Practice Relating to Rule 153. Command Responsibility for Failure to Prevent, Punish or Report War Crimes
Somalia’s Military Criminal Code (1963) states:
372. Unlawful appropriation of goods. – 1. A soldier or other person serving in or accompanying the armed forces of the State who takes possession, needlessly and without authorization, of food, clothing or equipment, or who has them handed over to him, shall be punished by military confinement for up to five years.
2. If the act is committed by two or more people in concert, the penalty shall be increased by one third to one half.
3. If violence is used, a penalty of military confinement for one to eight years shall be applied.
373. Failure to prevent unlawful appropriation of goods – An officer or a non-commissioned officer who does not do everything in his power to prevent the act specified in the preceding article shall be punished by military confinement for up to one year.
414. Failure to prevent particular military offences. – 1. … [A] soldier who, for fear of danger or for some other inexcusable reason, does not do everything possible to prevent the commission of one of the offences provided for in Articles 370 [looting], 371 [fire, destruction or serious damage in an enemy country], 376 [ill-treatment of the sick, wounded or shipwrecked] [and] 377 [dispossession of the sick, wounded or shipwrecked] … shall be punished:
(a) by confinement for not less than 10 years, in the case of an offence for which the law prescribes a penalty of death with demotion or of life imprisonment;
(b) in other cases, by the penalty prescribed for the offence, reduced by one half to two thirds.
2. If the guilty party is higher in rank, or, being of the same rank, is higher in command or more senior, the penalty prescribed by law for the offence whose commission was not prevented shall be applied. The judge may nevertheless reduce the penalty.
Somalia’s Act of Military Discipline (1975) states:
65. … Every Commanding Officer who conceals or ignores disciplinary failures [by] his subordinates will … himself [be considered to have committed a] … disciplinary failure of his duties.
291. … If a Commanding Officer does not [impose the] appropriate penalty [for] a disciplinary failure [by a subordinate], he will be liable for such [a] failure; it means failing to act [in view of] a disciplinary failure is a failure [in] itself and against the rules.