Practice Relating to Rule 153. Command Responsibility for Failure to Prevent, Punish or Report War Crimes
Colombia’s Instructors’ Manual (1999) states that to prevent violations of human rights, it is necessary “to report to the superior any irregularity which may constitute a violation of Human Rights [and] to report violations of Human Rights to the superior”.
Colombia’s Operational Law Manual (2009) states:
In order to declare a person responsible for the commission of an offence, it is necessary for them to have carried out a typical, unlawful and guilty act, in other words a crime. It is important to recall that the individual can be held responsible for an act or omission.
In relation to criminal responsibility for an omission, the person to be held responsible is the one that had the legal duty to prevent the commission of a crime and, this being possible, did not do so.
In relation to the international responsibility of individuals, the International Criminal Court can hold every individual responsible for the commission of crimes, once the procedural phases have been completed, when it has been established that the person has committed any of the crimes contained in the  Rome Statute, namely:
(ii) war crimes;
(iii) crimes against humanity;
(iv) crime of aggression, when it is defined.
In fact, the ICC Statute establishes the ways in which a person can be held responsible and the different kinds of command responsibility. In relation to this, it is important to highlight that the Constitutional Court, when determining the constitutional conformity of Law 742 of 2005, which approved the Rome Statute, recognized that in “Colombia, the responsibility of the superior exists in relation to the military chief, official or de facto”.
The international responsibility of commanders was established in Article 86(2) of  Additional Protocol I to the  Geneva Conventions … The International Criminal Tribunal for the former Yugoslavia further developed this responsibility.
Today, it is expressly described in Article 28 of the International Criminal Court Statute, which takes into account developments on the matter in case law. …
Developments in the jurisprudence of different tribunals and the establishment of the responsibility of the commander in the Rome Statute identify five sources of responsibility:
For the actions of his or her subordinates when:
- the commander knew that they were going to commit an illegal act and did not take all the necessary and reasonable measures to prevent it;
- the commander had reasons to know that they were going to commit an illegal act and did not take all necessary and reasonable measures to prevent it; or
- the commander did not know that illegal acts were going to be committed, but after they occurred, he or she did not take all necessary and reasonable measures to ensure their investigation, prosecution and punishment.
For the actions of third persons within his or her jurisdiction when:
- the commander knew that third persons were going to commit an offence and did not adopt all necessary and reasonable measures to prevent it; or
- the commander should have known that they were going to commit an offence, and he or she did not adopt all necessary and reasonable measures to prevent it.
With regards to the first three causes of responsibility, there are three criteria that need to be fulfilled in order to attribute responsibility to the commander for the actions of his or her subordinates:
- a superior-subordinate relationship must exist between the hierarchical superior (the commander that has been accused) and the author of the offence;
- the superior must have known or had reasons to know that an offence was going to be committed or was committed; and
- the superior did not take all necessary and reasonable measures to prevent the commission of the crime or to punish the author of it.
The above-mentioned elements will now be analysed.
a. Effective control in the superior-subordinate relationship
International jurisprudence has established that there is a relationship of subordination when the superior exercises an effective control over his or her subordinates. Effective control is nothing other than the material power of the superior over his or her subordinates, and in this sense it is about a power of effective control. Some examples of effective control, identified in jurisprudence, include:
- the power to give orders and to have them executed;
- the capacity to carry out combat operations and see to it that these are executed by troops under his or her control;
- the power to impose disciplinary sanctions; and
- the power to remove subordinates from their positions.
b. Knowledge of the unlawful act
In relation to the effective knowledge of the commander about the acts of his or her subordinates, international jurisprudence has established that there must always be a case-by-case analysis. However, certain factors can be taken into account, such as:
- the number, type and scope of unlawful acts;
- the period during which they occurred;
- the number and type of troops involved;
- the logistical means involved;
- the geographical location of the acts;
- the widespread character of these;
- the period of time of the operations;
- the similarities of the modus operandi of the unlawful acts;
- the officers and staff involved; and
- the location of the commander at the time that the acts were committed.
In order to determine responsibility, there must be evidence that:
- the commander knew that the troops under his or her command were going to commit unlawful acts; or
- he or she had reasons to know, owing to the circumstances at that time.
Circumstances in which international jurisprudence has deduced that the Commander ought to have known that unlawful acts were going to be committed include the following:
- evidence of the widespread nature of the offences;
- evidence of the severity and notoriety of the acts;
- evidence of the existence and effectiveness of the system of disciplinary control;
- evidence that the commander received reports or alerts and did not heed them; and
- evidence that the commander did not adopt all measures (procedures and controls) to ensure he or she knew what his or her subordinates were doing.
c. Necessary and reasonable measures to prevent
With regard to the obligation that every commander has to prevent and punish the commission of unlawful acts, it is necessary to point out that the obligation to prevent arises when the superior knows that an unlawful act is about to be committed, whereas the obligation to sanction arises once the act has been committed.
When the commander discovers that his or her subordinates are going to commit an unlawful act, international jurisprudence has pointed out that he or she must take all the necessary and reasonable measures to prevent it. On this matter, the International Criminal Tribunal for the former Yugoslavia noted in the Hadžihasanović case that:
“Commanders, by virtue of the authority vested in them, are qualified to exercise control over troops and the weapons they use; more than anyone else, they can prevent breaches by creating the appropriate frame of mind, ensuring the rational use of the means of combat, and by maintaining discipline. That control, a component of troop instruction, may be exercised either periodically”.
d. Reasonable and necessary measures to investigate and punish
Finally, the commander is also responsible for the unlawful acts of his or her subordinates when, despite not knowing about the acts before they occurred, he or she did not take all the necessary and reasonable measures to guarantee their investigation, prosecution and punishment. Doctrine and international jurisprudence have progressed to consider that the absence of investigation and punishment is considered not only as a failure of the duty to denounce but also as an element of the wrongful act committed by his or her subordinates, because the omission to investigate effectively contributes to the setting up and repetition of the unlawful act, even if the commander did not order it or did not know about it before it was going to be committed.
Thus, there are three bases on which it can be argued that Command responsibility can be attributed in these cases:
- the absence of investigation and punishment of generalized and notorious unlawful acts can lead to the conclusion that the commander had sufficient reasons to know the facts, but nevertheless did not take measures to investigate and sanction them;
- the absence of investigation and punishment by the commander can imply his or her acquiescence or approval and, therefore, that he or she contributed indirectly to the commission of the unlawful act by reaffirming its meaning; and
- the absence of investigation and sanction can contribute causally to the commission of other unlawful acts, as it generates an expectation that such acts can be committed with impunity.
Finally, the effective control of every commander and the measures they must take have been analysed and spelled out in the same way in the jurisprudence of the Constitutional Court. The Court has established that:
in hierarchical relationships, the superior who has authority or command has a duty to adopt special measures … to prevent persons under his or her effective control from indulging in behaviour that violates fundamental rights. … [I]f the superior does not, where it is possible to do so, prevent a soldier who reports directly to him or her from committing torture or an extra-judicial execution, or a crime against humanity in general, the harmful behaviour of the inferior would be attributable to the superior, as guarantor, rather than the simple failure of his or her functional duty”.
[footnotes in original omitted]
In 2009, in the Constitutional Case No. C-801/09, the Plenary Chamber of Colombia’s Constitutional Court was called upon to decide on the constitutionality of the 2002 ICC Elements of Crimes, the 2002 ICC Rules of Procedure and Evidence and the corresponding domestic law approving them. Regarding command responsibility as provided for in the 1998 ICC Statute, the Court stated:
2.2.13. …[I]n the … Case No. C-578 of 2002, the [Constitutional] Court identified the articles of the  Rome Statute of the International Criminal Court that contain different treatment to that provided for in the  Political Constitution, recognizing that, in any case, these were expressly authorized by Legislative Act No. 2 of 2001, as long as it is understood that their effects are limited exclusively within the scope of the said Statute.
The Court thus found the existence of different treatment in the following articles [of the Rome Statute]:
2. Article 28, which addresses, on the one hand, the responsibility of military commanders, whether within regular armed forces or an irregular armed group, for crimes within the jurisdiction of the International Criminal Court that were committed by forces under his/her command; and, on the other hand, the extension of such command responsibility to civilian superiors with regard to their subordinates in the circumstance provided for under the Rome Statute. With regard to the first situation, the Court has not objected to it, as [Colombian] constitutional case law has developed and applied the doctrine of the so-called “position of guarantor” with regard to public forces, specifically in Case SU-1184 of 2001. According to this case, in Colombia, “superior responsibility exists in relation to the military commander, whether official or
de facto”. However, with regard to the second situation, where “civilians who have subordinates under their authority or effective control can also be held responsible for not properly exercising control over them …”, the Court found this established a special system of responsibility not provided for in the Colombian legal system. The Court stated that this … reflects a different type of responsibility, which was authorized by Legislative Act No. 2 of 2001 [which amended the Constitution in order to authorize Colombia to accept the jurisdiction of the ICC] for those cases prosecuted by the International Criminal Court.
2.2.14. [I]n the section corresponding to the conclusions of Case C-578 of 2002, the Court reiterated that “the different treatment in substantive matters was authorized by Legislative Act No. 2 of 2001 exclusively within the scope of the exercise of the International Criminal Court’s jurisdiction” and, therefore, it “does not diminish the scope of the guarantees provided for under the Constitution with regard to the exercise of the jurisdiction of the national authorities”.
[emphasis in original]
In 2010, in the Ramirez Vivas and others case, which concerned the murder of a civilian by Colombian soldiers, Colombia’s Second Criminal Court of the Specialized Circuit of Popayán stated:
When there are hierarchical relations, the superior who has authority also has a duty to take all measures to prevent persons under his or her command from violating fundamental rights. Therefore, as the superior is a guarantor, the harm caused by his or her subordinates is attributed to him or her …
The accused … by his [negligent] actions created a wrongful situation of imminent risk … which is the reason why he has to be held criminally responsible for the harm caused through the murder of [that] civilian by soldiers under his command.
The Court also stated: “The punishable conduct of murder of a protected person is part of the group of offences against persons and objects protected under international humanitarian law.”