Practice Relating to Rule 153. Command Responsibility for Failure to Prevent, Punish or Report War Crimes
South Africa’s Medical Services Military Manual refers to Article 87 of the 1977 Additional Protocol I and provides: “Commanders will prevent [and] suppress and report breaches of humanitarian law.”
South Africa’s LOAC Manual (1996) states:
All soldiers must be aware of their responsibility to report war crimes which are breaches of the LOAC. Normally the report should be made to the next superior in the chain of command. A report may also be made to the Military Police, a Legal Officer or a Chaplain.
South Africa’s Revised Civic Education Manual (2004) states:
Every commander who is aware that subordinates or other persons under his/her control/command are going to commit or have committed a breach of the LOAC, are to initiate the necessary steps to prevent such a breach; and/or take the necessary disciplinary or penal action against those committing such a breach of the LOAC.
The manual also states:
All soldiers must be aware of their responsibility to report war crimes, which are breaches of the LOAC. Normally report should be made to the next senior in the chain of command. A report may also be made to the Military Police, a Legal Officer or a Chaplain.
South Africa’s LOAC Teaching Manual (2008) states:
1.2 Reasons for compliance with LOAC [law of armed conflict] and basic principles thereof.
Legal Considerations. Apart from the abovementioned interests that are addressed by compliance with the LOAC, it must be borne in mind that non-compliance will have legal implications in that it will result in criminal as well as civil liability for both the offender and their commanders.
The manual also states:
5.1 War Crimes and Grave Breaches of the LOAC
- Not only the commission of an act, but also the failure to act, may be a war crime or a grave breach. The Yamashita case laid down three prerequisites for a condemnation in case of a failure to act:
- That the superior ought to have known of the breach committed by his subordinate.
- That he had the power to prevent it.
- That he did nothing to do so.
- Commander’s Responsibility regarding War Crimes and Grave Breaches.
Command responsibility is the topic of our next lecture. However, suffice it to say at this stage that all commanders can be held personally criminally and civilly liable for war crimes and grave breaches committed by their subordinates. This responsibility also covers staff officers.
- Examples of Punishments that can be Imposed for War Crimes or Grave Breaches
- For superior officers who failed to prevent or suppress grave breaches, where it was reasonably expected of them to do so: 14 to 30 years imprisonment.
5.2 Command Responsibility
General Command Responsibilities
The command responsibilities extend to all military operations, movements and locations, whether on or in land, sea and/or air and to all areas of military operations. ( Additional Protocol [I] articles 86 and 87.)
Additional Protocol I article 87 places the following responsibilities on commanders with respect to members of the armed forces under their command and other persons under their control:
- To prevent breaches of the LOAC.
- Where necessary, to suppress breaches of the LOAC.
- To report breaches of the LOAC to the competent authorities.
- To initiate steps to prevent and punish violations of the LOAC by subordinates.
This responsibility placed upon commanders by Additional Protocol I article 87 is a personal responsibility. This means that[:]
- The commanders themselves must ensure that their subordinates are aware of their obligations under the LOAC and the necessary measures are taken to prevent violations of the LOAC.
- The commanders themselves must ensure that their subordinates respect the LOAC; and
- They can be held personally accountable and liable if all members of the armed forces under their command are not aware of their obligations under the LOAC, do not respect the LOAC and if all necessary measures are not taken to prevent violations of the LOAC.
In this regard, it is of the utmost importance to take note of the international agreement creating the International Criminal Court (known as “the Rome Statute”). This topic will be covered in a later lecture. This statute determines that a commander who does not control his/her troops in the execution of their duties, is in breach of the Law.
In the case of a breach of the LOAC, each commander must ensure that[:]
- The breach ceases; and
- Disciplinary or penal action is taken.
The term “commander” is interpreted widely and is regarded to cover the whole command chain, i.e. All those persons who have command responsibility from commanders at the highest level to leaders with only a few men.
The general command responsibility also extends to the civilian field in so far as the LOAC requires this, particularly with regard to co-operation with civilian authorities. (Additional Protocol I articles 1 and 58).
The LOAC binds all commanders and individual soldiers in the armed forces of any State engaged in international armed conflicts, regardless of whether or not they have been instructed in LOAC.
Additional Protocol I article 86 provides that a commander is to be held accountable by a State if he fails to act to prevent a breach of the LOAC, of which
- The commander knew, or
- Had information about which should have enabled him to conclude that the breach was to occur. (Yamashita principles)
Commanders are bound by similar rules of engagement in a non-international conflict.
Commanders have personal responsibilities in terms of the LOAC to:
- Prevent breaches of the LOAC;
- Suppress breaches of the LOAC, where necessary;
- Report breaches of the LOAC to the competent authorities;
- Initiate steps to prevent or punish violations of the LOAC by subordinates.
A commander is to be held accountable by a State if he fails to act to prevent a breach of the LOAC, of which he knew, or had information about which should have enabled him to conclude, that the breach was to occur.
South Africa’s Implementation of the Geneva Conventions Act (2012) states:
5. Breach of Conventions and penalties
(1) Any person who, whether within or outside the Republic, commits a grave breach of the [1949 Geneva] Conventions, is guilty of an offence.
(2) For the purposes of subsection (1), “a grave breach” means –
(a) a grave breach referred to in Article 50 of the First Convention;
(b) a grave breach referred to in Article 51 of the Second Convention;
(c) a grave breach referred to in Article 130 of the Third Convention;
(d) a grave breach referred to in Article 147 of the Fourth Convention; or
(e) a grave breach referred to in Article 11 or 85 of [the 1977 Additional] Protocol I.
(3) Any person who within the Republic contravenes or fails to comply with a provision of the Conventions not covered by subsection (2), is guilty of an offence.
(4) Any citizen of the Republic who outside the Republic contravenes or fails to comply with a provision of the Conventions not covered by subsection (2), is guilty of an offence.
6. Failure to prevent breaches of Conventions
(1) A military superior officer is guilty of an offence if –
(a) forces under his or her effective command, authority and control, whether within or outside the borders of the Republic, commit a grave breach contemplated in section 5(1) or commit an offence contemplated in section 5(3) or (4);
(b) he or she knew, or in the circumstances ought to have reasonably known, that the forces contemplated in paragraph (a) were committing such a grave breach or offence; and
(c) he or she failed –
(i) to exercise effective command, authority and control over the forces contemplated in paragraph (a);
(ii) to take all necessary and reasonable measures within his or her power to prevent or repress the commission of any breach or offence contemplated in paragraph (a); or
(iii) to submit the commission of the breach or offence contemplated in paragraph (a) to the competent authorities for investigation and prosecution.
2) Any person, whether within or outside the borders of the Republic, who fails to act when under a duty to do so in order to prevent the commission of a grave breach contemplated in section 5(1) or an offence contemplated in section 5(3) or (4) by any other person, is guilty of an offence.
(4) For the purposes of this section, a “military superior officer” includes any person –
(a) acting as a military superior officer; or
(b) in a superior position, including a civilian position, in relation to those forces.
In 1987, in the Petane case, the Cape Provincial Division of South Africa’s Supreme Court dismissed the accused’s claim that the 1977 Additional Protocol I reflected customary international law. The Court stated:
The accused has been indicted before this Court on three counts of terrorism, that is to say, contraventions of s 54(1) of the Internal Security Act 74 of 1982. He has also been indicted on three counts of attempted murder.
The accused’s position is stated to be that this Court has no jurisdiction to try him.
… The point in its early formulation was this. By the terms of [the 1977 Additional] Protocol I to the  Geneva Conventions the accused was entitled to be treated as a prisoner-of-war. A prisoner-of-war is entitled to have notice of an impending prosecution for an alleged offence given to the so-called “protecting power” appointed to watch over prisoners-of-war. Since, if such a notice were necessary, the trial could not proceed without it, Mr Donen suggested that the necessity or otherwise for giving such a notice should be determined before evidence was led. …
On 12 August 1949 there were concluded at Geneva in Switzerland four treaties known as the Geneva Conventions. …
South Africa was among the nations which concluded the treaties. … Except for the common art 3, which binds parties to observe a limited number of fundamental humanitarian principles in armed conflicts not of an international character, they apply to wars between States.
After the Second World War many conflicts arose which could not be characterised as international. It was therefore considered desirable by some States to extend and augment the provisions of the Geneva Conventions, so as to afford protection to victims of and combatants in conflicts which fell outside the ambit of these Conventions. The result of these endeavours was Protocol I and Protocol II to the Geneva Conventions, both of which came into force on 7 December 1978.
Protocol II relates to the protection of victims of non-international armed conflicts. Since the State of affairs which exists in South Africa has by Protocol I been characterised as an international armed conflict, Protocol II does not concern me at all.
The extension of the scope of art 2 of the Geneva Conventions was, at the time of its adoption, controversial. …
The article has remained controversial. More debate has raged about its field of operation than about any other articles in Protocol I. …
South Africa is one of the countries which has not acceded to Protocol I. Nevertheless, I am asked to decide, as I indicated earlier, as a preliminary point, whether Protocol I has become part of customary international law. If so, it is argued that it would have been incorporated into South African law. If it has been so incorporated it would have to be proved by one or other of the parties that the turmoil which existed at the time when the accused is alleged to have committed his offences was such that it could properly be described as an “armed conflict” conducted by “peoples” against a “ra[c]ist regime” in the exercise of their “right of self-determination”. Once all this has been shown it would have to be demonstrated to the Court that the accused conducted himself in such a manner as to become entitled to the benefits conferred by Protocol I on combatants, for example that, broadly speaking, he had, while he was launching an attack, distinguished himself from civilians and had not attacked civilian targets. …
… I am prepared to accept that where a rule of customary international law is recognised as such by international law it will be so recognised by our law.
To my way of thinking, the trouble with the first Protocol giving rise to State practice is that its terms have not been capable of being observed by all that many States. At the end of 1977 when the treaty first lay open for ratification there were few States which were involved in colonial domination or the occupation of other States and there were only two, South Africa and Israel, which were considered to fall within the third category of ra[c]ist regimes. Accordingly, the situation sought to be regulated by the first Protocol was one faced by few countries; too few countries in my view, to permit any general usage in dealing with armed conflicts of the kind envisaged by the Protocol to develop.
Mr Donen contended that the provisions of multilateral treaties can become customary international law under certain circumstances. I accept that this is so. There seems in principle to be no reason why treaty rules cannot acquire wider application than among the parties to the treaty.
Brownlie Principles of International Law 3rd ed at 13 agrees that non-parties to a treaty may by their conduct accept the provisions of a multilateral convention as representing general international law. …
I incline to the view that non-ratification of a treaty is strong evidence of non-acceptance.
It is interesting to note that the first Protocol makes extensive provision for the protection of civilians in armed conflict. …
In this sense, Protocol I may be described as an enlightened humanitarian document. If the strife in South Africa should deteriorate into an armed conflict we may all one day find it a cause for regret that the ideologically provocative tone of s 1(4) has made it impossible for the Government to accept its terms.
To my mind it can hardly be said that Protocol I has been greeted with acclaim by the States of the world. Their lack of enthusiasm must be due to the bizarre mixture of political and humanitarian objects sought to be realised by the Protocol. …
According to the International Review of the Red Cross (January/February 1987) No 256, as at December 1986, 66 States were parties to Protocol I and 60 to Protocol II, which, it will be remembered, deals with internal non-international armed conflicts. With the exception of France, which acceded only to Protocol II, not one of the world’s major powers has acceded to or ratified either of the Protocols. This position should be compared to the 165 States which are parties to the Geneva Conventions.
This approach of the world community to Protocol I is, on principle, far too half-hearted to justify an inference that its principles have been so widely accepted as to qualify them as rules of customary international law. The reasons for this are, I imagine, not far to seek. For those States which are contending with “peoples[’]” struggles for self-determination, adoption of the Protocol may prove awkward. For liberation movements who rely on strategies of urban terror for achieving their aims the terms of the Protocol, with its emphasis on the protection of civilians, may prove disastrously restrictive. I therefore do not find it altogether surprising that Mr Donen was unable to refer me to any statement in the published literature that Protocol I has attained the status o[f] customary international [law].
I have not been persuaded by the arguments which I have heard on behalf of the accused that the assessment of Professor Dugard, writing in the Annual Survey of South African Law (1983) at 66, that “it is argued with growing conviction that under contemporary international law members of SWAPO [South-West Africa People’s Organisation] and the ANC [African National Congress] are members of liberation movements entitled to prisoner-of-war status, in terms of a new customary rule spawned by the 1977 Protocols”, is correct. On what I have heard in argument I disagree with his assessment that there is growing support for the view that the Protocols reflect a new rule of customary international law. No writer has been cited who supports this proposition. Here and there someone says that it may one day come about. I am not sure that the provisions relating to the field of application of Protocol I are capable of ever becoming a rule of customary international law, but I need not decide that point today.
For the reasons which I have given I have concluded that the provisions of Protocol I have not been accepted in customary international law. They accordingly form no part of South African law.
This conclusion has made it unnecessary for me to give a decision on the question of whether rules of customary international law which conflict with the statutory or common law of this country will be enforced by its courts.
In the result, the preliminary point is dismissed. The trial must proceed.
In 2010, in the Boeremag case, South Africa’s North Gauteng High Court stated:
In Petane, … Conradie J found that the provisions of [the 1977 Additional] Protocol I are not part of customary international law, and therefore are also not part of South African law.
Referring to the fact that in December 1986 only 66 of the 165 States party to the Geneva Conventions had ratified Protocol I, the Court [in Petane] stated:
This approach of the world community to Protocol I is, on principle, far too half-hearted to justify an inference that its principles have been so widely accepted as to qualify them as rules of customary international law. The reasons for this are, I imagine, not far to seek. For those States which are contending with “peoples[’]” struggles for self-determination, adoption of the Protocol may prove awkward. For liberation movements who rely on strategies of urban terror for achieving their aims the terms of the Protocol, with its emphasis on the protection of civilians, may prove disastrously restrictive. I therefore do not find it altogether surprising that Mr Donen was unable to refer me to any statement in the published literature that Protocol I has attained the status of customary international law.
Important changes with respect to certain aspects applicable at the time of Petane have taken place. The ANC [African National Congress] has become South Africa’s ruling party and in 1995 ratified Protocol I. The total number of States that have ratified it, is now … 162.
This last aspect forms the basis on which the First Respondent [the State] and the applicants agree that Protocol I forms part of customary international law as well as of South African law. As requested, this position is accepted for the purposes of the decision, without deciding on the matter.
Despite these changes, it remains debatable whether the provisions of Protocol I have become a part of South African law in this way.
The consensus of both parties to the conflict is required. See Petane … and Article 96 of Protocol I. …
Parliament’s failure to incorporate Protocol I into legislation in accordance with Article 231(4) of the Constitution in fact points to the contrary, and is indicative that the requirements of usus
and/or opinio juris
have not been met. See Petane
[footnotes in original omitted]
The Court also held:
If the [1977 Additional Protocol I] applies in South Africa as customary international law, the two requirements that form the basis of customary law must be met. It is arguable that the requirement of usus
has been met by the vast number of States that have acceded or ratified it. By ratifying Protocol I the Republic of South Africa has indicated its intention to apply the Protocol, thereby fulfilling the requirement of opinio juris