Practice Relating to Rule 153. Command Responsibility for Failure to Prevent, Punish or Report War Crimes
Italy’s LOAC Elementary Rules Manual (1991) provides: “The commander makes sure that violations of the law of war cease and ensures that disciplinary action is taken.”
Under Italy’s Penal Code (1930), a person who fails to prevent someone from committing an act that he or she had the duty to prevent may incur criminal responsibility.
In its judgment in the Schintlholzer case in 1988, Italy’s Military Tribunal at Verona, with regard to the accused’s responsibility for the acts committed by soldiers under his command, stated that these acts were in conformity with
systematic activity which cannot as such be explained as the unusual and unforeseeable outcome of spontaneous actions by the combatants, but only as the expression of acts which specifically comply with (and put into effect) orders issued by the Commander [the accused] of the combat unit.
It should therefore be considered that in this case the person of the Commander who has operational and not hierarchical responsibility is a necessary point of reference and reflects the ad hoc organizational structure of composite combat units which, like the “Schintlholzer” combat unit, appear to be formed, used and intended solely for the purpose of a single military operation. This is perfectly consistent with the conviction that evidence of the effective causal contribution which can be attributed to Schintlholzer, at least on the conceptual level, has been obtained, as regards the undoubted contribution of the accused to the decision as to how the distressing facts to which the case relates should be put into effect …
It is … hardly necessary to point out even in this connection that if it was ever possible to establish any collateral responsibility by known or unknown SS officials at an operating level, this would not in any way raise any questions about the responsibility of Schintlholzer, which has been proven at this level and in the context which has to be assessed here and now. Thus, as far as criminal intent is concerned, evidence of awareness of the unlawful nature of the conduct involved in the barbaric images described in the preliminary reconstruction of the facts would appear to have been acquired.
Upon ratification of the 1977 Additional Protocol I, Italy declared: “The word ‘feasible’ means that which is practicable or practically possible, taking into account all circumstances ruling at the time, including humanitarian and military considerations.”
In 1997, the final report of the Italian Government Commission of Inquiry into the events in Somalia referred to a provision of the Italian Penal Code in recalling that an officer who failed to control dutifully his subordinates could be responsible not only under disciplinary law but also under criminal law.
In 2006, in reply to a question concerning the use of white-phosphorous weapons in Iraq, Italy’s Under-Secretary of State to the Presidency of the Council of Ministers stated:
Had the Government been informed or made aware somehow or, else, had it directly verified the use of prohibited weapons, it would not have hesitated to engage in the necessary initiatives. One needs only to recall that, according to the national operational rule of the operation “Antica Babilonia”, in case the Commander of the contingent is made aware of a crime against humanity and of war falling within the jurisdiction of the International Criminal Court, he or she shall inform the Italian judicial and military authorities with a view to the subsequent involvement of the Office of the Prosecutor of the International Criminal Court itself. Under this perspective, by way of meaningful example, one should set in this framework the initiative of the Commander of the national contingent, who, in August 2004, notified the International Committee of the Red Cross of the repeated violations of international humanitarian law by the Iraqi militiamen.