Practice Relating to Rule 153. Command Responsibility for Failure to Prevent, Punish or Report War Crimes
Germany’s Military Manual (1992) states that the superior “is obliged to prevent and, where necessary, to suppress or to report to competent authorities breaches of international law”.
The manual further states:
When a disciplinary superior learns about incidents substantiating suspicion that international humanitarian law has been violated, he shall clear up the facts and consider as to whether disciplinary measures are to be taken. If the disciplinary offence constitutes a criminal offence, he shall refer the case to the appropriate criminal prosecution authority when criminal prosecution seems to be indicated.
Germany’s Law Introducing the International Crimes Code (2002) contains a provision entitled “Responsibility of military commanders and other superiors” which states:
(1) A military commander or civilian superior who omits to prevent his or her subordinate from committing an offence pursuant to this Law inter alia, genocide, crimes against humanity and war crimes] shall be punished in the same way as a perpetrator of the offence committed by that subordinate …
(2) Any person effectively giving orders or exercising command and control in a unit shall be deemed equivalent to a military commander. Any person effectively exercising command and control in a civil organization or in an enterprise shall be deemed equivalent to a civilian superior.
The Law contains a further provision entitled “Violation of the duty of supervision” which states:
(1) A military commander who intentionally or negligently omits properly to supervise a subordinate under his or her command or under his or her effective control shall be punished for violation of the duty of supervision if the subordinate commits an offence pursuant to this Law, where the imminent commission of such an offence was discernible to the commander and he or she could have prevented it.
(2) A civilian superior who intentionally or negligently omits properly to supervise a subordinate under his or her authority or under his or her effective control shall be punished for violation of the duty of supervision if the subordinate commits an offence pursuant to this Law, where the imminent commission of such an offence was discernible to the superior without more and he or she could have prevented it.
(3) [Article 1] Section 4 subsection (2) shall apply mutatis mutandis.
The Law also contains a provision entitled “Omission to report a crime” which provides:
(1) A military commander or a civilian superior who omits immediately to draw the attention of the agency responsible for the investigation or prosecution of any offence pursuant to this Law [inter alia, genocide, crimes against humanity and war crimes], to such an offence committed by a subordinate, shall be punished …
(2) [Article 1(4)(2)] shall apply mutatis mutandis.
In its judgment in the Superior Orders case
in 1953, Germany’s Federal Court of Justice held that the superior giving an illegal order would be primarily responsible for it.
In 2010, in the DRC case, Germany’s Federal Court of Justice decided to remand in pre-trial custody a national of the Democratic Republic of the Congo (DRC) who had been living in Germany. The Court summarized the facts of the case as follows:
The subject of the arrest warrant is the allegation that as the president of the paramilitary militia organisation “Forces Démocratiques de Libération du Rwanda” [Democratic Forces for the Liberation of Rwanda] (hereafter FDLR), which is operating in the provinces North Kivu and South Kivu of the Democratic Republic of [the] Congo … , the accused is criminally liable because he is responsible as superior for crimes against humanity and war crimes and as the ringleader of a terrorist group abroad.
The Court stated:
There is the strong suspicion that the members of the FDLR operating in the DRC have committed crimes against humanity under § 7 para. 1 numbers 1 and 6 VStGB [Germany’s International Crimes Code], war crimes against persons under § 8 para. 1 numbers 1, 3, 4 and 5 VStGB and war crimes against property and other rights under § 9 para. 1 VStGB, for which the accused is criminally liable as superior under § 4 VStGB.
The Court further held:
dd) It is highly likely that the accused is criminally liable as a superior for the crimes committed by members of the FDLR under § 4 VStGB [Germany’s International Crimes Code]. Pursuant to this provision, military and civilian superiors are punished as perpetrators for crimes under the International Crimes Code committed by their subordinates if they consciously allowed these crimes to happen. In contrast to the general rules of German criminal law, [the International Crimes Codes provides that] if a superior supports the commission of a crime by a subordinate merely by refraining from taking any action, the superior is considered a perpetrator of the crime without it being necessary to distinguish between the commission of and participation in the crime in individual cases. Moreover, because of his particular responsibility, a superior who refrained from taking any action cannot rely on mitigating circumstances under § 13 Abs. 2 StGB [Germany’s Penal Code] …
(1) A military commander is understood as an individual who has the possibility of giving binding orders to subordinates, a possibility which must be practically exercisable and may be founded in law. If these conditions are fulfilled, every link of the chain of command within military hierarchy is to be considered a commander. Consequently, several superiors at different levels can all be equally responsible for the same crime committed by a subordinate pursuant to § 4 VStGB. Criminal responsibility under § 4 VStGB cannot be based solely on a superior’s title or formal legal position. In addition, it is always necessary that the superior has the possibility to in fact determine the conduct of his subordinates, in particular to effectively suppress the commission of crimes … Not all members of decision making bodies are necessarily superiors in the sense of § 4 VStGB. Also in this respect it is decisive whether an individual has the power to order subordinates to carry out the jointly taken decisions. … Persons such as field officers or military advisors who have actual influence on the decision-making process but no direct authority to issue orders do not fall within the scope of application of superior responsibility …
According to the aforementioned provisions, it is highly likely that the accused is to be considered a superior in the sense of § 4 VStGB. He was not only nominally the president of the FDLR, but also fulfilled the function of commander-in-chief as a matter of fact. According to the current state of the investigations it must be considered that he was in permanent contact with decision-makers on the ground and was, pursuant to the chain of command within the FDLR, in fact in a position to give orders concerning both strategic matters and regarding concrete means and methods of warfare.
(2) For an individual to incur criminal responsibility as a superior under § 4 VStGB, it is necessary for him to refrain from preventing the commission of a crime by a subordinate. These conditions are fulfilled here. It need not be decided whether the wording of § 4 VStGB means that a superior can only avoid incurring criminal liability for the acts of subordinates if he successfully takes action to the effect that the crime is not committed because of his intervention, or whether it suffices that the superior takes all appropriate and necessary measures within his power to dissuade the subordinate from committing the crime … According to the current state of the examinations, the accused did not take any serious or sustainable measures to prevent the violent assaults against the Congolese civilian population; he was aware of these assaults. To the contrary, these measures were part and parcel of the FDLR’s political strategy with which it intended to achieve its goals; the accused had a significant impact on the formulation of this strategy.
(3) As regards the subjective element of the crime, § 2 VStGB in conjunction with § 15 StGB requires at least conditional intent concerning the objective elements of the crime …
(a) In contrast to the responsibility of a superior under international criminal law, negligence does not suffice under § 4 VStGB, not even for military superiors. This provision of the International Crimes Code thus goes less far than Article 28 of the  ICC Statute. The intent must concern the perpetrator’s status as superior and the knowledge that the person carrying out a concrete action is his subordinate; the superior also must know or consider it concretely possible that he can prevent the commission of the crime by the subordinate based on his authority to issue orders or directives.
Further, the superior must recognize or be aware of the real possibility that the subordinate plans to commit a crime under the VStGB. It suffices in any case if his conditional intent comprises the type of crime to be committed, for example killings under § 7 para. 1 no. 1 or § 8 para. 1 no. 1 VStGB, and also extends to such crimes being committed by troops under his command in areas where fighting is taking place. Additional detailed knowledge is not required. In light of the current state of the investigations, it is not necessary to examine whether the mere knowledge of an abstract possibility that a subordinate is committing crimes against humanity or war crimes are sufficient to substantiate the necessary intent of the superior …
If the aforementioned conditions are fulfilled, divergences regarding the way the crime is carried out or regarding the severity of the crime committed by the subordinate do not negate the responsibility of the superior. However, there is no responsibility of the superior under § 4 VStGB if the subordinate commits a crime which pursuant to the International Crimes Code is qualitatively different than his superior expected and than his superior was prepared to let happen (for example rape under § 8 para. 1 no. 4 VStGB instead of pillage under § 9 para. 1 VStGB which had been expected by the superior, or vice versa …
Moreover, it is not necessary that the superior … have on his mind the main crime which, though not developed in all its details, is concretely developed in its main essential characteristics and basic features. Such a restrictive interpretation is not required by the wording of the rule. This undifferentiated transposal of the principles developed for the participation in crimes under the provisions of the General Part of the German Penal Code goes against the object and purpose of § 4 VStGB; it does not do justice to the specific particularities of attributing violations of the International Crimes Code in various respects. The International Crimes Code differs from the general Penal Code in particular by emphasizing the regularly collective character of the crimes covered. The central aspect of this criminal concept is specifically the participation of a number of individuals at different hierarchical levels in the commission of the crime. In view of the influence of international criminal law on this piece of legislation, it is indispensable to consider these particularities in its interpretation … It follows:
On the one hand, the obligation to prevent a subordinate’s crimes under the International Crimes Code is not only engaged if he is aware of the essential characteristics of the crime about to be committed. The reason for this is that the subordinate personnel regularly poses a great risk, particularly for the potential victims’ highly valued legal goods including physical integrity and life … This potential hazard justifies a particular responsibility of the superior … and makes it especially necessary that he ensures that his subordinates conduct their mission in accordance with the law. Therefore, the public must be able to rely on the commander controlling the dangers inherent in armed units in a timely way rather than waiting until he learns of concrete crimes having been committed.
On the other hand, the purpose of § 4 VStGB is not only to attribute the crimes of subordinates to those superiors who are responsible for the concrete acts on the ground to such an intensive degree that their conditional intent even encompasses the details of the potential violations of the International Crimes Code. Rather, it is intended that also those superiors who are at the top of the chain of command and are thus usually so far away from the actual events on the ground that they do not have detailed knowledge of the precise location, time and the concrete victims be held to account. The provision would mostly be void of any meaning and would only be able to fulfil the intended function in a very restricted way if the requirements for the intent of the superior regarding the crimes to be committed by the subordinate were set too high. Cases like the present one, whose characteristic is that the violations of the International Crimes Code are part of the organisation’s general strategy, make this particularly clear. These general directives are regularly issued by the leaders of the organisation, who would be exempt from criminal liability under § 4 VStGB if the requirements concerning the knowledge element of intent were set too high.
Finally and additionally, in the context of armed confrontation it typically only becomes clear at short notice precisely which crimes are to be committed. An attribution of the crimes under § 4 VStGB would only be possible in very limited situations if one were to require that the superior had detailed knowledge.
In 2010, in the Democratic Forces for the Liberation of Rwanda case, the Federal Prosecutor General at Germany’s Federal Court of Justice issued a press release, which stated:
On 8 December 2010, the Federal Prosecutor General brought charges before the Senate on State Protection of the Higher Regional Court Stuttgart against:
- the 47-year-old Rwandese national Dr. Ignace M. and
- the 49-year-old Rwandese national Straton M.
for crimes against humanity and war crimes as well as membership in a foreign terrorist association “Forces Démocratiques de Libération du Rwanda” [Democratic Forces for the Liberation of Rwanda] (FDLR); in addition, there is sufficient suspicion that the accused Dr. Ignace M. was gang leader of the FDLR (§ 4, § 7 para. 1 nos. 1, 3, 6, 8 and 9, para. 3, § 8 para. 1 nos. 1 to 5, para. 4 sentence 1, § 9 para. 1 and § 11 para. 1 no. 4 VStGB [International Crimes Code], § 129b para. 1 in connection with § 129a paras. 1 and 4 StGB [Penal Code]).
In the charges, which have now been delivered and which are the first ones brought under the International Crimes Code, essentially the following facts are set out:
The … [FDLR] … is a rebel group mainly comprised of members of the ethnic Hutu group and was originally founded by individuals responsible for the genocide of the Tutsi who had fled from Rwanda in 1994. Its operational base is in the Eastern Democratic Republic of [the] Congo [DRC]. …
The accused Dr. Ignace M. has been president of the FDLR since December 2001. The accused Straton M. has been its first vice president since June 2004. Until their arrest in Germany on 17 November 2009, both accused steered the FDLR’s conduct, strategies and tactics from Germany together with Calixte M., who is residing in France and who has since been detained by the International Criminal Court in The Hague. Thus, they could have prevented the systematic commission of violent acts against the civilian population by the FDLR’s militiamen, which were part of the organisation’s strategy. Specifically, the accused are responsible for 26 crimes against humanity and 39 war crimes, which the militiamen under their control committed in the Democratic Republic of [the] Congo between January 2009 and 17 November 2009. These crimes inter alia
include the killing of more than 200 people, rape of numerous women, using civilians as human shields against attacks by military opponents and incorporating children into the FDLR militia.
Upon ratification of the 1977 Additional Protocol I, Germany stated that it understood the word “feasible” to mean “that which is practicable or practically possible, taking into account all circumstances ruling at the time, including humanitarian and military considerations”.