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Prosecutor
v. Delalić et al. (Čelebići case), Judgement, Case No.
IT-96-21-T, T. Ch. IIqtr,
Legal Character of Command Responsibility and its Status Under
Customary International Law
333.
That military commanders and other persons occupying positions of
superior authority may be held criminally responsible for the unlawful conduct
of their subordinates is a well-established norm of customary and conventional
international law. This criminal liability may arise either out of the positive
acts of the superior (sometimes referred to as "direct" command
responsibility) or from his culpable omissions ("indirect" command
responsibility or command responsibility strictu sensu). Thus, a superior
may be held criminally responsible not only for ordering, instigating or
planning criminal acts carried out by his subordinates, but also for failing to
take measures to prevent or repress the unlawful conduct of his subordinates. As
noted in the Report of the Secretary-General on the establishment of the
International Tribunal:
A person in a position of superior authority should, therefore, be held
individually responsible for giving the unlawful order to commit a crime under
the present statute. But he should also be held responsible for failure to
prevent a crime or to deter the unlawful behaviour of his subordinates. This
imputed responsibility or criminal negligence is engaged if the person in
superior authority knew, or had reason to know, that his subordinates were about
to commit or had committed crimes and yet failed to take the necessary and
reasonable steps to prevent or repress the commission of such crimes or to
punish those who had committed them.
334. The distinct legal character of the two types of superior responsibility must be noted. While the criminal liability of a superior for positive acts follows from general principles of accomplice liability, as set out in the discussion of Article 7(1) above, the criminal responsibility of superiors for failing to take measures to prevent or repress the unlawful conduct of their subordinates is best understood when seen against the principle that criminal responsibility for omissions is incurred only where there exists a legal obligation to act. As is most clearly evidenced in the case of military commanders by article 87 of Additional Protocol I, international law imposes an affirmative duty on superiors to prevent persons under their control from committing violations of international humanitarian law, and it is ultimately this duty that provides the basis for, and defines the contours of, the imputed criminal responsibility under Article 7(3) of the Statute.
335.
336.
Although historically not without recognition in domestic military
law, it is often suggested that the roots of the modern doctrine of command
responsibility may be found in the Hague Conventions of 1907. It was not until
the end of the First World War, however, that the notion of individual criminal
responsibility for failure to take the necessary measures to prevent or to
repress breaches of the laws of armed conflict was given explicit expression in
an international context. In its report presented to the Preliminary Peace
Conference in 1919, the International Commission on the Responsibility of the
Authors of the War and on Enforcement of Penalties recommended that a tribunal
be established for the prosecution of, inter alia, all those who,
ordered, or with knowledge thereof and with power to intervene, abstained
from preventing or taking measures to prevent, putting an end to or repressing
violations of the laws or customs of war.
337.
Such a tribunal was never realised, however, and it was only in
the aftermath of the Second World War that the doctrine of command
responsibility for failure to act received its first judicial recognition in an
international context. Whilst not provided for in the Charters of the Nürnberg
or Tokyo Tribunals, nor expressly addressed in Control Council Law No. 10, a
number of States at this time enacted legislation recognising the principle. For
example, article 4 of the French Ordinance of 28 August 1944, Concerning the
Suppression of War Crimes, provided:
Where a subordinate is prosecuted as the actual
perpetrator of a war crime, and his superiors cannot be indicted as being
equally responsible, they shall be considered as accomplices in so far as they
have organised or tolerated the criminal acts of their subordinates.
338.
Similarly, article IX of the Chinese Law of 24 October 1946,
Governing the Trial of War Criminals, stated:
Persons who occupy a supervisory or commanding position in relation to war
criminals and in their capacity as such have not fulfilled their duty to prevent
crimes from being committed by their subordinates shall be treated as the
accomplices of such war criminals.
339.
In a number of cases against German and Japanese war criminals
following the Second World War, beginning with the trial of the Japanese General
Tomoyuki Yamashita before a United States Military Commission in Manila, the
principle of command responsibility for failure to act was relied upon by
military courts and tribunals as a valid basis for placing individual criminal
responsibility on superiors for the criminal acts of their subordinates. Thus,
the United States Supreme Court, in its well-known holding in In Re
Yamashita, answered in the affirmative the question of whether the law of
war imposed on an army commander a duty to take the appropriate measures within
his power to control the troops under his command for the prevention of acts in
violation of the laws of war, and whether he may be charged with personal
responsibility for failure to take such measures when violations result.
Similarly, the United States Military Tribunal at Nürnberg, in United States
v. Karl Brandt and others (hereafter "Medical Case"),
declared that "the law of war imposes on a military officer in a position
of command an affirmative duty to take such steps as are within his power and
appropriate to the circumstances to control those under his command for the
prevention of acts which are violations of the law of war." Likewise, in United
States v Wilhelm List et al. (hereafter "Hostage Case") it
was held that "a corps commander must be held responsible for the acts of
his subordinate commanders in carrying out his orders and for acts which the
corps commander knew or ought to have known about. Again, in
[u]nder basic principles of command authority and
responsibility, an officer who merely stands by while his subordinates execute a
criminal order of his superiors which he knows is criminal violates a moral
obligation under international law. By doing nothing he cannot wash his hands of
international responsibility.
340.
While different aspects of this body of case law arising out of
the Second World War will be considered in greater detail below as the Trial
Chamber addresses the more specific content of the requisite elements of
superior responsibility under Article 7(3), it is helpful here to further recall
the finding made in the trial of the Japanese Admiral Soemu Toyoda before a
military tribunal in Tokyo. Declaring that it had carefully studied, and
followed, the precedents of other tribunals on the question of command
responsibility, the tribunal, after setting out at some length what it
considered to be the essential elements of this principle, concluded:
In the simplest language it may be said that this Tribunal believes that
the principle of command responsibility to be that, if this accused knew, or
should by the exercise of ordinary diligence have learned, of the commission by
his subordinates, immediate or otherwise, of the atrocities proved beyond a
shadow of a doubt before this Tribunal or of the existence of a routine which
would countenance such, and, by his failure to take any action to punish the
perpetrators, permitted the atrocities to continue, he has failed in his
performance of his duty as a commander and must be punished.
341.
In the period following the Second World War until the present
time, the doctrine of command responsibility has not been applied by any
international judicial organ. Nonetheless, there can be no doubt that the
concept of the individual criminal responsibility of superiors for failure to
act is today firmly placed within the corpus of international humanitarian law.
Through the adoption of Additional Protocol I, the principle has now been
codified and given a clear expression in international conventional law. Thus,
article 87 of the Protocol gives expression to the duty of commanders to control
the acts of their subordinates and to prevent or, where necessary, to repress
violations of the Geneva Conventions or the Protocol. The concomitant principle
under which a superior may be held criminally responsible for the crimes
committed by his subordinates where the superior has failed to properly exercise
this duty is formulated in article 86 of the Protocol. A survey of the travaux
préparatoires of these provisions reveals that, while their inclusion was
not uncontested during the drafting of the Protocol, a number of delegations
clearly expressed the view that the principles expressed therein were in
conformity with pre-existing law. Thus, the Swedish delegate declared that these
articles reaffirmed the principles of international penal responsibility that
were developed after the Second World War. Similarly, the Yugoslav
delegate expressed the view that the article on the duty of commanders contained
provisions which had already been accepted in "military codes of all
countries"....
343.
The Trial Chamber, while not determining the accuracy of this
latter statement, notes the inclusion of provisions recognising the principle of
command responsibility in two highly influential domestic military manuals: the
United States Army Field Manual on the law of war, and the British Manual of
Military Law. Certainly, such a provision existed in the regulations concerning
the application of the international law of war to the armed forces of the SFRY,
which, under the heading "Responsibility for the acts of
subordinates", provided as follows:
The commander is personally responsible for violations of the law of war
if he knew or could have known that his subordinate units or individuals are
preparing to violate the law, and he does not take measures to prevent
violations of the law of war. The commander who knows that the violations of the
law of war took place and did not charge those responsible for the violations is
personally responsible. In case he is not authorized to charge them, and he did
not report them to the authorized military commander, he would also be
personally responsible.
A military commander is responsible as a participant
or an instigator if, by not taking measures against subordinates who violate the
law of war, he allows his subordinate units to continue to commit the acts.
344.
The validity of the principle of superior responsibility for
failure to act was further reaffirmed in the ILC’s 1996 Draft Code of Crimes
Against the Peace and Security of Mankind, which contains a formulation of the
doctrine very similar to that found in Article 7(3). Most recently, a provision
recognising a superior’s failure to take all necessary and reasonable measures
to prevent or repress the crimes of subordinates under the superior’s
effective authority and control, where the superior either knew or consciously
disregarded information which clearly indicated that the subordinates were
committing or about to commit such crimes, as a ground for individual criminal
responsibility was made part of the Rome Statute of the International Criminal
Court....
346.
On the basis of the foregoing, the Trial Chamber concludes
that the principle of individual criminal responsibility of superiors for
failure to prevent or repress the crimes committed by subordinates forms part of
customary international law.