Practice Relating to Rule 152. Command Responsibility for Orders to Commit War Crimes
Argentina’s Law of War Manual (1989) provides: “The persons accused of having committed or ordered the commission of [grave] violations, including those resulting from an omission rather than an action, must be searched for.”
Argentina’s Decree on Trial before the Supreme Council of the Armed Forces (1983), issued in connection with the situation in Argentina under the military juntas, states:
The existence of plans for orders renders the members of the military junta in office at the time, as well as the officers of the armed forces at the decision-making level, responsible in their capacity as indirect perpetrators for the criminal acts committed in compliance with the plans drawn up and overseen by the superiors (Article 514 of the Code of Military Justice) … [The] responsibility of these perpetrators does not exclude the responsibility that devolves upon the authors of the operative plan.
Accordingly, the decree states that the members of the first three military juntas be examined by pre-trial proceedings before the Supreme Court of the Armed Forces.
In its judgment in the Military Junta case
in 1985, Argentina’s Court of Appeal found that the responsibility of the accused stemmed from the orders they gave, in their capacity as commanders-in-chief of the various forces, both to seize the victims and to keep the clandestine system of detention in operation, rather than from the fact that they failed to put a halt to the illegal restrictions of freedom organized by other parties. It found that subordinates of the accused arrested a large number of people, detained them clandestinely in military barracks, held them in captivity under inhumane conditions, turned them over to the Executive Branch or physically eliminated them. These procedures were undertaken in accordance with plans approved and ordered by the military commanders. Since it was proven that the acts were committed by members of the armed and security forces, which were organized in a hierarchical and disciplinary fashion, the Court ruled out the possibility that such acts could have occurred without the express orders of the supervisors. Since the members of these forces never denounced acts they must have known about, such acts could only be explained by the fact that the members knew that the acts, though illegal, had been ordered by their superiors.
… [In the present case] we conclude that if the act of handing over the detained persons to the army was not done [in pursuance of a] “decision” or “order” of [the] accused … the detained persons would have been executed or handed over to the army [at an] earlier [stage] or instantly after captur[e] … and the group of Razakars [members of an armed militia] and peace committee members would not have kept them guarded for three days [in a] waiting room … Thus, it has been proved beyond reasonable doubt that the group of Razakars and local peace committee members … waited [to receive] … instruction[s] from [the] accused … and as soon as they [received them], the detained civilians were handed over to the army.
160. … P.W.20 [one of the victims] described how he was treated with brutality during his captivity at the AB camp. He stated that he found one bearded Moulavi and the president of Islami Chatra Sangha (ICS) sitting at Dalim Hotel (AB camp). He also found there many detainees blindfolded with their hands tied up. On order of Mir Quasem Ali ([the] accused) he was then also blindfolded and his hands were tied up. At night, he was taken to another room where he was beaten by AB members on instruction of Mir Quasem Ali for obtaining information about whereabouts of freedom fighters. At a stage of torture he became senseless. P.W.20 also stated that when he was brought to Dalim Hotel he asked Mir Quasem Ali for a glass of water as he was fasting. But Mir Quasem Ali replied “what fasting for you, give him urine to drink”.
216. … The act of confinement and torture indisputably is the outcome of act of abduction. Confinement and torture would not have taken place if there was no act of abduction. Since accused Mir Quasem Ali is found to have had ‘concern’ with the commission of confinement and torture of the detainees at the camp, it is lawfully presumed that the act of abduction too occurred on his approval and endorsement and within his knowledge.
437. Who can be called a leader? An individual is termed as a ‘leader’ when his activity aims and involves establishing a common purpose by sharing the vision with others so that they will follow or obey him willingly. Leadership is a process whereby an individual influences a group of individuals to achieve a common objective. Leadership is a process by which a person influences others to carry out an organizational objective. Mir Quasem Ali alleged to have led the gang. The act of abduction is the first phase of the whole and chained system criminal enterprise. If the accused is found to have had part and concern in subsequent phases of chained criminal acts constituting the offence of confinement and torture, logically he is presumed to have had leading part in causing ‘abduction’ as well.
573. [The a]ccused Mir Quasem Ali has been arraigned for his culpable act and conduct forming part of attack committed against unarmed civilian population that resulted in the commission of principal offences of crimes against humanity in 1971 in Chittagong. Prosecution avers that the accused had so acted as a ‘leader’ of Al-Badar force in Chittagong town and of the AB camp set up at Dalim Hotel with which he was actively associated. Accused Mir Quasem Ali was with the politics of Islami Chatra Sangha (ICS), the student wing of Jamat E Islami (JEI) and thus had played a commanding role over the infamous AB camp at Dalim Hotel.
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.
582. It has been alleged that accused Mir Quasem Ali had ‘participation’ to the series of system cruelties committed at the AB camp, by his conscious act or conduct forming part of ‘attack’. First, accused’s act and conduct is to be evaluated and next it is to be seen whether such act or conduct had placed him in the position of ‘command’ and ‘leadership’ of the AB camp at Dalim Hotel. In order to resolve this crucial issue we have to travel through what the detainee witnesses experienced during their protracted captivity at the camp.
583. P.W.9 (detainee victim of charge no. 10) stated that during his detention at the AB camp at Dalim Hotel when he was brought before Mir Quasem Ali he ([the]accused Mir Quasem Ali) asked the whereabouts of freedom fighters and their arms[:] “[I]f you do not tell, you will be killed into pieces and dumped in the river Karnofuli”. On refusal to make any disclosure, Mir Quasem Ali then asked the AB men [to] beat him up … ‘Ordering’ AB men at the detention and torture camp by such culpable utterance proves his … ‘command’ and ‘authority’ o[ver] them …
584. P.W.10 … (detainee victim of charge no. 10) stated that during his detention he was caused to torture by the AB men in a room on the first floor of Dalim Hotel and at a stage someone came there and asked the AB men to beat him up again as he refused to disclose information they asked for. He came to know from conversation of the AB men that the name of the person who asked those (AB men) to beat him [P.W.10] … again was Mir Quasem Ali. … Explicitly directing the AB men to beat then detainee … again not only establishes accused’s authority and position of domination over the camp; it also proves the purpose of causing such torture and degrading mistreatment.
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.
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.