Practice Relating to Rule 153. Command Responsibility for Failure to Prevent, Punish or Report War Crimes
In its judgment in the Episode of San Javier case in 2006, Chile’s Court of Appeals of Santiago stated:
According to Article 456 of the Criminal Procedure Code, nobody may be found guilty of a crime or simple delict unless the tribunal which is hearing the case is convinced, based on lawful evidence, not only that a punishable act has in fact been committed, but also that the accused has participated in this act in a way that gives rise to criminal responsibility and that is punished by the law.
The State Attorney submits that the appealed Judgment suffers from general contradiction which, in his view, is reflected in that the first-instance court retained blanket norms from Articles 86 and 87 of the  Additional Protocol I to the Geneva Conventions in the factual description of the offense, whereby it accepted the concept of responsibility based on the principles of command responsibility, which, apart from suppressive and repressive components, includes an extremely important preventive component of command responsibility requiring commanders to prevent potential crimes by their subordinates, which was the Prosecution’s intention. However, in the practical application of this modality to the established state of facts and in the Reasoning of its Judgment, the first-instance court acted, in the Prosecution’s view, inconsistently because it considered the acts of the Accused as those of mere omission equating them with commission, and thereby treating them as a form of “incomplete command responsibility” that de facto does not include an extremely important, from the Prosecution’s point of view, preventive component of command responsibility. The Prosecution submits that by the virtue of their retention in the factual description of the offense, provisions of Articles 86 and 87 of the Additional Protocol I have become an integral part of the legal norm contained in Article 120(1) as read with Article 28 of the BCCRC [Basic Criminal Code of the Republic of Croatia], which is why all criminal conduct by the field units subordinated to the accused should have been subsumed under this norm as a consequence of the failure of the accused, or their omission, to act preventively, suppressively or repressively in relation to their subordinates, which the court of the first instance failed to do. This, in the State Attorney’s view, resulted in the contradiction between the Enacting Clause of the appealed Judgment and its Reasoning. The Prosecution further submits that the first-instance court failed to give valid reasons as to why it favored “incomplete command responsibility”, upon which it relied in the Reasoning of its Judgment, over a comprehensive command responsibility with all its preventive, suppressive and repressive elements.