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