Practice Relating to Rule 153. Command Responsibility for Failure to Prevent, Punish or Report War Crimes
France’s LOAC Summary Note (1992) provides: “The commander shall ensure, by exerting his control, that violations of the law of war cease and that disciplinary or penal action is initiated when necessary.”
France’s LOAC Manual (2001) provides:
Each individual is responsible for the violations of the law of armed conflicts for which he/she is guilty, whatever the circumstances may be … The commanders are responsible both for the acts they commit [themselves] and for the orders they give, as well as for the breaches which they allow their subordinates to perform, knowingly, for lack of control or for not having taken the necessary measures to oppose them.
France’s Code of Military Justice (1982) provides: “When a subordinate is tried as the chief actor in an offence … and his hierarchical superiors cannot be sought as co-actors, they are considered to be accessories in that they organized or tolerated the criminal acts of their subordinate.”
France’s Code of Military Justice (2006), in a chapter entitled “In times of war”, states:
If a subordinate is prosecuted as the main perpetrator of one of the offences stipulated in Article L. 122-3, and if his or her hierarchical superiors cannot be sought as co-perpetrators, they are considered accomplices to the extent that they have organized or tolerated the criminal acts of their subordinate.
France’s Penal Code (1992), as amended in 2010, states:
[T]he military commander or person acting as a military commander who either knew or, owing to the circumstances, should have known that subordinates under his or her effective authority and control were committing or were about to commit a war crime … and who failed to take all necessary and reasonable measures within his or her power to prevent or repress its commission, or to submit the matter to the competent authorities for investigation and prosecution, is considered to be an accomplice of such war crime.
… [T]he superior not performing a function of military commander who either knew that the subordinates under his or her effective authority and control were committing or were about to commit a war crime … or who consciously disregarded information which clearly indicated so, and who failed to take all necessary and reasonable measures within his or her power to prevent or repress its commission or to submit the matter to the competent authorities for investigation and prosecution, while the crime concerned activities that were within his or her effective responsibility and control, is also considered to be an accomplice of such war crime.
Upon ratification of the 1977 Additional Protocol I, France stated that it considered that the term “feasible” as used in the Protocol meant “that which can be realized or which is possible in practice, taking into account all circumstances ruling at the time, including humanitarian and military considerations”.