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