Practice Relating to Rule 153. Command Responsibility for Failure to Prevent, Punish or Report War Crimes
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”.
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).
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.
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.
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).
[emphasis in original]
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.
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.
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.
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.
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.”