Practice Relating to Rule 153. Command Responsibility for Failure to Prevent, Punish or Report War Crimes
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’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.
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.
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’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.
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.”
The LOAC Manual (2006) replaces both the Defence Force Manual (1994) and the Commanders’ Guide (1994).
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.
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.
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.
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.
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.