts).
International Military Tribunal for the Far East
In the case of the Major War Criminals in 1948, the International Military Tribunal for the Far East, in its verdict passed on a Japanese commander during the Second World War, Heitaro Kimura, stated:
With knowledge of the extent of the atrocities committed by Japanese troops in all theatres of war, in August 1994 KIMURA took over command of the Burma Area Army. From the date of his arrival at his Rangoon Headquarters and later … the atrocities continued to be committed on an undiminished scale. He took no disciplinary measures or other steps to prevent the commission of atrocities by the troops under his command.
It has been urged in KIMURA’s defence that when he arrived in Burma he issued orders to his troops to conduct themselves in a proper soldierly manner and to refrain from ill-treating prisoners. In view of the nature and extent of the ill-treatment of prisoners, in many cases on a large scale within a few miles of his headquarters, the Tribunal finds that KIMURA was negligent in his duty to enforce the Rules of War. The duty of an Army commander in such circumstances is not discharged by the mere issue of routine orders, if indeed such orders were issued. His duty is to take such steps and issue such orders as will prevent thereafter the commission of war crimes and to satisfy himself that such orders are being carried out. This he did not do. Thus he deliberately disregarded his legal duty to take adequate steps to prevent breaches of the laws of war. 
International Military Tribunal for the Far East, Case of the Major War Criminals, Judgment, 4–12 November 1948, Chapter X (Verdicts).
International Military Tribunal for the Far East
In the case of the Major War Criminals in 1948, the International Military Tribunal for the Far East, in its verdict passed on a Japanese prime minister during the Second World War, Kuniaki Koiso, stated:
When KOISO became Prime Minister in 1944 atrocities and other war crimes being committed by the Japanese troops in every theatre of war had become so notorious that it is improbable that a man in KOISO’s position would not have been well-informed either by reason of their notoriety or from interdepartmental communications. The matter is put beyond doubt by the fact that in October 1944 the Foreign Minister reported to a meeting of the Supreme Council for the Direction of War, which KOISO attended, that according to recent information from enemy sources it was reported that the Japanese treatment of prisoners of war “left much to be desired”. He further stated that this was a matter of importance from the point of view of Japan’s international reputation and future relations. He asked that directions be issued to the competent authorities so that the matters might be fully discussed. Thereafter KOISO remained Prime Minister for six months during which the Japanese treatment of prisoners and internees showed no improvement whatever. This amounted to a deliberate disregard of duty. 
International Military Tribunal for the Far East, Case of the Major War Criminals, Judgment, 4–12 November 1948, Chapter X (Verdicts).
International Military Tribunal for the Far East
In the case of the Major War Criminals in 1948, the International Military Tribunal for the Far East, in its verdict passed on the Japanese Commander-in-Chief of the Central China Area Army during the “Rape of Nanking” or “Nanking massacres”, Iwane Matsui, stated:
From his own observations and from the reports of his staff he must have been aware of what was happening. He admits he was told of some degree of misbehaviour of his Army … Daily reports of these atrocities were made to Japanese diplomatic representatives in Nanking who, in turn, reported them to Tokyo. The tribunal is satisfied that MATSUI knew what was happening. He did nothing, or nothing effective to abate these horrors. He did issue orders before the capture of the City enjoining propriety of conduct upon his troops and later he issued further orders to the same purport. These orders were of no effect as is now known, and as he must have known. It was pleaded on his behalf that at this time he was ill. His illness was not sufficient to prevent his conducting the military operations of his command nor to prevent his visiting the City for days while these atrocities were occurring. He was in command of the Army responsible for these happenings. He knew of them. He had the power, as he had the duty, to control his troops and to protect the unfortunate citizens of Nanking. He must be held criminally responsible for his failure to discharge his duty. 
International Military Tribunal for the Far East, Case of the Major War Criminals, Judgment, 4–12 November 1948, Chapter X (Verdicts).
International Military Tribunal for the Far East
In the case of the Major War Criminals in 1948, the International Military Tribunal for the Far East, in its verdict passed on an officer of staff of the Japanese Commander-in-Chief of the Central China Area Army during the “Rape of Nanking” or “Nanking massacres”, Akira Muto, stated:
It was during [his period as an officer of staff of MATSUI] that shocking atrocities were committed by the Army of MATSUI in and about Nanking. We have no doubt that MUTO knew, as MATSUI knew, that these atrocities were being committed over a period of many weeks. His superior did take no adequate steps to stop them. MUTO is not responsible for this dreadful affair.
[Later] MUTO commanded the Second Imperial Guards Division in Northern Sumatra. During this period in the area occupied by his troops widespread atrocities were committed for which MUTO shares responsibility. Prisoners of war and civilian internees were starved, neglected, tortured and murdered and civilians were massacred.
[Later], MUTO became Chief-of-Staff to Yamashita in the Philippines … His position was now very different from that which he held during the so-called “Rape of Nanking”. He was now in a position to influence policy. During his tenure of office as such Chief-of-Staff a campaign of massacre, torture and other atrocities was waged by the Japanese troops on the civilian population, and prisoners of war and civilian internees were starved, tortured and murdered. MUTO shares responsibility for these gross breaches of the Laws of War. We reject his defense that he knew nothing of these occurrences. 
International Military Tribunal for the Far East, Case of the Major War Criminals, Judgment, 4–12 November 1948, Chapter X (Verdicts).
International Military Tribunal for the Far East
In the case of the Major War Criminals in 1948, the International Military Tribunal for the Far East, in its verdict passed on one of the Japanese Foreign Ministers during the Second World War, Mamoru Shigemitsu, stated:
We do no injustice to SHIGEMITSU when we hold that the circumstances, as he knew them made him suspicious that the treatment of the prisoners was not as it should have been. Indeed a witness gave evidence for him to that effect. Thereupon he took no adequate steps to have the matter investigated, although he, as a member of the government, bore overhead responsibility for the welfare of the prisoners. He should have pressed the matter, if necessary to the point of resigning, in order to quit himself of a responsibility which he suspected was not being discharged. 
International Military Tribunal for the Far East, Case of the Major War Criminals, Judgment, 4–12 November 1948, Chapter X (Verdicts).
International Military Tribunal for the Far East
In the case of the Major War Criminals in 1948, the International Military Tribunal for the Far East, in its verdict passed on one of the Japanese prime ministers during the Second World War, Hideki Tojo, stated, inter alia:
The barbarous treatment of prisoners and internees was well known to TOJO. He took no adequate steps to punish offenders and to prevent the commission of similar offences in the future. His attitude towards the Bataan Death March gives the key to his conduct towards these captives. He knew in 1942 something of the conditions of the march and that many prisoners had died as a result of these conditions. He did not call for a report on the incident. When in the Philippines in 1943 he made perfunctory inquiries about the march but took no action. No one was punished. His explanation is that the commander of a Japanese Army in the field is given a mission in the performance of which he is not subject to specific orders from Tokyo. Thus the head of the Government of Japan knowingly and wilfully refused to perform the duty which lay upon that Government of enforcing performance of the Laws of War. 
International Military Tribunal for the Far East, Case of the Major War Criminals, Judgment, 4–12 November 1948, Chapter X (Verdicts).
International Criminal Court
In the Bemba case before the ICC, the accused, the alleged President and Commander-in-chief of the Movement for the Liberation of Congo (MLC), was charged, inter alia, with murder, rape and torture as war crimes and as crimes against humanity, pursuant to Articles 7 and 8 of the 1998 ICC Statute. In its decision on the confirmation of charges in 2009, the Pre-Trial Chamber set out the elements of superior responsibility, stating:
405. The Chamber notes that article 28 of the [1998 ICC] Statute reflects a different form of criminal responsibility than that found under article 25(3)(a) of the Statute in the sense that a superior may be held responsible for the prohibited conduct of his subordinates for failing to fulfil his duty to prevent or repress their unlawful conduct or submit the matter to the competent authorities. This sort of responsibility can be better understood “when seen against the principle that criminal responsibility for omissions is incurred only where there exists a legal obligation to act”.
406. Article 28 of the Statute is drafted in a manner that distinguishes between two main categories of superiors and their relationships – namely, a military or military-like commander (paragraph (a)) and those who fall short of this category such as civilians occupying de jure and de facto positions of authority (paragraph (b)).
407. The Chamber considers that, in order to prove criminal responsibility within the meaning of article 28(a) of the Statute for any of the crimes set out in articles 6 to 8 of the Statute, the following elements must be fulfilled:
(a) The suspect must be either a military commander or a person effectively acting as such;
(b) The suspect must have effective command and control, or effective authority and control over the forces (subordinates) who committed one or more of the crimes set out in articles 6 to 8 of the Statute;
(c) The crimes committed by the forces (subordinates) resulted from the suspect’s failure to exercise control properly over them;
(d) The suspect either knew or, owing to the circumstances at the time, should have known that the forces (subordinates) were committing or about to commit one or more of the crimes set out in article 6 to 8 of the Statute; and
(e) The suspect failed to take the necessary and reasonable measures within his or her power to prevent or repress the commission of such crime(s) or failed to submit the matter to the competent authorities for investigation and prosecution.
a) The suspect must be either a military commander or a person effectively acting as such (military-like commander)
408. The Chamber is of the view that the term “military commander” refers to a category of persons who are formally or legally appointed to carry out a military commanding function (i.e., de jure commanders). The concept embodies all persons who have command responsibility within the armed forces, irrespective of their rank or level. In this respect, a military commander could be a person occupying the highest level in the chain of command or a mere leader with few soldiers under his or her command. The notion of a military commander under this provision also captures those situations where the superior does not exclusively perform a military function.
409. With respect to a “person effectively acting as a military commander”, the Chamber considers that this term is meant to cover a distinct as well as a broader category of commanders. This category refers to those who are not elected by law to carry out a military commander’s role, yet they perform it de facto by exercising effective control over a group of persons through a chain of command. This concept was also acknowledged in several cases before the ICTY and the ICTR. In the Čelebići case, the first leading case on the doctrine of command responsibility before the ad hoc tribunals, the ICTY Trial Chamber stated that:
[Individuals in positions of authority, […] within military structures, may incur criminal responsibility under the doctrine of command responsibility on the basis of their de facto as well as de jure positions as superiors. The mere absence of formal legal authority to control the actions of subordinates should therefore not be understood to preclude the imposition of such responsibility. [ICTY, Čelebići case, Judgement, § 354]
410. Thus, the Chamber finds that this category of military-like commanders may generally encompass superiors who have authority and control over regular government forces such as armed police units or irregular forces (non-government forces) such as rebel groups, paramilitary units including, inter alia, armed resistance movements and militias that follow a structure of military hierarchy or a chain of command.
b) The suspect must have effective command and control, or effective authority and control over his forces (subordinates)
411. The second element required for the application of the doctrine of command responsibility is the existence of “effective control” over the forces which committed one or more of the crimes under articles 6 to 8 of the Statute.
412. The Chamber observes that article 28(a) of the Statute refers to the terms “effective command and control” or “effective authority and control” as applicable alternatives in situations of military commanders strictu sensu and military-like commanders. In this regard, the Chamber considers that the additional words “command” and “authority” under the two expressions has no substantial effect on the required level or standard of “control”. This is apparent from the express language of the two terms, which uses the words “effective” and “control” as a common denominator under both alternatives. This conclusion is also supported by a review of the travaux préparatoires of the Statute, in which it was acknowledged by some delegations that the addition of the term “effective authority and control” as an alternative to the existing text was “unnecessary and possibly confusing”. This suggests that some of the drafters believed that the insertion of this expression did not add or provide a different meaning to the text.
413. In this context, the Chamber underlines that the term “effective command” certainly reveals or reflects “effective authority”. Indeed, in the English language the word “command” is defined as “authority, especially over armed forces”, and the expression “authority” refers to the “power or right to give orders and enforce obedience”. However, the usage of the disjunctive “or” between the expressions “effective command” and “effective authority” calls the Chamber to interpret them as having close, but distinct meanings in order to remedy the appearance of redundancy in the text. Thus, the Chamber is of the view that although the degree of “control” required under both expressions is the same as argued in paragraph 412 above, the term “effective authority” may refer to the modality, manner or nature, according to which, a military or military-like commander exercise “control” over his forces or subordinates.
414. The Chamber wishes to point out that “effective control” is generally a manifestation of a superior-subordinate relationship between the suspect and the forces or subordinates in a de jure or de facto hierarchal relationship (chain of command). As the ICTY Appeals Chamber stated in the Čelebići case: “[t]he ability to exercise effective control […] will almost invariably not be satisfied unless such a relationship of subordination exists”. [ICTY, Čelebići case, Judgement on Appeal, § 303]
415. The concept of “effective control” is mainly perceived as “the material ability [or power] to prevent and punish” the commission of offences, and, as such, failure to exercise such abilities of control gives rise to criminal responsibility if other requirements are met. In the context of article 28(a) of the Statute, “effective control” also refers to the material ability to prevent or repress the commission of the crimes or submit the matter to the competent authorities. To this end, this notion does not seem to accommodate any lower standard of control such as the simple ability to exercise influence over forces or subordinates, even if such influence turned out to be substantial. As the ICTY Trial Chamber stated in the Hadžihasanović case:
Since command responsibility is predicated on a superior’s power to control the acts of his subordinates, a superior may only be held criminally responsible if he has the necessary powers of control, i.e. if he exercises effective control over his subordinates. The simple exercise of powers of influence over subordinates does not suffice.
416. That said, the Chamber concurs with the view adopted by the ad hoc tribunals that indicia for the existence of effective control are “more a matter of evidence than of substantive law”, depending on the circumstances of each case, and that those indicia are confined to showing that the suspect had the power to prevent, repress and/or submit the matter to the competent authorities for investigation.
417. The Chamber takes the view that there are nonetheless several factors which may indicate the existence of a superior’s position of authority and effective control. These factors may include: (i) the official position of the suspect; (ii) his power to issue or give orders; (iii) the capacity to ensure compliance with the orders issued (i.e., ensure that they would be executed); (iv) his position within the military structure and the actual tasks that he carried out; (v) the capacity to order forces or units under his command, whether under his immediate command or at a lower levels, to engage in hostilities; (vi) the capacity to re-subordinate units or make changes to command structure; (vii) the power to promote, replace, remove or discipline any member of the forces; and (viii) the authority to send forces where hostilities take place and withdraw them at any given moment.
418. The Chamber also wishes to stress that it is not sufficient to demonstrate that the suspect had effective control without specifying the time frame required for its existence. In particular, there is a question of temporal coincidence between the “effective control” and the criminal conduct. In this respect, the Chamber takes note of the common position upheld by the ad hoc tribunals, according to which effective control must have existed at the time of the commission of the crime. The Chamber is also aware of the different view embraced by a minority of the ICTY Judges, which was later upheld by Trial Chamber I of the SCSL, according to which the “superior must have had effective control over the perpetrator at the time at which the superior is said to have failed to exercise his powers to prevent or to punish”. [SCSL, Sesay case, Judgement, § 299]
419. Having considered the above, the Chamber is of the view that according to article 28(a) of the Statute, the suspect must have had effective control at least when the crimes were about to be committed. This finding is supported by the language of the chapeau of article 28(a) of the Statute, which states in the relevant part that a military commander or a person effectively acting as such shall be criminally responsible for the crimes committed by forces under his effective control “as a result of his or her failure to exercise control properly over such forces […]”. The reference to the phrase “failure to exercise control properly” suggests that the superior was already in control over the forces before the crimes were committed.
c) The crimes committed resulted from the suspect’s failure to exercise control properly over the forces (subordinates)
420. The third element to be satisfied for the purpose of article 28(a) of the Statute is to prove that crimes committed by the suspect’s forces resulted from his failure to exercise control properly over them.
421. The Chamber recalls the chapeau of article 28(a) of the Statute, which stipulates that:
A military commander or person effectively acting as a military commander shall be criminally responsible for crimes within the jurisdiction of the Court 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 failure to exercise control properly over such forces, where: […]
(ii) 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.
422. The Chamber now turns to the two expressions, namely “effective control” and “exercise control properly”. In this respect, the Chamber considers that it cannot be said that a superior failed to “exercise control properly”, without showing that he had “effective control” over his forces. Since effective control is actually the “material ability” to prevent, repress or submit the matter to the competent authorities, then a failure to “exercise control properly” is, in fact, a scenario of noncompliance with such duties. This suggests that the reference to the phrase “failure to exercise control properly” must be read and understood in light of article 28(a)(ii) of the Statute.
423. The Chamber also observes that the chapeau of article 28(a) of the Statute establishes a link between the commission of the underlying crimes and a superior’s “failure to exercise control properly”. This is reflected in the words “as a result of”, which indicates such relationship. The Chamber therefore considers that the chapeau of article 28(a) of the Statute includes an element of causality between a superior’s dereliction of duty and the underlying crimes. This interpretation is consistent with the principle of strict construction mirrored in article 22(2) of the Statute which, as a part of the principle nullum crimen sine lege, compels the Chamber to interpret this provision strictly.
424. Although the Chamber finds that causality is a requirement under article 28 of the Statute, its actual scope needs to be further clarified by the Chamber. As stated above, article 28(a)(ii) of the Statute refers to three different duties: the duty to prevent crimes, repress crimes, or submit the matter to the competent authorities for investigation and prosecution. The Chamber considers that a failure to comply with the duties to repress or submit the matter to the competent authorities arise during or after the commission of crimes. Thus, it is illogical to conclude that a failure relating to those two duties can retroactively cause the crimes to be committed. Accordingly, the Chamber is of the view that the element of causality only relates to the commander’s duty to prevent the commission of future crimes. Nonetheless, the Chamber notes that the failure of a superior to fulfil his duties during and after the crimes can have a causal impact on the commission of further crimes. As punishment is an inherent part of prevention of future crimes, a commander’s past failure to punish crimes is likely to increase the risk that further crimes will be committed in the future.
425. The Chamber also considers that since article 28(a) of the Statute does not elaborate on the level of causality required, a possible way to determine the level of causality would be to apply a “but for test”, in the sense that, but for the superior’s failure to fulfil his duty to take reasonable and necessary measures to prevent crimes, those crimes would not have been committed by his forces. However, contrary to the visible and material effect of a positive act, the effect of an omission cannot be empirically determined with certainty. In other words, it would not be practical to predict exactly what would have happened if a commander had fulfilled his obligation to prevent crimes. There is no direct causal link that needs to be established between the superior’s omission and the crime committed by his subordinates. Therefore, the Chamber considers that it is only necessary to prove that the commander’s omission increased the risk of the commission of the crimes charged in order to hold him criminally responsible under article 28(a) of the Statute.
426. Accordingly, to find a military commander or a person acting as a military commander responsible for the crimes committed by his forces, the Prosecutor must demonstrate that his failure to exercise his duty to prevent crimes increased the risk that the forces would commit these crimes.
d) The suspect either knew or should have known
427. The Chamber, reiterates what it has stated earlier in this decision, that the Rome Statute does not endorse the concept of strict liability. To this end, attribution of criminal responsibility for any of the crimes that fall within the jurisdiction of the Court depends on the existence of the relevant state of mind or degree of fault. This is also the case with respect to criminal responsibility arising under article 28 of the Statute.
428. Thus, in order to hold the suspect criminally responsible under article 28(a) of the Statute for a crime committed by forces (subordinates) under his control, it must be proven inter alia that the suspect “either knew or, owing to the circumstances at the time, should have known that his subordinates were committing or about to commit” one or more of the crimes embodied in articles 6 to 8 of the Statute. This means that the suspect must have knowledge or should have known that his forces were about to engage or were engaging or had engaged in a conduct constituting the crimes referred to above.
429. In this regard, the Chamber considers that article 28(a) of the Statute encompasses two standards of fault element. The first, which is encapsulated by the term “knew”, requires the existence of actual knowledge. The second, which is covered by the term “should have known”, is in fact a form of negligence. The Chamber will discuss each of these elements in the following paragraphs.
430. With respect to the suspect’s actual knowledge that the forces or subordinates were committing or about to commit a crime, it is the view of the Chamber that such knowledge cannot be “presumed”. Rather, the suspect’s knowledge must be obtained by way of direct or circumstantial evidence. In this regard, the Chamber takes note of the relevant jurisprudence of the ad hoc tribunals which considered several factors or indicia to reach a finding on a superior’s actual knowledge.
431. These factors include the number of illegal acts, their scope, whether their occurrence is widespread, the time during which the prohibited acts took place, the type and number of forces involved, the means of available communication, the modus operandi of similar acts, the scope and nature of the superior’s position and responsibility in the hierarchal structure, the location of the commander at the time and the geographical location of the acts. Actual knowledge may be also proven if, “a priori, [a military commander] is part of an organised structure with established reporting and monitoring systems”. [ICTY, Hadžihasanović case, Judgement, § 94] Thus, the Chamber considers that these factors are instructive in making a determination on a superior’s knowledge within the context of article 28 of the Statute.
432. The “should have known” standard requires the superior to “ha[ve] merely been negligent in failing to acquire knowledge” of his subordinates’ illegal conduct. In the Blaškić case, the ICTY Trial Chamber, after having reviewed some post-Second World War jurisprudence and articles 86(2) and 87 of Additional Protocol I to the [1949] Geneva Conventions, supported the inclusion of the “should have known” standard into article 7(3) of the [1993] ICTY Statute. In defining this standard, the Chamber stated:
In conclusion, the Trial Chamber finds that if a commander has exercised due diligence in the fulfillment of his duties yet lacks knowledge that crimes are about to be or have been committed, such lack of knowledge cannot be held against him. However, taking into account his particular position of command and the circumstances prevailing at the time, such ignorance cannot be a defence where the absence of knowledge is the result of negligence in the discharge of his duties […]. [ICTY, Blaškić case, Judgement, § 332]
433. Thus, it is the Chamber’s view that the “should have known” standard requires more of an active duty on the part of the superior to take the necessary measures to secure knowledge of the conduct of his and to inquire, regardless of the availability of information at the time on the commission of the crime. The drafting history of this provision reveals that it was the intent of the drafters to take a more stringent approach towards commanders and military-like commanders compared to other superiors that fall within the parameters of article 28(b) of the Statute. This is justified by the nature and type of responsibility assigned to this category of superiors.
434. The Chamber is mindful of the fact that the “had reason to know” criterion embodied in the statutes of the ICTR, ICTY and SCSL sets a different standard to the “should have known” standard under article 28 (a) of the Statute. However, despite such a difference, which the Chamber does not deem necessary to address in the present decision, the criteria or indicia developed by the ad hoc tribunals to meet the standard of “had reason to know” may also be useful when applying the “should have known” requirement. Moreover, the factors referred to above in relation to the determination of actual knowledge are also relevant in the Chamber’s final assessment of whether a superior “should have known” of the commission of the crimes or the risk of their occurrence. In this respect, the suspect may be considered to have known, if inter alia, and depending on the circumstances of each case: (i) he had general information to put him on notice of crimes committed by subordinates or of the possibility of occurrence of the unlawful acts; and (ii) such available information was sufficient to justify further inquiry or investigation. The Chamber also believes that failure to punish past crimes committed by the same group of subordinates may be an indication of future risk.
e) The suspect failed to take all the necessary and reasonable measures
435. In order to find the suspect responsible under command responsibility, once the mental element is satisfied, it is necessary to prove that he or she failed at least to fulfil one of the three duties listed under article 28(a)(ii) of the Statute: the duty to prevent crimes, the duty to repress crimes or the duty to submit the matter to the competent authorities for investigation and prosecution.
436. The Chamber first wishes to underline that the three duties under article 28(a)(ii) of the Statute arise at three different stages in the commission of crimes: before, during and after. Thus, a failure to fulfil one of these duties is itself a separate crime under article 28(a) of the Statute. A military commander or a military-like commander can therefore be held criminally responsible for one or more breaches of duty under article 28(a) of the Statute in relation to the same underlying crimes. Consequently, a failure to prevent crimes which the commander knew or should have known about cannot be cured by fulfilling the duty to repress or submit the matter to the competent authorities.
(i) The duty to prevent
437. The Chamber notes that the duty to prevent arises when the commander or military-like commander knew or should have known that forces under his effective control and command/authority “were committing or about to commit” crimes. Thus, such a duty is triggered at any stage prior to the commission of crimes and before it has actually been committed by the superior’s forces.
438. Article 28 of the Statute does not define the specific measures required by the duty to prevent crimes. In this context, the Chamber considers it appropriate to be guided by relevant factors such as measures: (i) to ensure that superior’s forces are adequately trained in international humanitarian law; (ii) to secure reports that military actions were carried out in accordance with international law; (iii) to issue orders aiming at bringing the relevant practices into accord with the rules of war; (iv) to take disciplinary measures to prevent the commission of atrocities by the troops under the superior’s command.
(ii) The duty to repress
439. The duty to “repress” encompasses two separate duties arising at two different stages of the commission of crimes. First, the duty to repress includes a duty to stop ongoing crimes from continuing to be committed. It is the obligation to “interrupt a possible chain effect, which may lead to other similar events”. Second, the duty to repress encompasses an obligation to punish forces after the commission of crimes.
440. The Chamber wishes to point out that the duty to punish requiring the superior to take the necessary measures to sanction the commission of crimes may be fulfilled in two different ways: either by the superior himself taking the necessary and reasonable measures to punish his forces, or, if he does not have the ability to do so, by referring the matter to the competent authorities. Thus, the duty to punish (as part of the duty to repress) constitutes an alternative to the third duty mentioned under article 28(a)(ii), namely the duty to submit the matter to the competent authorities, when the superior is not himself in a position to take necessary and reasonable measures to punish.
441. Moreover, as explained later, the power of a superior, and thus the punitive measures available to him, will vary according to the circumstances of the case and, in particular, to his position in the chain of command. Accordingly, whether the duty to punish requires exercising his power to take measures himself or to submit the matter to the competent authorities will therefore depend on the facts of the case.
(iii) The duty to submit the matter to the competent authorities for investigation and prosecution
442. The duty to submit the matter to the competent authorities, like the duty to punish, arises after the commission of the crimes. Such a duty requires that the commander takes active steps in order to ensure that the perpetrators are brought to justice. It remedies a situation where commanders do not have the ability to sanction their forces. This includes circumstances where the superior has the ability to take measures, yet those measures do not seem to be adequate.
(iv) Necessary and Reasonable Measures
443. The Chamber considers that what constitutes “necessary and reasonable measures” must be addressed in concreto. A commander or military-like commander will only be responsible under article 28(a) of the Statute for failing to take measures “within his material possibility”. The Chamber’s assessment of what may be materially possible will depend on the superior’s degree of effective control over his forces at the time his duty arises. This suggests that what constitutes a reasonable and necessary measure will be assessed on the basis of the commander’s de jure power as well as his de facto ability to take such measures. 
ICC, Bemba case, Decision on the confirmation of charges, 15 June 2009, §§ 405–443.
[footnotes in original omitted; emphasis in original]
International Criminal Tribunal for Rwanda
In its judgment in the Akayesu case in 1998, the ICTR Trial Chamber stated:
Article 6 (3) [of the 1994 ICTR Statute] … does not necessarily require that the superior acted knowingly to render him criminally liable; it suffices that he had reason to know that his subordinates were about to commit or had committed a crime and failed to take the necessary or reasonable measures to prevent such acts or punish the perpetrators thereof. In a way, this is liability by omission or abstention. 
ICTR, Akayesu case, Judgment, 2 September 1998, § 479.
The Trial Chamber further stated:
Article 6 (3) of the [1994 ICTR] Statute deals with the responsibility of the superior, or command responsibility. This principle, which derives from the principle of individual criminal responsibility as applied in the Nuremberg and Tokyo trials, was subsequently codified in Article 86 of the Additional Protocol I to the Geneva Conventions of 8 June 1977. 
ICTR, Akayesu case , Judgment, 2 September 1998, § 486.
With regard to Article 6(3) of the 1994 ICTR Statute and referring to the ICRC Commentary on the Additional Protocols, the judgment of the International Military Tribunal for the Far East in the case of the Major War Criminals (verdict against the Japanese Foreign Minister Koki Hirota) and the dissenting opinion of one of the judges in the same case, the Trial Chamber held:
488. There are varying views regarding the Mens rea required for command responsibility. According to one view it derives from a legal rule of strict liability, that is, the superior is criminally responsible for acts committed by his subordinate, without it being necessary to prove the criminal intent of the superior. Another view holds that negligence which is so serious as to be tantamount to consent or criminal intent, is a lesser requirement …
489. The Chamber holds that it is necessary to recall that criminal intent is the moral element required for any crime and that, where the objective is to ascertain the individual criminal responsibility of a person accused of crimes falling within the jurisdiction of the Chamber, such as genocide, crimes against humanity and violations of Article 3 Common to the Geneva Conventions and of Additional Protocol II thereto, it is certainly proper to ensure that there has been malicious intent, or, at least, ensure that negligence was so serious as to be tantamount to acquiescence or even malicious intent.
490. As to whether the form of individual criminal responsibility referred to [in] Article 6 (3) of the Statute applies to persons in positions of both military and civilian authority, it should be noted that during the Tokyo trials, certain civilian authorities were convicted of war crimes under this principle. …
491. The Chamber … finds that in the case of civilians, the application of the principle of individual criminal responsibility, enshrined in Article 6 (3), to civilians remains contentious. Against this background, the Chamber holds that it is appropriate to assess on a case by case basis the power of authority actually devolved upon the Accused in order to determine whether or not he had the power to take all necessary and reasonable measures to prevent the commission of the alleged crimes or to punish the perpetrators thereof. 
ICTR, Akayesu case, Judgment, 2 September 1998, §§ 488–491.
International Criminal Tribunal for Rwanda
In its judgment in the Kayishema and Ruzindana case in 1999, the ICTR Trial Chamber stated:
The question of responsibility arising from a duty to act, and any corresponding failure to execute such a duty is a question that is inextricably linked with the issue of command responsibility. This is because under Article 6(3) [of the 1994 ICTR Statute] a clear duty is imposed upon those in authority, with the requisite means at their disposal, to prevent or punish the commission of a crime. 
ICTR, Kayishema and Ruzindana case, Judgment, 21 May 1999, § 202.
With regard to Article 6(3) of the 1994 ICTR Statute and a possible responsibility thereunder of one of the accused, a former prefet, the Trial Chamber further stated:
209. The principle of command responsibility is firmly established in international law, and its position as a principle of customary international law has recently been delineated by the ICTY [International Criminal Tribunal for the former Yugoslavia] in the [Judgement of 16 November 1998 in the Mucić case. The clear recognition of this doctrine is now reflected in Article 28 of the [1998 ICC Statute].
210. The finding of responsibility under Article 6(1) of the [1994 ICTR] Statute does not prevent the Chamber from finding responsibility additionally, or in the alternative, under Article 6(3). The two forms of responsibility are not mutually exclusive …
Responsibility of a Non-Military Commander
216. … The Chamber accepts the submission made by the Prosecution that a civilian in a position of authority may be liable under the doctrine of command responsibility. The Chamber will turn, therefore, to consider in what instances a civilian can be considered a superior for the purposes of Article 6(3), and the requisite “degree of authority” necessary to establish individual criminal culpability pursuant to this doctrine of superior responsibility.
Concept of Superior: de Jure and de Facto Control
217. This superior-subordinate relationship lies at the heart of the concept of command responsibility. The basis under which he assumes responsibility is that, if he knew or had reason to know that a crime may or had been committed, then he must take all measures necessary to prevent the crime or punish the perpetrators. If he does not take such actions that are within his power then, accordingly, he is culpable for those crimes committed …
218. In order to “pierce the veils of formalism” therefore, the Chamber must be prepared to look beyond the de jure powers enjoyed by the accused and consider the de facto authority he exercised within Kibuye during April to July 1994. The position expounded by the ILC [International Law Commission] that an individual should only be responsible for those crimes that were within his legitimate legal powers to prevent, does not assist the Trial Chamber in tackling the “realities of any given situation”. Therefore, in view of the chaotic situation that which prevailed in Rwanda in these pivotal months of 1994, the Chamber must be free to consider whether Kayishema had the requisite control over those committing the atrocities to establish individual criminal liability under Article 6(3), whether by de jure or de facto command.
222. Article 6 of this Tribunal’s Statute is formulated in a broad manner. By including responsibility of all government officials, all superiors and all those acting pursuant to orders, it is clearly designed to ensure that those who are culpable for the commission of a crime under Articles 2 to 4 of the Statute cannot escape responsibility through legalistic formalities. Therefore, the Chamber is under a duty, pursuant to Article 6(3), to consider the responsibility of all individuals who exercised effective control, whether that control be de jure or de facto.
223. Where it can be shown that the accused was the de jure or de facto superior and that pursuant to his orders the atrocities were committed, then the Chamber considers that this must suffice to found command responsibility. The Chamber need only consider whether he knew or had reason to know and failed to prevent or punish the commission of the crimes if he did not in fact order them. If the Chamber is satisfied beyond a reasonable doubt that the accused ordered the alleged atrocities then it becomes unnecessary to consider whether he tried to prevent; and irrelevant whether he tried to punish.
224. However, in all other circumstances, the Chamber must give full consideration to the elements of “knowledge” and “failure to prevent and punish” that are set out in Article 6(3) of the Statute.
Knowledge of Subordinates’ Actions
225. The mens rea in Article 6(3) requires that for a superior to be held criminally responsible for the conduct of his subordinates he must have known, or had reason to know, of their criminal activities …
228. The Trial Chamber agrees with this view insofar that it does not demand a prima facie duty upon a non-military commander to be seized of every activity of all persons under his or her control. In light of the objective of Article 6(3) which is to ascertain the individual criminal responsibility for crimes as serious as genocide, crimes against humanity and violations of Common Article 3 to the Geneva Conventions and [the 1977 Additional Protocol II], the Chamber finds that the Prosecution must prove that the accused in this case either knew, or consciously disregarded information which clearly indicated or put him on notice that his subordinates had committed, or were about to commit acts in breach of Articles 2 to 4 of this Tribunal’s Statute.
Effective Control: Failure to Prevent or Punish a Crime
229. The principle of command responsibility must only apply to those superiors who exercise effective control over their subordinates. This material ability to control the actions of subordinates is the touchstone of individual responsibility under Article 6(3). …
231. … The ability to prevent and punish a crime is a question that is inherently linked with the given factual situation. Thus, only in light of the findings which follow and an examination of the overall conditions in which Kayishema had to operate as Prefect, can the Chamber consider who were the subordinates to Kayishema from April to July 1994 and whether he exercised the requisite degree of control over them in order to conclude whether he is individually criminally responsible for the atrocities committed by them. 
ICTR, Kayishema and Ruzindana case, Judgment, 21 May 1999, §§ 209–210, 216–218, 222–225, 228–229 and 231.
In its judgment in 2001, the Appeals Chamber stated regarding the responsibility of superiors for the crimes of subordinates:
Article 6(3) of the [1994 ICTR] Statute on “Individual criminal responsibility”, provides that:
The fact that any of the acts referred to in Articles 2 to 4 of the present Statute was committed by a subordinate does not relieve his or her superior of criminal responsibility if he or she knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.
With respect to the nature of the superior-subordinate relationship, the Appeals Chamber refers to the relevant principles expressed in the Čelebići Appeal Judgement in relation to the identical provision in Article 7(3) of ICTY Statute, as follows:
(i) [A] superior is “one who possesses the power or authority in either a de jure or a de facto form to prevent a subordinate’s crime or to punish the perpetrators of the crime after the crime is committed”. Thus, “[t]he power or authority to prevent or to punish does not solely arise from de jure authority conferred through official appointment.”
(ii) “In determining questions of responsibility it is necessary to look to effective exercise of power or control and not to formal titles. […]. In general the possession of de jure power in itself may not suffice for the finding of command responsibility if it does not manifest in effective control, although a court may presume that possession of such power prima facie results in effective control unless proof to the contrary is produced. [T]he ability to exercise effective control is necessary for the establishment of de facto command or superior responsibility and […] the absence of formal appointment is not fatal to a finding of criminal responsibility, provided certain conditions are met.”
(iii) “The showing of effective control is required in cases involving both de jure and de facto superiors.
This Appeals Chamber accepts these statements and notes that the Trial Chamber, in its Judgement, applied a similar approach when it found that:
[E]ven where a clear hierarchy based upon de jure authority is not present, this does not prevent the finding of command responsibility. Equally, as we shall examine below, the mere existence of de jure power does not always necessitate the imposition of command responsibility. The culpability that this doctrine gives rise to must ultimately be predicated upon the power that the superior exercises over his subordinates in a given situation.
Thus, “as long as a superior has effective control over subordinates, to the extent that he can prevent them from committing crimes or punish them after they committed the crimes, he would be held responsible for the commission of the crimes if he failed to exercise such abilities of control”. . . This question turns on whether the superior had effective control over the persons committing the alleged crimes. The existence of effective control may be related to the question whether the accused had de jure authority. However, it need not be; such control or authority can have a de facto or a de jure character. 
ICTR, Kayishema and Ruzindana case, Judgment on Appeal, 1 June 2001, § 294.
International Criminal Tribunal for Rwanda
In its judgment in the Semanza case in 2003, the ICTR Trial Chamber considered the Tribunal’s jurisprudence with regard to superior criminal responsibility under Article 6(3) of the 1994 ICTR Statute:
399. Article 6(3) of the Statute concerns the criminal responsibility of a superior for failure to prevent or punish the criminal acts of his subordinates and is broadly applicable to all three crimes. Article 6(3) provides as follows:
The fact that any of the acts referred to in Articles 2 to 4 of the present Statute was committed by a subordinate does not relieve his or her superior of criminal responsibility if he or she knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.
400. Under Article 6(3), a civilian or military superior, with or without official status, may be held criminally responsible for crimes committed by subordinates under his effective control. The following three elements must be satisfied to establish this form of criminal responsibility: (a) the existence of a superior-subordinate relationship; (b) the superior’s knowledge or reason to know that the criminal act was about to be or had been committed; and (c) the superior’s failure to take necessary and reasonable measures to prevent the criminal act or punish the perpetrator.
a. Superior-Subordinate Relationship
401. A superior-subordinate relationship requires a formal or informal hierarchical relationship where a superior is senior to a subordinate. The relationship is not limited to a strict military command style structure.
402. The superior must possess the power or authority, either de jure or de facto, to prevent or punish an offence committed by his subordinates. The Trial Chamber must be satisfied that the superior had effective control over the subordinates at the time the offence was committed. Effective control means the material ability to prevent the commission of the offence or to punish the principal offenders. This requirement is not satisfied by a simple showing of an accused individual’s general influence.
b. Mens Rea: Knowing or Having Reason to Know
403. The imposition of criminal responsibility under Article 6(3) requires proof that the superior knew or had reason to know that his subordinates were committing or had committed a crime within the jurisdiction of the Tribunal.
404. Criminal liability based on superior responsibility will not attach on the basis of strict liability simply because an individual is in a chain of command with authority over a given geographic area. While the individual’s position in the command hierarchy is considered a significant indicator that the superior knew or had reason to know about the actions of his subordinates, knowledge will not be presumed from the status alone.
405. A superior will be found to possess or will be imputed with the requisite mens rea sufficient to incur criminal responsibility where: (i) the superior had actual knowledge, established through direct or circumstantial evidence, that his subordinates were about to commit, were committing, or had committed, a crime under the Statute; or (ii) the superior possessed information providing notice of the risk of such offences by indicating the need for additional investigation in order to ascertain whether such offences were about to be committed, were being committed, or had been committed, by subordinates.
c. Failing to Prevent or Punish
406. A superior incurs criminal responsibility only for failing to take “necessary and reasonable measures” to prevent or punish crimes under the Statute committed by subordinates. These measures have been described as those that are within a superior’s “material possibility” even if the superior lacks the “formal legal competence” to take such measures. The degree of the superior’s effective control guides the assessment of whether the individual took reasonable measures to prevent, stop, or punish a subordinate’s crimes.
407. The obligation to prevent or punish is not a set of alternative options. If a superior is aware of the impending or on-going commission of a crime, necessary and reasonable measures must be taken to stop or prevent it. A superior with such knowledge and the material ability to prevent the commission of the crime does not discharge his responsibility by opting simply to punish his subordinates in the aftermath. 
ICTR, Semanza case, Judgment, 15 May 2003, §§ 399–407.
International Criminal Tribunal for Rwanda
In its judgment in the Kajelijeli case in 2003, the ICTR Trial Chamber considered the matter of the accused’s individual criminal responsibility as a superior under Article 6(3) of the 1994 ICTR Statute:
770. Article 6(3) of the ICTR Statute addresses the criminal responsibility of a superior by virtue of his or her knowledge of the acts and omissions of subordinates and for failure to prevent, discipline, or punish the criminal acts of his or her subordinates in the preparation and execution of the crimes charged. The principle of superior responsibility, which derives from the principle of individual criminal responsibility as applied in the Nuremberg and Tokyo trials, was subsequently codified in Article 86 of the Additional Protocol I to the Geneva Conventions in 1977. Article 6(3) of the Statute, which is applicable to genocide, crimes against humanity, and serious violations of Article 3 Common to the Geneva Conventions and Additional Protocol II, provides as follows:
The fact that any of the acts referred to in Articles 2 to 4 of the present Statute was committed by a subordinate does not relieve his or her superior of criminal responsibility if he or she knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof. [ICTR Statute, Article 6(3)].
771. The jurisprudence of both the ICTR and the ICTY [International Criminal Tribunal for the former Yugoslavia] has recognised that a civilian or a military superior, with or without official status, may be held criminally responsible for offences committed by subordinates who are under his or her effective control. The chain of command between a superior and subordinates may be either direct or indirect.
772. The following three concurrent conditions must be satisfied before a superior may be held criminally responsible for the acts of his or her subordinates:
(i) There existed a superior-subordinate relationship between the person against whom the charge is directed and the perpetrators of the offence;
(ii) The superior knew or had reason to know that the criminal act was about to be or had been committed;
(iii) The superior failed to exercise effective control to prevent the criminal act or to punish the perpetrators thereof.
Existence of a Superior-Subordinate Relationship
773. The test for assessing a superior-subordinate relationship, pursuant to Article 6(3), is the existence of a de jure or de facto hierarchical chain of authority, where the accused exercised effective control over his or her subordinates as of the time of the commission of the offence. The cognisable relationship is not restricted to military hierarchies, but may apply to civilian authorities as well.
774. By effective control, it is meant that the superior, whether a military commander or a civilian leader, must have possessed the material ability, either de jure or de facto, to prevent or to punish offences committed by subordinates. The test to assess a superior-subordinate relationship, in the words of the Appeals Chamber in Bagilishema[,] is:
Whether the accused exercised effective control over his or her subordinates; this is not limited to asking whether he or she had de jure authority. The ICTY Appeals Chamber held in the Čelebići Appeal Judgment that “[a]s long as a superior has effective control over subordinates, to the extent that he can prevent them from committing crimes or punish them after they committed the crimes, he would be held responsible for the commission of the crimes if he failed to exercise such abilities of control. Bagilishema case, Judgment on Appeal, §. 61].
Mens Rea Requirement That the Superior Knew or had Reason to Know
775. To hold a superior responsible for the criminal conduct of subordinates, the Chamber must be satisfied that the superior possessed the requisite mens rea, namely that he or she knew or had reason to know of such conduct.
776. A superior in a chain of hierarchical command with authority over a given geographical area will not be held strictly liable for subordinates’ crimes. While an individual’s hierarchical position may be a significant indicium that he or she knew or had reason to know about subordinates’ criminal acts, knowledge will not be presumed from status alone.
777. A superior is under a duty to act where he or she knew or had reason to know that subordinates had committed or were about to commit offences covered by Articles 2, 3, and 4 of the Statute.
778. In according with current jurisprudence on Article 6(3), a superior will be found to possess, or will be imputed with, the requisite mens rea sufficient to incur criminal liability, where, after weighing a number of indicia, the Chamber is satisfied that (1) the superior had actual knowledge, established through direct or circumstantial evidence, that his or her subordinates were committing or were about to commit, or had committed an offence under the jurisdiction of the Statute or (2) information was available to the superior which would have put him or her on notice of offences committed by subordinates.
Effective Control of Subordinates to Prevent or Punish Their Criminal Acts
779. Where it is demonstrated that an individual is a superior, pursuant to Article 6(3), with the requisite knowledge, then he or she will incur criminal responsibility only for failure to take “necessary and reasonable measures” to prevent or punish crimes subject to the Tribunal’s jurisdiction committed by subordinates. Such measures have been described as those within the “material possibility” of the superior, even should the superior lack the “formal legal competence” to take the measures. Thus a superior has a positive duty to act in those circumstances in which he or she has effective control over the subordinates, and the extent of an individual’s effective control, under the circumstances, will guide the assessment of whether he or she took reasonable measures to prevent, stop, or punish a subordinate’s crimes. 
ICTR, Kajelijeli case, Judgment, 1 December 2003, §§ 770–779.
In its judgment in 2005, the Appeals Chamber considered the Trial Chamber’s test for establishing a superior-subordinate relationship:
84. The Appeals Chamber notes that the Trial Chamber applied the following test for establishing that a superior-subordinate relationship existed between the Appellant and the Interahamwe:
The test for assessing a superior-subordinate relationship, pursuant to Article 6(3), is the existence of a de jure or de facto hierarchical chain of authority, where the accused exercised effective control over his or her subordinates as of the time of the commission of the offence. The cognisable relationship is not restricted to military hierarchies, but may apply to civilian authorities as well. [Trial Judgement, § 773]
85. The Appeals Chamber recalls that a superior is one who possesses power or authority over subordinates either de jure or de facto; it is not necessary for that power or authority to arise from official appointment. Furthermore, it is settled both in ICTR and ICTY jurisprudence that the definition of a superior is not limited to military superiors; it also may extend to de jure or de facto civilian superiors. The Appeals Chamber finds that the Trial Chamber correctly incorporated these elements into its definition of a superior.
86. Furthermore, the Appeals Chamber recalls that a superior-subordinate relationship requires that it be found beyond reasonable doubt that the accused was able to exercise effective control over his or her subordinates. Under the effective control test, superiors, whether military or civilian, must have the material ability to prevent or punish criminal conduct. The Appeals Chamber further finds that the Trial Chamber correctly articulated this effective control test in its definition of the superior-subordinate relationship.
87. The Appeals Chamber rejects the Appellant’s argument that in order to establish “effective control” by a de facto civilian superior it is required that there be an additional finding that the superior exercised the trappings of de jure authority or that he or she exercised authority comparable to that applied in a military context. The Appeals Chamber recalls its holding in Bagilishema that under the “effective control” test, there is no requirement that the “control exercised by a civilian superior must be of the same nature as that exercised by a military commander.” Rather, “it is sufficient that, for one reason or another, the accused exercises the required “degree” of control over his subordinates, namely that of effective control.” Likewise, the Appeals Chamber finds that there is no requirement of a finding that a de facto civilian superior exercised the trappings of de jure authority generally. What is essential is that the de facto civilian superior possessed the requisite degree of effective control. Of course, evidence that a de facto civilian superior exercised control in a military fashion or similar in form to that exercised by de jure authorities may strengthen a finding that he or she exercised the requisite degree of effective control. However, the Appeals Chamber concludes that neither is necessary for establishing effective control. 
ICTR, Kajelijeli case, Judgment on Appeal, 23 May 2005, §§ 84–87.
[emphasis in original]
International Criminal Tribunal for Rwanda
In its judgment in the Bagilishema case in 2001, the ICTR Trial Chamber noted:
27. Article 6 defines the modalities of participation that give rise to individual responsibility for crimes under the [1994 ICTR] Statute.
1.2 Responsibility under Article 6(3) of the Statute
37. Article 6(3) incorporates the customary law doctrine of command responsibility. This doctrine is predicated upon the power of the superior to control or influence the acts of subordinates. Failure by the superior to prevent, suppress, or punish crimes committed by subordinates is a dereliction of duty that may invoke individual criminal responsibility.
38. The Chamber will now consider, in turn, the three essential elements of command responsibility, namely:
(i) the existence of a superior-subordinate relationship of effective control between the accused and the perpetrator of the crime; and,
(ii) the knowledge, or constructive knowledge, of the accused that the crime was about to be, was being, or had been committed; and,
(iii) the failure of the accused to take the necessary and reasonable measures to prevent or stop the crime, or to punish the perpetrator.
1.2.1 Superior-Subordinate Relationship
39. A position of command is a necessary condition for the imposition of command responsibility, but the existence of such a position cannot be determined by reference to formal status alone. The factor that determines liability is the actual possession, or non-possession, of a position of command over subordinates. Therefore, although a person’s de jure position as a commander in certain circumstances may be sufficient to invoke responsibility under Article 6(3), ultimately it is the actual relationship of command (whether de jure or de facto) that is required for command responsibility. The decisive criterion in determining who is a superior [in] his or her ability, as demonstrated by duties and competence, to effectively control his or her subordinates.
Command Responsibility of Civilian Superiors
40. Although the doctrine of command responsibility was applied originally in a military context, Article 6(3) contains no express limitation restricting the scope of this type of responsibility to military commanders or to situations arising under military command. However, the broadening of the case-law of command responsibility to include civilians, has proceeded with caution. In Akayesu, the Chamber stated that “the application of the principle of individual criminal responsibility, enshrined in Article 6(3), to civilians remains contentious.”
41. The first guilty verdict by an International Tribunal under the doctrine of command responsibility was entered in the ICTY’s Celebici case. Mucic, a civilian warden of a prison-camp, was held responsible for the ill-treatment of prisoners by camp guards. Although the accused held his post without a formal appointment, he manifested, according to the Trial Chamber, all the powers and functions of a formal appointment as commander. Since the Celebici judgement, the ICTY has found another civilian prison-camp warden guilty on the grounds of superior responsibility, and the ICTR has found two civilians, a préfet and a tea factory director, responsible as commanders for atrocities committed in Rwanda.
42. While there can be no doubt, therefore, that the doctrine of command responsibility extends beyond the responsibility of military commanders to encompass civilian superiors in positions of authority, the Chamber agrees with the approach articulated by the International Law Commission, and, more recently, in Celebici, namely that the doctrine of command responsibility “extends to civilian superiors only to the extent that they exercise a degree of control over their subordinates which is similar to that of military commanders.”
43. According to the Trial Chamber in Celebici, for a civilian superior’s degree of control to be “similar to” that of a military commander, the control over subordinates must be “effective”, and the superior must, have the “material ability” to prevent and punish any offences. Furthermore, the exercise of de facto authority must be accompanied by “the trappings of the exercise of de jure authority”. The present Chamber concurs. The Chamber is of the view that these trappings of authority include, for example, awareness of a chain of command, the practice of issuing and obeying orders, and the expectation that insubordination may lead to disciplinary action. It is by these trappings that the law distinguishes civilian superiors from mere rabble-rousers or other persons of influence.
1.2.2 Knowing or Having Reason to Know
44. As to the mens rea, the standard that the doctrine of command responsibility establishes for superiors who fail to prevent or punish crimes committed by their subordinates is not one of strict liability. The U.S. Military Tribunal in the “High Command case” held:
“Criminality does not attach to every individual in this chain of command from that fact alone. There must be a personal dereliction. That can occur only where the act is directly traceable to him or where his failure to properly supervise his subordinates constitutes criminal negligence on his part.”
45. It follows that the essential element is not whether a superior had authority over a certain geographical area, but whether he or she had effective control over the individuals who committed the crimes, and whether he or she knew or had reason to know that the subordinates were committing or had committed a crime under the Statutes. Although an individual’s command position may be a significant indicator that he or she knew about the crimes, such knowledge may not be presumed on the basis of his or her position alone.
46. It is the Chamber’s view that a superior possesses or will be imputed the mens rea required to incur criminal liability where:
he or she had actual knowledge, established through direct or circumstantial evidence, that his or her subordinates were about to commit, were committing, or had committed, a crime under the Statutes; or,
he or she had information which put him or her on notice of the risk of such offences by indicating the need for additional investigation in order to ascertain whether such offences were about to be committed, were being committed, or had been committed, by subordinates; or,
the absence of knowledge is the result of negligence in the discharge of the superior’s duties; that is, where the superior failed to exercise the means available to him or her to learn of the offences, and under the circumstances he or she should have known.
1.2.3 Failing to Prevent or Punish
47. Article 6(3) states that a superior is expected to take “necessary and reasonable measures” to prevent or punish crimes under the Statutes. The Chamber understands “necessary” to be those measures required to discharge the obligation to prevent or punish in the circumstances prevailing at the time; and, “reasonable” to be those measures which the commander was in a position to take in the circumstances.
48. A superior may be held responsible for failing to take only such measures that were within his or her powers. Indeed, it is the commander’s degree of effective control – his or her material ability to control subordinates – which will guide the Chamber in determining whether he or she took reasonable measures to prevent, stop, or punish the subordinates’ crimes. Such a material ability must not be considered abstractly, but must be evaluated on a case-by-case basis, considering all the circumstances.
49. In this connection, the Chamber notes that the obligation to prevent or punish does not provide the Accused with alternative options. For example, where the Accused knew or had reason to know that his or her subordinates were about to commit crimes and failed to prevent them, the Accused cannot make up for the failure to act by punishing the subordinates afterwards.
50. The Chamber is of the view that, in the case of failure to punish, a superior’s responsibility may arise from his or her failure to create or sustain among the persons under his or her control, an environment of discipline and respect for the law. For example, in Celebici, the Trial Chamber cited evidence that Mucic, the accused prison warden, never punished guards, was frequently absent from the camp at night, and failed to enforce any instructions he did happen to give out. In Blaskic, the accused had led his subordinates to understand that certain types of illegal conduct were acceptable and would not result in punishment. Both Mucic and Blaskic tolerated indiscipline among their subordinates, causing them to believe that acts in disregard of the dictates of humanitarian law would go unpunished. It follows that command responsibility for failure to punish may be triggered by a broadly based pattern of conduct by a superior, which in effect encourages the commission of atrocities by his or her subordinates. 
ICTR, Bagilishema case, Judgment, 7 June 2001, §§ 27 and 37–50.
[emphasis in original]
In its judgment in 2002, the ICTR Appeals Chamber stated regarding individual criminal responsibility of civilian superiors under Article 6(3) of the 1994 ICTR Statute:
50. Under Article 6(3), a commander or superior is the one who possesses the power or authority in either a de jure or a de facto form to prevent a subordinate’s crime or to punish the commission of a crime by a subordinate after the crime is committed”. The power or authority to prevent or to punish does not arise solely from a de jure authority conferred through official appointment. Hence, “as long as a superior has effective control over subordinates, to the extent that he can prevent them from committing crimes or punish them after they committed the crimes, he would be held responsible for the commission of the crimes if he failed to exercise such abilities of control.” The effective control test applies to all superiors, whether de jure or de facto, military or civilian.
51. Indeed, it emerges from international case-law that the doctrine of superior responsibility is not limited to military superiors, but also extends to civilian superiors. In the Čelebići case, it was held that:
[…] the doctrine of superior responsibility extends to civilian superiors only to the extent that they exercise a degree of control over their subordinates which is similar to that of military commanders.
In this respect, the Appeals Chamber notes that the Musema Trial Judgement, which took into consideration the Rwandan situation, pointed out that “it is appropriate to assess on a case-by-case basis the power of authority actually devolved on an accused to determine whether or not he possessed the power to take all necessary and reasonable measures to prevent the commission of the alleged crimes or to punish their perpetration.”
52. Hence, the establishment of civilian superior responsibility requires proof beyond reasonable doubt that the accused exercised effective control over his subordinates, in the sense that he exercised a degree of control over them which is similar to the degree of control of military commanders. It is not suggested that “effective control” will necessarily be exercised by a civilian superior and by a military commander in the same way, or that it may necessarily be established in the same way in relation to both a civilian superior and a military commander.
53. In the instant case, the Trial Chamber relied on the Čelebići Trial Judgement, which was affirmed by the ICTY Appeals Chamber, in holding that:
[…] for a civilian superior’s degree of control to be “similar to” that of a military commander, the control over subordinates must be “effective”, and the superior must have the “material ability” to prevent and punish any offences. Furthermore, the exercise of de facto authority must be accompanied by the “the trappings of the exercise of de jure authority. The present Chamber concurs. The Chamber is of the view that these trappings of authority include, for example, awareness of a chain of command, the practice of issuing and obeying orders, and the expectation that insubordination may lead to disciplinary action. It is by these trappings that the law distinguishes civilian superiors from mere rabble-rousers or other persons of influence.
54. The Trial Chamber also reiterated that a civilian superior will have exercised effective control over his or her subordinates in the concrete circumstances if both de facto control and the trappings of de jure authority are present and similar to those found in a military context. The Trial Chamber went further to point out that its approach was to consider the character of the de jure or de jure-like relationships (in French, “quasi-de jure”) between the Accused and his supposed subordinates, and then to determine if the Accused’s authority (whether real or contrived) was comparable to that exercised in a military context.
55. The Appeals Chamber holds the view that the Trial Chamber’s approach to the notion of “effective control” in relation to civilian superior was erroneous in law, to the extent that it suggested that the control exercised by a civilian superior must be of the same nature as that exercised by a military commander. As the Appeals Chamber has already stated, this is not the case. It is sufficient that, for one reason or another, the accused exercises the required “degree” of control over his subordinates, namely, that of effective control. However, as conceded by the Prosecution, this error did not affect the verdict as the Appeals Chamber is satisfied that the Accused did not possess the required mens rea. The Appeals Chamber therefore concludes that this error does not render the decision invalid.
56. The Appeals Chamber notes the ambiguity of the expression a contrived de jure-like authority (in French, “autorité quasi-de jure factice”) and acknowledges that it is difficult to grasp the meaning thereof. In the context of paragraph 152 of the Judgement, the concept seems to form part of the reasoning used by the Trial Chamber in examining the de jure authority exercised by the Accused, but it can be interpreted in different ways. The Appeals Chamber reiterates that the case law of the International Tribunals makes it mandatory to use the effective control test for both de jure and de facto superiors. Creating intermediate levels of authority is unnecessary and it would impair the legal analysis of the criminal liability of a superior under Article 6(3) of the Statute, as well as heighten the confusion in identifying the various forms of authority and instituting effective control. Although this wording is inappropriate, the Appeals Chamber considers that it is of no consequence to the Judgement, given that it was not unreasonable to conclude from the evidence presented that the Accused was not liable under Article 6(3) of the Statute for the killings at the Trafipro roadblock.
61. The Appeals Chamber is of the view that, when the Trial Chamber came to apply the test of “effective control” to the facts of the case, it made little allowance for the possibility that the Accused could be considered as a superior on the basis of a de facto power or authority over his or her subordinates. Furthermore, in paragraph 151 of the Judgement, the Trial Chamber wrongly held that both de facto and de jure authority need to be established before a superior can be found to exercise effective control over his or her subordinates. The Appeals Chamber reiterates that the test in all cases is whether the accused exercised effective control over his or her subordinates; this is not limited to asking whether he or she had de jure authority. The ICTY Appeals Chamber held in the Čelebići Appeal Judgement that “[a]s long as a superior has effective control over subordinates, to the extent that he can prevent them from committing crimes or punish them after they committed the crimes, he would be held responsible for the commission of the crimes if he failed to exercise such abilities of control”. 
ICTR, Bagilishema case, Judgment on Appeal (Reasons), 3 July 2002, §§ 50–56 and 61.
[emphasis in original]
International Criminal Tribunal for Rwanda
In its judgment in the Niyitegeka case in 2003, the ICTR Trial Chamber considered the matter of the accused’s individual criminal responsibility as a superior under Article 6(3) of the 1994 ICTR Statute:
471. Article 6(3) provides that “[t]he fact that any of the acts referred to in Articles 2 to 4 of the present Statute was committed by a subordinate does not relieve his or her superior of criminal responsibility if he or she knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.”
472. In Musema, it was held that “a civilian superior may be charged with superior responsibility only where he has effective control, be it de jure or merely de facto, over the persons committing violations of international humanitarian law.” The Appeals Chamber in Delalic held that “[a]s long as a superior has effective control over subordinates, to the extent that he can prevent them from committing crimes or punish them after they committed the crimes, he would be held responsible for the commission of the crimes if he failed to exercise such abilities of control.” 
ICTR, Niyitegeka case, Judgment, 16 May 2003, §§ 471–472.
International Criminal Tribunal for Rwanda
In its judgment in the Ntakirutimana case in 2003, the ICTR Trial Chamber stated:
Article 6(3) [of the 1994 ICTR Statute] provides that civilian leaders may incur criminal responsibility for acts committed by their subordinates or others under their “effective control”, although the control exercised need not be of the same nature as that exercised by a military commander. 
ICTR, Ntakirutimana case, Judgment, 21 February 2003, § 819.
International Criminal Tribunal for Rwanda
In its judgment in the Kamuhanda case in 2004, the ICTR Trial Chamber stated regarding individual criminal responsibility of superiors under Article 6(3) of the 1994 ICTR Statute:
601. Article 6(3) of the ICTR Statute addresses the criminal responsibility of a superior by virtue of his or her knowledge of the acts and omissions of subordinates and for failure to prevent, discipline, or punish the criminal acts of his or her subordinates in the preparation and execution of the crimes charged. The principle of superior responsibility, which derives from the principle of individual criminal responsibility as applied in the Nuremberg and Tokyo trials, was subsequently codified in Article 86 of the Additional Protocol I to the Geneva Conventions in 1977. Article 6(3) of the Statute, which is applicable to genocide, Crimes against Humanity, and serious violations of Article 3 Common to the Geneva Conventions and Additional Protocol II, provides as follows:
The fact that any of the acts referred to in Articles 2 to 4 of the present Statute was committed by a subordinate does not relieve his or her superior of criminal responsibility if he or she knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.
602. The jurisprudence of both the ICTR and the ICTY [International Criminal Tribunal for the former Yugoslavia] has recognised that a civilian or a military superior, with or without official status, may be held criminally responsible for offences committed by subordinates who are under his or her effective control. The chain of command between a superior and subordinates may be either direct or indirect.
603. The following three concurrent conditions must be satisfied before a superior may be held criminally responsible for the acts of his or her subordinates:
(i) There existed a superior-subordinate relationship between the person against whom the charge is directed and the perpetrators of the offence;
(ii) The superior knew or had reason to know that the criminal act was about to be or had been committed; and
(iii) The superior failed to exercise effective control to prevent the criminal act or to punish the perpetrators thereof.
604. The test for assessing a superior-subordinate relationship, pursuant to Article 6(3), is the existence of a de jure or de facto hierarchical chain of authority, where the accused exercised effective control over his or her subordinates as of the time of the commission of the offence. The cognisable relationship is not restricted to military hierarchies, but may apply to civilian authorities as well.
605. By effective control, it is meant that the superior, whether a military commander or a civilian leader, must have possessed the material ability, either de jure or de facto, to prevent or to punish offences committed by subordinates. The test to assess a superior-subordinate relationship, in the words of the Appeals Chamber in Bagilishema, is:
[…] whether the accused exercised effective control over his or her subordinates; this is not limited to asking whether he or she had de jure authority. The ICTY Appeals Chamber held in the Celebici Appeal Judgment that “[a]s long as a superior has effective control over subordinates, to the extent that he can prevent them from committing crimes or punish them after they committed the crimes, he would be held responsible for the commission of the crimes if he failed to exercise such abilities of control.
606. To hold a superior responsible for the criminal conduct of subordinates, the Chamber must be satisfied that the superior possessed the requisite mens rea, namely, that he or she knew or had reason to know of such conduct.
607. A superior in a chain of hierarchical command with authority over a given geographical area will not be held strictly liable for subordinates’ crimes. While an individual’s hierarchical position may be a significant indicium that he or she knew or had reason to know about subordinates’ criminal acts, knowledge will not be presumed from status alone.
608. A superior is under a duty to act where he or she knew or had reason to know that subordinates had committed or were about to commit offences covered by Articles 2, 3, and 4 of the Statute.
609. In accordance with current jurisprudence related to Article 6(3), a superior will be has found to possess, or will be imputed with, the requisite mens rea sufficient to incur criminal liability, where, after weighing a number of indicia, the Chamber is satisfied that (1) the superior had actual knowledge, established through direct or circumstantial evidence, that his or her subordinates were committing or were about to commit, or had committed, an offence under the jurisdiction of the Statute, or, (2) information was available to the superior which would have put him or her on notice of offences committed by subordinates.
610. Where it is demonstrated that an individual is a superior, pursuant to Article 6(3), with the requisite knowledge, then he or she will incur criminal responsibility only for failure to take “necessary and reasonable measures” to prevent or punish crimes subject to the Tribunal’s jurisdiction committed by subordinates. Such measures have been described as those within the “material possibility” of the superior, even though the superior lacked the “formal legal competence” to take these measures. Thus a superior has a duty to act in those circumstances in which he or she has effective control over subordinates, and the extent of an individual’s effective control, under the circumstances, will guide the assessment of whether he or she took reasonable measures to prevent, stop, or punish a subordinate’s crimes. 
ICTR, Kamuhanda case, Judgment, 22 January 2004, §§ 601–610.
In its judgment in 2005, the ICTR Appeals Chamber clarified regarding the relation between “ordering” as a form of direct individual criminal responsibility under Article 6(1) of the 1994 ICTR Statute and individual criminal responsibility of superiors under Article 6(3) of the Statute:
The Appeals Chamber notes that superior responsibility under Article 6(3) of the Statute is a distinct mode of responsibility from individual responsibility for ordering a crime under Article 6(1) of the Statute. Superior responsibility under Article 6(3) of the Statute requires that the accused exercise “effective control” over his subordinates to the extent that he can prevent them from committing crimes or punish them after they committed the crimes. To be held responsible under Article 6(1) of the Statute for ordering a crime, on the contrary, it is sufficient that the accused have authority over the perpetrator of the crime, and that his order have a direct and substantial effect on the commission of the illegal act. In the Semanza Appeal Judgement, the Appeals Chamber made clear that no formal superior-subordinate relationship is required. 
ICTR, Kamuhanda case, Judgment on Appeal, 19 September 2005, § 75.
International Criminal Tribunal for Rwanda
In its judgment in the Imanishimwe case in 2004, the ICTR Trial Chamber stated:
627. The following three elements must be proven to hold a civilian or a military superior criminally responsible pursuant to Article 6(3) [of the 1994 ICTR Statute] for crimes committed by subordinates: (a) the existence of a superior-subordinate relationship; (b) the superior’s knowledge or reason to know that the criminal acts were about to be or had been committed by his subordinates; and (c) the superior’s failure to take necessary and reasonable measures to prevent such criminal acts or to punish the perpetrator.
628. The Chamber stated in the Semanza Judgement that a superior-subordinate relationship is established by showing a formal or informal hierarchical relationship. The superior must have possessed the power or the authority, de jure or de facto, to prevent or punish an offence committed by his subordinates. The superior must have had effective control over the subordinates at the time the offence was committed. Effective control means the material ability to prevent the commission of the offence or to punish the principal offenders. This requirement is not satisfied by a showing of general influence on the part of the accused.
629. A superior will be found to have possessed or will be imputed with the requisite mens rea sufficient to incur criminal responsibility provided that: (i) the superior had actual knowledge, established through direct or circumstantial evidence, that his subordinates were about to commit, were committing, or had committed, a crime under the statute; or (ii) the superior possessed information providing notice of the risk of such offences by indicating the need for additional investigations in order to ascertain whether such offences were about to be committed, were being committed, or had been committed by subordinates.
630. A superior may incur responsibility only for having failed to take “necessary and reasonable measures” to prevent or punish a crime under the Statute committed by subordinates. The degree of the superior’s effective control guides the assessment of whether the individual took reasonable measures to prevent, stop, or punish a subordinates’ crime. 
ICTR, Imanishimwe case, Judgment, 25 February 2004, §§ 627–630.
In its judgment in 2006, the ICTR Appeals Chamber stated:
[W]here an accused is charged with responsibility pursuant to Article 6(3) of the [1994 ICTR] Statute, the material facts which must be pleaded in the indictment are: (1) that the accused is the superior of subordinates sufficiently identified over whom he had effective control – in the sense of a material ability to prevent or punish criminal conduct – and for whose acts he is alleged to be responsible; (2) the criminal conduct of those others for whom he is alleged to be responsible; (3) the conduct of the accused by which he may be found to have known or had reason to know that the crimes were about to be committed or had been committed by his subordinate; and (4) the conduct of the accused by which he may be found to have failed to take the necessary and reasonable measures to prevent such acts or to punish the persons who committed them. 
ICTR, Imanishimwe case, Judgment on Appeal, 7 July 2006, § 152.
International Criminal Tribunal for Rwanda
In the Ndindiliyimana case before the ICTR in 2004, the accused, senior members of the Forces armées rwandaises (FAR), were charged, inter alia, with murder as a violation of Article 3 common to the 1949 Geneva Conventions and the 1977 Additional Protocol II, punishable under Article 4(a) of the 1994 ICTR Statute. 
ICTR, Ndindiliyimana case, Amended Indictment, 23 August 2004, § 118, Count 7.
With regard to the responsibility of the accused for murders committed by subordinates, the Prosecutor stated that they “knew or had reason to know that their subordinates had committed or were about to commit the crimes … [and] did not take reasonable and necessary measures to prevent such crimes from being committed or to punish the perpetrators thereof”. 
ICTR, Ndindiliyimana case, Amended Indictment, 23 August 2004, § 118, Count 7.
International Criminal Tribunal for Rwanda
In the Karemera case before the ICTR in 2005, the accused, Édouard Karemera, Mathieu Ngirumpatse and Joseph Nzirorera, three senior members of the Mouvement républicain national pour le développement et la démocratie (MRND), were charged, inter alia, with genocide (punishable under Article 2 of the 1994 ICTR Statute) 
ICTR, Karemera case, Amended Indictment, 24 August 2005, Count 3.
crimes against humanity, (punishable under Article 3 of the 1994 ICTR Statute) 
ICTR, Karemera case, Amended Indictment, 24 August 2005, §§ 67–73, Counts 5–6
and serious violations of common Article 3 of the 1949 Geneva Conventions and of the 1977 Additional Protocol II (punishable under Article 4 of the 1994 ICTR Statute) 
ICTR, Karemera case, Amended Indictment, 24 August 2005, §§ 74–80, Count 7.
for their role in a campaign to destroy the Tutsi population in Rwanda. 
ICTR, Karemera case, Amended Indictment, 24 August 2005, § 5.
With regard to the criminal responsibility of the accused for the acts or omissions of their subordinates, the Prosecutor stated:
17. [The accused] while holding positions of superior authority, are … individually criminally responsible under Article 6(3) of the [1994 ICTR Statute] for the acts of their subordinates in the crimes charged in this indictment.
19. [The accused] knew or had reason to know that their subordinates were about to commit or had committed the crimes charged in this indictment. …
20. [The accused] had the material capacity to halt or prevent the crimes or to punish or sanction the subordinates that committed them. …
21. [The accused] failed to take the necessary and reasonable measures to prevent the crimes committed by their subordinates or to punish the perpetrators. 
ICTR, Karemera case, Amended Indictment, 24 August 2005, §§ 17 and 19–21.
International Criminal Tribunal for Rwanda
In its judgment in the Gacumbitsi case in 2006, the ICTR Appeals Chamber clarified with regard to the requirements of individual criminal responsibility of superiors under Article 6(3) of the 1994 ICTR Statute:
A superior “possesses power or authority over subordinates either de jure or de facto; it is not necessary for that power or authority to arise from official appointment.” To establish liability under Article 6(3) of the Statute, the following must be shown:
• A crime over which the Tribunal has jurisdiction was committed;
• The accused had effective control over the perpetrators of the crime (i.e., the material ability to prevent or punish the commission of crimes);
• The accused knew or had reason to know that the crime was going to be committed or had been committed; and
• The accused did not take necessary and reasonable measures to prevent or punish the commission of the crime by a subordinate. 
ICTR, Gacumbitsi case, Judgment on Appeal, 7 July 2006, § 143.
International Criminal Tribunal for Rwanda
In its judgment in the Muvunyi case in 2006, the ICTR Trial Chamber noted:
As stated by the Appeals Chamber in the Celebici Judgement, the absence of a formal appointment is not fatal to a finding of criminal responsibility, provided it can be shown that the superior exercised effective control over the actions of his subordinates. [ICTY, Mucić case, Judgement on Appeal, 20 February 2001, § 196] For this purpose, effective control reflects the superior’s material ability to prevent or punish the commission of offences by his subordinates and it could arise from both a de jure and a de facto position of authority. Where de jure authority is proved, a court may presume the existence of effective control on a prima facie basis. Such a presumption can, however, be rebutted by showing that the superior had ceased to possess the necessary powers of control over subordinates who actually committed the crimes. [ICTY, Mucić case, Judgement on Appeal, 20 February 2001, § 197]. 
ICTR, Muvunyi case, Judgment, 12 September 2006, § 51.
The Trial Chamber further stated:
459. The principle of individual responsibility for serious violations of international criminal law is one of the key indicators of a paradigm shift from a view of international law as law exclusively made for and by States, to a body of rules with potential application to individuals. It is now recognized that the principle of individual responsibility for serious violations of international law, affirmed in Article 6(1) of the [1994 ICTR] Statute, is reflective of customary international law. [ICTY, Mucić case, Judgement, 16 November 1998, § 321 and sources cited therein] Indeed, it has been established since the Versailles Treaty and especially the Nuremberg and Tokyo trials, that crimes under international law are physically committed by individuals and that irrespective of their official status, only by punishing such individuals for their criminal conduct, can the fundamental values of international law have meaning and efficacy.
Article 6(3)
473. Article 6(3) of the Statute lays down the principle of superior or command responsibility which is well established in customary international law and specifically mentioned in the Geneva Conventions on international humanitarian law. While the principle was initially applied to the responsibility of military commanders for the criminal actions of their subordinates during war (hence the term “command responsibility”), it is now clearly established that both civilian and military superiors may, under appropriate circumstances, be held responsible for the actions of those under their authority or command. [Footnote 673: “Akayesu, Judgement (TC), para. 491 suggesting that the application of superior responsibility to civilians is contentious. However, in Kayishema and Ruzindana, Musema, and Kajelijeli, the ICTR held civilian superiors responsible for the actions of their subordinates under Article 6(3). See also the Celebici Case, para. 378 where the ICTY Trial Chamber stated that “… the doctrine of superior responsibility extends to civilian superiors only to the extent that they exercise a degree of control over their subordinates which is similar to that of military commander.’”] In Kayishema and Ruzindana, the Trial Chamber concurred with the distinction drawn in the Rome Statute of the International Criminal Court (the “ICC”) with respect to the mental element required for superior responsibility of military commanders vis-à-vis other superiors. The Chamber in that case noted that Article 28 of the Statute of the ICC imposes a more active duty on military superiors to control the activities of subordinates under their effective command and control where they “knew, or owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes.” Under such circumstances, the military commander is under an obligation to take all necessary and reasonable measures to prevent or punish criminal acts committed by his subordinates. On the other hand, non-military superiors are only expected to have known or consciously disregarded information which clearly indicated that their subordinates were committing or about to commit crimes. The Chamber agrees with this distinction and notes that the nature of military service and discipline is consistent with the expectation that superior military officers have a more active duty to inquire about the possible criminal behaviour of men under their command and to prevent or punish such behaviour when it occurs.
474. Irrespective of the civilian or military status of the Accused, the Prosecution must prove four essential elements in order to establish liability under Article 6(3). It must lead evidence that proves beyond reasonable doubt that the Accused was the superior of the actual perpetrators of an offence punishable under the Statute; that he knew or had reason to know that a criminal act was about to be or had been committed; that he had effective control over the perpetrators in the sense of the material ability to prevent or punish their crimes; and that he did not take necessary and reasonable measures to prevent or punish the commission of the crime.
475. While the formal legal status of the Accused may be relevant to the determination of effective control, the power to prevent or punish cannot be inferred solely on the basis of the existence of formal status. Indeed, as stated by the Appeals Chamber in the Kajelijeli Judgement, power or authority for the purposes of Article 6(3) responsibility can be attributed to superiors who hold their positions either on a de jure or a de facto basis. For this purpose, effective control reflects the superior’s material ability to prevent or punish the commission of offences by his subordinates. Where de jure authority is proved, a court may presume the existence of effective control on a prima facie basis. Such a presumption can, however, be rebutted by showing that the superior had ceased to possess the necessary powers of control over subordinates who actually committed the crimes. 
ICTR, Muvunyi case, Judgment, 12 September 2006, §§ 459 and 473–475.
International Criminal Tribunal for Rwanda
In the Bagaragaza case before the ICTR in 2006, the accused was a senior public official, who was director general of the government office controlling the Rwandan tea industry, a member of the prefectural committee of the political party Mouvement républicain national pour la démocratie et le développement (MRND) in Gisenyi prefecture, and honorary president of the Interahamwe (MRND youth wing) militia in Kabuga in Kigali-rural prefecture. 
ICTR, Bagaragaza case, Amended Indictment, 1 December 2006, § 2.
On his individual criminal responsibility as a superior under Article 6(3) of the 1994 ICTR Statute, the Prosecution stated, inter alia:
Pursuant to Article 6(3) of the Statute, the Accused … is responsible for killings and causing violence to health and physical or mental well-being as serious violations of Article 3 common to the Geneva Conventions of 1949 and Additional Protocol II of 1977 thereto because specific criminal acts were committed by subordinates under the effective control of the Accused and the Accused knew or had reason to know that such subordinates were about to commit such acts before they were committed or that such subordinates had committed such acts and the Accused failed to take necessary or reasonable measures to prevent such acts or to punish the perpetrators thereof. These subordinates included directors and other employees of the OCIR/Thé factories, including the director of the Rubaya tea factory … , employees , the chief of the tea plantation at the Nyabihu tea factory …; members of the Interahamwe; and other unknown persons … 
ICTR, Bagaragaza case, Amended Indictment, 1 December 2006, § 30.
International Criminal Tribunal for Rwanda
In its judgment on appeal in the Nahimana case in 2007, the ICTR Appeals Chamber stated:
484. The Appeals Chamber recalls that, for the liability of an accused to be established under Article 6(3) of the [1994 ICTR] Statute, the Prosecutor has to show that: (1) a crime over which the Tribunal has jurisdiction was committed; (2) the accused was a de jure or de facto superior of the perpetrator of the crime and had effective control over this subordinate (i.e., he had the material ability to prevent or punish commission of the crime by his subordinate); (3) the accused knew or had reason to know that the crime was going to be committed or had been committed; and (4) the accused did not take necessary and reasonable measures to prevent or punish the commission of the crime by a subordinate.
485. The Appeals Chamber adds that, for the purposes of Article 6(3) of the Statute, the “commission” of a crime by a subordinate must be understood in a broad sense. In the Blagojević and Jokić Appeal Judgement, the ICTY Appeals Chamber confirmed that an accused may be held responsible as a superior not only where a subordinate committed a crime referred to in the Statute of ICTY, but also where a subordinate planned, instigated or otherwise aided and abetted in the planning, preparation or execution of such a crime:
As a threshold matter, the Appeals Chamber confirms that superior responsibility under Article 7(3) of the Statute encompasses all forms of criminal conduct by subordinates, not only the “committing” of crimes in the restricted sense of the term, but all other modes of participation under Article 7(1). The Appeals Chamber notes that the term “commit” is used throughout the Statute in a broad sense, encompassing all modes of responsibility covered by Article 7(1) and that such a construction is clearly manifest in Article 29 (cooperation and judicial assistance) of the Statute, referring to States’ obligation to cooperate with the International Tribunal “in the investigation and prosecution of persons accused of committing serious violations of international humanitarian law.”
The Appeals Chamber has previously determined that criminal responsibility under Article 7(3) is based primarily on Article 86(2) of Protocol I. Accordingly, the meaning of “commit”, as used in Article 7(3) of the Statute, necessarily tracks the term’s broader and more ordinary meaning, as employed in Protocol I. The object and purpose of Protocol I, as reflected in its preamble, is to “reaffirm and develop the provisions protecting the victims of armed conflicts and to supplement measures intended to reinforce their application”. The preamble of Protocol I adds further that “the provisions of the Geneva Conventions of 12 August 1949 and of this Protocol must be fully applied in all circumstances to all persons who are protected by those instruments.” The purpose of superior responsibility, as evidenced in Articles 86(1) and 87 of Protocol I, is to ensure compliance with international humanitarian law. Furthermore, one of the purposes of establishing the International Tribunal, as reflected in Security Council Resolution 808, is to “put an end to [widespread violations of international humanitarian law] and to take effective measures to bring to justice the persons who are responsible for them”. And, more particularly, the purpose of superior responsibility in Article 7(3) is to hold superiors “responsible for failure to prevent a crime or to deter the unlawful behaviour of [their] subordinates.”
In this context, the Appeals Chamber cannot accept that the drafters of Protocol I and the Statute intended to limit a superior’s obligation to prevent or punish violations of international humanitarian law to only those individuals physically committing the material elements of a crime and to somehow exclude subordinates who as accomplices substantially contributed to the completion of the crime. Accordingly, “commit” as used in Article 7(3) of the Statute must be understood as it is in Protocol I, in its ordinary and broad sense.
486. The Appeals Chamber endorses this reasoning and holds that an accused may be held responsible as a superior under Article 6(3) of the Statute where a subordinate “planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in Articles 2 to 4 of the present Statute”, provided, of course, that all the other elements of such responsibility have been established. 
ICTR, Nahimana case, Judgment on Appeal, 28 November 2007, §§ 484–486.
International Criminal Tribunal for Rwanda
In its judgment and sentence in the Karera case in 2007, the ICTR Trial Chamber stated:
563. … The following three elements must be proven to hold a civilian or a military superior criminally responsible pursuant to Article 6(3) [of the 1994 ICTR Statute] for crimes committed by subordinates: (a) the existence of a superior-subordinate relationship; (b) the superior’s knowledge or reason to know that the criminal acts were about to be or had been committed by his subordinates; and (c) the superior’s failure to take necessary and reasonable measures to prevent such criminal acts or to punish the perpetrator.
564. With respect to the first element, a superior-subordinate relationship is established by showing a formal or informal hierarchical relationship. The superior must have possessed the power or the authority, de jure or de facto, to prevent or punish an offence committed by his subordinates. The superior must have had effective control over the subordinates at the time the offence was committed. Effective control means the material ability to prevent the commission of the offence or to punish the principal offenders. This requirement is not satisfied by a simple showing of an accused individual’s general influence. 
ICTR, Karera case, Judgment and Sentence, 7 December 2007, §§ 563–564.
International Criminal Tribunal for the former Yugoslavia
In the indictment in the Mrkšić case before the ICTY in 1995, the Prosecutor stated, with respect to the responsibility of the accused for the killing of 260 persons:
Each of the accused is also or alternatively criminally responsible as a commander for the acts of his subordinates pursuant to Article 7(3) of the [1993 ICTY] Statute. Command criminal responsibility is the responsibility of a superior officer for the acts of his subordinate if he knew or had reason to know that his subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof. 
ICTY, Mrkšić case, Initial Indictment, 26 October 1995, § 24.
International Criminal Tribunal for the former Yugoslavia
In the review of the indictment in the Martić case in 1996, the ICTY Trial Chamber stated:
The Tribunal has particularly valid grounds for exercising its jurisdiction over persons who, through their position of political or military authority, are able to order the commission of crimes falling within its competence ratione materiae or who knowingly refrain from preventing or punishing the perpetrators of such crimes. 
ICTY, Martić case, Review of the Indictment, 8 March 1996, § 21.
International Criminal Tribunal for the former Yugoslavia
In the review of the indictments in the Karadžić and Mladić case in 1996, the ICTY Trial Chamber found, in the light of the analysis of the institutional functions and the effective exercise of power by the two accused:
The conditions for the responsibility of superiors under Article 7(3) of the [1993 ICTY] Statute, that is those constituting criminal negligence of superiors, have unquestionably been fulfilled:
– the Bosnian Serb military and police forces committing the offences alleged were under the control, command and direction of Radovan KARADŽIĆ and Ratko MLADIĆ during the whole period covered in the indictment;
– through their position in the Bosnian Serb Administration, Radovan KARADŽIĆ and Ratko MLADIĆ knew or had reasons to know that their subordinates committed or were about to commit the offences in question;
– lastly, it has established that Radovan KARADŽIĆ and Ratko MLADIĆ failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof. 
ICTY, Karadžić and Mladić case, Review of the Indictments, 11 July 1996, §§ 81–82.
International Criminal Tribunal for the former Yugoslavia
In its judgment in the Mucić case in 1998, the ICTY Trial Chamber stated:
333. Military commanders and other persons occupying positions of superior authority may be held criminally responsible for the unlawful conduct of their subordinates is a well-established norm of customary and conventional international law. This criminal liability may arise either out of the positive acts of the superior (sometimes referred to as “direct” command responsibility) or from his culpable omissions (“indirect” command responsibility or command responsibility strictu sensu). Thus, a superior may be held criminally responsible … also for failing to take measures to prevent or repress the unlawful conduct of his subordinates.
334. The distinct legal character of the two types of superior responsibility must be noted. While the criminal liability of a superior for positive acts follows from general principles of accomplice liability, as set out in the discussion of Article 7(1) above, the criminal responsibility of superiors for failing to take measures to prevent or repress the unlawful conduct of their subordinates is best understood when seen against the principle that criminal responsibility for omissions is incurred only where there exists a legal obligation to act. As is most clearly evidenced in the case of military commanders by article 87 [of the 1977 Additional Protocol I], international law imposes an affirmative duty on superiors to prevent persons under their control from committing violations of international humanitarian law, and it is ultimately this duty that provides the basis for, and defines the contours of, the imputed criminal responsibility under Article 7(3) of the [1993 ICTY] Statute.
335. Although historically not without recognition in domestic military law, it is often suggested that the roots of the modern doctrine of command responsibility may be found in the Hague Conventions of 1907 …
340. In the period following the Second World War until the present time, the doctrine of command responsibility has not been applied by any international judicial organ. Nonetheless, there can be no doubt that the concept of the individual criminal responsibility of superiors for failure to act is today firmly placed within the corpus of international humanitarian law. Through the adoption of Additional Protocol I, the principle has now been codified and given a clear expression in international conventional law. Thus, article 87 [of the 1977 Additional Protocol I] gives expression to the duty of commanders to control the acts of their subordinates and to prevent or, where necessary, to repress violations of the Geneva Conventions or the Protocol. The concomitant principle under which a superior may be held criminally responsible for the crimes committed by his subordinates where the superior has failed to properly exercise this duty is formulated in article 86 [of the 1977 Additional Protocol I]. A survey of the travaux préparatoires of these provisions reveals that, while their inclusion was not uncontested during the drafting of the Protocol, a number of delegations clearly expressed the view that the principles expressed therein were in conformity with pre-existing law …
343. On the basis of the foregoing, the Trial Chamber concludes that the principle of individual criminal responsibility of superiors for failure to prevent or repress the crimes committed by subordinates forms part of customary international law. 
ICTY, Mucić case, Judgment, 16 November 1998, §§ 333–335, 340 and 343.
As to the elements of individual criminal responsibility of commanders under Article 7(3) of the 1993 ICTY Statute, the Trial Chamber stated:
From the text of Article 7(3) it is thus possible to identify the essential elements of command responsibility for failure to act as follows:
(i) the existence of a superior-subordinate relationship;
(ii) the superior knew or had reason to know that the criminal act was about to be or had been committed; and
(iii) the superior failed to take the necessary and reasonable measures to prevent the criminal act or punish the perpetrator thereof. 
ICTY, Mucić case, Judgment, 16 November 1998, § 346.
Affirming the responsibility of non-military superiors under Article 7(3) of the 1993 ICTY Statute, the Trial Chamber noted:
357. This interpretation of the scope of Article 7(3) is in accordance with the customary law doctrine of command responsibility …
363. Thus, it must be concluded that the applicability of the principle of superior responsibility in Article 7(3) extends not only to military commanders but also to individuals in non-military positions of superior authority. 
ICTY, Mucić case, Judgment, 16 November 1998, §§ 357 and 363.
Turning to “the concept of superior”, the Trial Chamber stated:
370. While the matter is, thus, not undisputed, it is the Trial Chamber’s opinion that a position of command is indeed a necessary precondition for the imposition of command responsibility. However, this statement must be qualified by the recognition that the existence of such a position cannot be determined by reference to formal status alone. Instead, the factor that determines liability for this type of criminal responsibility is the actual possession, or non-possession, of powers of control over the actions of subordinates. Accordingly, formal designation as a commander should not be considered to be a necessary prerequisite for command responsibility to attach, as such responsibility may be imposed by virtue of a person’s de facto, as well as de jure, position as a commander.
371. … It is clear that the term “superior” is sufficiently broad to encompass a position of authority based on the existence of de facto powers of control …
377. While it is, therefore, the Trial Chamber’s conclusion that a superior, whether military or civilian, may be held liable under the principle of superior responsibility on the basis of his de facto position of authority, the fundamental considerations underlying the imposition of such responsibility must be borne in mind. The doctrine of command responsibility is ultimately predicated upon the power of the superior to control the acts of his subordinates. A duty is placed upon the superior to exercise this power so as to prevent and repress the crimes committed by his subordinates, and a failure by him to do so in a diligent manner is sanctioned by the imposition of individual criminal responsibility in accordance with the doctrine. It follows that there is a threshold at which persons cease to possess the necessary powers of control over the actual perpetrators of offences and, accordingly, cannot properly be considered their “superiors” within the meaning of Article 7(3) of the [1993 ICTY] Statute … [However,] great care must be taken lest an injustice be committed in holding individuals responsible for the acts of others in situations where the link of control is absent or too remote.
378. Accordingly, it is the Trial Chamber’s view that, in order for the principle of superior responsibility to be applicable, it is necessary that the superior have effective control over the persons committing the underlying violations of international humanitarian law, in the sense of having the material ability to prevent and punish the commission of these offences. With the caveat that such authority can have a de facto as well as a de jure character, the Trial Chamber accordingly shares the view expressed by the International Law Commission that the doctrine of superior responsibility extends to civilian superiors only to the extent that they exercise a degree of control over their subordinates which is similar to that of military commanders. 
ICTY, Mucić case, Judgment, 16 November 1998, §§ 370–371 and 377–378.
Discussing the mental element necessary for the establishment of criminal responsibility of commanders, the ICTY Trial Chamber stated:
383. The doctrine of superior responsibility does not establish a standard of strict liability for superiors for failing to prevent or punish the crimes committed by their subordinates. Instead, Article 7(3) [of the 1993 ICTY Statute] provides that a superior may be held responsible only where he knew or had reason to know that his subordinates were about to or had committed the acts referred to under Articles 2 to 5 of the Statute. A construction of this provision in light of the content of the doctrine under customary law leads the Trial Chamber to conclude that a superior may possess the mens rea required to incur criminal liability where: (1) he had actual knowledge, established through direct or circumstantial evidence, that his subordinates were committing or about to commit crimes referred to under Article 2 to 5 of the Statute, or (2) where he had in his possession information of a nature, which at the least, would put him on notice of the risk of such offences by indicating the need for additional investigation in order to ascertain whether such crimes were committed or were about to be committed by his subordinates.
393. An interpretation of the terms of [Article 86 of the 1977 Additional Protocol I] in accordance with their ordinary meaning thus leads to the conclusion, confirmed by the travaux préparatoires, that a superior can be held criminally responsible only if some specific information was in fact available to him which would provide notice of offences committed by his subordinates. This information need not be such that it by itself was sufficient to compel the conclusion of the existence of such crimes. It is sufficient that the superior was put on further inquiry by the information, or, in other words, that it indicated the need for additional investigation in order to ascertain whether offences were being committed or about to be committed by his subordinates. This standard, which must be considered to reflect the position of customary law at the time of the offences alleged in the Indictment, is accordingly controlling for the construction of the mens rea standard established in Article 7(3). 
ICTY, Mucić case, Judgment, 16 November 1998, §§ 383 and 393.
With regard to the “necessary and reasonable measures” to be taken by a commander, the Trial Chamber stated:
394. The legal duty which rests upon all individuals in positions of superior authority requires them to take all necessary and reasonable measures to prevent the commission of offences by their subordinates or, if such crimes have been committed, to punish the perpetrators thereof. It is the view of the Trial Chamber that any evaluation of the action taken by a superior to determine whether this duty has been met is so inextricably linked to the facts of each particular situation that any attempt to formulate a general standard in abstracto would not be meaningful.
395. It must, however, be recognised that international law cannot oblige a superior to perform the impossible. Hence, a superior may only be held criminally responsible for failing to take such measures that are within his powers. The question then arises of what actions are to be considered to be within the superior’s powers in this sense. As the corollary to the standard adopted by the Trial Chamber with respect to the concept of superior, we conclude that a superior should be held responsible for failing to take such measures that are within his material possibility. The Trial Chamber accordingly does not adopt the position taken by the ILC on this point, and finds that the lack of formal legal competence to take the necessary measures to prevent or repress the crime in question does not necessarily preclude the criminal responsibility of the superior. 
ICTY, Mucić case, Judgment, 16 November 1998, §§ 394–395.
International Criminal Tribunal for the former Yugoslavia
In the Galić case before the ICTY in 1999, the accused, a senior officer in the Army of the Republika Srpska (VRS), was charged with violations of the laws or customs of war and with crimes against humanity for his alleged role in events in Sarajevo in 1992–1994. 
ICTY, Galić case, Indictment, 26 March 1999, Counts 1–7.
On the accused’s individual criminal responsibility as a superior, the Prosecution stated:
[The accused] also bears individual criminal responsibility as a Commander of the Sarajevo Romanija Corps, responsible for the conduct of subordinates in respect of whom he was in a position of superior authority. [He] is responsible for the acts and omissions of his subordinates, knowing, or having reason to know, that the subordinates were about to commit such acts, or had done so, failing to take reasonable steps to prevent such acts, or to punish the perpetrators thereof. By failing to take the actions required of a person in superior authority, [the accused] is responsible for the acts and omissions set forth below pursuant to Article 7(3) of the [1993 ICTY Statute]. 
ICTY, Galić case, Indictment, 26 March 1999, § 11.
In its judgment in 2003, the ICTY Trial Chamber stated, with respect to individual criminal responsibility of superiors under Article 7(3) of the 1993 ICTY Statute:
173. The case-law of the International Tribunal establishes that the following three conditions must be met before a person can be held responsible for the criminal acts of another under Article 7(3) of the Statute: (1) a superior-subordinate relationship existed between the former and the latter; (2) the superior knew or had reason to know that the crime was about to be committed or had been committed; and (3) the superior failed to take the necessary and reasonable measures to prevent the criminal act or punish the perpetrator. The Appeals Chamber has said that control must be effective for there to be a relevant relationship of superior to subordinate. Control is established if the commander had “the power or authority in either a de jure or a de facto form to prevent a subordinate’s crime or to punish the perpetrators of the crime after the crime is committed.” The Appeals Chamber emphasised that “in general, the possession of de jure power in itself may not suffice for the finding of command responsibility if it does not manifest in effective control, although a Court may presume that possession of such power prima facie results in effective control unless proof to the contrary is produced.”
174. In the absence of direct evidence of the superior’s actual knowledge of the offences committed by his or her subordinates, this knowledge may [be] established through circumstantial evidence … The Trial Chamber also takes into consideration the fact that the evidence required to prove such knowledge for a commander operating within a highly disciplined and formalized chain of command with established reporting and monitoring systems is not as high as for those persons exercising more informal types of authority.
175. In relation to the superior’s “having reason to know” that subordinates were about to commit or had committed offences, “a showing that a superior had some general information in his possession which would put him on notice of possible unlawful acts by his subordinates would be sufficient to prove that he had “reason to know’.” The information available to the superior may be in written or oral form. It need not to be explicit or specific. For instance, past behaviour of subordinates or a history of abuses might suggest the need to inquire further. It is not required that the superior had actually acquainted himself or herself with the information in his or her possession.
176. The evaluation of the action taken by individuals in positions of superior authority who have a legal duty to take all necessary and reasonable measures to prevent the commission of offences by their subordinates or, if such crimes have been committed, to punish the perpetrators, must be done on a case-by-case basis. Furthermore, it must be kept in mind that the superior is not obliged to perform the impossible; “a superior should only be held responsible for failing to take such measures that are within his material possibility”.
177. Finally, in cases where concurrent application of Articles 7(1) and 7(3) is possible because the requirements of the latter form of responsibility are satisfied alongside those of the former, the Trial Chamber has the discretion to choose the head of responsibility most appropriate to describe the criminal responsibility of the accused. 
ICTY, Galić case, Judgment, 5 December 2003, §§ 173–177.
The Trial Chamber, by majority decision, found the accused “guilty of having ordered the crimes proved at trial” under Article 7(1) of the 1993 ICTY Statute; it therefore did “not deem it necessary to pronounce on whether [the accused was] cumulatively guilty under Article 7(3) of the Statute”. 
ICTY, Galić case, Judgment, 5 December 2003, §§ 749–750.
The accused was sentenced to 20 years’ imprisonment.
In its judgment in 2006, the ICTY Appeals Chamber stated, inter alia:
… [T]he Appeals Chamber notes that the jurisprudence of the International Tribunal indicates that the “had reason to know” standard will only be satisfied if information was available to the superior which would have put him on notice of offences committed by his subordinates [Čelebići Appeal Judgement, § 241]. The information in question need not, however, “have the form of specific reports submitted pursuant to a monitoring system” and “does not need to provide specific information about unlawful acts committed or about to be committed” [Čelebići Appeal Judgement, § 238]. 
ICTY, Galić case, Judgment on Appeal, 30 November 2006, § 184.
On the relationship between convictions under Article 7(1) and (3) of the 1993 ICTY Statute, the Appeals Chamber held:
… [T]he Trial Chamber did not hold that concurrent convictions under Articles 7(1) and 7(3) of the Statute are possible, but rather that the facts of any given case may satisfy both articles, in which case a Trial Chamber may then choose between them. As noted in the Blaškić Appeal Judgement, a conviction should be entered under Article 7(1) of the Statute only, while treating the accused’s superior position as an aggravating factor in sentencing. Accordingly, there was no error on the part of the Trial Chamber. 
ICTY, Galić case, Judgment on Appeal, 30 November 2006, § 186.
In its judgment in 2006, the Appeals Chamber, by majority decision, upheld the Trial Chamber’s verdict, but quashed the sentence of 20 years’ imprisonment and imposed a sentence of life imprisonment. 
ICTY, Galić case, Judgment on Appeal, 30 November 2006, XVIII. Disposition, p. 185.
International Criminal Tribunal for the former Yugoslavia
In its judgment in the Aleksovski case in 1999, the ICTY Trial Chamber stated:
67. The doctrine of superior responsibility makes a superior responsible not for his acts sanctioned by Article 7(1) of the [1993 ICTY] Statute but for his failure to act. A superior is held responsible for the acts of his subordinates if he did not prevent the perpetration of the crimes of his subordinates or punish them for the crimes.
68. The responsibility for failure to act, sometimes known as “indirect superior responsibility” is provided for in Article 7(3) of the [1993 ICTY] Statute …
69. Article 7 makes clear that superior responsibility may be invoked if three concurrent elements are proved:
(i) a superior-subordinate relationship between the person against whom the claim is directed and the perpetrators of the offence;
(ii) the superior knew or had reason to know that a crime was about to be committed or had been committed;
(iii) the superior did not take all the necessary and reasonable measures to prevent the crime or to punish the perpetrator or perpetrators thereof.
70. The three constituent elements which are evident from the wording of Article 7(3) clearly draw from Article 86, paragraph 2, of [the 1977 Additional Protocol I] and Article 6 of the [1996 ILC Draft Code of Crimes against the Peace and Security of Mankind]. They are repeated in Article 28 of the [1998 ICC Statute].
72. … Superior responsibility covered in Article 7(3) of the [1993 ICTY] Statute must not be seen as responsibility for the act of another person. Superior responsibility derives directly from the failure of the person against whom the complaint is directed to honour an obligation … Within the meaning of Article 7(3), a person is obliged to act only if it has been established that he was a superior of the perpetrators of the offence and also knew or had reasons to know that a crime was about to be committed or had been committed. Should such be the case, the person against whom the claim is directed is obliged to take all the necessary and reasonable measures to prevent the crime or to punish the perpetrator or perpetrators thereof.
a) The superior-subordinate relationship
75. … The generic term “superior” in Article 7(3) of the [1993 ICTY] Statute can be interpreted only to mean that superior responsibility is not limited to military commanders but may apply to the civilian authorities as well.
76. Superior responsibility is thus not reserved for official authorities. Any person acting de facto as a superior may be held responsible under Article 7(3). The decisive criterion in determining who is a superior according to customary international law is not only the accused’s formal legal status but also his ability, as demonstrated by his duties and competence, to exercise control …
78. … Hierarchical power constitutes the very foundation of responsibility under the terms of Article 7(3) of the [1993 ICTY] Statute. In order to entail his responsibility under Article 7(3), whatever his status, the accused must first have superior authority … In the opinion of the Trial Chamber, a civilian must be characterised as a superior pursuant to Article 7(3) if he has the ability de jure or de facto to issue orders to prevent an offence and to sanction the perpetrators thereof. A civilian’s sanctioning power must however be interpreted broadly. It should be stated that the doctrine of superior responsibility was originally intended only for the military authorities. Although the power to sanction is the indissociable corollary of the power to issue orders within the military hierarchy, it does not apply to the civilian authorities. It cannot be expected that a civilian authority will have disciplinary power over his subordinate equivalent to that of the military authorities in an analogous command position. To require a civilian authority to have sanctioning powers similar to those of a member of the military would so limit the scope of the doctrine of superior authority that it would hardly be applicable to civilian authorities. The Trial Chamber therefore considers that the superior’s ability de jure or de facto to impose sanctions is not essential. The possibility of transmitting reports to the appropriate authorities suffices once the civilian authority, through its position in the hierarchy, is expected to report whenever crimes are committed, and that, in the light of this position, the likelihood that those reports will trigger an investigation or initiate disciplinary or even criminal measures is extant.
b) The superior knew or had reason to know that a crime was about to be committed or had been committed
80. … Admittedly, as regards “indirect” responsibility, the Trial Chamber is reluctant to consider that a “presumption” of knowledge about a superior exists which would somehow automatically entail his guilt whenever a crime was allegedly committed. The Trial Chamber deems however that an individual’s superior position per se is a significant indicium that he had knowledge of the crimes committed by his subordinates. The weight to be given to that indicium however depends inter alia on the geographical and temporal circumstances. This means that the more physically distant the commission of the acts was, the more difficult it will be, in the absence of other indicia, to establish that the superior had knowledge of them. Conversely, the commission of a crime in the immediate proximity of the place where the superior ordinarily carried out his duties would suffice to establish a significant indicium that he had knowledge of the crime, a fortiori if the crimes were repeatedly committed.
(c) Necessary and reasonable measures
81. The [ICRC] Commentary on Additional Protocol I and the [1996 ILC Draft Code of Crimes against the Peace and Security of Mankind] limit the notion of “necessary and reasonable measures” to the measures which the superior can actually take … Such a material possibility must not be considered abstractly but must be evaluated on a case by case basis depending on the circumstances. 
ICTY, Aleksovski case, Judgment, 25 June 1999, §§ 67–70, 72, 75–76, 78 and 80–81.
International Criminal Tribunal for the former Yugoslavia
In its judgment in the Blaškić case in 2000, the ICTY Trial Chamber drew a clear distinction between Article 7(1) and Article 7(3) of the 1993 ICTY Statute, noting:
Whilst Article 7(1) deals with the commander’s participation in the commission of a crime, Article 7(3) enshrines the principle of command responsibility in the strict sense which entails the commander’s individual criminal responsibility if he did not prevent crimes from being committed by his subordinates or, where applicable, punish them. 
ICTY, Blaškić case, Judgment, 3 March 2000, § 261.
With regard to Article 7(3) of the 1993 ICTY Statute, the Trial Chamber first held: “The principle of command responsibility strictu sensu forms part of customary international law”. 
ICTY, Blaškić case, Judgment, 3 March 2000, § 290.
The Trial Chamber went on to say:
294. … For a conviction under Article 7(3) of the [1993 ICTY] Statute in the present case, proof is required that:
(1) there existed a superior-subordinate relationship between the commander (the accused) and the perpetrator of the crime;
(2) the accused knew or had reason to know that the crime was about to be or had been committed; and
(3) the accused failed to take the necessary and reasonable measures to prevent the crime or punish the perpetrator thereof.
300. … This principle [that in order for Article 7(3) of the 1993 ICTY Statute to apply, the accused must be in a position of command] is not limited to individuals formally designated commander but also encompasses both de facto and de jure command …
301. … A commander may incur criminal responsibility for crimes committed by persons who are not formally his (direct) subordinates, insofar as he exercises effective control over them.
302. … The commander need not have any legal authority to prevent or punish acts of his subordinates. What counts is his material ability, which instead of issuing orders or taking disciplinary action may entail, for instance, submitting reports to the competent authorities in order for proper measures to be taken. 
ICTY, Blaškić case, Judgment, 3 March 2000, §§ 294 and 300–302.
As regards the mens rea (“knew or had reason to know”) of the accused, the Trial Chamber agreed that knowledge “may be proved through either direct or circumstantial evidence”. With regard to circumstantial evidence, the Trial Chamber held that
in determining whether in fact a superior must have had the requisite knowledge it may consider inter alia the following indicia enumerated by the Commission of Experts in its Final Report: the number, type and scope of the illegal acts; the time during which the illegal acts occurred; the number and type of troops involved; the logistics involved, if any; the geographical location of the acts; the widespread occurrence of the acts; the speed of the operations; the modus operandi of similar illegal acts; the officers and staff involved; and the location of the commander at the time. 
ICTY, Blaškić case, Judgment, 3 March 2000, § 307.
Referring to numerous instances of case-law and quoting a writer’s opinion, the Trial Chamber stated:
322. From this analysis of jurisprudence, the Trial Chamber concludes that after World War II, a standard was established according to which a commander may be liable for crimes by his subordinates if “he failed to exercise the means available to him to learn of the offence and, under the circumstances, he should have known and such failure to know constitutes criminal dereliction”.
324. The Trial Chamber now turns to codification at the international level, namely the adoption of Additional Protocol I in 1977. The pertinent question is this: was customary international law altered with the adoption of Additional Protocol I, in the sense that a commander can be held accountable for failure to act in response to crimes by his subordinates only if some specific information was in fact available to him which would provide notice of such offences? Based on the following analysis, the Trial Chamber is of the view that this is not so.
328. In the Trial Chamber’s view, the words “had information” in Article 86(2) [of the 1977 Additional Protocol I] must be interpreted broadly …
329. … Given the essential responsibilities of military commanders under international humanitarian law, the Trial Chamber holds, … in the words of the [ICRC Commentary on the Additional Protocols], that “their role obliges them to be constantly informed of the way in which their subordinates carry out the tasks entrusted them, and to take the necessary measures for this purpose”.
332. … In conclusion, the Trial Chamber finds that if a commander has exercised due diligence in the fulfilment of his duties yet lacks knowledge that crimes are about to be or have been committed, such lack of knowledge cannot be held against him. However, taking into account his particular position of command and the circumstances prevailing at the time, such ignorance cannot be a defence where the absence of knowledge is the result of negligence in the discharge of his duties: this commander had reason to know within the meaning of the [1993 ICTY] Statute. 
ICTY, Blaškić case, Judgment, 3 March 2000, §§ 322, 324, 328–329 and 332.
With regard to “necessary and reasonable measures to prevent or punish”, the Trail Chamber held:
335. The Trial Chamber has already characterised a “superior” as a person exercising “effective control” over his subordinates. In other words, the Trial Chamber holds that where a person has the material ability to prevent or punish crimes committed by others, that person must be considered a superior. Accordingly, it is a commander’s degree of effective control, his material ability, which will guide the Trial Chamber in determining whether he reasonably took the measures required either to prevent the crime or to punish the perpetrator. As stated above in the discussion of the definition of “superior”, this implies that, under some circumstances, a commander may discharge his obligation to prevent or punish by reporting the matter to the competent authorities.
336. Lastly, the Trial Chamber stresses that the obligation to “prevent or punish” does not provide the accused with two alternative and equally satisfying options. Obviously, where the accused knew or had reason to know that subordinates were about to commit crimes and failed to prevent them, he cannot make up for the failure to act by punishing the subordinates afterwards. 
ICTY, Blaškić case, Judgment, 3 March 2000, §§ 335–336.
With respect to the concurrent application of Article 7(1) and (3) of the 1993 ICTY Statute, the Trial Chamber stated:
337. It would be illogical to hold a commander criminally responsible for planning, instigating or ordering the commission of crimes and, at the same time, reproach him for not preventing or punishing them. However, as submitted by the Prosecution, the failure to punish past crimes, which entails the commander’s responsibility under Article 7(3), may, pursuant to Article 7(1) and subject to the fulfilment of the respective mens rea and actus reus requirements, also be the basis for his liability for either aiding and abetting or instigating the commission of further crimes.
339. As stated earlier in this Judgement, in the case of instigation, proof is required of a causal connection between the instigation, which may entail an omission, and the perpetration of the act. In the scenario under discussion, this means it must be proved that the subordinates would not have committed the subsequent crimes if the commander had not failed to punish the earlier ones. However, with respect to the Defence’s submission that under Article 7(3) of the [1993 ICTY] Statute proof is required that the commander’s omission caused the commission of the crime by the subordinate, the Trial Chamber is of the view that such a causal link may be considered inherent in the requirement that the superior failed to prevent the crimes which were committed by the subordinate. 
ICTY, Blaškić case, Judgment, 3 March 2000, §§ 337 and 339.
[emphasis in original]
In its judgment in 2004, the ICTY Appeals Chamber considered alleged errors of law concerning Article 7(3) of the 1993 ICTY Statute. On the question of whether the Trial Chamber erred in its interpretation of the knowledge requirement under Article 7(3) regarding superior criminal responsibility, the Appeals Chamber found the Trial Chamber had erred in stating that the “had reason to know” standard of Article 7(3) encompassed a “should have known” standard:
The Appeals Chamber considers that the Celebici Appeal Judgement [Mucić, Judgement on Appeal, §§ 226 and 241] has settled the issue of the interpretation of the standard of “had reason to know.” In that judgement, the Appeals Chamber stated that “a superior will be criminally responsible through the principles of superior responsibility only if information was available to him which would have put him on notice of offences committed by subordinates.” Further, the Appeals Chamber stated that “[n]eglect of a duty to acquire such knowledge, however, does not feature in the provision [Article 7(3)] as a separate offence, and a superior is not therefore liable under the provision for such failures but only for failing to take necessary and reasonable measures to prevent or to punish.” There is no reason for the Appeals Chamber to depart from that position. The Trial Judgement’s interpretation of the standard is not consistent with the jurisprudence of the Appeals Chamber in this regard and must be corrected accordingly. 
ICTY, Blaškić case, Judgment on Appeal, 29 July 2004, § 62.
[emphasis in original]
This finding was later summarized by the Appeals Chamber:
[T]he mental element “had reason to know” as articulated in the Statute, does not automatically imply a duty to obtain information. The Appeals Chamber emphasizes that responsibility can be imposed for deliberately refraining from finding out but not for negligently failing to find out. 
ICTY, Blaškić case, Judgment on Appeal, 29 July 2004, § 406.
[emphasis in original]
On the question of concurrent convictions pursuant to Article 7(1) and Article 7(3) of the 1993 ICTY Statute in relation to the same counts based on the same facts, the Appeals Chamber found that the Trial Chamber had erred in this regard:
The Appeals Chamber considers that the provisions of Article 7(1) and Article 7(3) of the [1993 ICTY] Statute connote distinct categories of criminal responsibility. However, the Appeals Chamber considers that, in relation to a particular count, it is not appropriate to convict under both Article 7(1) and Article 7(3) of the Statute. Where both Article 7(1) and Article 7(3) responsibility are alleged under the same count, and where the legal requirements pertaining to both of these heads of responsibility are met, a Trial Chamber should enter a conviction on the basis of Article 7(1) only, and consider the accused’s superior position as an aggravating factor in sentencing. 
ICTY, Blaškić case, Judgment on Appeal, 29 July 2004, § 91.
With regard to the material facts that should be pleaded in the indictment in a case where superior criminal responsibility pursuant to Article 7(3) of the 1993 ICTY Statute is alleged, the Appeals Chamber found that they should include:
(a) (i) that the accused is the superior of (ii) subordinates sufficiently identified, (iii) over whom he had effective control – in the sense of a material ability to prevent or punish criminal conduct – and (iv) for whose acts he is alleged to be responsible;
(b) the conduct of the accused by which he may be found to (i) have known or had reason to know that the crimes were about to be committed or had been committed by his subordinates, and (ii) the related conduct of those others for whom he is alleged to be responsible. The facts relevant to the acts of those others for whose acts the accused is alleged to be responsible as a superior, although the Prosecution remains obliged to give all the particulars which it is able to give, will usually be stated with less precision, because the detail of those acts are often unknown, and because the acts themselves are often not very much in issue; and
(c) the conduct of the accused by which he may be found to have failed to take the necessary and reasonable measures to prevent such acts or to punish the persons who committed them. 
ICTY, Blaškić case, Judgment on Appeal, 29 July 2004, § 218.
On the question of a commander’s responsibility to prevent and to punish, the Appeals Chamber found:
[E]ven though a determination of the necessary and reasonable measures that a commander is required to take in order to prevent or punish the commission of crimes, is dependent on the circumstances surrounding each particular situation, it generally concurs with the Celebici Trial Chamber which held:
[i]t must, however, be recognised that international law cannot oblige a superior to perform the impossible. Hence, a superior may only be held criminally responsible for failing to take such measures that are within his powers. The question then arises of what actions are to be considered to be within the superior’s powers in this sense. As the corollary to the standard adopted by the Trial Chamber with respect to the concept of superior, we conclude that a superior should be held responsible for failing to take such measures that are within his material possibility. 
ICTY, Blaškić case, Judgment on Appeal, 29 July 2004, § 417.
On the question of effective control, the Appeals Chamber found:
[U]nder Article 7(3) of the Statute, effective control means the possession by the superior or commander of the material ability to prevent and punish the commission of crimes subject to the jurisdiction of the International Tribunal. The Appeals Chamber also recalls that to establish superior responsibility, three elements of that responsibility must be proved beyond reasonable doubt: the existence of a superior-subordinate relationship; the fact that the superior knew or had reason to know that the criminal act was about to be or had been committed; and the fact that the superior failed to take the necessary and reasonable measures to prevent the criminal act or punish the perpetrator thereof. 
ICTY, Blaškić case, Judgment on Appeal, 29 July 2004, § 484.
On the question of failure to punish, the Appeals Chamber found:
[I]t has been established that superior responsibility may entail inter alia the submission of reports to the competent authorities in order to constitute a reasonable and necessary measure aimed at preventing or repressing the infraction. Commanders are under a duty to report infractions to the competent authorities as is specifically provided for both by the SFRY [Socialist Federal Republic of Yugoslavia] regulations concerning the application of the international law of war, and by Article 87(1) of Additional Protocol I, and by Article 86(2) of Additional Protocol I. Notably, this duty is present even in circumstances where the commander may not exercise effective control over the perpetrators of the infractions concerned such that he can punish them. 
ICTY, Blaškić case, Judgment on Appeal, 29 July 2004, § 632.
International Criminal Tribunal for the former Yugoslavia
In its judgment on appeal in the Mucić case in 2001, the ICTY Appeals Chamber upheld the interpretation of Article 7(3) of the 1993 ICTY Statute given by the Trial Chamber to the standard “had reason to know” and stated:
A superior will be criminally responsible through the principles of superior responsibility only if information was available to him which would have put him on notice of offences committed by subordinates. This is consistent with the customary law standard of mens rea as existing at the time of the offences charged in the indictment. 
ICTY, Mucić case, Judgment of Appeal, 20 February 2001, § 241.
International Criminal Tribunal for the former Yugoslavia
In its judgment in the Kunarac case in 2001, the ICTY Trial Chamber, under the heading “Command responsibility under Article 7(3) of the [1993 ICTY] Statute”, stated:
395. … The following three conditions must be met before a commander can be held responsible for the acts of his or her subordinates:
(i) the existence of a superior-subordinate relationship;
(ii) the superior knew or had reason to know that the criminal act was about to be or had been committed; and
(iii) the superior failed to take the necessary and reasonable measures to prevent the criminal act or punish the perpetrator thereof.
396. Because of the findings of the Trial Chamber, it need only deal with the first of those elements. A superior-subordinate relationship must exist for the recognition of this kind of responsibility. However, such a relationship cannot be determined by reference to formal status alone. Accordingly, formal designation as a commander is not necessary for establishing command responsibility, as such responsibility may be recognised by virtue of a person’s de facto, as well as de jure, position as a commander. What must be established is that the superior had effective control over subordinates. That means that he must have had the material ability to exercise his powers to prevent and punish the commission of the subordinates’ offences.
397. The relationship between the commander and his subordinates need not have been formalized; a tacit or implicit understanding between them as to their positioning vis-à-vis one another is sufficient. The giving of orders or the exercise of powers generally attached to a military command are strong indications that an individual is indeed a commander. But these are not the sole relevant factors.
398. Depending on the circumstances, a commander with superior responsibility under Article 7(3) may be a colonel commanding a brigade, a corporal commanding a platoon or even a rankless individual commanding a small group of men. The Commentary to the two Additional Protocols of 1977 to the Geneva Conventions of 1949 states:
As there is no part of the army which is not subordinated to a military commander at whatever level, this [command] responsibility applies from the highest to the lowest level of the hierarchy, from the Commander-in-Chief down to the common soldier who takes over as head of the platoon.
This conclusion is also supported by the legislation in force at the time in the relevant area, namely, the former SFRY [Socialist Federal Republic of Yugoslavia] and later the Republika Srpska.
399. Both those permanently under an individual’s command and those who are so only temporarily or on an ad hoc basis can be regarded as being under the effective control of that particular individual. The temporary nature of a military unit is not, in itself, sufficient to exclude a relationship of subordination between the members of a unit and its commander. To be held liable for the acts of men who operated under him on an ad hoc or temporary basis, it must be shown that, at the time when the acts charged in the Indictment were committed, these persons were under the effective control of that particular individual. 
ICTY, Kunarac case, Judgment, 22 February 2001, §§ 395–399.
[emphasis in original]
International Criminal Tribunal for the former Yugoslavia
In its judgment in the Kordić and Čerkez case in 2001, the ICTY Trial Chamber held:
Article 7 [of the 1993 ICTY Statute] is clearly intended to assign individual criminal responsibility at different levels, both subordinate and superior, for the commission of crimes listed in Articles 2 to 5 of the Statute. Article 7 gives effect to a general principle of criminal law that an individual is responsible for his acts and omissions. It provides that an individual may be held criminally responsible for the direct commission of a crime, whether as an individual or jointly, or through his omissions for the crimes of his subordinates when under an obligation to act. Article 7(3) of the Statute sets forth the principle governing the responsibility of superiors commonly referred to as “command responsibility”. 
ICTY, Kordić and Čerkez case, Judgment, 26 February 2001, § 364.
The Trial Chamber also noted:
369. The type of responsibility provided for in Article 7(3) [of the 1993 ICTY Statute] may be described as “indirect” as it does not stem from a “direct” involvement by the superior in the commission of a crime but rather from his omission to prevent or punish such offence, i.e., of his failure to act in spite of knowledge. This responsibility arises only where the superior is under a legal obligation to act … The duty that rests on military commanders properly to supervise their subordinates is for instance expressed in Article 87 of Additional Protocol I, entitled “Duty of commanders”, which imposes an affirmative duty on them to prevent persons under their control from committing violations of international humanitarian law, and to punish the perpetrators if violations occur. Liability under Article 7(3) is based on an omission as opposed to positive conduct. It should be emphasised that the doctrine of command responsibility does not hold a superior responsible merely because he is in a position of authority as, for a superior to be held liable, it is necessary to prove that he “knew or had reason to know” of the offences and failed to act to prevent or punish their occurrence. Superior responsibility, which is a type of imputed responsibility, is therefore not a form of strict liability.
371. The Trial Chamber is of the view that in cases where the evidence presented demonstrates that a superior would not only have been informed of subordinates’ crimes committed under his authority, but also exercised his powers to plan, instigate or otherwise aid and abet in the planning, preparation or execution of these crimes, the type of criminal responsibility incurred may be better characterised by Article 7(1) [of the 1993 ICTY Statute]. Where the omissions of an accused in a position of superior authority contribute (for instance by encouraging the perpetrator) to the commission of a crime by a subordinate, the conduct of the superior may constitute a basis for liability under Article 7(1). 
ICTY, Kordić and Čerkez case, Judgment, 26 February 2001, §§ 369 and 371.
In its judgment in the Kordić and Čerkez case in 2004, the ICTY Appeals Chamber noted that ICTY case law recognizes “three elements that have to be proved in order to establish command responsibility under Article 7(3) of the [1993 ICTY] Statute”:
(1) the relationship of superiority and subordination between the alleged commander and perpetrator of the crime;
(2) the mental element, or knowledge of the superior that his or her subordinate had committed or was about to commit the crime;
(3) the failure of the superior to prevent the commission of the crime or punish the perpetrator. 
ICTY, Kordić and Čerkez case, Judgment on Appeal, 17 December 2004, § 827.
International Criminal Tribunal for the former Yugoslavia
In its judgment in the Krstić case in 2001, the ICTY Trial Chamber stated:
604. According to the case law, the following three conditions must be met before a person can be held responsible for the acts of another person under Article 7(3) of the [1993 ICTY] Statute:
– The existence of a superior-subordinate relationship;
– The superior knew or had reason to know that the criminal act was about to be or had been committed; and
– The superior failed to take the necessary and reasonable measures to prevent the criminal act or punish the perpetrator thereof.
605. The facts pertaining to the commission of a crime may establish that the requirements for criminal responsibility under both Article 7(1) and Article 7(3) [of the 1993 ICTY Statute] are met. However, the Trial Chamber adheres to the belief that where a commander participates in the commission of a crime through his subordinates, by “planning”, “instigating” or “ordering” the commission of the crime, any responsibility under Article 7(3) is subsumed under Article 7(1). The same applies to the commander who incurs criminal responsibility under the joint criminal enterprise doctrine through the physical acts of his subordinates. 
ICTY, Krstić case, Judgment, 2 August 2001, §§ 604–605.
[emphasis in original]
As to General Krstić’s possible individual criminal responsibility, the Trial Chamber stated, inter alia:
647. The evidence also satisfies the three-pronged test established by the jurisprudence for General Krstic to incur command responsibility under Article 7(3) [of the 1993 ICTY Statute] for the participation of Drina Corps personnel in the killing campaign.
648. First, General Krstic exercised effective control over Drina Corps troops involved in the killings. Second, in terms of mens rea, not only was General Krstic fully aware of the ongoing killing campaign and of its impact on the survival of the Bosnian Muslim group at Srebrenica, as well as the fact that it was related to a widespread or systematic attack against Srebrenica’s Bosnian Muslim civilian population, but the Drina Corps (and Main Staff) officers and troops involved in conducting the executions had to have been aware of the genocidal objectives. Third, General Krstic failed to prevent his Drina Corps subordinates from participating in the crimes or to punish them thereafter. 
ICTY, Krstić case, Judgment, 2 August 2001, §§ 647–648.
The Trial Chamber, under Article 7(1) of the 1993 ICTY Statute, convicted Krstić as a principal co-perpetrator of genocide, persecutions, and murder as a violation of the laws or customs of war; it sentenced him to 46 years’ imprisonment. 
ICTY, Krstić case, Judgment, 2 August 2001, § 727, V. Disposition.
The ICTY Appeals Chamber, in its judgment in 2004, convicted him of genocide, extermination, persecution and murder as a violation of the laws or customs of war. Unlike the Trial Chamber, the Appeals Chamber, Judge Shahabuddeen dissenting, considered his level of criminal responsibility to be that of an aider and abettor, punishable under Article 7(1) of the 1993 ICTY Statute. It sentenced Krstić to 35 years’ imprisonment. 
ICTY, Krstić case, Judgment on Appeal, 19 April 2004, VII. Disposition, p. 87.
International Criminal Tribunal for the former Yugoslavia
In the Krnojelac case before the ICTY in 2001, the accused was charged with crimes against humanity (persecution, torture, inhumane acts, murder, imprisonment and enslavement), punishable under Article 5 of the 1993 ICTY Statute, and violations of the laws or customs of war (torture, cruel treatment, murder and slavery), punishable under Article 3 of the 1993 ICTY Statute, for his role as the commander of the Foca Kazneno-Popravni Dom prison facility in Bosnia and Herzegovina. 
ICTY, Krnojelac case, Third Amended Indictment, 25 June 2001, §§ 5.1–5.46, Counts 1, 2, 4, 5, 7, 8, 10, 11, 13, 15, 16 and 18.
In its judgment, the Trial Chamber stated with respect to the issue of superior responsibility for war crimes:
92. The elements of individual criminal responsibility under Article 7(3) of the [1993 ICTY] Statute have been firmly established by the jurisprudence of the Tribunal. Three conditions must be met before a superior can be held responsible for the acts of his or her subordinates:
1. the existence of a superior-subordinate relationship;
2. the superior knew or had reason to know that the subordinate was about to commit such acts or had done so; and
3. the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the principal offenders thereof.
93. The existence of a superior-subordinate relationship requires a hierarchical relationship between the superior and subordinate. The relationship need not have been formalised and it is not necessarily determined by formal status alone. A hierarchical relationship may exist by virtue of an accused’s de facto, as well as de jure, position of superiority. What must be demonstrated is that the superior had “effective control” over the persons committing the alleged offences. Effective control means the material ability to prevent offences or punish the principal offenders. Where a superior has effective control and fails to exercise that power he will be responsible for the crimes committed by his subordinates. Two or more superiors may be held responsible for the same crime perpetrated by the same individual if it is established that the principal offender was under the command of both superiors at the relevant time.
94. It must be demonstrated that the superior knew or had reason to know that his subordinate was about to commit or had committed a crime. It must be proved that (i) the superior had actual knowledge, established through either direct or circumstantial evidence, that his subordinates were committing or about to commit crimes within the jurisdiction of the Tribunal, or (ii) he had in his possession information which would at least put him on notice of the risk of such offences, such information alerting him to the need for additional investigation to determine whether such crimes were or were about to be committed by his subordinates. This knowledge requirement has been applied uniformly in cases before this Tribunal to both civilian and military commanders. The Trial Chamber is accordingly of the view that the same state of knowledge is required for both civilian and military commanders.
95. It must be shown that the superior failed to take the necessary and reasonable measures to prevent or punish the crimes of his subordinates. The measures required of the superior are limited to those which are feasible in all the circumstances and are “within his power”. A superior is not obliged to perform the impossible. However, the superior has a duty to exercise the powers he has within the confines of those limitations. 
ICTY, Krnojelac case, Judgment, 15 March 2002, §§ 92–95.
In its judgment in 2003, the Appeals Chamber emphasized that “where superior responsibility is concerned, an accused is not charged with the crimes of his subordinates but with his failure to carry out his duty as a superior to exercise control.” 
ICTY, Krnojelac case, Judgment on Appeal, 17 September 2003, § 171.
International Criminal Tribunal for the former Yugoslavia
In the Sefer Halilović case before the ICTY in 2001, the accused, a senior officer in the Army of the Republic of Bosnia and Herzegovina (ABiH), was charged with murder as a violation of the laws or customs of war for his alleged role as a superior in acts committed by ABiH forces in the villages of Grabovica and Uzdol in 1993. 
ICTY, Sefer Halilović case, Indictment, 12 September 2001, §§ 1–34, Count 1.
With respect to individual criminal responsibility of superiors for acts of subordinates under Article 7(3) of the 1993 ICTY Statute, the Prosecution stated:
[The accused], whilst holding the position of superior authority … , is criminally responsible for the acts of his subordinates, pursuant to Article 7(3) of the Statute. A superior is responsible for the acts of his subordinate(s) if he knew or had reason to know that his subordinate(s) were about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof. 
ICTY, Sefer Halilović case, Indictment, 12 September 2001, § 43.
In its judgment in 2005, the ICTY Trial Chamber stated with respect to superior responsibility under Article 7(3) of the 1993 ICTY Statute:
38. … It is clear that the form of responsibility set out in Article 7(3) of the Statute is based upon the duty of superiors to act, which consists of a duty to prevent and a duty to punish criminal acts of their subordinates. It is thus the “failure to act when under a duty to do so” which is the essence of this form of responsibility. As will be seen below, this duty to act arises by virtue of a superior’s possession of effective control over his subordinates.
39. The Trial Chamber recalls that the purpose behind the concept of command responsibility is to ensure compliance with the laws and customs of war and international humanitarian law generally. The principle of command responsibility may be seen in part to arise from one of the basic principles of international humanitarian law aiming at ensuring protection for protected categories of persons and objects during armed conflicts. This protection is at the very heart of international humanitarian law. Ensuring this protection requires, in the first place, preventative measures which commanders are in a position to take, by virtue of the effective control which they have over their subordinates, thereby ensuring the enforcement of international humanitarian law in armed conflict. A commander who possesses effective control over the actions of his subordinates is duty bound to ensure that they act within the dictates of international humanitarian law and that the laws and customs of war are therefore respected.
40. The elements of command responsibility are derived from the duties comprised in responsible command, and those duties are generally enforced through command responsibility. For many years the responsibility of commanders for the conduct of their troops has been recognised in domestic jurisdictions. The concept of responsible command can be seen in the earliest modern codifications of the laws of war. It was incorporated in the 1899 Hague Convention with Respect to the Laws and Customs of War on Land. It was also reproduced in Article 1 of the Regulations Respecting the Laws and Customs of War on Land annexed to the Fourth Hague Convention of 1907 which states:
The laws, rights and duties of war apply not only to armies, but also to militia and volunteer corps fulfilling the following criteria:
To be commanded by a person responsible for his subordinates[…]
41. It was only in the aftermath of the Second World War that the concept of command responsibility for failure to act received its first judicial recognition in an international context. This form of responsibility by omission was formally recognised by Additional Protocol I of 8 June 1977 to the Geneva Conventions of 12 August 1949. Article 86 of Additional Protocol I affirms this form of responsibility, the basis for which is the duty placed on commanders by Article 87 of the same Protocol to preclude violations of the Geneva Conventions and their Additional Protocols.
2. The Nature of Command Responsibility in International Law
42. The concept of command responsibility as a form of individual criminal responsibility emerged in the post World War II era in national war crimes legislation, as well as in some post World War II case law. Prior to this, the responsibility of commanders in international law had been connected with the responsibility of states to ensure compliance with the laws of war. However, the post World War II case law contained differing views as to the nature of command responsibility, that is as liability for the crimes of subordinates, or, as a sui generis responsibility for dereliction of duty.
43. National legislation enacted in the post World War II period, for example in Canada, France, and Britain, considered command responsibility as a form of accomplice liability. In other words, a commander’s failure to prevent or repress the breaches of international humanitarian law committed by his subordinates amounted to encouragement or assistance of the subordinates in the commission of the crime.
44. Certain post World War II trials attached liability to commanders for the crimes of their subordinates. For example, in Re Yamashita, although the charge was essentially one of breach of Yamashita’s duty as a commander, the United States Supreme Court attributed responsibility to Yamashita for having violated the laws of war by permitting his troops to commit atrocities. They based their imposition of individual responsibility on the concept of responsible command found in Article 1 of Fourth Hague Convention of 1907 and Article 43 of the annex thereto, Article 19 of the Tenth Hague Convention, and Article 26 of the Geneva Red Cross Convention. In his dissenting opinion, Justice Murphy argued that these provisions did not impose individual responsibility on a commander to control his troops, he stated that; “the laws of war heretofore recognized by this nation fail to impute responsibility to a fallen commander for excesses committed by his disorganised troops while under attack.” He noted that there were cases from the beginning of the 20th Century where commanding officers were found to have violated the laws of war where they knew that a crime was to be committed and where they had the power to prevent it, but failed to exercise that power. However, Justice Murphy’s main argument against the conviction of Yamashita was that there was no knowledge element. He stated “it is quite another thing to say that the inability to control troops under highly competitive and disastrous battle conditions renders one guilty of a war crime in the absence of personal culpability. Had there been some element of knowledge or direct connection with the atrocities the problem would be entirely different.” It would seem, therefore, that the Supreme Court, and Justice Murphy in his dissent, did not object to a commander’s liability for a war crime committed by his subordinates where he failed in his duty as a commander to control his troops. However, Justice Murphy considered that there must be a knowledge element for a commander to be held responsible.
45. The Hostage case, in examining the duty of commanders of occupied territory stated that “the commanding general of occupied territory, having executive authority as well as military command, will not be heard to say that a unit taking unlawful orders from someone other than himself was responsible for the crime and that he is thereby absolved from responsibility.” In examining the individual responsibility of defendant List, the Court stated that “absence from headquarters cannot and does not relieve one from responsibility for acts committed in accordance with a policy he instituted or in which he acquiesced.” However, the Court in that case also found that a defendant’s “failure to terminate […] unlawful killings and to take adequate steps to prevent their recurrence constitutes a serious breach of duty and imposes criminal responsibility.”
46. The High Command case in examining the liability of defendant Von Leeb for the crimes of those within his area of command stated that to establish the guilt of a defendant from connection with the acts “of the SIPO and SD” “by acquiescence,” “not only must knowledge be established, but the time of such knowledge must be established.” The Court in that case also stated that,
“[c]riminal acts committed by those forces [under his command] cannot in themselves be charged to him on the theory of subordination. The same is true of other high commanders in the chain of command. Criminality does not attach to every individual in this chain of command from that fact alone. There must be a personal dereliction. That can occur only where the act is directly traceable to him or where his failure to properly supervise his subordinates constitutes criminal negligence on his part. In the latter case it must be a personal neglect amounting to a wanton, immoral disregard of the action of his subordinates amounting to acquiescence.”
47. The Toyoda case considered that the responsibility of a commander was for dereliction of duty, stating:
“in the simplest language it may be said that this Tribunal believes the principle of command responsibility to be that if this accused knew, or should by the exercise of ordinary diligence have learned, of the commission by his subordinates, immediate or otherwise, of the atrocities […], and, by his failure to take any action to punish the perpetrators, permitted the atrocities to continue, he has failed in his performance of his duty as a commander and must be punished.”
48. It may be concluded, therefore, that the post World War II case law was not uniform in its determination as to the nature of the responsibility arising from the concept of command responsibility.
49. Articles 86 and 87 of Additional Protocol I to the Geneva Conventions codified the concept of command responsibility. Article 86(2) provides for a commander’s liability, either criminal or disciplinary, for the crimes of his subordinates where he fails to “prevent or repress” those acts. The Commentary to paragraph 1 of Article 86 notes that responsibility for a breach of the Geneva Conventions consisting of a failure to act can only be established if the person failed to act when under a duty to do so. The Commentary to paragraph 2 of Article 86, which is to be read in conjunction with Article 87, acknowledges that this provision is the first in international law to impose penal sanctions for a failure to act. The Commentary notes that Article 86 applies both to breaches and to grave breaches, and that the term “penal or disciplinary” applies in the first case, while in the second case the principle of universal jurisdiction, understood as “aut dedere aut judicare” applies – that is the duty to extradite or prosecute. Thus, Article 86(2) attaches criminal responsibility for grave breaches of the Geneva Conventions. The Article is, however, silent as to the nature of the criminal responsibility – that is; whether it is responsibility for dereliction of duty or responsibility for the crimes of subordinates.
50. With regard to the Statute of the Tribunal, the text of Article 7(3) is not explicit as to whether liability attaches to a commander for the crimes of his subordinates or for dereliction of duty. In this regard the reports submitted to the Security Council prior to the adoption of the Statute may be of assistance.
51. A reading of the Secretary General’s Report concerning Article 7(3) does not exclude the possibility that command responsibility under the Statute of the Tribunal may be responsibility for dereliction of duty. The Report states that a commander “should be held responsible for failure to prevent a crime or to deter the unlawful behaviour of his subordinates.” It is interesting to note in this respect, the clarification provided by the United Nations Commission of Experts Final Report. In examining command responsibility the Commission of Experts stated that superiors are “individually responsible for a war crime or crime against humanity committed by a subordinate”. The Commission of Experts, in addressing command responsibility in their First Interim Report, stated that “military commanders are under a specific obligation, with respect to members of the armed forces under their command[…] to prevent and[…]suppress”. Having cited the paragraphs from their Interim Report, including the above-mentioned element, the Commission of Experts noted in their Final Report that “Article 7 of the statute of the international tribunal uses an essentially similar formulation”. Thus, the Commission of Experts may have considered that Article 7(3) attached responsibility to commanders for the crimes of their subordinates.
52. The ILC Commentary, which is based upon Articles 86 and 87 of Additional Protocol I, and 7(3) of the ICTY Statute and Article 6(3) of the ICTR Statute, considered that a military commander may be held criminally responsible for the unlawful conduct of his subordinates if he contributes indirectly to the commission of a crime by failing to prevent or repress that crime. The ILC Commentary provides that Article 6 confirms the individual criminal responsibility of the superior who is held accountable for a crime against the peace and security of mankind committed by his subordinate if certain criteria are met. Furthermore, in elaborating the mental element they state that “Article 6 provides two criteria for determining whether a superior is to be held criminally responsible for the wrongful conduct of a subordinate.”
53. While the post World War II case law was divergent as to the question of the exact nature of command responsibility, and Article 86(2) of Additional Protocol I and Article 7(3) are silent as to the nature of the responsibility of commanders, whether command responsibility is a mode of liability for the crimes of subordinates or responsibility of a commander for dereliction of duty has not been considered at length in the jurisprudence of the Tribunal. However, the consistent jurisprudence of the Tribunal has found that a commander is responsible for the crimes of his subordinates under Article 7(3). For example, the Trial Chamber in Čelebići held that “[t]he type of individual criminal responsibility for the illegal acts of subordinates … is commonly referred to as ‘command responsibility’”. The Trial Chamber continued; “[t]hat military commanders and other persons occupying positions of superior authority may be held criminally responsible for the unlawful conduct of their subordinates is a well-established norm of customary and conventional international law.” It may be noted that in this regard the Trial Chamber cited the Secretary General’s Report in support of its determination. The Appeals Chamber in Čelebići also held that where a superior has effective control over his subordinates “he could be held responsible for the commission of the crimes if he failed to exercise such abilities of control”. However, the Trial Chamber notes that there are further interpretations of command responsibility before the Tribunal. The Trial Chamber notes that Articles 7(1) and 7(3) are distinct modes of liability, as the Trial Chamber in Aleksovski held:
The doctrine of superior responsibility makes a superior responsible not for his acts sanctioned by Article 7(1) of the Statute but for his failure to act. A superior is held responsible for the acts of his subordinates if he did not prevent the perpetration of the crimes of his subordinates or punish them for the crimes.
The Trial Chamber also recalls the Partially Dissenting Opinion of Judge Shahabuddeen in the Hadžihasanović Appeals Chamber Decision, stating:
The position of the appellants seems to be influenced by their belief that Article 7(3) of the Statute has the effect, as they say, of making the commander “guilty of an offence committed by others even though he neither possessed the applicable mens rea nor had any involvement whatsoever in the actus reus.” No doubt, arguments can be made in support of that reading of the provision, but I prefer to interpret the provision as making the commander guilty for failing in his supervisory capacity to take the necessary corrective action after he knows or has reason to know that his subordinate was about to commit the act or had done so.
54. The Trial Chamber finds that under Article 7(3) command responsibility is responsibility for an omission. The commander is responsible for the failure to perform an act required by international law. This omission is culpable because international law imposes an affirmative duty on superiors to prevent and punish crimes committed by their subordinates. Thus “for the acts of his subordinates” as generally referred to in the jurisprudence of the Tribunal does not mean that the commander shares the same responsibility as the subordinates who committed the crimes, but rather that because of the crimes committed by his subordinates, the commander should bear responsibility for his failure to act. The imposition of responsibility upon a commander for breach of his duty is to be weighed against the crimes of his subordinates; a commander is responsible not as though he had committed the crime himself, but his responsibility is considered in proportion to the gravity of the offences committed. The Trial Chamber considers that this is still in keeping with the logic of the weight which international humanitarian law places on protection values.
3. The Elements of Command Responsibility
55. The principle of individual criminal responsibility of commanders for failure to prevent or to punish crimes committed by their subordinates is an established principle of customary international law. Article 7(3) of the Statute is applicable to all acts referred to in Articles 2 to 5 thereof and applies to both international and non-international armed conflicts.
56. To hold a superior responsible under Article 7(3) of the Statute, the jurisprudence of the Tribunal has established that three elements must be satisfied:
i. The existence of a superior-subordinate relationship;
ii. the superior knew or had reason to know that the criminal act was about to be or had been committed; and
iii. the superior failed to take the necessary and reasonable measures to prevent the criminal act or punish the perpetrator thereof.
(a) Superior-Subordinate Relationship
57. It is the position of command over the perpetrator which forms the legal basis for the superior’s duty to act, and for his corollary liability for a failure to do so. As held by the Trial Chamber in Čelebići, the doctrine of command responsibility is “ultimately predicated upon the power of the superior to control the acts of his subordinates.”
58. The main factor in determining a position of command is the “actual possession or non-possession of powers of control over the actions of subordinates”. In determining the degree of control required by the superior over the subordinate for command responsibility to be applicable, the Appeals Chamber endorsed the concept of “effective control”, which it defined as “the material ability to prevent and punish criminal conduct”. In this respect, factors indicative of an accused’s position of authority and effective control may include the official position held by the accused, his capacity to issue orders, whether de jure or de facto, the procedure for appointment, the position of the accused within the military or political structure and the actual tasks that he performed. The Appeals Chamber in Blaškić held that “the indicators of effective control are more a matter of evidence than of substantive law, and those indicators are limited to showing that the accused had the power to prevent, punish, or initiate measures leading to proceedings against the alleged perpetrators where appropriate”.
59. A degree of control which falls short of the threshold of effective control is insufficient for liability to attach under Article 7(3). “Substantial influence” over subordinates which does not meet the threshold of effective control is not sufficient under customary law to serve as a means of exercising command responsibility and, therefore, to impose criminal liability.
60. The jurisprudence of the Tribunal has interpreted the concepts of command and subordination in a relatively broad sense. Command does not arise solely from the superior’s formal or de jure status, but can also be “based on the existence of de facto powers of control”. In this respect, the necessity to establish the existence of a hierarchical relationship between the superior and the subordinate does “not […] import a requirement of direct or formal subordination”.
61. Command responsibility applies to every commander at every level in the armed forces. This includes responsibility for troops who have been temporarily assigned to that commander. Article 87(1) of Additional Protocol I states that the duty of commanders applies “to the armed forces under their command and other persons under their control”. The ICRC Commentary to Article 87(1) provides:
A commander may, for a particular operation and for a limited period of time, be supplied with reinforcements consisting of troops who are not normally under his command. He must ensure that these members of the armed forces comply with the Conventions and the Protocol as long as they remain under his command.
To hold a commander liable for the acts of troops who operated under his command on a temporary basis it must be shown that at the time when the acts charged in the indictment were committed, these troops were under the effective control of that commander.
62. The Trial Chamber also recalls that the test of effective control implies that more than one superior may be held responsible for his failure to prevent or punish the same crime committed by a subordinate.
63. Consistent with the above reasoning, there is no requirement that the superior-subordinate relationship be direct or immediate in nature for a commander to be found liable for the acts of his subordinate. What is required is the establishment of the superior’s effective control over the subordinate, whether that subordinate is immediately answerable to that superior or more remotely under his command. As to whether the superior has the requisite level of control, this is a matter which must be determined on the basis of the evidence presented in each case.
(b) Mental Element: “Knew Or Had Reason To Know”
64. The mental element required for a superior to be held responsible under Article 7(3) of the Statute is established where the superior knew or had reason to know that the subordinate was about to commit or had committed a crime.
65. Superior responsibility is not a form of strict liability. It must be proved either that (1) the superior had actual knowledge that his subordinates were committing or about to commit crimes within the jurisdiction of the Tribunal, or that (ii) he had in his possession information which would at least put him on notice of the risk of such offences, such information alerting him to the need for additional investigation to determine whether such crimes had been or were about to be committed by his subordinates.
(i) Actual Knowledge
66. A superior’s actual knowledge that his subordinates were committing or were about to commit a crime cannot be presumed, but may be established through circumstantial evidence. Factors which may be considered in this respect include the number, type and scope of illegal acts committed by the subordinates as alleged in the indictment, the time during which the illegal acts occurred, the number and types of troops and logistics involved, the geographical location, whether the occurrence of the acts is widespread, the tactical tempo of operations, the modus operandi of similar illegal acts, the officers and staff involved, and the location of the commander at the time. In relation to geographical and temporal circumstances, the more physically distant the superior was from the scene of the crimes, the more evidence which may be necessary to prove that he had actual knowledge of them. On the other hand, if the crimes were committed next to the superior’s duty-station this may be an important indicium that the superior had knowledge of the crimes, and even more so if the crimes were repeatedly committed. Additionally, the fact that a military commander “will most probably” be part of an organised structure with reporting and monitoring systems has been found to facilitate proof of actual knowledge.
(ii) “Had Reason to know”
67. A commander will be considered to have “had reason to know” only if information was available to him which would have put him on notice of offences committed by his subordinates, or about to be committed. The Appeals Chamber in Čelebići , held that:
The phrase, “had reason to know”, is not as clear in meaning as that of “had information enabling them to conclude”, although it may be taken as effectively having a similar meaning. The latter standard is more explicit, and its rationale is plain: failure to conclude, or conduct additional inquiry, in spite of alarming information constitutes knowledge of subordinate offences. Failure to act when required to act with such knowledge is the basis for attributing liability in this category of case.
68. The Appeals Chamber in Čelebići held that even general information in the possession of the commander which would put him on notice of possible unlawful acts by his subordinates would be sufficient. This information does not need to provide specific information about unlawful acts committed or about to be committed; if a military commander, for example, has received information that some of the soldiers under his command have a violent or unstable character, or have been drinking prior to being sent on a mission, he may be considered as having the requisite knowledge. The Appeals Chamber also made reference to the Commentary to Additional Protocol I, which refers to “reports addressed to the superior, […] the tactical situation, the level of training and instruction of subordinate officers and their troops, and their character traits” as potentially constituting the information referred to in Article 86(2) of Additional Protocol I. A superior may be regarded as having “reason to know” if he is in possession of sufficient information to be on notice of the likelihood of illegal acts by his subordinates, that is, if the information available is sufficient to justify further inquiry. However, the information in fact available to him need not be such that, by itself, it was sufficient to compel the conclusion of the existence of such crimes. Thus a commander’s knowledge of, for example, the criminal reputation of his subordinates may be sufficient to meet the mens rea standard required by Article 7(3) of the Statute if it amounted to information which would put him on notice of the “present and real risk” of offences within the jurisdiction of the Tribunal.
69. A superior is not liable for failing to acquire information in the first place. The Appeals Chamber has held that knowledge cannot be presumed if a person fails in his duty to obtain the relevant information of a crime, but it may be presumed where a superior had the means to obtain the relevant information and deliberately refrained from doing so. Furthermore, a commander is not permitted to remain “wilfully blind” of the acts of his subordinates.
70. The Trial Chamber notes that an assessment of the mental element required by Article 7(3) of the Statute should be conducted in the specific circumstances of each case, taking into account the specific situation of the superior concerned at the time in question. This is a factual assessment to be made on the basis of the evidence presented to the Trial Chamber.
71. In conclusion, the Trial Chamber must be satisfied that, pursuant to Article 7(3) of the Statute, the accused either “knew” or “had reason to know”. In this respect, the Trial Chamber notes that the Appeals Chamber has held that criminal negligence is not a basis of liability in the context of command responsibility.
(c) Failure to Prevent or Punish
72. Article 7(3) contains two distinct legal obligations: to prevent the commission of the offence and to punish the perpetrators thereof. The duty to prevent arises when the commander acquires actual knowledge or has reasonable grounds to suspect that a crime is being or is about to be committed, while the duty to punish arises after the commission of the crime. A failure to take the necessary and reasonable measures to prevent an offence of which a superior knew or had reason to know cannot be cured simply by subsequently punishing the subordinate for the commission of the offence.
(i) Necessary and Reasonable Measures
73. The question of whether a superior has failed to take all necessary and reasonable measures to prevent the commission of an offence or to punish the perpetrators thereof is intrinsically connected to the question of that superior’s effective control. A superior will be liable for a failure to take such measures that are “within his material possibility”. A superior has a duty to exercise the measures possible under the circumstances. Therefore, the question as to whether a superior had explicit legal capacity to take such measures may be irrelevant under certain circumstances if it is proven that he had the material ability to act.
74. The determination of what constitutes “necessary and reasonable measures” to prevent the commission of crimes or to punish the perpetrators is not a matter of substantive law but of evidence. These measures are such that can be taken within the material ability of a commander as evidenced by the degree of effective control he wielded over his subordinates. It is well established these measures may “vary from case to case”. When determining whether necessary and reasonable measures have been taken, the relevant factors to be considered include: whether specific orders prohibiting or stopping the criminal activities were issued, what measures to secure the implementation of these orders were taken, what other measures were taken to ensure that the unlawful acts were interrupted and whether these measures were reasonably sufficient in the specific circumstances, and, after the commission of the crime, what steps were taken to secure an adequate investigation and to bring the perpetrators to justice.
(ii) Causation
75. In relation to the issue of whether the nexus of causation exists in the concept of command responsibility, the Trial Chamber notes that the Čelebići Trial Chamber held:
Notwithstanding the central place assumed by the principle of causation in criminal law, causation has not traditionally been postulated as a conditio sine qua non for the imposition of criminal liability on superiors for their failure to prevent or punish offences committed by their subordinates. Accordingly, the Trial Chamber has found no support for the existence of a requirement of proof of causation as a separate element of superior responsibility, either in the existing body of case law, the formulation of the principle in existing treaty law, or, with one exception, in the abundant literature on this subject.
This is not to say that, conceptually, the principle of causality is without application to the doctrine of command responsibility insofar as it relates to the responsibility of superiors for their failure to prevent the crimes of their subordinates. In fact, a recognition of a necessary causal nexus may be considered to be inherent in the requirement of crimes committed by subordinates and the superior’s failure to take the measures within his powers to prevent them. In this situation, the superior may be considered to be causally linked to the offences, in that, but for his failure to fulfil his duty to act, the acts of his subordinates would not have been committed.
76. The Čelebići Trial Chamber concluded that the very existence of the principle of superior responsibility for failure to punish, recognised under Article 7(3) and in customary law, demonstrates the absence of a requirement of causality as a separate element of the doctrine of superior responsibility. The Kordić and Čerkez Trial Chamber also endorsed this view.
77. The Appeals Chamber in Blaškić stated that it was “not persuaded by [the argument] that the existence of causality between a commander’s failure to prevent subordinates’ crimes and the occurrence of these crimes, is an element of command responsibility that requires proof by the Prosecution in all circumstances of a case”.
78. The Trial Chamber further notes that the nature of command responsibility itself, as a sui generis form of liability, which is distinct from the modes of individual responsibility set out in Article 7(1), does not require a causal link. Command responsibility is responsibility for omission, which is culpable due to the duty imposed by international law upon a commander. If a causal link were required this would change the basis of command responsibility for failure to prevent or punish to the extent that it would practically require involvement on the part of the commander in the crime his subordinates committed, thus altering the very nature of the liability imposed under Article 7(3).
(iii) Duty to Prevent
79. According to the jurisprudence of the Tribunal, the duty to prevent should be understood as resting on a superior at any stage before the commission of a subordinate crime if he acquires knowledge that such a crime is being prepared or planned, or has reason to know thereof.
80. The duty to prevent may be seen to include both a “general obligation” and a “specific obligation” to prevent crimes within the jurisdiction of the Tribunal. The Trial Chamber notes, however, that only the “specific obligation” to prevent triggers criminal responsibility as provided for in Article 7(3) of the Statute.
a. General obligation
81. The existence of a general obligation to prevent the commission of crimes stems from the duty of a commander, arising from his position of effective control, which places him in the best position to prevent serious violations of international humanitarian law. This obligation can be seen to arise from the importance which international humanitarian law places on the prevention of violations.
82. In the post World War II jurisprudence, both the Hostage and High Command cases considered that there was a positive duty on commanders to maintain order and protect the civilian population within their area of command. Similarly, the Toyoda judgement explicitly recognised that superiors have “[a] duty to control, to take necessary steps to prevent commission […] of atrocities, and to punish offenders”.
83. The codification of the concept of command responsibility in Article 87 of Additional Protocol I also indicates the existence of a prior preventative duty. It imposes a duty on commanders to “ensure that members of the armed forces under their command are aware of their obligations under the Conventions and this Protocol.” The ICRC Commentary to Article 87 paragraph 3, in examining the issue of the competing needs of respect for the Conventions and the commander’s need to focus on combat, states:
first, the preventive stage, which consists of instructing members of the armed forces and inculcating habits and reflexes which are reconcilable with the requirements of the Conventions, does not take place during combat, but before -- even before war has broken out. Secondly it is appropriate to point out that orders are not only given during combat, but mostly beforehand. All orders given before combat should always and at every level include a reminder of the provisions of the Conventions that are relevant in the particular situation.
84. There also appears to be a requirement that a commander ensure order and exercise control over troops, which includes, for example, a need to be aware of the condition of troops, and to impose discipline. As noted above, the ICRC Commentary to Article 87 of Additional Protocol I states that a commander is required to exercise discipline over his troops to a sufficient degree.
85. The ICRC Commentary further states that it is because military commanders have the means for ensuring respect for the rules of the Conventions that they have the authority and more than anyone else they can prevent breaches by creating the appropriate frame of mind, ensuring the rational use of the means of combat and by maintaining discipline.” The Commentary to Article 87, paragraph 2 notes the need for commanders to ensure proper training of their troops, considering that account should be taken of the situation or the morale of the troops and, for example, of the probable presence of civilians in the neighbourhood of the military objective and the conduct to be observed towards them. It continues “[i]t is in fact ‘in order to prevent and suppress breaches’ that military commanders are responsible for such instruction and with the duty to supervise it.”
86. It transpires from the jurisprudence of the Tribunal that some prior preventative measures may be required of a superior. The Trial Chamber in the Čelebići case found that: “an important gap in any preventive efforts made by Mr. Mucić is that he as commander never gave any instructions to the guards as to how to treat the detainees.” The Trial Chamber in Kvočka found that: “[t]here was certainly a duty to train and control the guards in the camp, and to prevent and punish criminal conduct.” Similarly, the Trial Chamber in the Strugar case found that “[i]t remains relevant […] that nothing had been done by the Accused before the attack […] commenced to ensure that those planning, commanding and leading the attack […] were reminded of the restraints on shelling the Old Town [of Dubrovnik], or to reinforce existing prohibition orders.”
87. The Trial Chamber notes that it is well established that international humanitarian law intends to bar not only actual breaches of its norms, but aims also at preventing its potential breaches. As noted above, international humanitarian law entrusts commanders with a role of guarantors of laws dealing with humanitarian protection and war crimes, and for this reason they are placed in a position of control over the acts of their subordinates, and it is this position which generates a responsibility for failure to act. It is a natural element of the preventative constituent of command responsibility that a commander must make efforts to ensure that his troops are properly informed of their responsibilities in international law, and that they act in an orderly fashion.
88. While it is evident that no criminal liability may attach to the commander for failure in this duty per se, it may be an element to be taken into consideration when examining the factual circumstances of the case. However, the adherence to this general obligation does not suffice by itself to avoid the commander[‘]s criminal liability in case he fails to take the necessary appropriate measure under his specific obligation.
b. Specific Obligation
89. As noted above, what the duty to prevent entails in a particular case will depend on the superior’s material ability to intervene in a specific situation. In establishing individual responsibility of superiors military tribunals set up in the aftermath of World War II have considered factors such as the superior’s failure to secure reports that military actions have been carried out in accordance with international law, the failure to issue orders aiming at bringing the relevant practices into accord with the rules of war, the failure to take disciplinary measures to prevent the commission of atrocities by the troops under their command, the failure to protest against or to criticise criminal action, and the failure to insist before a superior authority that immediate action be taken. The Tokyo Trial held that a superior’s duty may not be discharged by the issuance of routine orders and that more active steps may be required.
90. From the wording of Article 7(3) it is clear that the preventative element of the duty to prevent attaches where the subordinate “was about to commit such acts”, but before the actual offence has been committed. This interpretation is supported by the ICRC Commentary to Article 86 of Additional Protocol I which notes that paragraph 1 is a “general obligation to repress or suppress breaches resulting from a failure to act”, the use of the term “repress” in Article 86(1) of Additional Protocol I indicates that the duty only attaches where the subordinate is on the point of committing an offence and from the moment of knowledge on the part of the superior. As the Trial Chamber in Strugar held:
an accused cannot avoid the intended reach of the provision by doing nothing, on the basis that what he knows does not make it entirely certain that his forces were actually about to commit offences, when the information he possesses gives rise to a clear prospect that his forces were about to commit an offence. In such circumstances the accused must at least investigate, i.e. take steps inter alia to determine whether in truth offences are about to be committed, or indeed by that stage have been committed or are being committed.
(iv) Duty to Punish
a. Failure to Punish in International Humanitarian Law
91. With regard to the question of whether failure to punish is a separate form of liability in international humanitarian law, some post World War II cases held commanders responsible for a failure in their duty to punish the crimes of their subordinates. It must be noted, however, that in these cases the duty to punish was in general, linked to the duty of a commander to prevent the commission of crimes, as opposed to being a separate duty.
92. In the codification of the concept of command responsibility in Article 86 of Additional Protocol I, the phrase “prevent or repress” the crimes of subordinates is used. In examining this element of Article 86(2) the ICRC Commentary on Additional Protocols notes that “the clause requires both preventative and repressive action”. It continues by stating that: “it reasonably restricts the obligation upon superiors to “feasible” measures, since it is not always possible to prevent a breach or punish the perpetrators”. The ILC Commentary also considers the term “repress” to include the duty to punish an offender. The duty to punish as a form of liability separate from the duty to prevent has also been reflected in the more recent developments of the concept of command responsibility, that is, in the Statutes of the International Tribunals, and in the Statute of the ICC.
93. With regard to the jurisprudence of the Tribunal, the Appeals Chamber’s in Blaškić held that
it is illogical to argue both that “a superior’s responsibility for the failure to punish is construed as a sub-category of his liability for failing to prevent the commission of unlawful acts,” and that “failure to punish only led to the imposition of criminal responsibility if it resulted in a failure to prevent the commission of future crimes.” The failure to punish and failure to prevent involve different crimes committed at different times: the failure to punish concerns past crimes committed by subordinates, whereas the failure to prevent concerns future crimes of subordinates.
The Appeals Chamber concluded that the responsibility of a commander for his failure to punish was recognised in customary law prior to the commission of the crimes relevant to that indictment.
94. The duty to punish is a separate form of liability, distinct from the failure to prevent it has in fact developed from the importance attached to a commander’s duty to take preventative actions.
95. The argument that a failure to punish a crime is a tacit acceptance of its commission is not without merit. The Trial Chamber recognises that a commander, as the person in possession of effective control over his subordinates is entrusted by international humanitarian law with the obligation to ensure respect of its provisions. The position of the commander exercising authority over his subordinates dictates on his part to take necessary and reasonable measures for the punishment of serious violations of international humanitarian law and a failure to act in this respect is considered so grave that international law imputes upon him responsibility for those crimes. He has, in the words of the ICRC Commentary to the Additional Protocol “tolerated breaches of the law of armed conflict”.
96. Finally, the Trial Chamber considers that punishment is an inherent part of prevention of future crimes. It is insufficient for a commander to issue preventative orders or ensure systems are in place for the proper treatment of civilians or prisoners of war if subsequent breaches which may occur are not punished. This failure to punish on the part of a commander can only be seen by the troops to whom the preventative orders are issued as an implicit acceptance that such orders are not binding.
b. Prerequisites of the Duty to Punish
97. The duty to punish includes at least an obligation to investigate possible crimes or have the matter investigated, to establish the facts, and if the superior has no power to sanction, to report them to the competent authorities.
98. Military tribunals established after World War II interpreted the superiors’ duty to punish as implying an obligation for the superior to conduct an effective investigation and to take active steps to ensure that the perpetrators will be brought to justice. Whether the superior has called for a report on the incident and the thoroughness of the investigation could also be relevant in this respect.
99. Further guidance as to the duty to punish is provided by Article 87, paragraph 3 of Additional Protocol I, which requires a commander who is aware that his subordinates have committed a breach of the Geneva Conventions or the Protocol “where appropriate to initiate disciplinary or penal action” against them. The ICRC Commentary to Additional Protocol I suggests that this action may include informing their superior officers of the situation, “drawing up a report in the case of a breach, […] proposing a sanction to a superior as disciplinary power, or – in the case of someone who holds such power himself – exercising it, within the limits of his competence, and finally, remitting the case to the judicial authority where necessary with such factual evidence which is possible to find.”
100. The superior does not have to be the person who dispenses the punishment, but he must take an important step in the disciplinary process. He has a duty to exercise all measures possible within the circumstances; lack of formal legal competence on the part of the commander will not necessarily preclude his criminal responsibility. The duty to punish includes at least an obligation to investigate possible crimes, to establish the facts, and if the superior has no power to sanction, to report them to the competent authorities. 
ICTY, Sefer Halilović case, Judgment, 16 November 2005, §§ 38–100.
[emphasis in original]
The Trial Chamber concluded that it had not been proven beyond reasonable doubt that the accused had had effective control over the ABiH members involved in the acts in Grabovica and Uzdol. 
ICTY, Sefer Halilović case, Judgment, 16 November 2005, §§ 747 and 751.
The Trial Chamber stated:
The Trial Chamber recalls its finding that [the accused] possessed a degree of influence as a high ranking member of the ABiH and as one of its founders. However, the Trial Chamber considers that [his] influence falls short of the standard required to establish effective control. It is a principle of international criminal law that a commander cannot be held responsible for the crimes of persons who were not under his command at the time the crimes were committed. The Trial Chamber finds that the Prosecution has failed to prove beyond reasonable doubt that [the accused] was either de jure or de facto commander of an operation called “Operation Neretva”, which the Prosecution alleges was carried out in Herzegovina. The Trial Chamber has also found that the Prosecution has failed to establish that [he] had effective control over the troops which committed the crimes in the areas of Grabovica and Uzdol. The Trial Chamber therefore finds that the Prosecution has failed to establish that [the accused] was responsible under Article 7(3) for the crimes committed in Grabovica and Uzdol. 
ICTY, Sefer Halilović case, Judgment, 16 November 2005, § 752.
Accordingly, the Trial Chamber found the accused not guilty. 
ICTY, Sefer Halilović case, Judgment, 16 November 2005, § 753.
In its judgment in 2007, the ICTY Appeals Chamber affirmed the elements of individual criminal responsibility of superiors under Article 7(3) of the 1993 ICTY Statute:
59. As a preliminary matter, the Appeals Chamber notes that, in paragraph 56 of the Trial Judgement, the Trial Chamber correctly set out the elements that must be satisfied to hold a superior responsible under Article 7(3) of the Statute:
i. The existence of a superior-subordinate relationship;
ii. the superior knew or had reason to know that the criminal act was about to be or had been committed; and
iii. the superior failed to take the necessary and reasonable measures to prevent the criminal act or punish the perpetrator thereof.
Regarding the first of these elements, the Appeals Chamber recalls that the concept of effective control over a subordinate – in the sense of a material ability to prevent or punish criminal conduct, however that control is exercised – is the threshold to be reached in establishing a superior-subordinate relationship for the purpose of Article 7(3) of the Statute. Against this backdrop, the Appeals Chamber recalls that the necessity of proving that the perpetrator was the “subordinate” of the accused (against whom charges have been brought under Article 7(3) of the Statute) does not require direct or formal subordination. Rather, the accused has to be, by virtue of his position, senior in some sort of formal or informal hierarchy to the perpetrator. The ability to exercise effective control in the sense of a material power to prevent or punish, which the Appeals Chamber considers to be a minimum requirement for the recognition of a superior-subordinate relationship for the purpose of superior responsibility, will almost invariably not be satisfied unless such a relationship of subordination exists. The Appeals Chamber considers that a material ability to prevent and punish may also exist outside a superior-subordinate relationship relevant for Article 7(3) of the Statute. For example, a police officer may be able to “prevent and punish” crimes under his jurisdiction, but this would not as such make him a superior (in the sense of Article 7(3) of the Statute) vis-à-vis any perpetrator within that jurisdiction. The Trial Chamber’s analysis of the law on the first element of superior responsibility is consistent with this approach.
61. The Appeals Chamber will now consider the Prosecution’s submissions that the Trial Chamber erred in restating the law on the third element of superior responsibility. According to the Prosecution, in paragraphs 81 to 90 of the Trial Judgement, the Trial Chamber created an unnecessary and unwarranted distinction between a general obligation and a specific obligation to prevent crimes.
62. The Appeals Chamber acknowledges that the Trial Chamber’s reference to both types of obligations – “general” and “specific” – under its analysis on the duty to prevent fosters confusion. Hence, the Prosecution understood this distinction between general and specific obligation as being “an unhelpful addition to the correct legal standard”.
63. In discussing the “duty to prevent” in paragraphs 79 through 90 of the Trial Judgement, the Trial Chamber described what it termed a “general obligation” of each commander to maintain order and control of his own troops. The general duty of commanders to take the necessary and reasonable measures is well rooted in customary international law and stems from their position of authority. The Appeals Chamber stresses that “necessary” measures are the measures appropriate for the superior to discharge his obligation (showing that he genuinely tried to prevent or punish) and “reasonable” measures are those reasonably falling within the material powers of the superior. What constitutes “necessary and reasonable” measures to fulfil a commander’s duty is not a matter of substantive law but of evidence.
64. The Appeals Chamber holds that the Trial Chamber erred when giving the impression that there is an additional requirement to the third element of superior responsibility and agrees with the Prosecution that the correct legal standard is solely whether the superior failed to take the necessary and reasonable measures to prevent the criminal act or punish the perpetrator thereof. Of course, this single standard will have to be applied differently in different circumstances; however, the artificial distinction between “general” and “specific” obligations creates a confusing and unhelpful dichotomy.
78. The Appeals Chamber deems it useful at this juncture to recall the material facts which must be pleaded in the indictment where criminal responsibility pursuant to Article 7(3) of the Statute is alleged:
(1) that the accused is the superior of certain persons sufficiently identified, over whom he had effective control – in the sense of a material ability to prevent or punish criminal conduct – and for whose acts he is alleged to be responsible;
(2) the criminal acts of such persons, for which he is alleged to be responsible;
(3) the conduct of the accused by which he may be found to have known or had reason to know that the crimes were about to be committed or had been committed by his subordinates; and
(4) the conduct of the accused by which he may be found to have failed to take the necessary and reasonable measures to prevent such acts or to punish the persons who committed them.
85. … [F]or the purposes of criminal responsibility as a superior, de jure power is not synonymous with effective control. In fact, the former may not in itself amount to the latter. The same applies with respect to de facto power: a de facto superior must be found to wield substantially similar powers of control as de jure superiors who exercise effective control over subordinates to be held criminally responsible for their acts. It therefore cannot be said that pleading the exercise of both de jure and de facto power amounts to pleading effective control.
174. … [T]he Appeals Chamber recalls that each of the three elements of superior responsibility … must be proven beyond reasonable doubt in order for a Trial Chamber to establish that an accused is responsible under Article 7(3) of the Statute. A Trial Chamber will first ascertain whether the superior had effective control over the persons committing crimes subject to the jurisdiction of the International Tribunal (in the sense of possessing the material ability to prevent or punish the commission of the crimes in question) and then proceed to determine whether the second and third elements of superior responsibility are met…
210. … Indeed, the Appeals Chamber recalls that the material ability to punish and its corresponding duty to punish can only amount to effective control over the perpetrators if they are premised upon a pre-existing superior-subordinate relationship between the accused and the perpetrators. In this regard, the ability to exercise effective control in the sense of a material power to prevent or punish necessitates a pre-existing relationship of subordination, hierarchy or chain of command. Of course, the concepts of subordination, hierarchy and chains of command need not be established in the sense of formal organisational structures so long as the fundamental requirement of effective control over the subordinate, in the sense of material ability to prevent or punish criminal conduct, is satisfied.
217. Consequently, considering that the Prosecution has failed to show that the Trial Chamber erred in finding that the first element of superior responsibility had not been met, the Appeals Chamber need not address the Prosecution’s arguments advanced under the remaining grounds of appeal. These grounds, which concern the other two elements required to establish superior responsibility under Article 7(3) of the Statute, intrinsically hinge upon the outcome of the first ground of appeal. 
ICTY, Sefer Halilović case, Judgment on Appeal, 16 October 2007, §§ 59, 61–64, 78, 85, 174, 210 and 217.
In conclusion, the Appeals Chamber affirmed Sefer Halilović’s acquittal. 
ICTY, Sefer Halilović case, Judgment on Appeal, 16 October 2007, V. Disposition, p. 90.
International Criminal Tribunal for the former Yugoslavia
In the Slobodan Milošević case before the ICTY in 2001 and 2002, the accused, a former President of the Federal Republic of Yugoslavia, was charged with grave breaches of the 1949 Geneva Conventions, punishable under Article 2 of the 1993 ICTY Statute, genocide, punishable under Article 4 of the 1993 ICTY Statute, crimes against humanity, punishable under Article 5 of the 1993 ICTY Statute, and violations of the laws or customs of war, punishable under Article 3 of the 1993 ICTY Statute, for his role in campaigns to forcibly remove non-Serb civilians from areas of Kosovo, Croatia, and Bosnia and Herzegovina. 
ICTY, Slobodan Milošević case, Second Amended Indictment (Kosovo), 16 October 2001, §§ 16 and 62–68, Counts 1–5; Second Amended Indictment (Croatia), 23 October 2002, §§ 6 and 34–83, Counts 1–32; Amended Indictment (Bosnia and Herzegovina), 22 November 2002, §§ 6 and 32–45, Counts 1–29.
With regard to the criminal responsibility of the accused for the acts or omissions of his subordinates, the Second Amended Indictment of 16 October 2001 (relating to the Kosovo campaign) stated:
Slobodan Milosevic … while holding [a position] of superior authority, [is] … individually criminally responsible for the acts or omissions of [his] subordinates, pursuant to Article 7(3) of the [1993 ICTY Statute]. A superior is responsible for the criminal acts of his subordinates if he knew or had reason to know that his subordinates were about to commit such acts or had done so, and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators. 
ICTY, Slobodan Milošević case, Second Amended Indictment (Kosovo), 16 October 2001, § 19.
The criminal responsibility of Milošević for the acts or omissions of his subordinates was also alleged in the Second Amended Indictment of 23 October 2002 (relating to the Croatia campaign) and the Amended Indictment of 22 November 2002 (relating to the Bosnia and Herzegovina campaign). The Second Amended Indictment of 23 October 2002 stated:
Slobodan Milosevic, while holding positions of superior authority, is also individually criminally responsible for the acts or omissions of his subordinates, pursuant to Article 7(3) of the [1992 ICTY Statute]. A superior is responsible for the criminal acts of his subordinates if he knew or had reason to know that his subordinates were about to commit such acts or had done so, and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators. 
ICTY, Slobodan Milošević case, Second Amended Indictment (Croatia), 23 October 2002, § 29.
The Amended Indictment of 22 November 2002 stated:
Slobodan Milosevic, while holding positions of superior authority, is also individually criminally responsible for the acts or omissions of his subordinates, pursuant to Article 7(3) of the Statute of the Tribunal. A superior is responsible for the criminal acts of his subordinates if he knew or had reason to know that his subordinates were about to commit such acts or had done so, and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators. 
ICTY, Slobodan Milošević case, Amended Indictment (Bosnia and Herzegovina), 22 November 2002, § 27.
Following the death of the accused, proceedings were terminated by the Trial Chamber on 14 March 2006.
International Criminal Tribunal for the former Yugoslavia
In its judgment in the Naletilić and Martinović case in 2003, in considering the matter of “command or superior responsibility”, the ICTY Trial Chamber noted that Article 7(3) of the 1993 ICTY Statute provides:
The fact that any of the acts referred to in articles 2 to 5 of the present Statute was committed by a subordinate does not relieve his superior of criminal responsibility if he knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.  
ICTY, Naletilić and Martinović case, Judgment, 31 March 2003, § 64.
The Trial Chamber further stated:
65. The Chamber follows the Celebici Trial Judgement, which has set out the essential elements to establish command responsibility:
(i) the existence of a superior-subordinate relationship
(ii) the superior knew or had reason to know that the criminal act was about to be or had been committed; and
(iii) the superior failed to take the necessary and reasonable measures to prevent the criminal act or punish the perpetrator thereof.
66. The basis of the superior-subordinate relationship is the power of the superior to control the actions of his subordinates. The Celebici Trial Chamber concluded that:
it is necessary that the superior have [sic] effective control over the persons committing the underlying violations of international humanitarian law, in the sense of having the material ability to prevent and punish the commission of these offences. With the caveat that such authority can have a de facto as well as a de jure character, the Trial Chamber accordingly shares the view expressed by the International Law Commission that the doctrine of superior responsibility extends to civilian superiors only to the extent that they exercise a degree of control over their subordinates which is similar to that of military commanders.
67. The crucial question is therefore the actual possession or non-possession of power to control. Even if a formal appointment is an important aspect for command or superior authority, de facto control in the absence of de jure authority can be satisfactory for the assessment of superior responsibility. This applies to many contemporary conflicts, in which only de facto, self -proclaimed governments with their de facto armies and paramilitary groups take part. The capacity to sign orders is indicative of some authority, but in order to ascertain the actual powers of control of the superior it is also necessary to consider the substance of the documents signed and if they were complied with. Both de facto and de jure superiors need to have effective control, which means significant ability to prevent and punish criminal behaviour, to be held responsible for the crimes of their subordinates.
68. Although the doctrine of superior responsibility was at first intended for military commanders only, it is now established that it attaches also to civilian superiors in positions of authority. What is decisive is the power of effective control for which the mere proof of substantial influence is not sufficient.
69. Even a rank-less individual commanding a small group of men can have superior responsibility. When the subordinate perpetrator was under the command of two superiors, both of them may be held responsible for the same crime.
70. Superior responsibility under Article 7(3) of the [1993 ICTY] Statute does not impose strict liability for superiors. It requires that the superior “knew or had reason to know “.
71. The superior’s actual knowledge can be established by direct or circumstantial evidence. In the absence of direct evidence the superior’s actual knowledge can not be presumed. Nevertheless the Aleksovski Trial Chamber stated that an individual’s command position per se is at least an important indicium that he knew about the crimes committed by his subordinates. However, the significance of this indicium depends on additional factors such as the ones provided by the Celebici and Blaskic Trial Judgements in a non-exclusive list, based on the Final Report of the Commission of Experts:
the number, type and scope of the illegal acts; the time during which the illegal acts occurred; the number and type of troops involved; the logistics involved, if any; the geographical location of the acts; the speed of the operations; the modus operandi of similar illegal acts; the officers and staff involved; and the location of the commander at the time.
72. Considering geographical and temporal circumstances, this means that the more physically distant the superior was from the commission of the crimes, the more additional indicia are necessary to prove that he knew of the crimes. On the other hand, if the crimes were committed next to the superior’s duty-station this suffices as an important indicium that the superior had knowledge of the crimes, even more if the crimes were repeatedly committed.
73. The fact that a military commander will most probably be part of an organised structure with reporting and monitoring systems can facilitate the showing of actual knowledge. For de facto commanders in more informal military structures and for civilian superiors the standard of proof is higher.
74. The Chamber finds that a superior “had reason to know” when the following criteria as adopted by the Celebici Trial Chamber are met:
a superior can be held criminally responsible only if some specific information was in fact available to him which would provide notice of offences committed by his subordinates. This information need not be such that it by itself was sufficient to compel the conclusion of the existence of such crimes. It is sufficient that the superior was put on further inquiry by the information, or, in other words, that it indicated the need for additional investigation in order to ascertain whether offences were being committed or about to be committed by his subordinates.
75. To interpret “had reason to know”, the Celebici Trial Chamber considered the phrasing of Article 86(2) of the Additional Protocol I. The provision states that superiors can be held criminally or disciplinarily responsible if “they knew, or had information, which should have enabled them to conclude in the circumstances at the time, that the [subordinate] was committing or was going to commit such a breach”. The Celebici Trial Chamber also noted that the drafters of Article 86(2) of the Additional Protocol I explicitly rejected the wording “should have had knowledge”. The Celebici Appeals Chamber upheld the Trial Chamber’s finding, stating that the superior need not to know about the offences of his subordinates, but needs to have “some general information in his possession, which would put him on notice of possible unlawful acts by his subordinates”. The Celebici Appeals Chamber clarified that “available” and “in the possession of” are used equivalently and do not require that the superior “actually acquainted himself with the information”.
76. The superior must have failed to take the necessary or reasonable measures to prevent the crimes or to punish the perpetrator thereof. The Chamber agrees with the finding made by the Blaskic Trial Chamber that
it is a commander’s degree of effective control, his material ability, which will guide the Trial Chamber in determining whether he reasonably took the measures required either to prevent the crime or to punish the perpetrator.
77. Only feasible measures in the power of a superior are required. The determination is made on a case by case basis. 
ICTY, Naletilić and Martinović case, Judgment, 31 March 2003, §§ 65–77.
International Criminal Tribunal for the former Yugoslavia
In its judgment in the Kvočka case in 2001, the ICTY Trial Chamber considered that:
313. Article 7(3) of the [1993 ICTY] Statute imposes liability upon a superior for the criminal acts of his subordinates if the superior had reason to know that the subordinate was about to commit a crime and failed to prevent it or, knowing that a crime had been committed, failed to take steps to punish the subordinate for the crime. Fulfilling the first obligation does not preclude incurring liability for failing to fulfil the second. The superior is also responsible if he or she fails to halt or suppress crimes that are being committed if the superior knew or had reason to know of their commission.
314. The caselaw of the Tribunal establishes that three elements must be proved before a person may be held responsible as a superior for the crimes committed by subordinates: (1) the existence of a superior-subordinate relationship between the accused and perpetrator(s) of the underlying offence; (2) knowledge of the superior that his or her subordinate had committed, was committing, or was about to commit, a crime; and (3) failure of the superior to prevent or halt the commission of the crime and to punish the perpetrators. 
ICTY, Kvočka case, Judgment, 2 November 2001, §§ 313–314.
Referring to the judgment of the ICTY Appeals Chamber in the Mucić case, the Trial Chamber further stated:
315. … This Judgement [i.e. the judgement of the Appeals Chamber in the Mucić case accepted that a civilian leader may incur responsibility in the same way as a military commander, provided that the civilian has effective control over subordinates. Effective control necessarily involves “the power or authority in either a de jure or a de facto form to prevent a subordinate’s crime or to punish the perpetrators of the crime after the crime is committed.” Effective control means “the material ability to prevent or punish criminal conduct, however that control is exercised.” The requirement that control must be effective makes clear that de jure authority alone is insufficient. The Prosecution must show that the superior had the ability to prevent, halt, or punish the crime.
316. The superior does not have to be the person who dispenses the punishment, but he must take an important step in the disciplinary process …
317. Action is required on the part of the superior from the point at which he “knew or had reason to know” of the crimes committed or about to be committed by subordinates. The [judgement of the Appeals Chamber in the Mucić case] found that Article 7(3) [of the 1993 ICTY Statute] does not impose a duty upon a superior to go out of his way to obtain information about crimes committed by subordinates, unless he is in some way put on notice that criminal activity is afoot.
318. The [judgement of the Appeals Chamber in the Mucić case] upheld the Trial Chamber’s interpretation of “had reason to know”, concluding that the superior is responsible if information was available which would have put the superior on notice of crimes committed by subordinates. The information available to the superior may be written or oral. It need not be explicit or specific, but it must be information – or the absence of information – that would suggest the need to inquire further. Information that would make a superior suspicious that crimes might be committed includes past behavior of subordinates or a history of mistreatment: “For instance, a military commander who has received information that some of the soldiers under his command have a violent or unstable character, or have been drinking prior to being sent on a mission, may be considered as having the required knowledge.” Similarly, if a superior has prior knowledge that women detained by male guards in detention facilities are likely to be subjected to sexual violence, that would put him on sufficient notice that extra measures are demanded in order to prevent such crimes. 
ICTY, Kvočka case, Judgment, 2 November 2001, §§ 315–318.
International Criminal Tribunal for the former Yugoslavia
In the amended indictment in the Hadžihasanović case before the ICTY in 2002, the Prosecutor stated with respect to one of the accused:
58. [The accused] is also criminally responsible in relation to those crimes [i.e. violations of the laws or customs of war] that were committed by troops of the ABiH [Army of Bosnia and Herzegovina] … Brigade prior to his assignment … as the substitute for [the then commanding officer]. [He] knew or had reason to know about these crimes. After he assumed command, he was under the duty to punish the perpetrators.
60. [The accused] knew or had reason to know that ABiH forces under their command and control were about to commit such acts [i.e. violations of the laws or customs of war] or had done so, in the following villages on or about the dates indicated, and they failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof. 
ICTY, Hadžihasanović case, Amended Indictment, 11 January 2002, §§ 58 and 60; see also §§ 61, 65 and 66.
International Criminal Tribunal for the former Yugoslavia
In its Decision on Joint Challenge to Jurisdiction in the Hadžihasanović case in 2002, the ICTY Trial Chamber stated:
the doctrine of command responsibility already in – and since – 1991 was applicable in the context of an internal armed conflict under customary international law. Article 7(3) [of the 1993 ICTY Statute] constitutes a declaration of existing law under customary international law and does not constitute new law. 
ICTY, Hadžihasanović case, Decision on Joint Challenge to Jurisdiction, 12 November 2002, § 179.
The Trial Chamber further found that “in principle a commander can be liable under the doctrine of command responsibility for crimes committed prior to the moment that the commander assumed command”. 
ICTY, Hadžihasanović case, Decision on Joint Challenge to Jurisdiction, 12 November 2002, § 202.
In 2003, following the accused’s appeal against the Trial Chamber’s Decision on a Joint Challenge to Jurisdiction, the ICTY Appeals Chamber rendered its Decision on Interlocutory Appeal Challenging Jurisdiction in Relation to Command Responsibility:
a) Firstly, with regard to the responsibility of superiors for the acts of their subordinates in the course of internal armed conflicts, the Appeals Chamber unanimously upheld the Trial Chamber’s finding, stating:
In the opinion of the Appeals Chamber, the Trial Chamber was correct in holding, after a thorough examination of the matter, that command responsibility was at all times material to this case a part of customary international law in its application to war crimes committed in the course of an internal armed conflict. 
ICTY, Hadžihasanović case, Decision on Interlocutory Appeal Challenging Jurisdiction in Relation to Command Responsibility, 16 July 2003, § 31.
In support of this conclusion, the Appeals Chamber noted:
12. In considering this question, the Appeals Chamber is aware that it is incorrect to assume that, under customary international law, all the rules applicable to an international armed conflict automatically apply to an internal armed conflict. More particularly, it appreciates that to hold that a principle was part of customary international law, it has to be satisfied that State practice recognized the principle on the basis of supporting opinio juris. However, it also considers that, where a principle can be shown to have been so established, it is not an objection to the application of the principle to a particular situation to say that the situation is new if it reasonably falls within the application of the principle. Also, in determining whether a principle is part of customary international law and, if so, what are its parameters, the Appeals Chamber may follow in the usual way what the Tribunal has held in its previous decisions.
13. Prohibitions on the doing of certain acts in the course of an internal armed conflict are imposed by Article 3 common to the Geneva Conventions of 1949, which has long been accepted as having customary status. In the Tadic Jurisdiction Decision, the Appeals Chamber found that “customary international law imposes criminal responsibility for serious violations of common Article 3, as supplemented by other general principles and rules on the protection of victims of internal armed conflict, and for breaching certain fundamental principles and rules regarding means and methods of combat in civil strife”. Likewise, at all times material to this case, customary international law included the concept of command responsibility in relation to war crimes committed in the course of an international armed conflict. Thus, the concept would have applied to war crimes corresponding to the prohibitions listed in common Article 3 when committed in the course of an international armed conflict. It is difficult to see why the concept would not equally apply to breaches of the same prohibitions when committed in the course of an internal armed conflict.
14. In the view of the Appeals Chamber, the matter rests on the dual principle of responsible command and its corollary command responsibility. The origin and interrelationship of these ideas merit much discussion. Here, however, it is sufficient to note that the principle of responsible command was incorporated by the provision in Article 1 of the Regulations Respecting the Laws and Customs of War on Land annexed to the Fourth Hague Convention of 1907 reading:
The laws, rights and duties of war apply not only to armies, but also to militia and volunteer corps fulfilling the following conditions:
1. To be commanded by a person responsible for his subordinates …
Article 43(1) of the 1977 Additional Protocol I to the Geneva Conventions likewise provided that the “armed forces of a Party to a conflict consist of all organized armed forces, groups and units which are under a command responsible to that Party for the conduct of its subordinates, …”
15. The position is no different as regards internal armed conflicts. Responsible command was an integral notion of the prohibition imposed by Article 3 common to the 1949 Geneva Conventions against the doing of certain things in the course of an internal armed conflict. Referring to the criteria for determining whether there was an “armed conflict not of an international character” within the meaning of that provision, the ICRC Commentary spoke, authoritatively, of a revolting party possessing “an organized military force, an authority responsible for its acts, acting within a determinate territory and having the means of respecting and ensuring respect for the” convention. Article 1(1) of Protocol II Additional to the Geneva Conventions likewise spoke of a Contracting Party’s “armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations …”.
16. Thus, whether Article 3 of the Statute is referring to war crimes committed in the course of international armed conflict or to war crimes committed in the course of internal armed conflict under Article 3 common to the Geneva Conventions, it assumes that there is an organized military force. It is evident that there cannot be an organized military force save on the basis of responsible command. It is also reasonable to hold that it is responsible command which leads to command responsibility. Command responsibility is the most effective method by which international criminal law can enforce responsible command.
17. It is true that, domestically, most States have not legislated for command responsibility to be the counterpart of responsible command in internal conflict. This, however, does not affect the fact that, at the international level, they have accepted that, as a matter of customary international law, relevant aspects of international law (including the concept of command responsibility) govern the conduct of an internal armed conflict, though of course not all aspects of international law apply. The relevant aspects of international law unquestionably regard a military force engaged in an internal armed conflict as organized and therefore as being under responsible command. In the absence of anything to the contrary, it is the task of a court to interpret the underlying State practice and opinio juris (relating to the requirement that such a military force be organized) as bearing its normal meaning that military organization implies responsible command and that responsible command in turn implies command responsibility.
18. In short, wherever customary international law recognizes that a war crime can be committed by a member of an organised military force, it also recognizes that a commander can be penally sanctioned if he knew or had reason to know that his subordinate was about to commit a prohibited act or had done so and the commander failed to take the necessary and reasonable measures to prevent such an act or to punish the subordinate. Customary international law recognizes that some war crimes can be committed by a member of an organised military force in the course of an internal armed conflict; it therefore also recognizes that there can be command responsibility in respect of such crimes.
19. The Appellants argue that international law developed to regulate the relations between States on the basis of reciprocity and that command responsibility for acts committed in the course of an internal conflict does not raise any questions of reciprocity. The Appeals Chamber does not consider that the matter depends on notions of reciprocity. In the course of development, States have come to consider that they have a common interest in the observance of certain minimum standards of conduct in certain matters; this includes certain aspects of conduct in an internal armed conflict. To that extent, internal armed conflict is now the concern of international law without any question of reciprocity.
20. Thus, the fact that it was in the course of an internal armed conflict that a war crime was about to be committed or was committed is not relevant to the responsibility of the commander; that only goes to the characteristics of the particular crime and not to the responsibility of the commander. The basis of the commander’s responsibility lies in his obligations as commander of troops making up an organised military force under his command, and not in the particular theatre in which the act was committed by a member of that military force. 
ICTY, Hadžihasanović case, Decision on Interlocutory Appeal Challenging Jurisdiction in Relation to Command Responsibility, 16 July 2003, §§ 12–20.
The Appeals Chamber further stated:
28. The Appellants have placed reliance on the fact that the doctrine of command responsibility was referred to in Articles 86 and 87 of the 1977 Protocol I Additional to the Geneva Conventions of 1949 but was not referred to in Protocol II. The former being directed to international armed conflicts while the latter is directed to internal armed conflicts, the Appellants contend that the difference tends to support the view that State practice regarded command responsibility as part of customary international law relating to international armed conflicts and did not regard command responsibility as part of customary international law relating to internal armed conflicts.
29. The Appeals Chamber affirms the view of the Trial Chamber that command responsibility was part of customary international law relating to international armed conflicts before the adoption of Protocol I. Therefore, as the Trial Chamber considered, Articles 86 and 87 of Protocol I were in this respect only declaring the existing position, and not constituting it. In like manner, the non-reference in Protocol II to command responsibility in relation to internal armed conflicts did not necessarily affect the question whether command responsibility previously existed as part of customary international law relating to internal armed conflicts. The Appeals Chamber considers that, at the time relevant to this indictment, it was, and that this conclusion is not overthrown by the play of factors responsible for the silence which, for any of a number of reasons, sometimes occurs over the codification of an accepted point in the drafting of an international instrument.
30. Were it otherwise, the Appeals Chamber would have to uphold that, “as argued by the Defence, it is not a crime for a commander in an internal conflict to fail to prevent or punish the killings committed by his subordinates,” i.e., even if the commander knows or has reason to know of the killings. The Appeals Chamber does not consider that it is required to sustain so improbable a view in contemporary international law; more particularly, it finds that such a view is not consistent with its reasoning in the Tadic Jurisdiction Decision and in the Celebici Appeal Judgment, or with the reasoning of the Trial Chamber in Aleksovski. 
ICTY, Hadžihasanović case, Decision on Interlocutory Appeal Challenging Jurisdiction in Relation to Command Responsibility, 16 July 2003, §§ 28–30.
As regards the responsibility of superiors for acts of their subordinates committed before they assumed command, the Appeals Chamber, in a majority decision, Judge Hunt and Judge Shahabuddeen dissenting, repealed the Trail Chamber’s Decision, stating:
[A]n accused cannot be charged under Article 7(3) of the [1993 ICTY] Statute for crimes committed by a subordinate before the said accused assumed command over that subordinate. The Appeals Chamber is aware that views on this issue may differ. However, the Appeals Chamber holds the view that this Tribunal can impose criminal responsibility only if the crime charged was clearly established under customary law at the time the events in issue occurred. In case of doubt, criminal responsibility cannot be found to exist, thereby preserving full respect for the principle of legality. 
ICTY, Hadžihasanović case, Decision on Interlocutory Appeal Challenging Jurisdiction in Relation to Command Responsibility, 16 July 2003, § 51.
In support of this conclusion, the Appeals Chamber stated:
44. In considering the issue of whether command responsibility exists in relation to crimes committed by a subordinate prior to an accused’s assumption of command over that subordinate, the Appeals Chamber observes that it has always been the approach of this Tribunal not to rely merely on a construction of the Statute to establish the applicable law on criminal responsibility, but to ascertain the state of customary law in force at the time the crimes were committed.
45. In this particular case, no practice can be found, nor is there any evidence of opinio juris that would sustain the proposition that a commander can be held responsible for crimes committed by a subordinate prior to the commander’s assumption of command over that subordinate.
46. In fact, there are indications that militate against the existence of a customary rule establishing such criminal responsibility. For example, Article 28 of the Rome Statute of the International Criminal Court provides that:
(a) A military commander or person effectively acting as a military commander shall be criminally responsible for crimes within the jurisdiction of the Court 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:
(i) 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
(ii) 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.
Under the Rome Statute, therefore, command responsibility can only exist if a commander knew or should have known that his subordinates were committing crimes, or were about to do so. This language necessarily excludes criminal liability on the basis of crimes committed by a subordinate prior to an individual’s assumption of command over that subordinate.
47. Another example can be found in the Protocol Additional to the Geneva Conventions of 12 August 1949 (Protocol I). Article 86(2) of the Protocol states that “[t]he fact that a breach of the Conventions or of this Protocol was committed by a subordinate does not absolve his superiors from penal or disciplinary responsibility, as the case may be, if they knew, or had information which should have enabled them to conclude in the circumstances at the time, that he was committing or was going to commit such a breach and if they did not take all feasible measures within their power to prevent or repress the breach.” Again, the language of this article envisions a situation in which a breach was in the process of being committed, or was going to be committed; breaches committed before the superior assumed command over the perpetrator are not included within its scope.
48. The International Law Commission, in its Report on the work of its forty-eighth session (6 May–26 July 1996), stated that “[t]he principle of individual criminal responsibility under which a military commander is held responsible for his failure to prevent or repress the unlawful conduct of his subordinates is elaborated in article 86 of Protocol I.” Similarly, in the Celebici Appeal Judgment, the Appeals Chamber stated that the “criminal offence based on command responsibility is defined in Article 86(2) only.”
49. It should also be mentioned that Article 6 of the Draft Code of Crimes Against the Peace and Security of Mankind, adopted by the International Law Commission at its forty-eighth session, reads as follows:
The fact that a crime against the peace and security of mankind was committed by a subordinate does not relieve his superiors of criminal responsibility, if they knew or had reason to know, in the circumstances at the time, that the subordinate was committing or was going to commit such a crime and if they did not take all necessary measures within their power to prevent or repress the crime.
Once again, the emphasis is on the superior-subordinate relationship existing at the time the subordinate was committing or was going to commit a crime. Crimes committed by a subordinate in the past, prior to his superior’s assumption of command, are clearly excluded.
50. Consideration can also be given to the Kuntze case, before the Nuernberg Military Tribunals. The Appeals Chamber considers that this case also constitutes an indication that would run contrary to the existence of a customary rule establishing command responsibility for crimes committed before a superior’s assumption of command over the perpetrator, and that it could certainly not be brought to support the opposite view. 
ICTY, Hadžihasanović case, Decision on Interlocutory Appeal Challenging Jurisdiction in Relation to Command Responsibility, 16 July 2003, §§ 44–50.
[emphasis in original]
In contrast to this, Judge Hunt, in his Separate and Partially Dissenting Opinion, stated, inter alia:
8. My approach to this issue commences at the same point accepted by the Appeals Chamber unanimously in relation to the first issue. Customary international law recognises that a commander is criminally responsible if he knew or had reason to know that the subordinate was about to commit acts amounting to a war crime or had done so and if he failed to take the necessary and reasonable measures to prevent such acts or to punish the subordinate. That principle may be applied to whatever situation reasonably falls within the application of the principle. In my opinion, the situation of a superior who (after assuming command) knows or has reason to know that a person who has become his subordinate had committed a crime before he became that person’s superior falls reasonably within that principle.
9. That principle cannot be limited artificially to the situation in which the superior -subordinate relationship existed at the time when the subordinate was committing or about to commit the acts amounting to a war crime, or at any time other than the time when the superior knows or has reason to know that the subordinate had committed the acts amounting to a war crime. One reason for this is that the criminal responsibility of the superior is not a direct responsibility for the acts of the subordinate. It is a responsibility for his own acts (or, rather, omissions) in failing to prevent or to punish the subordinate when he knew or had reason to know that he was about to commit acts amounting to a war crime or had done so. 
ICTY, Hadžihasanović case, Separate and Partially Dissenting Opinion of Judge David Hunt – Command Responsibility Appeal, 16 July 2003, §§ 8–9.
Similarly, Judge Shahabuddeen, in his Partial Dissenting Opinion, stated:
In sum, the tribunal has to take it that a principle of customary international law concerning command responsibility has been established by State practice and opinio juris. The particular question whether that responsibility extends to acts of a subordinate committed before the commander assumed duty has not fallen to be so far dealt with – at any rate, in any reported instance. That, however, does not mean that such a situation is not capable of being governed by the established principle. If it is capable of being governed by the established principle, that principle must be held to prevail. In acting accordingly, the Appeals Chamber will not be changing customary international law but will be carrying out its true intent by interpreting and applying one of its existing principles. 
ICTY, Hadžihasanović case, Partial Dissenting Opinion of Judge Shahabuddeen, 16 July 2003, § 10.
In its judgment in 2006, the ICTY Trial Chamber, with regard to the nature of command responsibility, reflected the Appeals Chamber’s finding in its Decision on Interlocutory Appeal Challenging Jurisdiction, stating: “Command responsibility under Article 7(3) of the Statute is derived from the obligations of responsible command. Failure to fulfil those obligations results in criminal responsibility.” 
ICTY, Hadžihasanović case, Judgment, 15 March 2006, § 67.
On the specific object and nature of command responsibility, the Trial Chamber added:
68. … [T]he question arises as to whether a commander who has failed in his obligation to ensure that his troops respect international humanitarian law is held criminally responsible for his own omissions or rather for the crimes resulting from them. The question arises in particular in this case, since the Accused are alleged to have incurred responsibility solely on the basis of Article 7(3) of the [1993 ICTY] Statute. As such, the Indictment does not allege that the Accused participated in crimes committed by their purported subordinates, but that they failed in their obligation to take the necessary and reasonable measures to prevent crimes or punish the perpetrators of those crimes.
69. Except for the Chamber in Halilović, Tribunal case law has never analysed the question of determining the object of command responsibility; the superior’s omission or the crimes which resulted from it. This is because before Halilović, the cases at this Tribunal dealt with both individual criminal responsibility under Article 7(3) and responsibility under Article 7(1) of the Statute. Allegations against accused persons were based on both omission and participation in crimes.
70. Some Chambers have issued rulings on the nature of command responsibility. For example, the Chamber in Čelebići noted that “the type of individual criminal responsibility for the illegal acts of subordinates […] is commonly referred to as ‘command responsibility’”. There, the Chamber seems to indicate that a superior will be held responsible for the acts of his subordinates. Nevertheless, as the Chamber in Halilović emphasised in its Judgement, the Chamber in Čelebići did not have to consider the matter at issue before this Chamber. Instead, that Chamber focused on the question of whether command responsibility was an integral part of customary international law at the time of the events and examined the conditions for applying Article 7(3) of the Statute.
71. Accordingly, the Chamber in Halilović examined national legislation, post-World War II case law, the Additional Protocols to the Geneva Conventions, and Tribunal case law to establish whether responsibility under Article 7(3) of the Statute is “sui generis” or responsibility for the crimes of subordinates. That examination shows that post-World War II case law diverges on the issue. Similarly, the Additional Protocols to the Geneva Conventions make no determination as to the nature of command responsibility.
72. The analysis by the Chamber in Halilović shows that most Chambers of this Tribunal have determined that a superior is responsible for the acts of his subordinates under Article 7(3) of the Statute. There are, however, a few exceptions. The Chamber in Aleksovski made a distinction between individual responsibility under Articles 7(1) and 7(3) of the Statute:
“The doctrine of superior responsibility makes a superior responsible not for his acts sanctioned by Article 7(1) of the Statute but for his failure to act. A superior is held responsible for the acts of his subordinates if he did not prevent the perpetration of the crimes of his subordinates or punish them for the crimes.”
73. Similarly, the Appeals Chamber in Krnojelac found:
“It cannot be overemphasised that, where superior responsibility is concerned, an accused is not charged with the crimes of his subordinates but with his failure to carry out his duty as a superior to exercise control.”
74. The Halilović Chamber found that command responsibility under Article 7(3) of the Statute is responsibility for an omission. According to that Chamber, the commander is responsible for failing to prevent and punish crimes committed by his subordinates.
“The Chamber finds that under Article 7(3) command responsibility is responsibility for an omission. The commander is responsible for the failure to perform an act required by international law. This omission is culpable because international law imposes an affirmative duty on superiors to prevent and punish crimes committed by their subordinates. Thus “for the acts of his subordinates” as generally referred to in the jurisprudence of the Tribunal does not mean that the commander shares the same responsibility as the subordinates who committed the crimes, but rather that because of the crimes committed by his subordinates, the commander should bear responsibility for his failure to act. The imposition of responsibility upon a commander for breach of his duty is to be weighed against the crimes of his subordinates; a commander is responsible not as though he had committed the crime himself, but his responsibility is considered in proportion to the gravity of the offences committed. The Chamber considers that this is still in keeping with the logic of the weight which international humanitarian law places on protection values.”
75. The Chamber subscribes to the findings of the Halilović Chamber. Since command responsibility under Article 7(3) of the Statute is the corollary of a commander’s obligation to act, that responsibility is responsibility for an omission to prevent or punish crimes committed by his subordinates. The responsibility is “sui generis”, distinct from that defined in Article 7(1) of the Statute. 
ICTY, Hadžihasanović case, Judgment, 15 March 2006, §§ 68–75.
With regard to the elements of command responsibility, the Trial Chamber judgment reaffirmed the ICTY’s approach developed, inter alia, in the cases of Mucić (“Čelebići”), Blaškić, Halilović, Kordić and Čerkez, Strugar, Aleksovski, and Krnojelac: a) superior-subordinate relationship (effective control); b) mental element (knew or had reason to know); c) failure to take the necessary and reasonable measures to prevent or punish. 
ICTY, Hadžihasanović case, Judgment, 15 March 2006, §§ 76–193.
On the superior-subordinate relationship, the Trial Chamber restated, inter alia:
77. Tribunal case law has consistently held that a superior-subordinate relationship exists under Article 7(3) of the [1993 ICTY] Statute when a superior exercises effective control over his subordinates, that is, when he has the material ability to prevent or punish their acts…
78. The formal title of commander is neither required nor sufficient to entail superior responsibility. Responsibility under Article 7(3) of the Statute may derive from a person’s de facto, as well as de jure, position as commander so long as he has the material ability to prevent or punish:
79. In Čelebići, the Appeals Chamber found that a showing of effective control is required in cases involving both de jure and de facto superiors. In that regard, it should be noted that the Appeals Chamber in Čelebići starts with the assumption that the official position of commander comes with effective control. 
ICTY, Hadžihasanović case, Judgment, 15 March 2006, §§ 77–79.
In addition, the Trial Chamber noted:
84. A few observations are in order regarding the cooperation of troops in battle who, de jure, fall under different chains of command. The question arises as to the extent commanders of different units engaged in combat may be held criminally responsible for the acts of soldiers not under their de jure command. The Chamber considers that mere participation in joint combat operations is not sufficient to find that commanders of different units exercise effective control over all the participants in a battle. Although such cooperation might be an indicator of effective control, it is appropriate to determine on a case-by-case basis what authority an accused commander actually had over the troops in question.
85. Finally, it is appropriate to discuss whether there can be effective control in the case where a commander cannot prevent a purported subordinate from committing a crime other than by the use of force. The Defence for Hadžihasanović submits that in such cases the commander does not exercise effective control without, however, providing reasons for that argument.
86. That issue is particularly important in this case, in the context of a de jure superior-subordinate relationship. The Chamber recalls that, by virtue of his official position, it is assumed that a commander exercises effective control. The Chamber considers that the assumption is not automatically refuted in cases where commanders are compelled to use force to control their troops. Instead, such matters should be looked at on a case-by-case basis. If a commander has the material ability to use force to enforce international humanitarian law, he may be compelled to do so if the circumstances leave him no other choice.
87. The Chamber recalls that, for an army to even function, troops must obey given orders. As such, a commander must ensure compliance with his orders. He will not hesitate to use force against his own troops in cases where they refuse to obey a combat order. In times of war and in exceptional circumstances, a commander may find himself in a position where he must order the execution of soldiers who refuse to obey his orders or who desert. The obligation to ensure compliance with orders is not limited to combat orders but encompasses all orders given by a commander to his troops, including those intended to ensure compliance with international humanitarian law.
88. The Chamber is aware of the fact that a commander with only a limited number of soldiers and materials may find it difficult to use force against his own troops. He may lack sufficient troops to discipline soldiers who have breached the rules of international humanitarian law. That issue must be assessed on a case-by-case basis and may lead to a determination that a commander does not have the material ability to enforce international humanitarian law.
89. Finally, the Chamber will make a few remarks regarding the case where a commander intends to use undisciplined soldiers to defend the front lines. In that regard, it is important to recall that commanders have a fundamental role in ensuring that international humanitarian law is correctly enforced. Commanders, by virtue of their authority, are qualified to exercise control over their troops and the weapons they use, thus ensuring that persons and objects afforded protection by international humanitarian law are in fact protected. A commander who knows or has reason to know that the troops he uses in combat have committed acts prohibited by international humanitarian law runs the risk of later being held criminally responsible for crimes committed by those troops. If a commander uses soldiers while knowing or having reason to know that there is a serious risk they will not obey his orders, especially orders to comply with international humanitarian law, he may not claim to have lacked effective control over them in order to avoid his responsibility under Article 7(3) of the [1993 ICTY] Statute. A commander may not exonerate himself by claiming to lack effective control if his conduct before the crimes were committed demonstrates that he accepted the possibility that subsequently he might not be able to control his troops. 
ICTY, Hadžihasanović case, Judgment, 15 March 2006, §§ 84–89.
With regard to the mental element of command responsibility, the Trial Chamber reiterated:
91. The mental element required by Article 7(3) of the [1993 ICTY] Statute has been established when the superior knew or had reason to know that his subordinates were about to commit a crime or had done so.
92. The theory of command responsibility does not impose strict responsibility on a superior who failed to prevent his subordinates from committing crimes or to punish them for having done so. The Prosecution must instead demonstrate that the superior actually knew that his subordinates had committed a crime or were about to do so, or that he had in his possession information of a nature which would at least put him on notice of the risk of such offences by indicating the need for additional investigation in order to ascertain whether such crimes were committed or were about to be committed.
(i) Actual Knowledge
93. The Trial Chamber in Kordić and Čerkez defined actual knowledge as “the awareness that the relevant crimes were committed or were about to be committed”.
94. Actual knowledge may be established through direct or circumstantial evidence but cannot be presumed. To determine whether the superior in fact had actual knowledge of the acts of his subordinates, the Chamber may take into account factors such as the number, type, and scope of unlawful acts, the time during which they occurred, the number and type of troops involved, the logistics involved, if any, the geographical location of the acts, their widespread occurrence, the tactical tempo of the operations, the modus operandi of similar unlawful acts, the officers and staff involved, and the location of the commander at the time the acts were committed. As for the factors of time and place, the Trial Chamber in Aleksovski held that the more physically distant the commission of the acts, the more difficult it will be, in the absence of other indicia, to establish that the superior had knowledge of them. Conversely, the commission of a crime in the immediate proximity of the place where the superior ordinarily carried out his duties would suffice to establish a significant indicium that he had knowledge of the crime, a fortiori if the crimes were repeatedly committed. The Appeals Chamber in Blaškić, however, noted that the proximity of the scene of the crime to a commander’s headquarters cannot be the determining factor in establishing a superior’s command responsibility. Additionally, it may be easier to prove the actual knowledge of a military commander if, a priori, he is part of an organised structure with established reporting and monitoring systems. The standard of proof will be higher, however, for a commander exercising de facto authority over a more informal military structure.
(ii) Mental Element: Had Reason to Know
a. Applicable Legal Criteria
95. The Appeals Chamber in Čelebići, as well as subsequent case law, have accepted the Čelebići Trial Chamber’s interpretation of “had reason to know”, that is, a superior may be held criminally responsible through the principles of superior responsibility only if specific information was available to him which would have put him on notice of offences committed or about be committed by his subordinates. It is clear from the Appeals Chamber’s finding that the mental element for “had reason to know” is determined only by reference to the information in fact available to the superior and that it is sufficient for the information to be of a nature which, at least, would put him on notice of the risk of such offences by indicating the need for additional investigation in order to ascertain whether such crimes were or were about to be committed.
96. By adopting that interpretation, the Appeals Chamber rejected the stricter criteria of “should have known”, and held that a superior cannot be held criminally responsible for neglecting to acquire knowledge of the acts of subordinates, but only for failing to take the necessary and reasonable measures to prevent or to punish. The Appeals Chamber in Blaškić noted that a superior may be held responsible for deliberately refraining from finding out, but not for negligently failing to find out. 
ICTY, Hadžihasanović case, Judgment, 15 March 2006, §§ 91–96.
In particular, the Trial Chamber examined the question of “prior knowledge”, i.e. “whether a superior’s knowledge of an offence previously committed by his subordinates is sufficient to alert him that another offence is about to be committed”:
103. The Prosecution submits that the prior commission of criminal acts is, per se, evidence of the existence of “an unacceptable degree of risk” triggering a duty to take all the necessary and reasonable steps to prevent the recurrence of similar crimes. The Prosecution further submits that the Appeal Judgement in Krnojelac supports the argument that when a superior has knowledge that crimes have already been committed by his subordinates, he is put on notice of a risk that crimes will be committed in the future, and has a duty to intervene to prevent them. The Prosecution also refers to its submissions in its Appeal Brief in the Strugar case.
106. The Chamber notes that the Prosecution acknowledges an initial limitation on the scope of prior knowledge, namely that the alleged criminal acts must be similar.
107. The Prosecution, however, does not deal with the issue of whether a superior’s prior knowledge of crimes committed by his subordinates gives him reason to know that the same subordinates are preparing to commit similar crimes, or if that prior knowledge extends to similar criminal acts by all of his subordinates. By failing to raise the issue, the Prosecution implicitly accepts that a superior’s prior knowledge of crimes committed by a given group of subordinates is sufficient to give him reason to know that all of his subordinates are about to commit crimes of the same nature. 
ICTY, Hadžihasanović case, Judgment, 15 March 2006, §§ 102, 103 and 106–107.
[emphasis in original]
After an analysis of the Krnojelac appeal judgment, the Trial Chamber found:
114. … [I]t is clear that the Accused Krnojelac’s prior knowledge of the crimes committed by the guards at the KP Dom in Foča gave him reason to know that members of that same group of subordinates, namely the guards at the KP Dom in Foča, were about to commit crimes of the same nature. The reasons underpinning that limitation to the same group are obvious. First, the commission of the alleged criminal acts occurred in the same geographical setting, that is, the Foča detention centre. Second, that group of subordinates was under the authority and supervision of one same prison warden. In view of those circumstances, it follows that the guards at the KP Dom in Foča formed one identifiable group of subordinates.
115. The Chamber notes that the Prosecution did not take this aspect into account. On the contrary, the Prosecution’s position implicitly seeks to extend a commander’s prior knowledge to criminal acts of the same nature committed by all of his subordinates, regardless of whether they belong to the same group. In this case, that would amount to saying that since the Accused Hadžihasanović had knowledge of the existence of previous cases of a brigade’s criminal conduct, this would put him on notice of the risk that other brigades were about to commit similar criminal acts. To adopt such a position misconstrues the reasoning of the Krnojelac Appeals Chamber, in that it is silent about taking into account one same group of subordinates and the geographical aspects related to that group (for example, the location of a subordinate unit), which fall within the scope of Krnojelac’s prior knowledge.
116. Moreover, by attempting to extend the Accused Hadžihasanović’s prior knowledge to the crimes committed by all his subordinates, regardless of their positions in the 3rd Corps zone of responsibility, the Prosecution is attempting to reintroduce a criterion already dismissed by the Appeals Chamber in Čelebići, namely a superior’s “general duty to know”, the breach of which would have been sufficient to entail his responsibility for crimes committed by his subordinates. In that Judgement, the Appeals Chamber in fact determined that customary law did not impose such obligations on military commanders. Indeed, that position has since been reaffirmed. The Prosecution’s position is therefore discordant with the case law and, in addition, the Prosecution failed to offer any arguments to support it.
117. Accordingly, the Chamber is of the view that in this case the “identifiable group of subordinates” must be interpreted, given the structure and operations of the 3rd Corps, as a brigade or brigade battalion, assuming that a battalion has a geographical location different from that of the other units of the brigade to which it belongs. Consequently, the Chamber dismisses the Prosecution’s argument in this case which seeks to extend the reasoning elaborated in the Krnojelac Appeal Judgement to cover all the subordinates of the Accused, regardless of whether they belong to the same group.
118. As a result, the Chamber considers that a superior’s prior knowledge must be interpreted narrowly in that it derives from a situation of recurrent criminal acts and from circumstances where those acts could not be committed in isolation by a single identifiable group of subordinates. 
ICTY, Hadžihasanović case, Judgment, 15 March 2006, §§ 114–118.
With regard to the failure to take the necessary and reasonable measures to prevent or punish, the Trial Chamber restated, inter alia:
122. Regarding the obligation to prevent or punish, the case law of the Tribunals first notes that a superior cannot be obliged to perform the impossible. To determine whether a superior has discharged his duty, the case law has sought to assess whether the superior took the measures in his powers and to define which measures must be considered to be within the superior’s powers in that sense. In Čelebići, the Chamber concluded that a superior should be held responsible for failing to take the measures within his material possibility. In certain cases, the superior need not possess the formal legal competence to take the necessary measures if it is proved that he has the material ability to act.
123. The case law of the International Tribunals has consistently held that the assessment of measures taken, in view of the material ability of the superior, must be evaluated on a case-by-case basis …
125. Tribunal case law has clearly established that Article 7(3) of the [1993 ICTY] Statute distinguishes between two different duties of a superior. The Trial Chamber in Strugar recently reaffirmed this distinction unambiguously by holding that Article 7(3) does not provide a superior with two alternative options but contains two distinct legal obligations: (1) to prevent the commission of the crime and (2) to punish the perpetrators. The duty to prevent arises for a superior from the moment he acquires knowledge or has reasonable grounds to suspect that a crime is being or is about to be committed, while the duty to punish arises after the commission of the crime.
126. As for the duty to prevent, a superior clearly has a limited time to perform it. Once the crime has been committed by his subordinates, it is too late and the superior has failed in his duty. The duty to punish the subordinates arises after the crimes have already been committed. In no case may the superior “make up” for the failure to act by punishing the subordinates afterwards. Accordingly, if it is established that a superior did nothing to prevent his subordinates from committing a crime, an examination of the measures taken to punish them serves no purpose. He has failed in his duty to prevent and therefore entails responsibility.
127. The case law makes an unequivocal distinction between the duty to prevent and the duty to punish: the first arises prior to the commission of the criminal offence by the subordinate and the second, after. Nevertheless, the duty to “suppress” is recognised by the case law and seems to be included in the duty to prevent, even though it arises while the unlawful act is in the process of being committed. The duty to suppress should be considered part of the superior’s duty to prevent, as its aim is to prevent further unlawful acts. 
ICTY, Hadžihasanović case, Judgment, 15 March 2006, §§ 122–123 and 125–127.
In particular, on the question of the failure to punish and the recurrence of unlawful acts, the Trial Chamber held:
128. While the duty to prevent is distinct from the duty to punish, there are situations where both duties have a causal link and one may be the consequence of the other. This reasoning appears in the Prosecution’s written submissions on the issue of prior knowledge, which deals with both the definition of a superior’s knowledge and, once that knowledge has been established, the superior’s duty to intervene.
129. According to the Prosecution, the prior commission of criminal acts is per se evidence of the existence of an “unacceptable degree of risk” which triggers a superior’s duty to take all the necessary and reasonable steps to prevent the recurrence of similar crimes. The Prosecution refers to its Appeal Brief in Strugar, where it provides a more comprehensive explanation of its reasoning which relies on post-World War II case law and the Krnojelac and Blaškić Appeal Judgements which, it submits, support this argument. 
ICTY, Hadžihasanović case, Judgment, 15 March 2006, §§ 128–129.
After an analysis of the Krnojelac appeal judgment, the Trial Chamber stated:
… The Chamber thus infers that, in particular, the failure to punish the acts committed against Zeković [victim in Krnojelac] constitutes negligence in the duty to prevent other similar acts (of torture). Over and beyond the conclusions of the Appeals Chamber, the Chamber is of the opinion that by failing to take measures to punish crimes of which he has knowledge, the superior has reason to know that there is a real and reasonable risk those unlawful acts might recur. 
ICTY, Hadžihasanović case, Judgment, 15 March 2006, § 133.
Similarly, on the duty to intervene to prevent the recurrence of unlawful acts, the Trial Chamber held:
156. As explained above, the Appeals Chamber in Krnojelac held that a superior has a duty to punish the acts of his subordinates as soon as he is alerted of the risk that they will be committed. Failure in that duty to intervene entails the superior’s responsibility, since his passiveness condones subsequent similar acts. Accordingly, by failing to punish, the superior (Krnojelac) did not prevent subsequent criminal acts. Nevertheless, to evaluate the scope of the Krnojelac Appeal Judgement, the Chamber would make several observations.
157. It should be pointed out that, in this case, the Prosecution acknowledges an initial limitation on a superior’s duty to prevent the recurrence of criminal acts by stating that the acts must be similar.
158. The Prosecution, however, does not deal with the question of whether the duty to intervene to prevent similar acts concerns only the acts of the same group of subordinates who perpetrate the unlawful acts or if it applies to all of a superior’s subordinates. By failing to raise that issue, the Prosecution implicitly extends the duty to prevent the recurrence of similar acts to cover those committed by all of a superior’s subordinates …
159. First, and in view of the case law established by the Appeals Chamber in Krnojelac, the Chamber agrees with the Prosecution’s position which limits to similar acts a superior’s duty to punish unlawful acts in order to prevent their recurrence. In Krnojelac, the Appeals Chamber relied on the repetitive nature of the mistreatment inflicted on a discriminatory basis to define a superior’s responsibility to prevent unlawful acts from recurring. That same reasoning is applied later in that Judgement as regards the murders committed by the guards at the KP Dom. Furthermore, post- World War II case law supports that position.
160. Conversely, the Chamber is of the opinion that an extension of a superior’s duty to include preventing the recurrence of unlawful acts by all of his subordinates would be inconsistent with the Krnojelac Appeal Judgement and previously-established Appeals Chamber case law.
164. … [T]he duty to prevent the recurrence of similar acts must be limited to the acts of subordinates who form part of an “identifiable group”, some members of which have already committed similar acts. That limitation bears a relationship to the very nature of the duty to prevent, which is based on the risk of a recurrence of similar acts. In fact, such responsibility can be established only when the recurrence is foreseeable, since it is premised on the fact that the failure to punish encourages soldiers – who have already committed unlawful acts – to commit those acts once again. The failure to intervene results in the foreseeable consequence of such conduct being repeated.
167. By attempting to extend Hadžihasanović’s duty to prevent the recurrence of unlawful acts committed by all his subordinates, regardless of their position in the 3rd Corps zone of responsibility, the Prosecution is attempting to reintroduce a criterion already dismissed by the Appeals Chamber in Čelebići, namely “a general duty to know upon commanders or superiors,” the breach of which would be sufficient to entail his responsibility for crimes committed by his subordinates. In that Judgement, the Appeals Chamber determined that customary law did not impose such an obligation on military commanders, which position has since been reaffirmed. The Prosecution’s position is therefore discordant with the case law of this Tribunal. Moreover, the Prosecution failed to offer any arguments to support it.
169. To conclude, the Chamber finds that the duty to prevent the recurrence of similar acts, which is based on a superior’s prior knowledge, must be interpreted as applying to an identifiable group of subordinates who have already committed such acts in the past. In this case, that is equivalent to a specific brigade operating in the same limited geographical area and to detention centres which fall under the authority and control of the same supervisory power. 
ICTY, Hadžihasanović case, Judgment, 15 March 2006, §§ 156–160, 164, 167 and 169.
[emphasis in original]
Likewise, on the question whether there exists a retroactive duty to punish based on prior knowledge, the Trial Chamber held:
… [T]he Chamber infers [from an analysis of the Krnojelac appeal judgement] that prior knowledge cannot entail the responsibility of the perpetrator for failing to investigate and punish past acts unless those acts are of a similar nature and that the subordinates committing a series of repeated acts of the same nature form part of a same identifiable group of subordinates. In this case, the group is a brigade or given battalion, operating in a defined geographical area and in detention centres which fell under the authority and control of the same supervisory power. Moreover, for that retroactive duty to apply, the circumstances surrounding those acts have to be such that the acts could not have occurred in isolation. 
ICTY, Hadžihasanović case, Judgment, 15 March 2006, § 185.
With regard to the question of the requirement of a causal link between a superior’s failure to prevent or punish and the crimes committed by subordinates, the Trial Chamber held:
186. In its written submissions, the Prosecution notes that the existence of causality between a commander’s failure to act and his subordinates’ crimes need not be established. The Trial Chamber in Čelebići responded in part to the question of whether there must be a nexus between the superior’s omission and the cause of the offence… That Chamber held that a causal link has not traditionally been considered as a conditio sine qua non for the imposition of criminal responsibility on superiors for their failure to prevent or punish offences committed by their subordinates…
187. Nevertheless, the Čelebići Chamber did recognise that the requirement of crimes committed by subordinates and the superior’s failure to take the measures to prevent them is recognition of a necessary causal link. The Čelebići Chamber further held that in such cases the superior may be considered to be causally linked to the offences in that, but for his failure to act, the offences would not have been committed. That Chamber found that a causal connection between the failure of a commander to punish past crimes committed by subordinates and the commission of any such future crimes is not only possible but likely.
188. While that position may prove correct, it may not be turned into a requirement that the Prosecution prove a causal link to impose command responsibility. As the Chamber in Čelebići held, no causal link can possibly exist between an offence committed by a subordinate and the subsequent failure of a superior to punish the perpetrator of that same offence.
189. The Blaškić Appeals Chamber recalled the finding of the Čelebići Trial Chamber, which dismissed the idea of causality between the subordinate’s offence and the failure to act by holding that “the very existence of the principle of superior responsibility for failure to punish, therefore, recognised under Article 7(3) [of the 1933 ICTY Statute] and customary law, demonstrates the absence of a requirement of causality as a separate element of the doctrine of superior responsibility.” The Appeals Chamber added that it was “therefore not persuaded […] that the existence of causality between a commander’s failure to prevent subordinates’ crimes and the occurrence of these crimes, is an element of command responsibility that requires proof by the Prosecution in all circumstances of a case.”
191. The Halilović Chamber sought to explain why it is not necessary to establish the existence of a causal link between a superior’s failure to act and the crime committed by a subordinate. The Chamber noted that criminal command responsibility under Article 7(3) of the Statute, as it is sui generis and different from the forms of responsibility under Article 7(1), does not require a causal link. According to that Chamber, a superior’s responsibility is responsibility for an omission, which flows from his obligations under international law. Requiring a causal link would change the basis of command responsibility for failure to prevent or punish to the extent that it would practically require involvement on the part of the commander in the crime his subordinates committed, thus altering the very nature of the responsibility imposed under Article 7(3). This Chamber agrees with that interpretation of the Statute.
192. The Chamber would, however, note that command responsibility may be imposed only when there is a relevant and significant nexus between the crime and the responsibility of the superior accused of having failed in his duty to prevent. Such a nexus is implicitly part of the usual conditions which must be met to establish command responsibility. As such, a superior may not be held responsible for crimes committed by subordinates who are not under his effective control, nor is he responsible if he did not know or have reason to believe that his subordinates had committed or were about to commit crimes. The superior is not responsible when he lacks the necessary means to prevent or punish crimes. Finally, the superior is not responsible for failing to prevent crimes committed before he assumed command over the perpetrators of the crimes. 
ICTY, Hadžihasanović case, Judgment, 15 March 2006, §§ 186–189 and 191–192.
A further question addressed by the Trial Chamber dealt with the issue of a superior’s responsibility after leaving his position:
195. As indicated in the chapter of this Judgement discussing necessary and reasonable measures, Article 7(3) of the [1993 ICTY] Statute provides that a commander has the duty to prevent his subordinates from committing crimes when he knows or has reason to know that they are about to commit them and also has a duty to punish the perpetrators of crimes when he knows or has reason to know that his subordinates have already committed them. In fact, these are two distinct obligations which apply at different times. The duty to prevent the commission of a crime arises when the commander knows or has reason to know that a crime is being or is about to be committed, while the duty to punish arises when a crime has already been committed.
196. The duty to prevent the commission of crimes may arise only in cases where a superior was already in command at the time his subordinates were about to commit a crime. The duty to punish exists only after a crime has been committed. There are, however, situations where a crime is committed shortly before one commander leaves and another arrives to assume command. In such cases, reports on the commission of the crime may not reach the superior who was in command at the time the crime was committed and may be received only by the new superior who has taken up duties.
197. In that scenario, the superior in command at the time the crime was committed would not incur criminal responsibility under Article 7(3) of the Statute. When the reports that a crime has been committed reach his successor, he no longer exercises effective control over the perpetrators of the crime. As such, he is no longer in a position where he has the authority to punish the subordinates in question. As indicated above, the power to punish depends on a commander’s ability to exercise effective control. 
ICTY, Hadžihasanović case, Judgment, 15 March 2006, §§ 195–197.
In this context, the Trial Chamber also came back to the question of whether a superior can be held responsible for crimes committed by his subordinates before they were under his command:
198. The Appeals Chamber [in its 2003 Decision on Interlocutory Appeal Challenging Jurisdiction in Relation to Command Responsibility in the same case] has held that the new commander may not incur criminal responsibility under Article 7(3) of the [1993 ICTY] Statute for crimes committed by his subordinates before they were under his command. To reach that conclusion, a majority of the Appeals Chamber found that there is no state practice, nor any opinio juris that would sustain the proposition that a commander can be held responsible for crimes committed by a subordinate prior to assuming command over that subordinate. The Appeals Chamber further held that there are in fact indications that militate against the existence of a customary rule establishing such criminal responsibility. It found that an Accused may be held criminally responsible only if the crime charged was clearly established under customary international law at the time the events in issue occurred. In case of doubt, the Appeals Chamber added, criminal responsibility cannot be found to exist, thereby preserving full respect for the principle of legality. Judges Shahabuddeen and Hunt each attached dissenting opinions to the majority decision.
199. Although the reasons given by the dissenting Judges merit further examination, the Chamber will limit itself to espousing a pragmatic consideration set out by Judge Shahabuddeen. Since the commanders of troops change on a regular basis in times of war, there is a serious risk that a gap in the line of responsibilities will be created as the changes occur. Considering the aforementioned case, if the superior in command at the time a crime is committed is replaced very soon after its commission, it is very likely that the perpetrators of that crime will go unpunished and that no commander will be held criminally responsible under the principles of command responsibility. It must be recognised that in such a case military practice, whose purpose is to establish the internal order and discipline necessary to run the armed forces, and from which the power to punish flows, falls short of achieving its objective. 
ICTY, Hadžihasanović case, Judgment, 15 March 2006, §§ 198–199.
In 2008, following an appeal that challenged the law applied by the Trial Chamber when assessing individual criminal responsibility as a superior for the war crimes charged, the ICTY Appeals Chamber considered whether de jure power over subordinates creates a presumption of effective control:
20. In Celebici, the Appeals Chamber underscored that effective control is the ultimate standard and that a showing of effective control is required in cases involving both de jure and de facto superiors. The Appeals Chamber further noted:
In determining questions of responsibility it is necessary to look to effective exercise of power or control and not to formal titles. […] In general, the possession of de jure power in itself may not suffice for the finding of command responsibility if it does not manifest in effective control, although a court may presume that possession of such power prima facie results in effective control unless proof to the contrary is produced. Čelebići case, Judgement on Appeal, § 197]
21. Even when a superior is found to have de jure authority over his subordinates, the Prosecution still has to prove beyond reasonable doubt that this superior exercised effective control over his subordinates, unless the accused does not challenge having exercised such control. By holding that “a court may presume that possession of [de jure power prima facie results in effective control”, Čelebići case, Judgement on Appeal, § 197] the Appeals Chamber in Celebici did not reverse the burden of proof. It simply acknowledged that the possession of de jure authority constitutes prima facie a reasonable basis for assuming that an accused has effective control over his subordinates. Thus, the burden of proving beyond reasonable doubt that the accused had effective control over his subordinates ultimately rests with the Prosecution. 
ICTY, Hadžihasanović case, Judgment on Appeal, 22 April 2008, §§ 20–21.
[footnotes in original omitted]
The Appeals Chamber also stated:
[T]he expression “full responsibility” adopted by the Trial Chamber may be somewhat misleading [and therefore clarified] … that the responsibility of a superior under Article 7(3) of the [1993 ICTY] Statute is only triggered by a superior’s failure to prevent and punish the crimes of his subordinates of which he has the requisite knowledge. 
ICTY, Hadžihasanović case, Judgment on Appeal, 22 April 2008, § 213.
[footnotes in original omitted]
The Appeals Chamber further stated:
The Appeals Chamber agrees with the Trial Chamber that the fact that a superior is compelled to use force to control some of his subordinates does not automatically lead to the conclusion that this superior does not exercise effective control over them. The Appeals Chamber concurs with the Trial Chamber’s finding that this issue must be evaluated on a case-by-case basis. Further, there might be situations in which a superior has to use force against subordinates acting in violation of international humanitarian law. A superior may have no other alternative but to use force to prevent or punish the commission of crimes by subordinates. This kind of use of force is legal under international humanitarian law insofar as it complies with the principles of proportionality and precaution and may even demonstrate that a superior has the material ability to prevent and punish the commission of crimes. 
ICTY, Hadžihasanović case, Judgment on Appeal, 22 April 2008, § 228.
[footnotes in original omitted]
The Appeals Chamber also considered the command responsibility mens rea, specifically the “had reason to know” standard:
30. While a superior’s knowledge of and failure to punish his subordinates’ past offences is insufficient, in itself, to conclude that the superior knew that similar future offences would be committed by the same group of subordinates, this may, depending on the circumstances of the case, nevertheless constitute sufficiently alarming information to justify further inquiry. In making such an assessment, a Trial Chamber may take into account the failure by a superior to punish the crime in question. Such failure is indeed relevant to the determination of whether, in the circumstances of a case, a superior possessed information that was sufficiently alarming to put him on notice of the risk that similar crimes might subsequently be carried out by subordinates and justify further inquiry. In this regard, the Appeals Chamber stresses that a superior’s failure to punish a crime of which he has actual knowledge is likely to be understood by his subordinates at least as acceptance, if not encouragement, of such conduct with the effect of increasing the risk of new crimes being committed.
31. In the present case, the Trial Chamber, when it reviewed the Appeals Chamber’s application of the “had reason to know” standard in the Krnojelac case, found that “[o]ver and beyond the conclusions of the Appeals Chamber, the Chamber is of the opinion that by failing to take measures to punish crimes of which he has knowledge, the superior has reason to know that there is a real and reasonable risk those unlawful acts might recur”. [Hadžihasanović case, Judgement, § 133] It further found that “by failing to punish, the superior (Krnojelac) did not prevent subsequent criminal acts”. [Hadžihasanović case, Judgement, § 156] Those findings could be read as implying that a superior’s failure to punish a crime of which he has knowledge automatically constitutes sufficiently alarming information under the “had reason to know” standard, irrespective of the circumstances of the case. Such reading would amount to an error of law. However, the Trial Chamber also found that “from the moment a certain amount of information was available to Krnojelac which, taken as a whole, was sufficiently alarming and such as to alert him to the risk of murders being committed inside the prison, he had an obligation to intervene and at the least should have carried out an investigation”. [Hadžihasanović case, Judgement, § 135] It also referred to the “had reason to know” standard as requiring an assessment of whether a superior had sufficiently alarming information which would have alerted him to the risk that crimes might be committed by his subordinates. This demonstrates that the Trial Chamber correctly understood that standard as requiring an assessment, in the circumstances of each case, of whether a superior had sufficiently alarming information to put him on notice that crimes might be committed. Under the various grounds of appeal below, the Appeals Chamber will determine whether the Trial Chamber correctly applied the “had reason to know” standard. 
ICTY, Hadžihasanović case, Judgment on Appeal, 22 April 2008, §§ 30–31.
[emphasis in original; footnotes in original omitted]
On the scope of a superior’s duty to punish, the Appeals Chamber held that the Trial Chamber had not erred by concluding that the use of disciplinary measures was sufficient to discharge the duty:
As the Appeals Chamber previously held, “what constitutes [necessary and reasonable] measures is not a matter of substantive law but of evidence”; [Blaškić case, Judgement on Appeal, § 72] the assessment of whether a superior fulfilled his duty to prevent or punish under Article 7(3) of the [1993 ICTY] Statute has to be made on a case-by-case basis, so as to take into account the “circumstances surrounding each particular situation”. [Blaškić case, Judgement on Appeal, § 417] Under Article 86 of Additional Protocol I, for example, superiors have a duty to take “all feasible measures within their power” to prevent or punish a breach of the laws of war and, under Article 87 of Additional Protocol I, such “feasible measures” may take the form of both “disciplinary or penal” measures. It cannot be excluded that, in the circumstances of a case, the use of disciplinary measures will be sufficient to discharge a superior of his duty to punish crimes under Article 7(3) of the [1993 ICTY] Statute. In other words, whether the measures taken were solely of a disciplinary nature, criminal, or a combination of both, cannot in itself be determinative of whether a superior discharged his duty to prevent or punish under Article 7(3) of the [1993 ICTY] Statute. The Prosecution’s argument is dismissed. 
ICTY, Hadžihasanović case, Judgment on Appeal, 22 April 2008, § 33; see also § 142.
[footnotes in original omitted]
The Appeals Chamber further stated:
38. The Appeals Chamber recalls its finding in Blaskić that it was “not persuaded by [the argument] that the existence of causality between a commander’s failure to prevent subordinates’ crimes and the occurrence of these crimes, is an element of command responsibility that requires proof by the Prosecution in all circumstances of a case”. [Blaškić case, Judgement on Appeal, § 77]
39. The Appeals Chamber also takes into consideration the following conclusion in Halilović:
[T]he nature of command responsibility itself, as a sui generis form of liability, which is distinct from the modes of individual responsibility set out in Article 7(1), does not require a causal link. Command responsibility is responsibility for omission, which is culpable due to the duty imposed by international law upon a commander. If a causal link were required this would change the basis of command responsibility for failure to prevent or punish to the extent that it would practically require involvement on the part of the commander in the crime his subordinates committed, thus altering the very nature of the liability imposed under Article 7(3). [Halilović case, Judgement, § 78]
40. Considering that superior responsibility does not require that a causal link be established between a commander’s failure to prevent subordinates’ crimes and the occurrence of these crimes, there is no duty for an accused to bring evidence demonstrating that such a causal link does not exist. The Appeals Chamber considers that the Trial Chamber erred in law by making such finding. 
ICTY, Hadžihasanović case, Judgment on Appeal, 22 April 2008, §§ 38–40.
Although this meant that the Trial Chamber was in error because of its examination of causality, the Appeals Chamber found that this “[did] not have an impact on [the Trial Chamber’s] conclusion with regard to Hadžihasanović’s responsibility for these crimes”. 
ICTY, Hadžihasanović case, Judgment on Appeal, 22 April 2008, § 42.
International Criminal Tribunal for the former Yugoslavia
In the Plavšić case before the ICTY in 2002, the accused, Biljana Plavšić, a member of the Bosnian Serb leadership, was charged with genocide, complicity in genocide, crimes against humanity (murder, extermination, deportation, persecutions on political, racial and religious grounds, other inhumane acts) and violations of the laws or customs of war (murder) for her alleged role in the intended “permanent removal, by force or other means, of Bosnian Muslim, Bosnian Croat or other non-Serb inhabitants from large areas of Bosnia and Herzegovina”. 
ICTY, Plavšić case, Amended Consolidated Indictment, 7 March 2002, §§ 4 and 15–27.
With regard to the accused’s individual criminal responsibility for the acts of her subordinates, the Prosecutor stated:
10. [The accused], while holding positions of superior authority, [is] also individually criminally responsible for the acts or omissions of [her] subordinates, pursuant to Article 7(3) of the [1993 ICTY Statute]. A superior is responsible for the criminal acts of his subordinate if he knew or had reason to know that his subordinates were about to commit such acts or had done so, and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators.
13. [The accused] held a prominent position in the Bosnian Serb leadership … She was a member of the National Security Council, an Acting President, a member of the Presidency and the Expanded Presidency of the Serbian Republic of Bosnia and Herzegovina, and a prominent member of the SDS. By virtue of those associations, positions and memberships, she had de facto control and authority over members of the Bosnian Serb Forces and Bosnian Serb Political and Governmental Organs and their agents, who participated in the crimes alleged in this indictment.
14. [The accused] knew or had reason to know that all crimes alleged in this indictment were about to be committed or had been committed by [her] subordinates and [she] failed to take necessary and reasonable measures to prevent such acts or punish the perpetrators thereof. [The] accused is therefore individually criminally responsible under Article 7(3) of the Statute of the Tribunal. 
ICTY, Plavšić case, Amended Consolidated Indictment, 7 March 2002, §§ 10 and 13–14.
After the accused had pleaded guilty to the charge of persecutions, the Trial Chamber, “satisfied … that there was a sufficient factual basis for the crime and the accused’s participation in it”, entered a finding of guilt on that charge; the remaining charges against her were dismissed. 
ICTY, Plavšić case, Sentencing Judgment, 27 February 2003, § 5.
The accused was sentenced to 11 years’ imprisonment. 
ICTY, Plavšić case, Sentencing Judgment, 27 February 2003, § 134, Part VI (Disposition).
International Criminal Tribunal for the former Yugoslavia
In the Krajišnik case before the ICTY in 2002, the accused, Momčilo Krajišnik, a member of the Bosnian Serb leadership, was charged with genocide and complicity in genocide, punishable under Article 4(3)(a) and (e) of the 1993 ICTY Statute, crimes against humanity, punishable under Article 5 of the 1993 ICTY Statute, and violations of the laws or customs of war, punishable under Article 3 of the 1993 ICTY Statute, for his alleged role in the intended “permanent removal, by force or other means, of Bosnian Muslim, Bosnian Croat or other non-Serb inhabitants from large areas of Bosnia and Herzegovina”. 
ICTY, Krajišnik case, Amended Consolidated Indictment, 7 March 2002, §§ 4 and 15–27.
With regard to the accused’s individual criminal responsibility for the acts of his subordinates, the Prosecutor stated:
10. [The accused], while holding positions of superior authority, [is] also individually criminally responsible for the acts or omissions of [his] subordinates, pursuant to Article 7(3) of the [1993 ICTY Statute]. A superior is responsible for the criminal acts of his subordinate if he knew or had reason to know that his subordinates were about to commit such acts or had done so, and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators.
11. [The accused], in [his] capacit[y] as … member[…] of the … Expanded Presidency … of the Serbian Republic of Bosnia and Herzegovina had de jure control and authority over the Bosnian Serb Forces and Bosnian Serb Political and Governmental Organs that participated in the crimes alleged in this indictment.
12. [The accused] held a prominent position in the Bosnian Serb leadership … He was a member of the National Security Council, the Expanded Presidency of the Serbian Republic of Bosnia and Herzegovina, the Main Board of the SDS and the Bosnian Serb Assembly, of which he was also President. By virtue of those associations, positions and memberships, he had de facto control and authority over the Bosnian Serb Forces and Bosnian Serb Political and Governmental Organs and their agents, who participated in the crimes alleged in this indictment.
14. [The accused] knew or had reason to know that all crimes alleged in this indictment were about to be committed or had been committed by [his] subordinates and [he] failed to take necessary and reasonable measures to prevent such acts or punish the perpetrators thereof. [The] accused is therefore individually criminally responsible under Article 7(3) of the Statute of the Tribunal. 
ICTY, Krajišnik case, Amended Consolidated Indictment, 7 March 2002, §§ 10–12 and 14.
International Criminal Tribunal for the former Yugoslavia
In the Stakić case before the ICTY in 2002, the accused was charged with genocide or complicity in genocide, crimes against humanity and violations of the laws or customs of war for his alleged role in the events in the Prijedor municipality in 1992. 
ICTY, Stakić case, Fourth Amended Indictment, 10 April 2002, §§ 39–59, Counts 1–8.
With regard to the accused’s individual criminal responsibility, the Prosecutor stated, inter alia:
30. [The accused], while holding positions of superior authority is also individually criminally responsible for the acts or omissions of his subordinates, pursuant to Article 7(3) of the [1993 ICTY Statute]. [The accused], by virtue of his role as President of the Prijedor Crisis Staff and Head of the National Defence Council in Prijedor Municipality, had control and authority over the TO and police forces that participated in the crimes alleged in this indictment.
31. [The accused] knew or had reason to know that all crimes alleged in this indictment were about to be committed or had been committed by his subordinates and he failed to take necessary and reasonable measures to prevent such acts or punish the perpetrators thereof. The accused is therefore individually criminally responsible under Article 7(3) of the Statute of the Tribunal.
38. [The accused] whilst holding the positions of superior authority as set out in the foregoing paragraphs, is also criminally responsible for the acts of his subordinates, pursuant to Article 7(3) of the Tribunal Statute. A superior is responsible for the acts of his subordinate(s) if he knew or had reason to know that his subordinate(s) were about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof. 
ICTY, Stakić case, Fourth Amended Indictment, 10 April 2002, §§ 30–31 and 38.
In its judgment in 2003, the ICTY Trial Chamber held, with respect to the question of command responsibility under Article 7(3) of the 1993 ICTY Statute:
457. To hold a superior responsible for the acts of his subordinates, the jurisprudence of the Tribunal has established that three elements must be satisfied. The Trial Chamber must establish beyond reasonable doubt:
i. the existence of a superior-subordinate relationship between the superior and the perpetrator of the crime;
ii. that the superior knew or had reason to know that the criminal act was about to be or had been committed; and
iii. the superior’s obligation to take the necessary and reasonable measures to prevent the criminal act or to punish the perpetrator thereof.
458. As the Appeals Chamber has held [in its Judgement in the Mucić case (“Čelebići”), § 195], “[t]he principle that military and other superiors may be held criminally responsible for the acts of their subordinates is well-established in conventional and customary law.”
459. The existence of a superior-subordinate relationship is characterised by a formal or informal hierarchical relationship between the superior and subordinate. The hierarchical relationship may exist by virtue of a person’s de jure or de facto position of authority. The superior may be a member of the military or a civilian. The superior-subordinate relationship need not have been formalised or necessarily determined by “formal status alone”. Both direct and indirect relationships of subordination within the hierarchy are possible and the superior’s “effective control” over the persons committing the offences must be established. Effective control means the “material ability to prevent or punish the commission of the offences”. “Substantial influence” over subordinates that does not meet the threshold of “effective control” is not sufficient under customary law to serve as a means of exercising command responsibility. Where a superior has effective control and fails to exercise that power, he can be held responsible for the crimes committed by his subordinates. A superior vested with de jure authority who does not actually have effective control over his or her subordinates would not incur criminal responsibility pursuant to the doctrine of superior responsibility, whereas a de facto superior who lacks formal letters of appointment or commission but does, in reality, have effective control over the perpetrators of offences might incur criminal responsibility.
460. As regards the mental element of superior responsibility, it must be established that the superior knew or had reason to know that his subordinate was about to commit or had committed a crime. Superior responsibility is not a form of strict liability. It must be proved that: (i) the superior had actual knowledge, established through either direct or circumstantial evidence, that his subordinates were committing or about to commit crimes within the jurisdiction of the Tribunal, or that (ii) he had in his possession information which would at least put him on notice of the risk of such offences, such information alerting him to the need for additional investigation to determine whether such crimes had been or were about to be committed by his subordinates. Under the jurisprudence of the Tribunal, circumstantial evidence of “actual knowledge” has been found to include the number, type and scope of the illegal acts; the period over which the illegal acts occurred; the number and type of troops involved; the logistics involved, if any; the geographical location of the acts; the widespread occurrence of the acts; the speed of the operations; the modus operandi of similar illegal acts; the officers and staff involved; and the location of the commander at the time. Considering geographical and temporal circumstances, this means that the more physically distant the superior was from the commission of the crimes, the more additional indicia are necessary to prove that he knew of them. On the other hand, if the crimes were committed next to the superior’s duty-station this suffices as an important indicium that the superior had knowledge of the crimes, and even more so if the crimes were repeatedly committed. Knowledge may be presumed if a superior had the means to obtain the relevant information of a crime and deliberately refrained from doing so.
461. Finally, it must be established that the superior failed to take the necessary and reasonable measures to prevent or punish the crimes of his or her subordinates. The measures required of the superior are limited to those “within his power”, meaning those measures which are “within his material possibility”. A superior is not obliged to perform the impossible. However, he has a duty to exercise the measures possible within the circumstances, including those which may be beyond his legal competence. The obligation to prevent or punish may, under some circumstances, be satisfied by reporting the matter to the competent authorities. A failure to take the necessary and reasonable measures to prevent an offence of which a superior knew or had reason to know cannot be cured simply by subsequently punishing the subordinate for the commission of the offence.
a. Civilian Superior: Public Officials as Superiors
462. Pursuant to Article 7(3) of the [1993 ICTY] Statute and following jurisprudence of this Tribunal, a civilian superior may be held criminally responsible for the crimes of his subordinates.
b. Convictions under both Article 7(1) and Article 7(3)?
463. It is legally permissible under the jurisprudence of this Tribunal to find a person criminally responsible for one crime under both Article 7(1) and Article 7(3). While there have been cases where a conviction has been entered for one Count pursuant to both Article 7(1) and Article 7(3), there have been others where a Trial Chamber exercised its discretion to enter a conviction under only one head of individual criminal responsibility even when it has been satisfied that the legal requirements for entering a conviction pursuant to the second head of responsibility have been fulfilled. In such cases, the Trial Chamber has entered a conviction under the head of responsibility which better characterises the criminal conduct of the accused.
464. The Trial Chamber endorses the view of the Blaškić Trial Chamber that “[i]t would be illogical to hold a commander criminally responsible for planning, instigating or ordering the commission of crimes and, at the same time, reproach him for not preventing or punishing them.” The Trial Chamber also endorses the Krnojelac Trial Judgement which stated that:
it is inappropriate to convict under both heads of responsibility for the same count based on the same acts. Where the Prosecutor alleges both heads of responsibility within the one count, and the facts support a finding of responsibility under both heads of responsibility, the Trial Chamber has a discretion to chose which is the most appropriate head of responsibility under which to attach criminal responsibility to the Accused.
In conclusion, this Trial Chamber shares the view that conviction under both Article 7(1) and Article 7(3) for the same criminal conduct is generally not possible.
465. Article 7(3) serves primarily as an omnibus clause in cases where the primary basis of responsibility can not be applied. In cases where the evidence leads a Trial Chamber to the conclusion that specific acts satisfy the requirements of Article 7(1) and that the accused acted as a superior, this Trial Chamber shares the view of the Krnojelac Trial Chamber that a conviction should be entered under Article 7(1) only and the accused’s position as a superior taken into account as an aggravating factor.
466. For these reasons, it is in general not necessary in the interests of justice and of providing an exhaustive description of individual responsibility to make findings under Article 7(3) if the Chamber is already satisfied beyond reasonable doubt of both responsibility under 7(1) and the superior positions held by the accused. The superior positions of the accused, without diminishing their importance, would then only constitute an aggravating factor, the seriousness of which would depend on the concrete superior status of the accused over his subordinates. The superior positions of the accused must be established in detail and related to the concrete conduct established under Article 7(1). This approach in relation to Article 7(3) responsibility does not diverge from that taken in relation to e.g. ordering or planning when “committing” has already been established.
Obiter: it would be a waste of judicial resources to enter into a debate on Article 7(3) knowing that Article 7(1) responsibility subsumes Article 7(3) responsibility.
467. This discussion makes clear however that when an accused is found not guilty under Article 7(1) in relation to a particular charge, the mode of individual responsibility under Article 7(3) must be considered. 
ICTY, Stakić case, Judgment, 31 July 2003, §§ 457–467.
International Criminal Tribunal for the former Yugoslavia
In the Obrenović case before the ICTY in 2002, the accused, Dragan Obrenović, an officer in the Army of the Republika Srpska (VRS), was charged with complicity in genocide, crimes against humanity (murder, extermination, persecutions on political, racial and religious grounds) and violations of the laws or customs of war (murder) for his alleged role in the events in the Srebrenica enclave in 1995. 
ICTY, Obrenović case, Amended Joinder Indictment, 27 May 2002, §§ 34–59.
With regard to the accused’s individual criminal responsibility for the acts of his subordinates, the Prosecutor stated:
[The accused], during the time periods when he was the Deputy Commander, Acting Commander or Commander [of the Zvornik Brigade of the VRS], is criminally responsible of the acts of his subordinates pursuant to Article 7(3) of the [1993 ICTY Statute] if he knew or had reason to know that his subordinates were about to commit criminal acts or had done so and he failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof. 
ICTY, Obrenović case, Amended Joinder Indictment, 27 May 2002, § 29.
Following a plea agreement jointly filed by the accused and the Prosecution, the accused pleaded guilty to the charge of persecutions. The Trial Chamber accepted the plea, entered a corresponding finding of guilt and dismissed the remaining charges. 
ICTY, Obrenović case, Sentencing Judgment, 10 December 2003, §§ 10–11.
In the sentencing judgment, assessing the accused’s liability under Article 7(1) and 7(3) of the 1993 ICTY Statute, the Trial Chamber held:
85. … [The accused] has been convicted under both Article 7(1) and 7(3) of the [1993 ICTY] Statute. As described above, [he] not only knew that members of the Zvornik Brigade took part in the organisation of the killings and the burials of the executed Muslim prisoners, but also approved the release of members of the Zvornik Brigade to participate in the implementation of this plan on at least three occasions. The Trial Chamber finds that by approving the removal of his soldiers, [the accused] participated in the implementation of the plan to kill the Muslim prisoners. While the plan to kill the Muslim prisoners was decided by commanders above [him], he released his men from their actual duties and ordered them to follow the orders that came from above. The Trial Chamber considers his participation through this action to be aiding and abetting. [The accused] has accepted criminal responsibility for his participation in the joint criminal enterprise as the common purpose of which was inter alia to execute and bury thousands of Muslim men and boys from 12 July until and about 19 July 1995. The Trial Chamber finds that his participation is best characterised as “co-perpetratorship.”
87. … [I]t is clear that [the accused] was not present at execution sites while the killing operation was carried out. During the critical time period, [he] attempted to fulfil his military duties in the field leading his men during heavy fighting against the ABiH 28th Division at the frontline: [his] primary concern and focus was the military defence of Zvornik. Even while focusing on the defence of Zvornik, however, [the accused] had a responsibility as the Acting Commander and as the Deputy Commander and Chief of Staff to prevent the commission of crimes by his subordinates, and in the event that such crimes were committed, to punish those who committed criminal offences. [He] did neither and is therefore also responsible under Article 7 (3) of the Statute.
88. Weighing [the accused’s] different forms of individual criminal responsibility, the Trial Chamber finds that [his] liability stems primarily from his responsibilities as a commander. While [he] only released seven of his soldiers to prepare for the arrival of the Muslim prisoners in Zvornik and two of his men to take part in the burial of prisoners he knew or had reason to know that members of several units of the Zvornik Brigade took part in the killing operation at various locations by guarding, executing and burying Muslim prisoners. The central part of [his] responsibility arises therefore from his failure to act in the face of the commission of the crime of persecutions – by being passive when he should have prevented his subordinates from committing the criminal acts or punished them for such crimes afterwards. 
ICTY, Obrenović case, Sentencing Judgment, 10 December 2003, §§ 85 and 87–88.
Considering possible aggravating circumstances, the Trial Chamber further stated:
The Trial Chamber recalls … the purpose behind the doctrine of command responsibility: to ensure compliance with the laws and customs of war and international humanitarian law generally. When a commander fails to ensure compliance with the principles of international humanitarian law such that the fails to prevent or punish his subordinates for the commission of crimes that he knew or had reason to know about, he will be held liable pursuant to Article 7(3) [of the 1993 ICTY Statute]. When a commander orders his subordinates to commit a crime within the jurisdiction of the Tribunal, he will be held liable pursuant to Article 7(1) of the Statute. When commanders, through their own actions or inactions, fail in the duty, which stems from their position, training, and leadership skills, to set an example for their troops that would promote the principles underlying the laws and customs of war and thereby – either tacitly or implicitly – promote or encourage the commission of crimes, this may be seen as an aggravating circumstance. The Trial Chamber finds that such is not the case with regards to [the accused]. 
ICTY, Obrenović case, Sentencing Judgment, 10 December 2003, § 100.
The accused was sentenced to 17 years’ imprisonment. 
ICTY, Obrenović case, Sentencing Judgment, 10 December 2003, § 156, Part VI (Disposition).
International Criminal Tribunal for the former Yugoslavia
In the Banović case before the ICTY in 2002, the accused, Predrag Banović, was charged with crimes against humanity (persecutions, murder, inhumane acts) punishable under Article 5 of the 1993 ICTY Statute, and with violations of the laws or customs of war (murder, cruel treatment), punishable under Article 3 of the 1993 ICTY Statute, for his acts while a guard at the Keraterm camp in the Prijedor municipality in 1992. 
ICTY, Banović case, Consolidated Indictment, 21 November 2002, §§ 4, 29–34, Counts 1–5.
On individual criminal responsibility under Article 7(3) of the 1993 ICTY Statute, the Prosecution stated:
… A superior is responsible for the criminal acts of his subordinates, if he knew or had reason to know that his subordinates were about to commit such acts, or had done so, and the superior failed to take necessary and reasonable measures to prevent such acts or to punish the subordinates. 
ICTY, Banović case, Consolidated Indictment, 21 November 2002, § 23.
Following a plea agreement jointly filed by the accused and the Prosecution, the accused pleaded guilty to the charge of persecutions, punishable under Article 5(h) of the 1993 ICTY Statute. The Trial Chamber accepted the plea and entered a corresponding finding of guilt; the remaining charges were dismissed. 
ICTY, Banović case, Sentencing Judgment, 28 October 2003, §§ 9–14.
The accused was sentenced to eight years’ imprisonment. 
ICTY, Banović case, Sentencing Judgment, 28 October 2003, § 96, VI. Disposition.
International Criminal Tribunal for the former Yugoslavia
In its judgment on Motions for Acquittal Pursuant to Rule 98 bis in the Blagojević and Jokić case in 2004, the ICTY Trial Chamber found that, based on ICTY jurisprudence, it interpreted Article 7(3) of the 1993 ICTY Statute relating to command responsibility as follows:
25. Article 7(3) of the [1993 ICTY] Statute provides that:
The fact that any of the acts referred to in articles 2 to 5 of the present Statute was committed by a subordinate does not relieve his superior of criminal responsibility if he knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.
26. The jurisprudence has specified that an accused is held responsible under Article 7(3) if:
- there is a superior-subordinate relationship between the perpetrator(s) and the accused;
- the accused knew or had reasons to know that a crime was about to be or had been committed;
- the accused failed to take the necessary and reasonable measures to prevent the commission of the crime or punish the perpetrator(s) thereof. 
ICTY, Blagojević and Jokić case, Judgment on Motions for Acquittal Pursuant to Rule 98 bis, 4 April 2004, §§ 25–26.
In its judgment in 2005, the Trial Chamber found, with respect to “command responsibility”:
789. Article 7(3) of the [1993 ICTY] Statute provides:
The fact that any of the acts referred to in articles 2 and 5 of the present Statute was committed by a subordinate does not relieve his superior of criminal responsibility if he knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.
As the Appeals Chamber has held, “[t]he principle that military and other superiors may be held criminally responsible for the acts of their subordinates is well-established in conventional and customary law.”
790. To hold a commander responsible for the crimes of his subordinates under customary international law, it must be established beyond reasonable doubt that:
i. there existed a superior-subordinate relationship between the superior and the perpetrator of the crime;
ii. the superior knew or had reason to know that the criminal act was about to be or had been committed; and
iii. the superior failed to take the necessary and reasonable measures to prevent the criminal act or to punish the perpetrator thereof.
791. The existence of a superior-subordinate relationship is most obviously characterised by a formal hierarchical relationship between the superior and subordinate; a hierarchical relationship may also, however, arise out of an informal and indirect relationship. The hierarchical relationship may exist by virtue of a person’s de jure or de facto position of authority. The critical factor that must be established to find a superior-subordinate relationship is that the superior had “effective control” over the person or persons in question, namely those persons committing the offences. Effective control means the “material ability to prevent or punish the commission of the offences”. “Substantial influence” over subordinates that does not meet the threshold of “effective control “ is not a sufficient basis for imputing criminal liability under customary law. Where a commander has effective control and fails to exercise that power he can be held responsible for the crimes committed by his subordinates. A commander vested with de jure authority who does not, in reality, have effective control over his or her subordinates would not incur criminal responsibility pursuant to the doctrine of command responsibility, while a de facto commander who lacks formal letters of appointment, superior rank or commission but does, in reality, have effective control over the perpetrators of offences could incur criminal responsibility under the doctrine of command responsibility.
792. Command responsibility is not a form of strict liability. To find a commander criminally responsible under Article 7(3), it must be established that he “knew or had reason to know” that his subordinate was about to commit or had committed a crime. The mens rea requirement is satisfied when it is established that: (i) the commander had actual knowledge, established through either direct or circumstantial evidence, that his subordinates were committing or about to commit crimes within the jurisdiction of the Tribunal; or (ii) he had in his possession such information which would put him on notice of the risk of such offences, in that it indicated or alerted him to the need for additional investigation in order to determine whether such crimes had been or were about to be committed by his subordinates. Drawing on the indicia identified by the Commission of Experts in their Final Report, Trial Chambers have relied on the following factors to establish “actual knowledge” in lieu of direct evidence: the number, type and scope of the illegal acts; the time during which the illegal acts occurred; the number and type of troops involved; the logistics involved, if any; the geographical location of the acts; the widespread occurrence of the acts; the speed of the operations; the modus operandi of similar illegal acts; the officers and staff involved; and the location of the commander at the time. Additionally, the fact that a military commander “will most probably” be part of an organised structure with reporting and monitoring systems has been cited as a factor that could facilitate the showing of actual knowledge. Knowledge may be presumed if a superior had the means to obtain the relevant information of a crime and deliberately refrained from doing so.
793. The third element which must be established is that the superior failed to take the necessary and reasonable measures to prevent or punish the crimes of his subordinates. The measures required of the commander are limited to those which are “within his power”, meaning those measures which are “within his material possibility”. A commander is not obliged to perform the impossible; he does, however, have a duty to exercise the measures that are possible within the circumstances, including those measures that may be beyond his legal competence. The obligation to prevent or punish may, under some circumstances, be satisfied by reporting the matter to the competent authorities. Finally, the failure to take the necessary and reasonable measures to prevent an offence of which a superior knew or had reason to know cannot be cured simply by subsequently punishing the subordinate for the commission of the offence. 
ICTY, Blagojević and Jokić case, Judgment, 17 January 2005, §§ 789–793.
In its judgment in 2007, the ICTY Appeals Chamber considered a submission from the Prosecution that the Trial Chamber had erred in law in stating that liability under Article 7(3) of the 1993 ICTY Statute may attach only where the accused’s subordinates have participated in a crime through “committing” under Article 7(1) of the Statute:
280. As a threshold matter, the Appeals Chamber confirms that superior responsibility under Article 7(3) of the [1993 ICTY] Statute encompasses all forms of criminal conduct by subordinates, not only the “committing” of crimes in the restricted sense of the term, but all other modes of participation under Article 7(1). The Appeals Chamber notes that the term “commit” is used throughout the Statute in a broad sense, encompassing all modes of responsibility covered by Article 7(1)750 and that such a construction is clearly manifest in Article 29 (co-operation and judicial assistance) of the Statute, referring to States’ obligation to co-operate with the International Tribunal “in the investigation and prosecution of persons accused of committing serious violations of international humanitarian law.”
281. The Appeals Chamber has previously determined that criminal responsibility under Article 7(3) is based primarily on Article 86(2) of [Additional] Protocol I. Accordingly, the meaning of “commit”, as used in Article 7(3) of the Statute, necessarily tracks the term’s broader and more ordinary meaning, as employed in Protocol I. The object and purpose of Protocol I, as reflected in its preamble, is to “reaffirm and develop the provisions protecting the victims of armed conflicts and to supplement measures intended to reinforce their application”. The preamble of Protocol I adds further that “the provisions of the Geneva Conventions of 12 August 1949 and of this Protocol must be fully applied in all circumstances to all persons who are protected by those instruments.” The purpose of superior responsibility, as evidenced in Articles 86(1) and 87 of Protocol I, is to ensure compliance with international humanitarian law. Furthermore, one of the purposes of establishing the International Tribunal, as reflected in Security Council Resolution 808, is to “put an end to [widespread violations of international humanitarian law] and to take effective measures to bring to justice the persons who are responsible for them”. And, more particularly, the purpose of superior responsibility in Article 7(3) is to hold superiors “responsible for failure to prevent a crime or to deter the unlawful behaviour of [their] subordinates.”
282. In this context, the Appeals Chamber cannot accept that the drafters of Protocol I and the Statute intended to limit a superior’s obligation to prevent or punish violations of international humanitarian law to only those individuals physically committing the material elements of a crime and to somehow exclude subordinates who as accomplices substantially contributed to the completion of the crime. Accordingly, “commit” as used in Article 7(3) of the Statute must be understood as it is in Protocol I, in its ordinary and broad sense. 
ICTY, Blagojević and Jokić case, Judgment on Appeal, 9 May 2007, §§ 280–282.
The Appeals Chamber found that the Trial Chamber had not committed a legal error in stating that it was not established that the members of the Bratunac Brigade had “committed” any of the crimes charged. 
ICTY, Blagojević and Jokić case, Judgment on Appeal, 9 May 2007, § 284.
International Criminal Tribunal for the former Yugoslavia
In its Rule 98bis Decision in the Strugar case in 2004, the ICTY Trial Chamber stated:
In order to invoke criminal responsibility under Article 7(3) of the [1993 ICTY] Statute, three elements must be satisfied. First, the existence of a de jure or de facto superior-subordinate relationship must be established. Such relationship presupposes that the superior has effective control over the offenders, otherwise described as the material ability to prevent or punish the alleged offences. Secondly, the superior must have known or had reason to know that the criminal act was about to be or had been committed. This may be established through proof that the superior had actual knowledge that his subordinates were about to or had committed the alleged offences or that he had in his possession information of such a nature as to put him on notice of such risk. Thirdly, it must be established that the superior failed to take the necessary and reasonable measures within his capacity to prevent the criminal act or punish the perpetrator thereof. 
ICTY, Strugar case, Rule 98bis Decision, 21 June 2004, § 93.
In its judgment in 2005, the Trial Chamber reaffirmed the customary status of the rule relating to the individual criminal responsibility of superiors for failure to prevent or to punish crimes committed by subordinates:
357. Article 7(3) of the [1993 ICTY] Statute reads:
The fact that any of the acts referred to in articles 2 to 5 of the present Statute was committed by a subordinate does not relieve his superior of criminal responsibility if he knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.
The principle of individual criminal responsibility of superiors for failure to prevent or to punish crimes committed by subordinates is an established principle of international customary law, applicable to both international and internal armed conflicts.
358. It has been established that the following three elements need to be satisfied in order to invoke individual criminal responsibility under Article 7(3):
(i) the existence of a superior-subordinate relationship;
(ii) the superior knew or had reason to know that the criminal act was about to be or had been committed; and
(iii) the superior failed to take the necessary and reasonable measures to prevent the criminal act or punish the perpetrator thereof.
(a) Superior-subordinate relationship
359. The superior-subordinate relationship lies in the very heart of the doctrine of a commander’s liability for the crimes of his subordinates. It is the position of command over the perpetrator which forms the legal basis for the superior’s duty to act, and for his corollary liability for a failure to do so. Indeed, as was held in previous jurisprudence, the doctrine of command responsibility is “ultimately predicated upon the power of the superior to control the acts of his subordinates”. [Celebici Trial Judgement, para. 377.]
360. The existence of such a position of command derives in essence from the “actual possession or non-possession of powers of control over the actions of subordinates.” [Celebici Trial Judgement, para. 370.] In determining the degree of control to be exercised by the superior over the subordinate, the Appeals Chamber endorsed the effective control standard and held that
The concept of effective control over a subordinate - in the sense of a material ability to prevent or punish criminal conduct, however that control is exercised - is the threshold to be reached in establishing a superior -subordinate relationship for the purpose of Article 7(3) of the Statute. [Celebici Appeals Judgement, para. 256.]
361. In the present case, the issue is raised whether a commander may be found responsible for the crime committed by a subordinate two levels down in the chain of command.
362. It appears from the jurisprudence that the concepts of command and subordination are relatively broad. Command does not arise solely from the superior’s formal or de jure status, but can also be “based on the existence of de facto powers of control”. [Celebici Appeals Judgement, para. 195.] In this respect, the necessity to establish the existence of a superior-subordinate relationship does “not […] import a requirement of direct or formal subordination”. [Celebici Appeals Judgement, para. 303.] Likewise, there is no requirement that the relationship between the superior and the subordinate be permanent in nature. The temporary nature of a military unit is not, in itself, sufficient to exclude a relationship of subordination.
363. Consistently with the above reasoning, other persuasive sources seem to indicate that there is no requirement that the superior-subordinate relationship be immediate in nature for a commander to be found liable for the acts of his subordinate. What is required is the establishment of the superior’s effective control over the subordinate, whether that subordinate be immediately answerable to that superior or more remotely under his command. The Chamber refers to the ICRC Commentary dealing with the concept of a “superior” within the meaning of Article 86 of Additional Protocol I, the provision on which Article 7(3) of the Statute is based, which emphasises that the term does not only cover immediate superiors. Again, the issue is seen as one of control rather than formal direct subordination. It states
This is not a purely theoretical concept covering any superior in a line of command, but we are concerned only with the superior who has a personal responsibility with regard to the perpetrator of the acts concerned because the latter, being his subordinate, is under his control. The direct link which must exist between the superior and the subordinate clearly follows from the duty to act […] Furthermore, only that superior is normally in the position of having information enabling him to conclude in the circumstances at the time that the subordinate has committed or is going to commit a breach. However, it should not be concluded from this that this position only concerns the commander under whose direct orders the subordinate is placed […] The concept of the superior is broader and should be seen in terms of a hierarchy encompassing the concept of control.
364. Further support can be found in the judgement of the military tribunal in the case against the Japanese Admiral Soemu Toyoda tried in the aftermath of World War II. The military tribunal expressly stressed the irrelevance of the level of subordination as it stated
In the simplest language it may be said that this Tribunal believes the principle of command responsibility to be that, if this accused knew, or should by the exercise of ordinary diligence have learned, of the commission by his subordinates, immediate or otherwise, of the atrocities proved beyond a shadow of a doubt before this Tribunal or of the existence of a routine which would countenance such, and, by his failure to take any action to punish the perpetrators, permitted the atrocities to continue, he has failed in his performance of his duty as a commander and must be punished.
365. Reference may also be made to the Commentary of the International Law Commission on Article 6 of the Draft Code of Crimes Against the Peace and Security of Mankind construing the use of the term “superiors” in the plural form as an indication that the doctrine of command responsibility “applies not only to the immediate superior of a subordinate, but also to his other superiors in the military chain of command or the governmental hierarchy if the necessary criteria are met.” In this respect, the Chamber also recalls that “the test of effective control … implies that more than one person may be held responsible for the same crime committed by a subordinate.” [Blaskic Trial Judgement, para 303, referring to Aleksovski Trial Judgement, para. 106.]
366. In light of the above, the Chamber holds that there is no legal requirement that the superior-subordinate relationship be a direct or immediate one for a superior to be found liable for a crime committed by a subordinate, provided that the former had effective control over the acts of the latter. As to whether the superior has the requisite level of control, the Chamber considers that this is a matter which must be determined on the basis of the evidence presented in each case.
(b) Mental element: the superior knew or had reason to know
367. A superior may be held responsible under Article 7(3) of the [1993 ICTY] Statute for crimes committed by a subordinate if, inter alia, he knew or had reason to know that the subordinate was about to commit or had committed such crimes.
368. A superior’s actual knowledge that his subordinates were committing or were about to commit a crime cannot be presumed, but it may be established by circumstantial evidence. Factors that may be considered in this respect include the number, type and scope of illegal acts, time during which the illegal acts occurred, number and types of troops and logistics involved, geographical location, whether the occurrence of the acts is widespread, tactical tempo of operations, modus operandi of similar illegal acts, officers and staff involved, and location of the commander at the time.
369. The jurisprudence of the Tribunal has considered the issue of when a superior “had reason to know.” As held by the Celebici Trial Chamber, a superior can be held criminally responsible only if specific information was in fact available to him which would provide notice of offences committed by his subordinates, or of offences about to be committed. A superior is not liable for failing to acquire such information in the first place. The mental element of “reason to know” is determined only by reference to the information in fact available to the superior. However the information in fact available to him need not be such that, by itself, it was sufficient to compel the conclusion of the existence of such crimes. It is sufficient that the superior was put on further inquiry by the information, i.e. that it indicated the need for additional investigation in order to ascertain whether offences were being committed or were about to be committed.
370. The Appeals Chamber upheld this approach and held that a superior will be criminally responsible by virtue of the principles of superior responsibility only if information was available to him which would have put him on notice of offences committed by subordinates, or about to be committed. It was further observed that even general information in his possession, which would put him on notice of possible unlawful acts by his subordinates would be sufficient. A superior may be regarded as having “reason to know” if he is in possession of sufficient information to be on notice of the likelihood of illegal acts by his subordinates, i.e., if the information available is sufficient to justify further inquiry.
371. This Chamber will approach its decision on the basis on this jurisprudence.
(c) Necessary and reasonable measures
372. The question of whether a superior has failed to take all necessary and reasonable measures to prevent the commission of an offence or to punish the perpetrators is intrinsically connected to the question of that superior’s position of power. As the Tribunal’s definition of a “superior” requires the existence of effective control, whether de jure or de facto, a superior will be held responsible for failing to take such measures that are within his material possibility. Therefore the question whether a superior had explicit legal capacity to take such measures will be immaterial if he had the material ability to act.
373. Article 7(3) does not provide a superior with two alternative options, but contains two distinct legal obligations to prevent the commission of the offence and to punish the perpetrators. The duty to prevent arises for a superior from the moment he acquires knowledge or has reasonable grounds to suspect that a crime is being or is about to be committed, while the duty to punish arises after the commission of the crime. Therefore, if a superior has knowledge or has reason to know that a crime is being or is about to be committed, he has a duty to prevent the crime from happening and is not entitled to wait and punish afterwards.
374. What the duty to prevent will encompass will depend on the superior’s material power to intervene in a specific situation. In establishing individual responsibility of superiors, military tribunals set up in the aftermath of World War II have considered factors such as the superior’s failure to secure reports that military actions have been carried out in accordance with international law, the failure to issue orders aiming at bringing the relevant practices into accord with the rules of war, the failure to protest against or to criticize criminal action, the failure to take disciplinary measures to prevent the commission of atrocities by the troops under their command, and the failure to insist before a superior authority that immediate action be taken. The International Military Tribunal for the Far East has held that a superior’s duty may not be discharged by the issuance of routine orders and that more active steps may be required:
The duty of an Army commander in such circumstances is not discharged by the mere issue of routine orders… His duty is to take such steps and issue such orders as will prevent thereafter the commission of war crimes and to satisfy himself that such orders are being carried out.
375. A superior’s duty to prevent the commission of a crime is explicitly provided for by post World War II treaties. Additional Protocol I requires any commander who is aware that his subordinates are about to commit a crime “to initiate such steps as are necessary to prevent such violations.” The ICRC commentary to the above text notes that this duty varies for each level of command, and by way of example, may imply that “a lieutenant must mark a protected place which he discovers in the course of his advance, a company commander must ensure that an attack is interrupted when he finds that the objective under attack is no longer a military objective, and a regimental commander must select objectives in such a way as to avoid indiscriminate attacks.”
376. A superior’s duty to punish the perpetrators of a crime includes at least an obligation to investigate possible crimes, to establish the facts, and if the superior has no power to sanction, to report them to the competent authorities. Military tribunals established after World War II have interpreted the superiors’ duty to punish as implying an obligation for the superiors to conduct an effective investigation and to take active steps to secure that the perpetrators will be brought to justice. Relevant in this respect could also be whether the superior has called for a report on the incident and the thoroughness of the investigation.
377. Further guidance as to what the duty to punish may entail is provided by Additional Protocol I. Article 87(3) of [the Additional Protocol I] requires a commander who is aware that his subordinates have committed a breach of the Geneva Conventions or the Protocol “… where appropriate to initiate disciplinary or penal action” against them. The ICRC commentary suggests that this action may include informing their superior officers of the situation, “drawing up a report in the case of a breach, […] proposing a sanction to a superior as disciplinary power, or – in the case of someone who holds such power himself – exercising it, within the limits of his competence, and finally, remitting the case to the judicial authority where necessary with such factual evidence which is possible to find.”
378. In view of the above the question whether all necessary and reasonable measures to prevent the commission of crimes or to punish the perpetrators have been taken should be considered in light of the Accused’s material powers at that time. Factors relevant to the Chamber’s assessment include, but are not limited to, whether specific orders prohibiting or stopping the criminal activities were issued; what measures to secure the implementation of these orders were taken; what other measures were taken to secure that the unlawful acts were interrupted and whether these measures were reasonably sufficient in the specific circumstances; and, after the commission of the crime, what steps were taken to secure an adequate investigation and to bring the perpetrators to justice. 
ICTY, Strugar case, Judgment, 31 January 2005, §§ 357–378.
In its judgment of 2008, the ICTY Appeals Chamber considered the superior’s material ability to prevent the commission of war crimes by subordinates. The Appeals Chamber stated that “in situations involving formal hierarchies or command structures, a superior’s capacity to issue orders can amount to a factor indicative of his effective control over subordinates, in the sense of a material ability to prevent or punish criminal conduct.” 
ICTY, Strugar case, Judgment on Appeal, 17 July 2008, § 195.
(footnote in original omitted)
On effective control in the superior-subordinate relationship, the Appeals Chamber stated:
253. The Appeals Chamber recalls that a superior’s authority to issue orders does not automatically establish that a superior had effective control over his subordinates, but is one of the indicators to be taken into account when establishing the effective control. As the Appeals Chamber held in Halilović, in relation to such capacity, “the orders in question will rather have to be carefully assessed in light of the rest of the evidence in order to ascertain the degree of control over the perpetrators”. [Halilović case, Judgement on Appeal, § 204] For instance, in Blaskić, the Appeals Chamber found that “the issuing of humanitarian orders does not by itself establish that the Appellant had effective control over the troops that received the orders”. [Blaškić case, Judgement on Appeal, § 485]
254. Indeed, as held by the Appeals Chamber in Blaskić, “the indicators of effective control are more a matter of evidence than of substantive law, and those indicators are limited to showing that the accused had the power to prevent, punish, or initiate measures leading to proceedings against the alleged perpetrators where appropriate” [Blaškić case, Judgement on Appeal, § 69]. Therefore, whether a given form of authority possessed by a superior amounts to an indicator of effective control depends on the circumstances of the case. For example, with respect to the capacity to issue orders, the nature of the orders which the superior has the capacity to issue, the nature of his capacity to do so as well as whether or not his orders are actually followed would be relevant to the assessment of whether a superior had the material ability to prevent or punish.
256. The Appeals Chamber recalls that whether a superior’s orders are in fact followed can be indicative of a superior’s effective control over his subordinates. 
ICTY, Strugar case, Judgment on Appeal, 17 July 2008, §§ 253–254 and 256.
[footnotes in original omitted]
The Appeals Chamber also considered the “had reason to know” mens rea standard for command responsibility. Having examined its previous jurisprudence, the Appeals Chamber held:
As such, while a superior’s knowledge of and failure to punish his subordinates’ past offences is insufficient, in itself, to conclude that the superior knew that similar future offences would be committed by the same group of subordinates, this may, depending on the circumstances of the case, nevertheless constitute sufficiently alarming information to justify further inquiry under the “had reason to know” standard. In making such an assessment, a Trial Chamber may take into account the failure by a superior to punish the crime in question. Such failure is indeed relevant to the determination of whether, in the circumstances of a case, a superior possessed information that was sufficiently alarming to put him on notice of the risk that similar crimes might subsequently be carried out by subordinates and justify further inquiry. In this regard, the Appeals Chamber stresses that a superior’s failure to punish a crime of which he has actual knowledge is likely to be understood by his subordinates at least as acceptance, if not encouragement, of such conduct with the effect of increasing the risk of new crimes being committed. 
ICTY, Strugar case, Judgment on Appeal, 17 July 2008, § 301.
[footnotes in original omitted]
The Appeals Chamber affirmed the Trial Chamber’s view that a superior had to be in possession of information which would put him or her on notice of subordinates’ offences or possible unlawful acts. However, the Trial Chamber also referred to a requirement that a superior should possess sufficient information to be on notice of the likelihood of illegal acts, stating:
[T]he Appeals Chamber cannot conclude with certainty that the Trial Chamber properly interpreted the standard of “had reason to know” as requiring an assessment, in the circumstances of the case, of whether a superior possessed information that was sufficiently alarming to put him on notice of the risk that crimes might subsequently be carried out by subordinates and justify further inquiry. The Appeals Chamber must therefore determine whether the Trial Chamber erred in law by applying an incorrect legal standard in its findings on Strugar’s criminal responsibility as a superior. 
ICTY, Strugar case, Judgment on Appeal, 17 July 2008, § 302.
[footnotes in original omitted]
The Appeals Chamber found:
[T]he Trial Chamber erroneously read into the mens rea element of Article 7(3) the requirement that the superior be on notice of a strong risk that his subordinates would commit offences. In this respect, the Appeals Chamber recalls that under the correct legal standard, sufficiently alarming information putting a superior on notice of the risk that crimes might subsequently be carried out by his subordinates and justifying further inquiry is sufficient to hold a superior liable under Article 7(3) of the [1993 ICTY] Statute. 
ICTY, Strugar case, Judgment on Appeal, 17 July 2008, § 304.
[footnotes in original omitted]
International Criminal Tribunal for the former Yugoslavia
In the Brđanin case before the ICTY in 2003, the accused, Radoslav Brđanin, who was a leading political figure in the Autonomous Region of Krajina (ARK), Bosnia and Herzegovina, and later a senior figure within the Government of the Republika Srpska, was charged with various serious crimes, including genocide, wilful killing, torture, wanton destruction of cities, towns or villages or devastation not justified by military necessity – committed between about April 1992 and 31 December 1992. 
ICTY, Brđanin case, Sixth Amended Indictment, 9 December 2003, §§ 35-64.
In examining the matter of “command or superior responsibility” pursuant to Article 7(3) of the 1993 ICTY Statute, the Trial Chamber noted:
275. The Appeals Chamber has held that “[t]he principle that military and other superiors may be held criminally responsible for the acts of their subordinates is well-established in conventional and customary law.” This applies both in the context of international as well as internal armed conflicts. The jurisprudence of the Tribunal has established the following three-pronged test for criminal liability pursuant to Article 7(3) of the Statute:
1. the existence of a superior-subordinate relationship between the superior (the accused) and the perpetrator of the crime;
2. the accused knew or had reason to know that the crime was about to be or had been committed; and
3. the accused failed to take the necessary and reasonable measures to prevent the crime or punish the perpetrator thereof.
276. The existence of a superior-subordinate relationship is characterised by a formal or informal hierarchical relationship between the superior and subordinate. The hierarchical relationship may exist by virtue of a person’s de jure or de facto position of authority. The superior-subordinate relationship need not have been formalised or necessarily determined by formal status alone. Both direct and indirect relationships of subordination within the hierarchy are possible whilst the superior’s effective control over the persons committing the offence must be established. Effective control is defined as the material ability to prevent or punish the commission of the offence. Substantial influence over subordinates that does not meet the threshold of effective control is not sufficient under customary law to serve as a means of exercising superior criminal responsibility. A superior vested with de jure authority who does not actually have effective control over his or her subordinates would not incur criminal responsibility pursuant to the doctrine of superior responsibility, whereas a de facto superior who lacks formal letters of appointment or commission but does, in reality, have effective control over the perpetrators of offences might incur criminal responsibility.
277. In all circumstances, and especially when an accused is alleged to have been a member of collective bodies with authority shared among various members, “it is appropriate to assess on a case-by-case basis the power or authority actually devolved on an accused,” taking into account the cumulative effect of the accused’s various functions.
278. As regards the mental element of superior responsibility, it must be established that the superior knew or had reason to know that his subordinate was about to commit or had committed a crime. Superior responsibility is not a form of strict liability. It must be proved that the superior had: (i) actual knowledge, established through either direct or circumstantial evidence, that his subordinates were about to commit or had committed crimes within the jurisdiction of the Tribunal, or (ii) constructive knowledge, meaning that the superior had in his or her possession information that would at least put him or her on notice of the present and real risk of such offences, such information alerting him or her to the need for additional investigation to determine whether such crimes were about to be committed or had been committed by his or her subordinates. Knowledge may be presumed if a superior had the means to obtain the relevant information of a crime and deliberately refrained from doing so.
279. Finally, it must be established that the superior failed to take the necessary and reasonable measures to prevent or punish the crimes of his or her subordinates. The measures required of the superior are limited to those within his power, that is, those measures that are within his material possibility. The superiors’ duty to prevent and punish their subordinates’ crimes includes at least an obligation to investigate the crimes to establish the facts and to report them to the competent authorities, if the superior does not have the power to sanction himself. A superior is not obliged to perform the impossible. However, he has a duty to exercise the measures reasonably possible under the circumstances, including those that may be beyond his formal powers. What constitutes such measures is not a matter of substantive law but of evidence. The failure to take the necessary and reasonable measures to prevent an offence of which a superior knew or had reason to know cannot be remedied simply by subsequently punishing the subordinate for the commission of the offence.
280. Notwithstanding the central place assumed by the principle of causation in criminal law, causation has not traditionally been postulated as a conditio sine qua non for the imposition of criminal liability on superiors for their failure to prevent or punish offences committed by their subordinates. Hence, it is not necessary that the commander’s failure to act caused the commission of the crime.
2. Responsibility of Civilian Superiors Pursuant to Article 7(3)
281. Article 7(3) is applicable both to military and civilian leaders, be they elected or self-proclaimed, once it is established that they had the requisite effective control over their subordinates. As in the case of military superiors, civilian superiors will only be held liable under the doctrine of superior criminal responsibility if they were part of a superior -subordinate relationship, even if that relationship is an indirect one. A showing that the superior merely was an influential person will not be sufficient; however, it will be taken into consideration, together with other relevant facts, when assessing the civilian superior’s position of authority. Nevertheless, the concept of effective control for civilian superiors is different in that a civilian superior’s sanctioning power must be interpreted broadly. It cannot be expected that civilian superiors will have disciplinary power over their subordinates equivalent to that of military superiors in an analogous command position. For a finding that civilian superiors have effective control over their subordinates, it suffices that civilian superiors, through their position in the hierarchy, have the duty to report whenever crimes are committed, and that, in light of their position, the likelihood that those reports will trigger an investigation or initiate disciplinary or criminal measures is extant. In situations of armed conflict, it is often the case that civilian superiors assume more power than that with which they are officially vested. In such circumstances, de facto authority may exist alongside, and may turn out to be more significant than, de jure authority. The capacity to sign orders will be indicative of some authority; it is necessary to look to the substance of the documents signed and whether there is evidence of them being acted upon.
282. The mens rea requirement for liability pursuant to Article 7(3) has been applied uniformly in cases before this Tribunal and the ICTR to both civilian and military superiors, in the sense that the same state of knowledge to establish superior criminal responsibility pursuant to Article 7(3) of the Statute is required for both civilian and military superiors.
283. Civilian superiors are under similar obligations to prevent their subordinates’ crimes and to punish the perpetrators thereof as military superiors. Depending on the effective de jure or de facto powers enjoyed, one would need to consider whether these include an ability to require the competent authorities to take action. 
ICTY, Brđanin case, Judgment, 1 September 2004, §§ 275–283.
[emphasis in original]
International Criminal Tribunal for the former Yugoslavia
In the Ademi and Norac case before the ICTY in 2004, the accused were charged with crimes against humanity (persecutions and murder), punishable under Article 5 of the 1993 ICTY Statute, and violations of the laws or customs or war (murder, plunder of property, and wanton destruction of cities, towns or villages), punishable under Article 3 of the 1993 ICTY Statute, for their role in a military operation conducted in the Medak Pocket region of Croatia. 
ICTY, Ademi and Norac case, Consolidated Indictment, 27 May 2004, §§ 28–35, Counts 1–5.
With regard to the criminal responsibility of the accused for the acts of their subordinates, the Prosecutor stated:
A superior is criminally responsible for the acts of his subordinates, if the superior knew, or had reason to know, that his subordinates were about to commit such acts, or had done so, and the superior failed to take necessary and reasonable measures to prevent such acts, or to punish the perpetrators thereof. 
ICTY, Ademi and Norac case, Consolidated Indictment, 27 May 2004, § 17.
International Criminal Tribunal for the former Yugoslavia
In its judgment in the Mrkšić case in 2007, the ICTY Trial Chamber considered the individual criminal responsibility of the defendants under Article 7(3) of the 1993 ICTY Statute:
557. Article 7(3) of the Statute reads:
The fact that any of the acts referred to in Article 2 to 5 of the present Statute was committed by a subordinate does not relieve his superior of criminal responsibility if he knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the reasonable and necessary measures to prevent such acts or to punish the perpetrators thereof.
The principle of individual criminal responsibility of superiors for failure to prevent or to punish crimes committed by subordinates is an established principle of customary international law, applicable to both international and internal armed conflicts.
558. To hold a superior responsible under Article 7(3) of the Statute, the jurisprudence of the Tribunal has enumerated three elements which must be satisfied:
1. the existence of a superior-subordinate relationship;
2. the superior knew or had reason to know that the criminal act was about to be or had been committed; and
3. the superior failed to take the necessary and reasonable measures to prevent the criminal act or punish the perpetrator thereof.
(a) Superior-subordinate relationship
559. The doctrine of command responsibility is ultimately predicated upon the position of command over and the power to control the acts of the perpetrators. It is this position which forms the legal basis for the superior’s duty to act, and for his corollary liability for a failure to do so.
560. The existence of the position of command may arise from the formal or de jure status of a superior, or from the existence of de facto powers of control. It derives essentially from the “actual possession or non-possession of powers of control over the actions of subordinates.” In determining the degree of control to be exercised by the superior over the subordinate, the Appeals Chamber endorsed the effective control standard, which it defined as the material ability to prevent or punish criminal conduct. The existence of a superior-subordinate relationship does “not […] import a requirement of direct or formal subordination” [Čelebići Appeals Judgement, § 303]. Likewise, there need not be a permanent relationship of command and subordination, and the temporary nature of a unit has been held not to be, in itself, sufficient to exclude the existence of a superior-subordinate relationship. Further, the Chamber recalls that “the test of effective control […] implies that more than one person may be held responsible for the same crime committed by a subordinate.”
561. Although the issue will always turn on the particular facts of the case, a number of factors have been identified, albeit not exhaustively, from which effective control may be inferred. These include the official position held by the accused, his capacity to issue orders, whether de jure or de facto, the procedure for appointment, the position of the accused within the military or political structure and the actual tasks that he performed.
(b) Mental element: the superior knew or had reasons to know
562. Strict liability does not attach to the principle of command responsibility; it must therefore be proven that the superior knew or had reasons to know that his subordinates were committing or about to commit crimes. An assessment of the mental element required by Article 7(3) of the Statute is determined on the specific circumstances of each case and the specific situation of the accused at the relevant time.
563. A superior’s actual knowledge that his subordinates were committing or were about to commit a crime cannot be presumed; it may, however, be established by circumstantial evidence, including the number, type and scope of illegal acts, time during which the illegal acts occurred, number and type of troops and logistics involved, geographical location, whether the occurrence of the acts is widespread, tactical tempo of operations, modus operandi of similar illegal acts, officers and staff involved, and location of the commander at the time.
564. In determining whether a superior “had reason to know” that his subordinates were committing or about to commit a crime, it must be shown that specific information was in fact available to him which would have provided notice of offences committed or about to be committed by his subordinates. It is not required that he actually acquainted himself with the information, it must only be available to him. The superior may not be held liable for failing to acquire such information in the first place. However the information in fact available need not be such that, by itself, it was sufficient to compel the conclusion of the existence of such crimes. It is sufficient that the superior be in possession of sufficient information, even general in nature, to be on notice of the likelihood of illegal acts by his subordinates, i.e., so as to justify further inquiry in order to ascertain whether such acts were indeed being or about to be committed. If the superior deliberately refrains from obtaining further information, even though he had the means to do so, he may well be considered to have “had reason to know” of the crimes.
(c) Necessary and reasonable measures
565. A superior’s duty to take the necessary and reasonable measures to prevent the commission of a crime or punish the perpetrators thereof relates directly to his possession of effective control, i.e. of his material ability to take such measures. A superior may be held liable for failing to take measures even in the absence of explicit legal capacity to do so, if it is proven that it was within his material ability. Accordingly, what constitutes “necessary and reasonable measures” is to be determined on the basis of the particular evidence of the case.
566. Article 7(3) contains two distinct legal obligations: to prevent the commission of the offence and to punish the perpetrators. These are not alternative obligations.1966 The duty to prevent arises from the time a superior acquires knowledge, or has reason to know that a crime is being or is about to be committed, while the duty to punish arises after the superior acquires knowledge of the commission of the crime. A superior is required to act from the moment that he acquires such knowledge, and his duty to prevent will not be met by simply waiting and punishing afterwards.
567. Whether a superior has discharged his duty to prevent the commission of a crime will depend on his material ability to intervene in a specific situation. Factors which may be taken into account in making that determination include whether specific orders prohibiting or stopping the criminal activities were issued, what measures to secure the implementation of these orders were taken, what other measures were taken to ensure that the unlawful acts were interrupted and whether these measures were reasonably sufficient in the specific circumstances, and, after the commission of the crime, what steps were taken to secure an adequate investigation and to bring the perpetrators to justice; as well as the superior’s failure to secure reports that military actions have been carried out in accordance with international law, the failure to issue orders aiming at bringing the relevant practices into accord with the rules of war, the failure to protest against or to criticize criminal action, the failure to take disciplinary measures to prevent the commission of atrocities by the troops under the superior’s command, and the failure to insist before a superior authority that immediate action be taken. While in itself, the prior and precautionary failure to inform subordinates of their responsibilities does not suffice to attach criminal liability, it may be regarded as a relevant factor when examining the factual circumstances of the case.
568. A superior’s duty to punish the perpetrators of a crime encompasses the obligation to conduct an effective investigation with a view to establishing the facts. This translates into an obligation on the part of the superior to take active steps to ensure that the perpetrators will be punished. To that end, the superior may exercise his own powers of sanction, or if he lacks such powers, report the perpetrators to the competent authorities. He is required, however, to utilise all measures at his disposal. 
ICTY, Mrkšić case, Judgment, 27 September 2007, §§ 557–568.
The Trial Chamber subsequently concluded, in relation to Mrkšić’s command responsibility:
The Chamber would record here that, had it not been persuaded of Mile Mrkšić’s responsibility under Article 7(1) of the [1993 ICTY] Statute … it would have been satisfied that Mile Mrkšić is responsible for the same crimes under Article 7(3) of the Statute. In light of the Appeals Chamber finding in Blaškić [Blaškić Appeals Judgement, § 91], the Chamber does not make a further finding of guilt of the same offences under Article 7(3). 
ICTY, Mrkšić case, Judgment, 27 September 2007, § 634.
International Criminal Tribunal for the former Yugoslavia
In the Orić case before the ICTY in 2005, the accused, appointed as commander of the Srebrenica Territorial Defence (TO) headquarters in 1992, was charged with several counts of violations of the laws or customs of war (murder, cruel treatment, wanton destruction of cities, towns or villages, not justified by military necessity), punishable under Article 3 of the 1993 ICTY Statute, for his alleged role in events occurring in the Srebrenica enclave in 1992–1993. 
ICTY, Orić case, Third Amended Indictment, 30 June 2005, Counts 1–3 and 5.
He was charged partly under Article 7(1) of the 1993 ICTY Statute, for his direct individual criminal responsibility, 
ICTY, Orić case, Third Amended Indictment, 30 June 2005, Count 5.
and partly under Article 7(3) of the 1993 ICTY Statute, for his individual criminal responsibility as superior. 
ICTY, Orić case, Third Amended Indictment, 30 June 2005, Counts 1–3.
On the accused’s individual criminal responsibility as a superior, the Prosecution stated:
15. At all times relevant to the charges in this indictment, by virtue of his position and authority as Commander, [the accused] commanded all units that were operating within his area of responsibility. …
16. [The accused] demonstrated both de jure and de facto command and control in military matters in a manner consistent with the exercise of superior authority, by issuing orders, instructions and directives to the units, by ensuring the implementation of these orders, instructions and directives and bearing full responsibility for their implementation.
17. [The accused] exercised effective control over his subordinates.
18. [The accused], whilst holding the positions set out in this indictment is criminally responsible as a superior for the acts of his subordinates, pursuant to Article 7(3) of the [1993 ICTY Statute]. A superior is responsible for the acts of his subordinate(s) if he knew or had reason to know that his subordinate(s) were about to commit such acts or had done so and the superior failed to take necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof. Accordingly, [the accused] is criminally responsible under Article 7(3) of the Statute of the Tribunal for all crimes charged in this indictment. 
ICTY, Orić case, Third Amended Indictment, 30 June 2005, §§ 15–18.
In its judgment in 2006, the ICTY Trial Chamber stated:
290. Article 7(3) of the [1993 ICTY] Statute imposes criminal liability on superiors for failure to prevent or punish crimes committed by subordinates. It provides that:
[The] fact that any of the acts referred to in article 2 to 5 of the present Statute was committed by a subordinate does not relieve his superior of criminal responsibility if he knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.
291. The principle of “superior criminal responsibility” is firmly anchored both in conventional and customary law, and applicable to both international and internal armed conflicts.
1. Nature and Elements of “Superior Criminal Responsibility”
292. According to the jurisprudence of the Tribunal, paragraphs (1) and (3) of Article 7 of the [1993 ICTY] Statute connote distinct categories of individual criminal responsibility, which, if not encompassed in one count, may constitute the basis for two separate offences. Notwithstanding this distinction, the modes of liability of instigation and aiding and abetting, with which the Accused is charged pursuant to Article 7(1) of the Statute, share a common feature with that of superior criminal responsibility pursuant to Article 7(3) of the Statute in that both are accessory to principal crimes committed by other direct perpetrators.
293. However, whereas for a finding of instigation and aiding and abetting, there ought to be a certain contribution to the commission of the principal crime, superior criminal responsibility is characterised by the mere omission of preventing or punishing crimes committed by (subordinate) others. Therefore, it is not uncommon to find the superior described as responsible “for the acts of his subordinates”. This does not mean, however, that the superior shares the same responsibility as the subordinate who commits the crime in terms of Article 7(1) of the Statute, but that the superior bears responsibility for his own omission in failing to act. In this sense, the superior cannot be considered as if he had committed the crime himself, but merely for his neglect of duty with regard to crimes committed by subordinates. By this essential element being distinct from the subordinate’s responsibility under Article 7(1) of the Statute, the superior’s responsibility under 7(3) of the Statute can indeed be called a responsibility sui generis.
294. Taking together what has to be proven for individual criminal responsibility under Article 7(3) of the Statute, both with regard to the crime base performed by others and the superior’s responsibility, four elements must be fulfilled:
(i) an act or omission incurring criminal responsibility according to Articles 2 to 5 and 7(1) of the Statute has been committed by other(s) than the accused (‘principal crime’);
(ii) there existed a superior-subordinate-relationship between the accused and the principal perpetrator(s) (‘superior-subordinate-relationship’);
(iii) the accused as a superior knew or had reason to know that the subordinate was about to commit such crimes or had done so (‘knew or had reason to know’); and
(iv) the accused as a superior failed to take the necessary and reasonable measures to prevent such crimes or punish the perpetrator(s) thereof (‘failure to prevent or punish’).
2. Scope of the “Principal Crime”
295. Until recently, both the requirement of a principal crime (committed by others than the accused) and its performance in any of the modes of liability provided for in Article 7(1) appeared so obvious as to hardly need to be explicitly stated. Since this position, however, has been challenged by the Defence, some clarification is needed.
297. The Defence submits that Article 7(3) of the Statute, when declaring superiors responsible for crimes “committed” by subordinates, merely refers to the “commission” mode of Article 7(1) of the Statute, whereas all other modes of liability provided for in this Article are not included and, thus, cannot serve as the basis for superior criminal responsibility. Therefore, according to the Defence, a superior can be held responsible only if the subordinates “committed” the crimes themselves, and not if they merely aided and abetted the crimes of others. Furthermore, the Defence seems to interpret the reference in Article 7(3) of the Statute to “acts” in such a way that only positive contributions of subordinates to a crime may trigger criminal responsibility of the superior, whereas for mere passive omissions by subordinates, such as allowing crimes to be committed by others, the superior would not be obliged to prevent or punish.
298. This Trial Chamber has already dealt with these legal aspects, and gave its position on them in the case of Prosecutor v. Boškoski and Tarčulovski. It will accordingly, for the purposes of, and considering the particulars of this case, limit itself to the following reconfirmations and clarifications.
299. First, as regards the principal question whether “committing” in Article 7(3) of the Statute is to be understood in a broad or narrow manner, the Trial Chamber holds that the better arguments speak for the former. As the use of “committing” in various Articles (1, 2, 4, 5, 9, 16 and 29) of the Statute shows, this term is open to different interpretations, depending on the context in which it is used. Whereas Article 7(1) of the Statute lists various forms of individual criminal liability in terms of perpetration and participation, Article 7(3) of the Statute deals with criminal responsibility on the level of a superior by determining his or her duties. Even if this is done within the same Article, varied language in two different sections speaks against rather than for its understanding in only one sense. This is particularly true if, as submitted by the Defence, Article 7(1) and 7(3) of the Statute provide two “separate pillars” of responsibility, in which case they might even be regulated in two different Articles. Consequently, the possibility of a different interpretation can certainly not be excluded.
300. Since a broad interpretation of “committing” in Article 7(3) of the Statute cannot be excluded, decisive weight must be given to the purpose of superior criminal responsibility: it aims at obliging commanders to ensure that subordinates do not violate international humanitarian law, either by harmful acts or by omitting a protective duty. This enforcement of international humanitarian law would be impaired to an inconceivable degree if a superior had to prevent subordinates only from killing or maltreating in person, while he could look the other way if he observed that subordinates “merely” aided and abetted others in procuring the same evil.
301. For these and other reasons which, taking into account the relevant case law of this Tribunal, are elaborated in more detail in the Boškoski case, the Trial Chamber holds that the criminal responsibility of a superior under Article 7(3) of the Statue is not limited to crimes committed by subordinates in person but encompasses any modes of criminal responsibility proscribed in Article 7(1) of the Statute, in particular, instigating as well as otherwise aiding and abetting.
302. Second, as regards the nature of the “acts” referred to in Article 7(3) of the Statute, the Trial Chamber holds that a superior’s criminal responsibility for crimes of subordinates is not limited to the subordinates’ active perpetration or participation, but also comprises their committing by omission. First of all, this position is supported by the common usage of “act” and “committing” as legal umbrella-terms for conduct that consists of actively causing a certain result to occur or in failing to prevent its occurrence. Moreover, even where the Statute describes criminalised breaches of international laws and conventions in an active manner by referral to “acts” against persons or property (Article 2 of the Statute), to any other “acts” enumerated in paragraph 3 (of Article 4 of the [1993 ICTY] Statute) or to other inhumane “acts” (Article 5 of the [1993 ICTY] Statute), this is, in the case law of the Tribunal, consistently understood as comprising both acts and omissions. This has not only been stated in general terms by defining “committing” as covering “physically perpetrating a crime or engendering a culpable omission in violation of criminal law”, but also in regard to particular crimes, such as in this case “murder” and “cruel treatment”, both of which can be perpetrated by acts and omissions.
303. Furthermore, since commission through culpable omission is not limited to perpetration but, according to the case of this Tribunal, is open to all forms of participation, instigating as well as aiding and abetting can also be carried out by omission.
304. In whatever mode, though, omission can incur responsibility only if there was a duty to act in terms of preventing the prohibited result from occurring. Such a duty can, in particular, arise out of responsibility for the safety of the person concerned, derived from humanitarian law or based on a position of authority, or can result from antecedent conduct by which the person concerned has been exposed to a danger.
305. Third, with regard to the consequences for the superior’s responsibility, the Trial Chamber holds that his or her duty to prevent or punish concerns all modes of conduct a subordinate may be criminally responsible for under Article 7(1) of the Statute, be it perpetration by committing the relevant crime (alone or jointly with others) in person or be it participation, as in the form of instigation or otherwise aiding and abetting, and further, that any of these modes of liability may be performed by positive action or culpable omission. The superior’s responsibility for omissions of subordinates is of particular relevance in cases where subordinates are under a protective duty to shield certain persons from being injured, as in the case of detainees kept in custody. If, due to a neglect of protection by subordinates, protected persons sustain injuries, it is these subordinates’ culpable omissions (in terms of Article 7(1) of the Statute) for which the superior is made responsible under Article 7(3) of the Statute. Consequently, if for instance the maltreatment of prisoners by guards, and/or by outsiders not prevented from entering the location, is made possible because subordinates in charge of the prison fail to ensure the security of the detainees by adequate measures, it does not matter any further by whom else, due to the subordinates’ neglect of protection, the protected persons are being injured, nor would it be necessary to establish the identity of the direct perpetrators.
306. Fourth, the Trial Chamber finds that the criminal responsibility of subordinates of the Accused under Article 7(1) of the Statute, by virtue of omission, is sufficiently indicated in the Indictment and in the Prosecution Pre-Trial Brief.
3. “Superior-Subordinate Relationship”
307. As stated by the Trial Chamber in the Čelebići case, “the doctrine of command responsibility is ultimately predicated upon the power of the superior to control the acts of his subordinates”. This has two implications.
308. First, Article 7(3) of the Statute does not differentiate between “commander” and “superior” as was later done in Article 28 of the Rome Statute, but instead uses exclusively the generic term of “superior”. Consequently, the scope of Article 7(3) of the Statute extends beyond classical “command responsibility” to a truly “superior criminal responsibility”, and does not only include military commanders within its scope of liability, but also political leaders and other civilian superiors in possession of authority.
309. The second implication is that, in relation to the power of the superior to control, it is immaterial whether that power is based on a de jure or a de facto position. Although formal appointment within a hierarchical structure of command may still prove to be the best basis for incurring individual criminal responsibility as a superior, the broadening of this liability as described above is supported by the fact that the borderline between military and civil authority can be fluid. This is particularly the case with regard to many contemporary conflicts where there may be only de facto self-proclaimed governments and/or de facto armies and paramilitary groups subordinate thereto.
310. Thus, regardless of which chain of command or position of authority the superior-subordinate relationship may be based, it is immaterial whether the subordination of the perpetrator to the accused as superior is direct or indirect, and formal or factual. In the same vein, the mere ad hoc or temporary nature of a military unit or an armed group does not per se exclude a relationship of subordination between the member of the unit or group and its commander or leader.
311. Within this rather broad platform, however, proof of a superior-subordinate relationship ultimately depends on the existence of effective control which requires that the superior must have had the material ability to prevent or punish the commission of the principal crimes. On the one hand, this needs more than merely having “general influence” on the behaviour of others. Likewise, merely being tasked with coordination does not necessarily mean to have command and control. On the other hand, effective control does not presuppose formal authority to issue binding orders or disciplinary sanctions, as the relevant threshold rather depends on the factual situation, i.e., the ability to maintain or enforce compliance of others with certain rules and orders. Whether this sort of control is directly exerted upon a subordinate or mediated by other sub-superiors or subordinates is immaterial, as long as the responsible superior would have means to prevent the relevant crimes from being committed or to take efficient measures for having them sanctioned. In the same vein, proof of the existence of a superior-subordinate relationship does not require the identification of the principal perpetrators, particularly not by name, nor that the superior had knowledge of the number or identity of possible intermediaries, provided that it is at least established that the individuals who are responsible for the commission of the crimes were within a unit or a group under the control of the superior.
312. Although it is obvious that the requisite level of control is a matter to be determined on the basis of the evidence presented in each case, the jurisprudence of the Tribunal provides certain criteria that are more or less indicative of the existence of some authority in terms of effective control. This is in particular true with regard to the formality of the procedure used for appointment of a superior, the power of the superior to issue orders or take disciplinary action, the fact that subordinates show in the superior’s presence greater discipline than when he is absent, or the capacity to transmit reports to competent authorities for the taking of proper measures. Likewise, the capacity to sign orders is an indicator of effective control, provided that the signature on a document is not purely formal or merely aimed at implementing a decision made by others, but that the indicated power is supported by the substance of the document or that it is obviously complied with. An accused’s high public profile, manifested through public appearances and statements or by participation in high-profile international negotiations, although not establishing effective control per se, is an additional indicator of effective control. On the other hand, effective control does not necessarily presuppose a certain rank, so that even a rank-less individual commanding a small group of men can have superior criminal responsibility. Nor is it required that the superior generally exercises the trappings of de jure authority.
313. If a superior is proven to have possessed the effective control to prevent or punish relevant crimes, his or her own individual criminal responsibility is not excluded by the concurrent responsibility of other superiors. If, however, a superior has functioned as a member of a collegiate body with authority shared among various members, the power or authority actually devolved on an accused may be assessed on a case-by-case basis, taking into account the cumulative effect of the accused’s various functions.
314. As concerns the point in time at which the superior must have had effective control over his subordinates and at which he should have acted to prevent or punish the relevant crimes, it seems to be commonly accepted that the critical time is when those crimes were committed. Since this, however, may be true only with regard to the duty to prevent crimes from occurring, but not necessarily so for the duty to punish crimes which have been committed, this element will be further examined in connection with those duties.
4. Mens Rea – “Knew or had Reason to Know”
316. The basic mental requirement for superior criminal responsibility, although neither explicitly set forth in the Statute nor discussed to any significant extent in the case law of the Tribunal, is first of all that a superior be aware of his own position of authority, i.e., that he or she has effective control, under the specific circumstances, over the subordinates who committed or were about to commit the relevant crimes.
317. Beyond this general requirement of mens rea, individual criminal responsibility under Article 7(3) requires no more than the superior either (a) having known or (b) having had reason to know that his subordinates were about to commit relevant criminal acts or had already done so. Whereas the former requires proof of actual knowledge, the latter requires proof only of some grounds which would have enabled the superior to become aware of the relevant crimes of his or her subordinates. By permitting the attribution of criminal responsibility to a superior for what is in actual fact a lack of due diligence in supervising the conduct of his subordinates, Article 7(3) in this respect sets itself apart by being satisfied with a mens rea falling short of the threshold requirement of intent under Article 7(1) of the Statute.
318. Nevertheless, superior criminal responsibility by no means involves the imposition of “strict liability”, for even if it may be described as the “imputed responsibility or criminal negligence”, a mental element is required at least in so far as an accused must have been aware of his position as a superior and of the reason that should have alerted him to relevant crimes of his subordinates.
(a) Actual Knowledge
319. The actual knowledge of the superior, in terms of awareness that his subordinates were about to commit or have committed relevant crimes, cannot be presumed. In the absence of direct evidence, however, actual knowledge may still be established by way of circumstantial evidence. Although in this regard, the superior’s position may per se appear to be a significant indication from which knowledge of a subordinate’s criminal conduct can be inferred, such status is not to be understood as a conclusive criterion but must be supported by additional factors. According to the case law of the Tribunal, circumstantial evidence can in particular be gained from the indicia listed by the United Nations Commission of Experts in its final report on the armed conflict in the former Yugoslavia, such as the type and scope of illegal acts, the time during which they occurred, the number and type of troops involved, the logistics involved, if any, the geographical location of the acts, their widespread occurrence, the tactical tempo of operations, the modus operandi of similar illegal acts, the officers and staff involved and the location of the commander at the time.
320. Although the required knowledge is in principle the same both for military and civil superiors, the various indications must be assessed in light of the accused’s position of command. This may, in particular, imply that the threshold required to prove knowledge of a superior exercising more informal types of authority is higher than for those operating within a highly disciplined and formalised chain of command with established reporting and monitoring systems.
(b) Imputed Knowledge
321. Different from actual knowledge, be it proven by direct or circumstantial evidence, is the alternative of having had “reason to know”. Here, the superior is deemed not to have possessed actual knowledge. Instead, the superior can be held responsible for having had reason to know, had he made use of information which, by virtue of his superior position and in compliance with his duties, was available to him, that subordinates were about to commit or had already committed the relevant crimes. In these terms, this mode of mental state may indeed be coined “imputed knowledge”.
322. In determining whether a superior had “reason to know” that subordinates were committing or were about to commit a crime, it must be shown that the superior was in possession of information which put him/her on notice of criminal acts committed or about to be committed by subordinates. This determination does not require the superior to have actually acquainted himself/herself with the information in his or her possession, nor that the information would, if read, compel the conclusion of the existence of such crimes. It rather suffices that the information was available to the superior and that it indicated the need for additional investigation in order to ascertain whether offences were being committed or about to be committed by subordinates. Although the information may be general in nature, it must be sufficiently specific to demand further clarification. This does not necessarily mean that the superior may be held liable for failing to personally acquire such information in the first place. However, as soon as the superior has been put on notice of the risk of illegal acts by subordinates, he or she is expected to stay vigilant and to inquire about additional information, rather than doing nothing or remaining “wilfully blind”.
323. Whether the relevant information has become available to the superior in written or oral form is immaterial. In particular, it is not necessary for the information to have been submitted in the form of a specific report. Examples of information which have been found to place a superior on notice of the risk of criminal conduct by a subordinate include that of a subordinate having a notoriously violent or unstable character and that of a subordinate drinking prior to being sent on a mission. Even where such indications are present, the Trial Chamber would find that a “reason to know” existed only if, as appears also to be required by the Appeals Chamber, these indications point to the same type of crimes as the superior was supposed to prevent or punish, as opposed to merely general criminal activity.
5. “Failure to Prevent or Punish”
(a) Two Distinct Duties
325. In order to incur individual criminal responsibility under Article 7(3) of the Statute, the superior having actual or imputed knowledge of crimes being about to be committed or having been committed by his subordinates must have “failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof”. Thus, what a superior is liable for is not just the failure to have acquired sufficient knowledge about the criminal conduct of his subordinates, but ultimately the failure to react appropriately by preventing or punishing the relevant crimes.
326. As a mode of liability based on omission, superior criminal responsibility presupposes a duty of the superior the purpose of which is, first and foremost, the prevention of crimes of subordinates that are about to be committed, and in the second place, the punishment of subordinates who have already committed crimes. This duty does not, in terms of an alternative, permit a superior to choose, i.e., to either prevent the crimes or to await their commission and then punish. The superior’s obligations are instead consecutive: it is his primary duty to intervene as soon as he becomes aware of crimes about to be committed, while taking measures to punish may only suffice, as substitute, if the superior became aware of these crimes only after their commission. Consequently, a superior’s failure to prevent the commission of the crime by a subordinate, where he had the ability to do so, cannot simply be remedied by subsequently punishing the subordinate for the crime. Therefore, the failure to prevent or to punish constitutes two distinct, but related, aspects of superior responsibility which correlate to the timing of a subordinate’s commission of a crime. Hence, the duty to prevent concerns future crimes whereas the duty to punish concerns past crimes of