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Article 28

Responsibility of commanders and other superiors


In addition to other grounds of criminal responsibility under this Statute
for crimes within the jurisdiction of the Court:
(a) A military commander or person effectively acting as a military
commander shall be criminally responsible for crimes within the
jurisdiction of the Court committed by forces under his or her
effective command and control, or effective authority and control
as the case may be, as a result of his or her failure to exercise
control properly over such forces, where:
(i) That military commander or person either knew or, owing
to the circumstances at the time, should have known that
the forces were committing or about to commit such crimes;
and
(ii) That military commander or person failed to take the
necessary and reasonable measures within his or her power
to prevent or repress their commission or to submit the
matter to the competent authorities for investigation and
prosecution.
(b) With respect to superior and subordinate relationships not
described in paragraph (a), a superior shall be criminally
responsible for crimes within the jurisdiction of the Court
committed by subordinates under his or her effective authority
and control, as a result of his or her failure to exercise control
properly over such subordinates, where:
(i) The superior either knew, or consciously disregarded
information which clearly indicated, that the subordinates
were committing or about to commit such crimes;
(ii) The crimes concerned activities that were within the
effective responsibility and control of the superior; and
(iii) The superior failed to take all necessary and reasonable
measures within his or her power to prevent or repress
their commission or to submit the matter to the competent
authorities for investigation and prosecution.
Literature:
Kai Ambos, DER ALLGEMEINE TEIL DES VLKERSTRAFRECHTS 666 et seq. (2002); id., INTERNATIONALES
STRAFRECHT: STRAFANWENDUNGSRECHT, VLKERSTRAFRECHT, EUROPISCHE STRAFRECHT (2006); id., Superior
Responsibility, in: Antonio Cassese/Paola Gaeta/John R. W. D. Jones (eds), THE ROME STATUTE OF THE
INTERNATIONAL CRIMINAL COURT: A COMMENTARY 823, Vol. I (2002); Roberta Arnold, Command
Responsibility: A Case Study of Alleged Violations of the Laws of War at Khiam Detention Centre, 7 J. OF
CONFLICT AND SECURITY L. 2, 191 (2002); id., The Means Rea of genocide under the Statute of the International
Criminal Court, 14 CRIM. L.F. 2, 127 (2003); Jean-Franois Aubert, La question de l'ordre suprieur et la
responsabilit des commandants dans le Protocole additionnel aux Conventions de Genve du 12 aot 1949 relatif
la protection des victimes des conflits arms internationaux (Protocole I) du 8 juin 1977, 770 REVUE
INTERNATIONALE DE LA CROIX-ROUGE 109 (2000); Ilias Bantekas, Contemporary Law of Superior Responsibility,
93 AM. J. INTL L. 3, 577 (1999); id., L'intrt des tats par rapport la doctrine de la responsabilit des
suprieurs, 838 REVUE INTERNATIONALE DE LA CROIX-ROUGE 391 (2000); M. Cherif Bassiouni, CRIMES AGAINST
HUMANITY IN INTERNATIONAL LAW 368 et seq. (1992); id., THE LAW OF THE INTERNATIONAL CRIMINAL
TRIBUNAL FOR THE FORMER YUGOSLAVIA 350 et seq. (1996); id., THE LEGISLATIVE HISTORY OF THE
INTERNATIONAL CRIMINAL COURT, Vol. II (2005); Jia Bing Bing, The Doctrine of Command Responsibility
Revisited, 3 CHINESE J. INT'L L. 1 (2004); Michael Bothe/Karl J. Partsch/Waldemar A. Solf, NEW RULES FOR
VICTIMS OF ARMED CONFLICTS (1982); Weston D. Burnett, Command Responsibility of Israeli Military
Commanders for the Pogrom at Shatila and Sabra, 107 MIL. L. REV. 71 (1985); Antonio Cassese, INTERNATIONAL
CRIMINAL LAW 200 et seq. (2003); Ann B. Ching, Evolution of the command responsibility doctrine in light of the
Celebici decision of the International Criminal Tribunal for the Former Yugoslavia, 25 N. CAROLINA J. INTL L.
C. R. 167 (1999); Roger S. Clark, The Mental Element in International Criminal Law: The Rome Statute of the
International Criminal Court and the Elements of Offences, 12 CRIM. L.F. 291 (2001); Christopher N. Crowe,
Command Responsibility in the Former Yugoslavia: The Chances of Successful Prosecution, 29 U. RICH. L. REV.
191 (1994); William G. Eckhardt, Command Criminal Responsibility: A Plea for a Workable Standard, 97 MIL. L.
REV. 1 (1982); Mohamed Elewa Badar, Mens rea Mistake of Law & Mistake of Fact in German Criminal Law:
A Survey for International Criminal Tribunal, 5 INT'L C. L. REV. 203 (2005); Kirsten M. F. Feith, The Mens Rea of

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superior responsibility as developed by ICTY jurisprudence, 14 LEIDEN J. INT'L L. 617 (2001); Final Report of the
Commission of Inquiry Into the Events at the Refugee Camps in Beirut, 22 I.L.M. 473 (1983); Monica Feria Tinta,
Commanders on Trial: the Blayskic' case and the doctrine of Command Responsibility under International Law,
47 NETH. INT'L L. REV. 3, 293 (2000); Charles H. B. Garraway, Command Responsibility: Victors' Justice or just
Desserts?, in: Richard Burchill et. al. (eds.), INTERNATIONAL CONFLICT AND SECURITY LAW (2005); id.
Responsibility of command: a poisoned chalice?, in: Roberta Arnold/Pierre A. Hildbrand (ed.), INTERNATIONAL
HUMANITARIAN LAW AND THE 21ST CENTURYS CONFLICTS: CHANGES AND CHALLENGES (2005); Leslie C. Green,
Command Responsibility in International Humanitarian Law, 5 TRANSNATL L. & CONTEMP. PROBS. 320 (1995);
id., War Crimes, Crimes Against Humanity and Command Responsibility, 50 NAV. WAR COLLEGE REV. 26 (1997);
Christopher Greenwood, Command Responsibility and the Hadzihasanovic Decision, 2 J. INT'L CRIM. JUST. 2
(2004); Franklin A. Hart, Yamashita, Nuremberg and Vietnam: Command Responsibility Reappraised, 25 NAV.
WAR COLLEGE REV. 19 (1972); Stuart E. Hendin, Command Responsibility and Superior Orders in the Twentieth
Century A Century of Evolution, 10 MURDOCH ELECTRONIC J. L. 1 (March 2003); Robert Herde, COMMAND
RESPONSIBILITY: DIE VERFOLGUNG DER "ZWEITEN GARDE" DEUTSCHER UND JAPANISCHER GENERLE IM
ALLIERTEN PROZEPROGRAMM NACH DEM ZWEITEN WELTKRIEG (2001); Kenneth A. Howard, Command
Responsibility for War Crimes, 21 J. PUB. L. 7 (1972); ICRC (ed.), COMMENTARY ON THE ADDITIONAL
PROTOCOLS OF 8 JUNE 1977 TO THE GENEVA CONVENTIONS OF 12 AUGUST 1949 (1987); Keith Kirsten, Superior
responsibility applied before the ICTY, 14 HUM. VLKERRECHT (2001); Kriangsak, Kittichaisaree,
INTERNATIONAL CRIMINAL LAW (2001); Bruce D. Landrum, The Yamashita War Crimes Trial: command
responsibility then and now, MIL. L. REV. 149 (1995); Roy S. Lee, THE INTERNATIONAL CRIMINAL COURT, THE
MAKING OF THE ROME STATUTE: ISSUES, NEGOTIATIONS, RESULTS (1999); Howard S. Levie, Command
Responsibility, 8 J. LEGAL STUDIES 1 ((1997/1998); Matthew Lippmann, The evolution and scope of command
responsibility, 13 LEIDEN J. INT'L 139 (2000); id., Humanitarian law: the development and scope of the superior
orders defense, 20 PENN STATE INTL L. REV. 1 (2001); Peter Noll/Stefan Trechsel, SCHWEIZERISCHES
STRAFRECHT, ALLGEMEINER TEIL I, ALLGEMEINE VORAUSSETZUNG DER STRAFBARKEIT (6th Ed., 2004), Maria
Nybondas, Civilian Superior Responsibility in the Kordi Case, 59 NETH. INTL L. REV. 1 (2003); William H.
Parks, Command Responsibility for War Crimes, 62 MIL. L. REV. 1 (1973); Sarah Perkins, THE FAILURE TO
PROTECT: EXPANDING THE SCOPE OF COMMAND RESPONSIBILITY TO THE UNITED NATIONS AT SREBRENICA
(2004); Claude Pilloud et. al., COMMENTARY ON THE ADDITIONAL PROTOCOLS OF 8 JUNE 1977 TO THE GENEVA
CONVENTIONS OF 12 AUGUST 1949 (1987); Anthony P.V. Rogers, Law on the battlefield (1996); Bert Rling/C.F.
Ruter (eds.), The Tokyo JuDGMENT (1977); Danesh Sarooshi, Command responsibility and the Blaskic case, 50
INTL & COMP. L.Q. 2 (2001); Hina Shamsi/Deborah Pearlstein, COMMANDS RESPONSIBILITY: DETAINEE
DEATHS IN U.S. CUSTODY IN IRAQ AND AFGHANISTAN (2006); Elies von Sliedregt, THE CRIMINAL
RESPONSIBILITY OF INDIVIDUALS FOR VIOLATIONS OF INTERNATIONAL HUMANITARIAN LAW (2003); Michael L.
Smidt, Yamashita, Medina, and beyond: command responsibility in contemporary military operations, 164 MIL. L.
REV. (2000); Gnter Stratenwerth, SCHWEIZERISCHES STRAFRECHT, ALLGEMEINER TEIL I (2nd Ed., 1998); Otto
Triffterer, Causality, a Separate Element of the Doctrine of Superior Responsibility as Expressed in Article 28
Rome Statute? 15 LEIDEN J. INT'L L 179 (2002); id., "Command Responsibility" Grundstrukturen und
Anwendungsbereiche von Art. 28 des Rom Statutes Eignung auch zur Bekmpfung des internationalen
Terrorismus?, in: Cornelius Prittwitz et. al. (eds.), FESTSCHRIFT FR KLAUS LDERSEN 437 (2002); id., Command
Responsibility, Article 28 Rome Statute, an Extension of Individual Criminal Responsibility for Crimes Within the
Jurisdiction of the Court Compatible with Article 22, nullum crimen sine lege?, in: O. Triffterer (ed.),
GEDCHTNISSCHRIFT FR THEO VOGLER 213 (2004); id., "Command Responsibility" crimen sui generis or
participation as "otherwise provided"?, in: Otto Lagodny et. al. (eds.), FESTSCHRIFT FR ALBIN ESER 901 (2005);
Greg. R. Vetter, Command responsibility of non-military superiors in the International Criminal Court (ICC), 25
YALE J. INTL L. 1 (2000); Timothy Wu/Yong-Sung Kang, Criminal liability for the actions of subordinates the
doctrine of command responsibility and its analogues in United States law, 38 HARV. INTL L. J. (1997); Thomas
Weigend, Bemerkungen zur Vorgesetztenverantwortlichkeit im Vlkerstrafrecht, 116 ZSTW (2004); Zhu Wenqi,
The doctrine of Command Responsibility as applied to civilian leaders: the ICTR and the "Kayishema" case, INT'L
L. IN THE POST-COLD WAR WORLD (2001); Alexander Zahar, Command Responsibility of civilian superiors for
genocide, 14 LEIDEN J. INT'L L. 3 (2001); Trial of Josef Kramer and 44 others (The Belsen Trial), 2 LAW REPORTS
OF TRIALS OF WAR CRIMINALS (1947); Trial of Wilhelm von Leeb and 13 others (The German High Command
Trial), 7 LAW REPORTS OF TRIALS OF WAR CRIMINALS (1949); Trial of Wilhelm List and others (The Hostages
Trial), 8 LAW REPORTS OF TRIALS OF WAR CRIMINALS (1949); Trial of S.S. Brigadefhrer Kurt Meyer (The
Abbaye Ardenne Case), 4 LAW REPORTS OF TRIALS OF WAR CRIMINALS (1948); Trial of Takashi Sakai, 3 LAW
REPORTS OF TRIALS OF WAR CRIMINALS (1948), Trial of General Tomoyuki Yamashita, 4 LAW REPORTS OF
TRIALS OF WAR CRIMINALS (1946);
Jurisdiction ICTY:
Prosecutor v. Tadic, "Prijedor", Case No. IT-1-94-1- , Judgement, Chamber, Prosecutor v. Blaskic, "Lasva
Valley", Case No. IT-95-14 T, Judgement, Trial Chamber, 3. Mar. 2000; Prosecutor v. Blaskic, "Lasva Valley",
Case No. IT-95-14-A, Judgement, Appeals Chamber, 29 Jul. 2004; Prosecutor v. Aleksovski, "Lasva Valley", Case
No. IT-95-14/1-T, Judgement, Trial Chamber, 25. Jun. 1999; Prosecutor v. Aleksovski, "Lasva Valley", Case No.
IT-95-14/1-A, Judgement, Appeals Chamber, 24. Mar. 2000; Prosecutor v. Kordic and Cerkez, "Lasva Valley",
Case No. IT-95-14/2- T, Judgement, Trial Chamber, 26. Feb. 2001; Prosecutor v. Kordic and Cerkez, "Lasva
Valley", Case No. IT-95-14/2-A, Judgement, Appeals Chamber, 17 Dec. 2004; Prosecutor v. Delalic et al.,
"Celebici", Case No. IT-96-21-T, Judgement, Trial Chamber, 16. Nov. 1998; Prosecutor v. Delalic et al.,
"Celebici", Case No. IT-96-21-A, Judgement, Appeals Chamber, 20. Feb. 2001; Prosecutor v. Kunarac et. al.,
"Foca", Case No. IT-96-23&23/1-T, Judgement, Trial Chamber, 22. Feb. 2001; Prosecutor v. Krnojelac, "Foca",
Case No. IT-97-25-T, Judgement, Trial Chamber,15 Mar. 2002; Prosecutor v. Krnojelac, Case No. IT-97-25-A,

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Judgement, Appeals Chamber, 17 Sep. 2003; Prosecutor v. Galic, "Sarajevo", Case No. IT-98-29-T, Judgement,
Trial Chamber, 5. Dec. 2003; Prosecutor v. Kvocka et. al., "Omarska, Keraterm and Trnopolje Camps", Case No.
IT-98-30/1-T, Judgement, Trial Chamber, 2 Nov. 2001; Prosecutor v. Hadzihanovic, Alagic and Kubura, Case No.
IT-01-47-PT, Decision, Appeals Chamber, Interlocutory Appeal on Decision on Joint Challenge to Jurisdiction,
27. Nov. 2002; Prosecutor v. Hadzihanovic, Alagic and Kubura, Case No. IT-01-47-AR72d, Decision, Appeals
Chamber, Interlocutory Appeal Challenging Jurisdiction in Relation to Command Responsibility, 16. Jul. 2003;
Jurisdiction ICTR:
Prosecutor v. Kayishema and Ruzindana, Case No. ICTR-95-1-T, Judgement, Trial Chamber, 21. May 1999;
Prosecutor v. Ntakirutimana et al., "Mugonero", Case No. ICTR-96-10-T, Judgement, Trial Chamber, 21. Feb.
2003; Prosecutor v. Musema, Case No. ICTR-96-13-A, Judgement, Trial Chamber, 27. Jan. 2000; Prosecutor v.
Semanza, Case No. ICTR-97-20-T, Judgement, Trial Chamber, 15. May 2003; Prosecutor v. Nahimana et. al.,
Case No. ICTR-99-52-T, Judgement, Trial Chamber, 3. Dec. 2003.
Contents:
margin No.
A. Introduction/General Remarks
(Otto Triffterer) ............................................ 1
I. Development/Overview.......................... 4
1. Changing paradigms: superiors,
established and protected
authorities gradually called to
criminal responsibility also for
violations committed by their
subordinates ...................................... 5
2. Silent toleration and failure to
influence and interfere two
differently structured appearances
and approaches.................................. 8
3. Slowly towards comprehensive
definitions, in particular articles
86 and 87, Additional Protocol I
1977 and to article 28 Rome
Statute................................................ 10
II. Practical importance ............................... 25
1. Nuremberg, Tokyo and "follow up
proceedings" (Nachfolgeprozesse) ... 29
2. Continuing to focus primarily on
commanders increased the
acknowledgement of an inherent
superior responsibility, but did not
crystallise elements "strictly
construed" ......................................... 39
3. Command responsibility dominating
the international and the transitional
justice regimes up to the top of
hierarchically based authorities
requiring more legal guarantees ....... 45
III. Guidelines for investigating and
prosecuting superior responsibility......... 76
B. Analysis and interpretation of elements
(Roberta Arnold)
I. Two alternatives with only a few
deviating elements .................................. 85
1. Military command or other
"superior and subordinate
relationships"..................................... 86
2. Any of the crimes within the
jurisdiction of the Court when
"committed by forces under
effective control or
authority and control", litera (a),
or when
concerning "activities that were
within the effective responsibility
and control of the superior",
litera (b) (ii) ...................................... 90
3. Minimum mental element for the
second failure:
"should have known", or

"consciously disregarded
information which clearly
indicated that the subordinates
were committing or about to commit
such crimes" ...................................... 95
II. Paragraph (a)
1. Qualification:"military
commander or person effectively
acting as a military commander" ...... 98
2. Commanders and subordinates
a) Structure of "forces".......................... 101
b) "[E]ffective command and control".. 102
c) "[E]ffective authority and control" ... 103
3. "[F]ailure to exercise control
properly"............................................ 104
a) Passivity and duty to become active . 105
b) "Crimes committed" as a result
aa) Completed or attempted
crimes..................................... 106
bb) Committed in which
modality of article 25
para. 3 ever............................. 107
cc) Causality ................................ 109
dd) Accountability........................ 112
c) Mental element:
intent and knowledge ........................ 114
4. Failure "to take all necessary and
reasonable measures"
a) "[K]new or should have
known that the forces were
committing or about to
commit such crimes" ................... 117
b) Dereliction of duty and power
to react ......................................... 118
c) Measures needed to avoid or
to compensate the result
caused by the "failure to
exercise control properly"
aa) Dependence on the stage
of the commission.................. 119
bb) "[T]o prevent or repress
or to submit" ..................... 120
(1) ex post or ex ante
evaluation? The
objective comparable
commander "in the
situation at the time",
article 87 (2)
Additional Protocol I ....... 121
(2) Hypothetical
causation?......................... 122
d) Threshold of unreasonable
demands? ..................................... 123

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III. Paragraph (b)


1. "[S]uperior and subordinate
relationships not described in
paragraph (a)".................................... 124
2. Subsidiarity based on a different
notion of "relationship" and
"effective authority and control"....... 125
3. "[F]ailure to exercise control
properly"............................................ 127
4. Failure "to take all necessary and
reasonable measures"
a) "[K]new or consciously
disregarded information which
clearly indicated, that the
subordinates were committing or
about to commit such crimes"........... 128
b) Crimes concerning "activities that
were within the effective
responsibility and control of the
superior" ............................................ 129

c) The objective comparable


superior "in the situation at the
time" .................................................. 130
d) Threshold of reasonable
demands?........................................... 131
C. Special Remarks
I.
Assisting in Command
Responsibility, a participation in the
crime committed by subordinates? ...... 132
II. Attempted Command
Responsibility, an attempted crime
within the jurisdiction of the Court?.... 134
III. Concurring Responsibility?
1. Authorities in a hierarchical chain
all failing to fulfil their duties ........... 137
2. Command Responsibility and
participation according to article
25 para. 3? ......................................... 138

A. Introduction/General Remarks
1

Article 28 contains the longest definition of a single modality concerning individual criminal
responsibility under international law, even if the two alternatives, (a) and (b), are looked at
separately. Already this and its extremely complicated, unusual and interlocked wording demand
an extensive introduction and several "general remarks", helpful for the interpretation of its
structure and its major aspects concerning the application of this article by national and
international courts.
In addition, ever since international criminal law started to develop, cases dealt with on an
international level and even those handled by national jurisdictions, demonstrate that only very
few crimes were committed by subordinated members of armed forces on their own initiative.
More often such atrocities show some "involvement" of superiors like silent toleration or lack of
sufficient supervision. This picture and, in particular, the omissions that could be observed, led
to the conclusion that at least most of these crimes were predictable or recognizable for military
superiors, keeping a "sharp eye" on the factual and the psychological situations of their
subordinates. This is in particular true with regard to (legal or illegal) warfare resulting in war
crimes.
Commanders may have other concerns like protecting their subordinates, gaining military
advantages or even winning the battle. But this does not relieve them from the duty to observe
their subordinates before and on the spot with regard to whether they obey international
humanitarian law. This law takes due care of possible conflicts of interest, for instance by
including into definitions of war crimes the element "not justified by military necessity and
carried out unlawfully and wantonly", article 8 para. 2 (a) (iv).
2
The majority of cases reported after the Second World War and those, up till now pending
before the ICTY, the ICTR and the ICC, concern superior/subordinate relationships, in which
either the communication top down or bottom up is dealing with criminal behaviour or should
have been (more) concerned about such issues. This is true, both from the point of view of the
prosecution as well as from the defence. The prosecution may claim that though not committed
in the sense of executed by the superior, in particular a military commander has the
responsibility for certain crimes of subordinates under his effective authority and control. On the
other side the defence may claim, that certain crimes, though and just because they are
committed not by himself, but by his subordinates, are not accountable to the commander, who

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is quite often far removed from the place of the events and, in particular, because he was de
facto unable to control all forces under his authority at the same time1.
These and similar aspects play an important role in the genesis of article 28, showing a rather 3
curved way of development2, and, consequently, a highly disputed jurisprudence3. Both, genesis
and jurisprudence have to be recalled, since they are equally needed for interpreting article 28
when to be applied on a national or the international level; because quite a few formulations of
its wording still have to be clarified with regard to establish whether all elements are "strictly
construed" in the sense of article 224.
Clarity is, in particular, requested in politically highly "explosive" cases; for instance when
the chain of command reaches up to the top of military or government representatives still in
power positions in their respective State. Because since their "official capacity" is irrelevant for
the "criminal responsibility under this Statute", article 27, every single one of them can be held,
in principle, responsible according to article 28. But in practice such persons still in power or
having their supporters still in power positions, may be able to prevent an adequate criminal
investigation and prosecution before national, and, sometimes, even before international or
"internationalized" courts, for example when surrender to the ICTY is requested and de facto
refused, as since years with regard to Karadzic and Mladic.
This raises the issue of political accountability as overlapping with criminal responsibility, in
particular with regard to such appearances as in Guantanamo and Abu Ghraib, of which only the
criminal responsibility will be dealt with here5.
I. Development/Overview
Superior responsibility, "in addition to other grounds of criminal responsibility under this 4
Statute", raises not only general questions of whether the individual is a subject under
international law and, as such, shaped the concept and notion of penal guilt as a requirement for
criminal responsibility under international law6. It also demonstrates, how early in history of
international humanitarian law a responsibility "for crimes committed by others" started to
develop. This new and independent modality of individual responsibility surprises, because it
partly neglects and reaches beyond the traditional concept of criminal liability and personal
guilt, the well accepted and acknowledged, indispensable basis of criminal law and
responsibility for centuries in all major legal systems of the world.

1
2

See, for instance G. Werle, PRINCIPLES OF INTERNATIONAL CRIMINAL LAW 375 et seq. (2005).
See e.g. K. Ambos, Superior Responsibility, in: A. Cassese et. al. (eds.), THE ROME STATUTE OF THE
INTERNATIONAL CRIMINAL COURT 824 et seq. (2002), O. Triffterer, Causality, a Separate Element of the
Doctrine of Superior Responsibility as Expressed in Article 28 Rome Statute?, 15 LEIDEN J. INT'L L. 179 et
seq. (2002) and for the difference between articles 27 para. 1 and 28 Rome Statute id., "Command
Responsibility" crimen sui generic or participation as "otherwise provided" in Article 28 Rome Statute?, in:
O. Lagodny et. al. (eds.), FESTSCHRIFT FR ALBIN ESER 901 et seq. (2005).
See, in particular, the controversial interpretation of customary law by the ICTY on the absence of a causal
element within the doctrine of command responsibility, Prosecutor v. Delalic et al., "Celebici", Case No. IT96-21-T, Judgement, Trial Chamber, 16. Nov. 1998, pp. 396 et seq., infra margin No. 1159 et seq. and supra
note 2, O. Triffterer, Causality 179 et seq.
More to these aspects O. Triffterer, Command Responsibility, article 28 Rome Statute, an Extension of
Individual Criminal Responsibility for Crimes within the Jurisdiction of the Court Compatible with article
22, nullum crimen sine lege?, in: id. (ed.), GEDCHTNISSCHRIFT FR THEO VOGLER 215 et seq. (2004) and
supra note 2, id., "Command Responsibility" 901 et seq.
Note the difference between Bosnia-Herzegovina 2005 (Celebici), Croatia and the torture in the prison of
Abu Ghraib/Iraq 2004, for which U.S. Secretary of Defence Donald H. Rumsfeld took over full
responsibility, but only in a political and not in a legal sense (http://www.washingtonpost.com: Rumsfeld
testifies before Senate Armed Services Committee (printout: 03.04.2006)).
On this aspect e.g. O. Triffterer, DOGMATISCHE UNTERSUCHUNGEN ZUR ENTWICKLUNG DES MATERIELLEN
VLKERSTRAFRECHTS SEIT NRNBERG 141 et seq. (1966); H. Kelsen, PEACE THROUGH LAW 71 et seq.
(1944).

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1. Changing paradigms: superiors, established and protected authorities gradually called


to criminal responsibility also for violations committed by their subordinates
Before the individual was accepted as a subject of international law, a comprehensive
responsibility of superiors for their subordinates was well known in national military law, but
also in other social institutions, called "besondere Gewaltverhltnisse" (subordination dominated
by hierarchical power positions), where subordinates received a high amount of protection, but
enjoyed only a limited amount of personal freedom and are obliged to strict obedience, like in
some boarding schools and, in particular, in prison7. For a long time, an unrestricted general
responsibility of superiors was accepted, based on authority granted to such superiors and on
their protection against any or at least against unjustified disobedience. The American Francis
Lieber Code (1863), for instance, expressed such a model of granting authority over suspects by
giving military commanders the right to shoot subordinates on the spot, when not stopping to
commit crimes though expressly ordered to do so8.
6
From this starting point it was only a small step to hold commanders responsible for not
effectively informing, educating, or, if necessary, ordering their subordinates in advance to obey
the laws and customs of war, or for not stopping them at least to continue when the slightest sign
for the commission of such crimes became discernable.
In order to contribute to the prevention of crimes by calling superiors to responsibility, it was
indispensable to establish their duties by law. Accordingly, superiors should, in particular,
"ensure that members of armed forces under their control are aware of their obligations under
the Conventions and this Protocol", article 87 para. 2, Add. Prot. I. At that time, an almost
unlimited authority was combined with their duty to report to higher ranks in the military
hierarchy
5

"if they knew, or had information which should have enabled them to conclude, in the circumstances at
the time, that he (the subordinate) was committing or was going to commit such a breach and if they did
not take all feasible measures within their power to prevent or repress the breach",

article 86 para. 2, Add. Prot. I. This duty was the consequence of the generally acknowledged
experience, that grave breaches could "result from a failure to act when under a (legal) duty to
do so", article 86 para. 1 Add. Prot. I.
Mainly these aspects developed the general principle, that the commission of certain crimes
"by a subordinate does not absolve his superiors from penal or disciplinary responsibility, as the
case may be", article 86 para. 2 Add. Prot. I. A long time before it was defined and
acknowledged in 1977, this principle was the basis for the installation of a legal institution
called Command Responsibility, though, at the beginning, it was not yet concentrating on and
only partly established as a criminal responsibility9.
It was a rather parallel appearance in the general concept of criminal law, developed and
7
accepted in major legal systems of the world and international humanitarian law, that everybody
who sets a condition for the commission of a certain crime, causes the crime and should be held
individually responsible, if the resulting crime appears because of this contribution, though,
perhaps in combination with others, in particular for the part of the principal perpetrator, as "his

800

O. Triffterer, Zur Einschrnkbarkeit der Menschenrechte und zur Anwendbarkeit von Verfahrensgrundstzen
bei freiheitsbeschrnkenden Disziplinarmanahmen in "besonderen Gewaltverhltnissen", EUGRZ 363 et
seq. (1976).
See IV Hague Convention 1907, Article I of the annexed rules of warfare. For an example on the national
level see the 1863 Lieber Code where article 44 states "A soldier, officer, or private, in the act of committing
such violence, and disobeying a superior ordering him to abstain from it, may be lawfully killed on the spot
by such superior" and article 71 states, "[w]hoever intentionally inflicts additional wounds on an enemy
already wholly disabled, or kills such an enemy, or who orders or encourages soldiers to do so, shall suffer
death, if duly convicted, "(brackets added).
Supra note 8.

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product"10. At the same time, the theory of participation in crimes became more and more
sophisticated and developed to a system, in which everybody, who initiated, supported or
otherwise contributed in the commission of a crime, could be held himself responsible for
committing the crime11. This is up till now independent of whether his contribution was an act or
an omission and of the responsibility of the principal offender or other accomplices12.
2. Silent toleration and failures to influence and interfere two differently structured
appearances and approaches
This variety of cooperation to commit crimes demonstrates the need to clearly define by 8
"strictly construed" elements concerning the borderline between punishable and non punishable
cooperation as well as between the principal perpetrator and participation in a specific crime as
an accomplice. Such a demand is independent of the fact, whether cooperation in the
commission is evaluated as an independent commission of the crime ("Einheitstterschaft") or as
a mere cooperation in the crime of other persons13.
Independent of this theoretical basis, the differentiation by merely what behaviour should be
made punishable, was in particular difficult with regard to persons, who had the duty to prevent
crimes because of their authority and power over subordinates and failed to prevent such crimes
committed by their subordinates. Were they principal perpetrators by merely "letting it happen",
what they ought to have prevented or only when they directly supported crimes of subordinates?
A general, well accepted differentiation was made possible by separating and demarcating
against each other two criminological appearances: First, superiors who tolerate the commission
of crimes by their subordinates in a way that could be interpreted by their subordinates as a tacit
consent to the commission. Such a behaviour is supporting crimes of subordinates not expressly,
however by conclusive behaviour, which obviously demonstrates the tendency not to interfere. It
is participation in the crime, for instance by "twinkling eyes". This was the reason, why
"toleration" of crimes committed by subordinates was the first pillar to base command
responsibility upon14, though with another scope and notion as expressed now in article 28.
To a second group belong those superiors who fail to inform, educate or control their
subordinates about the law and, in particular, about legal and illegal warfare; they do not support
crimes of their subordinates by an active behaviour. But by remaining passive they do not
intervene and thus indirectly support what they should have prevented. A crime may well result
not only from silent toleration which can correctly be understood as consensus or even
psychological support. It may equally "result from a failure to act", as expressed in article 86
para. 1 Add. Prot. I. There the words "when under a duty to do so", do not question the causality
of omissions. They rather limit criminal responsibility to those failures, which by violating a
(legal) duty of the perpetrators to act in a specific situation let crimes come to the mind of
subordinates and develop, in particular from mere planning or preparation to an attempt or a
completed crime.
10

11

12

13
14

See e.g. O. Triffterer, Versuch und Rcktritt bei Beteiligung mehrerer an der Straftat, in: LANDESBERICHT
STERREICH ZUM XII. INTERNATIONALE KONGRESS FR RECHTSVERGLEICHUNG, SYDNEY 1986, 2 ZfRV
105 et seq. (1986).
See, for instance, K. Ambos, DER ALLGEMEINE TEIL DES VLKERSTRAFRECHTS 543 et seq. (2002); E. van
Sliedregt, THE CRIMINAL RESPONSIBILITY OF INDIVIDUALS FOR VIOLATIONS OF INTERNATIONAL
HUMANITARIAN LAW 41 et seq. (2003); O. Triffterer, Die STERREICHISCHE BETEILIGUNGSLEHRE, EINE
REGELUNG ZWISCHEN EINHEITSTTER- UND TEILNAHMESYSTEMEN? (1983).
On the equivalence of acts and omissions see for instance the jurisdiction of the ad hoc Tribunals Prosecutor
v. Tadic, Case No. IT-94-1-A, Judgement, Appeals Chamber, 15. Jul. 1999, pp. 104 et seq., infra margin No.
228 and supra note 3, Celebici, p. 160 infra margin No. 437, M. Elewa Badar/N. Karsten, Current
Developments at the International Criminal Tribunals, 7 INTL CRIM. L. REV. 157 et seq. under chapter 3.3
Command Responsibility.
Supra note 11, O. Triffterer, BETEILIGUNGSLEHRE (1983).
See for example A. Cassese, INTERNATIONAL CRIMINAL LAW 200 et seq. (2003) and supra note 1, G. Werle,
PRINCIPLES, margin No. 503 et seq.

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9

Part 3. General principles of criminal law

The main difference of the above grouping therefore is: Silent toleration is active behaviour
for which everybody, including superiors, can be held responsible, even if he or she has no
special legal duty to react in specific situations in order to prevent crimes. A failure to educate,
guide and control, on the opposite, is an omission for which everybody (and, in particular,
superiors) can only be held responsible when there is a pre-established legal duty to do precisely
what was needed to prevent (further) harm and what by being omitted resulted in the
commission of a crime.
3. Slowly towards comprehensive definitions, in particular articles 86 and 87 Additional
Protocol I 1977 and 28 Rome Statute

10

Though articles 86 and 87 have already been briefly referred to when demonstrating under 1.
above changing paradigms and the latest development before the Rome Statute, we have to keep
in mind that there are earlier steps also important for shaping the concept and notion of
command responsibility. They started already with article 8 of the 1864 Geneva Convention
which demanded that "[t]he implementing of the present Convention shall be arranged by the
Commanders-in-Chief of the belligerent armies following the instructions of their respective
Governments and in accordance with the general principles set forth in this Convention"15. By
assigning the arrangements for the implementation to "Commanders-in-Chief", the Convention
obliges this group of persons to ensure, though according to pre-established guidelines of their
"superior", that their subordinates know the (new) law and how to obey accordingly. The further
elaboration of the codification of the ius in bello, culminated 1907 in the Hague Conventions. Of
these, No. IV, requires in the annexed Rules of Warfare as the decisive criteria for the
acknowledgement as "armies, but also militia and volunteer corps" to be "commanded by a
person responsible for his subordinate"16. This rule implies that superiors could be held
responsible for crimes of their subordinates. Responsible at that time indicated accountability
according to national law and before its jurisdiction, thus covering disciplinary as well as
criminal responsibility under national military law.
The most effective political impetus for the development of superior responsibility came
shortly thereafter from the Investigating Committee installed by the International Carnegie
Foundation for Peace 1913. The Committee was assigned the task, "to inquire into the causes
and conduct" of the Balkan Wars 1912/1913, and the atrocities committed during these wars.
The Committee reported in detail and presented, not as an obiter dictum, but as one of its major
findings, that it would have needed only one word of those in power, and all belligerent
struggles as well as the atrocities committed along with them would have stopped immediately.
This finding was confirmed by the Report of the Commission on the Responsibility of the
Authors of the War and on Enforcement of Penalties presented to the Preliminary Peace
Conference, March 29, 191917.
11
Partly as a result of these two well based and balanced statements, the Versailles Peace
Treaty after the First World War provided in articles 227 and 228 that the German Emperor
should be held responsible for "a supreme offence against international morality and the sanctity
of treaties". Though charged personally for his ordering to commit certain crime, the accusation
also included responsibility for all other crimes committed by his subordinates. It, therefore, was
a fallback to international criminal law that the Emperor could not be brought to trial because
15
16
17

802

Convention for the Amelioration of the Condition of the Wounded in Armies in the Field. Geneva, article 8,
22 August 1864.
See supra note 8, the IV Hague Convention 1907.
See Carnegie Endowment for International Peace, REPORT OF THE INTERNATIONAL COMMISSION, TO
INQUIRE INTO THE CAUSES AND CONDUCT OF THE BALKAN WARS (1914) and see also the Commission on the
Responsibility of the Authors of the War and on Enforcement of Penalties, Report presented to the
Preliminary Peace Conference, 29. Mar. 1919, reprinted in 14 AM. J. INTL L. 1920, 95 et seq. (further on
1919 Commission Report, p. 117).

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the Netherlands refused to extradite him. In addition, the (new) German government finally
convinced the Allied not to prosecute about 800 German suspects, which Germany was obliged
to extradite, but to accept for all these cases the competence of the Reichsgericht in Leipzig18.
There, however, under the aspect of international criminal law and the interest of justice the
cases were not handled to the credit of post-war German jurisdiction. Command responsibility,
in whatever broad concept and notion, though in theory started to reach persons on the top of the
hierarchy, was thus not yet put into practice after the First World War19.
The time between the two World Wars did not show any significant new development for 12
command responsibility on the international level. Merely the 1929 Geneva Convention
provided that: "[t]he Commanders-in-Chief of belligerent armies shall arrange the details for
carrying out the preceding articles"20. It thus continued the line of the above mentioned 1864
Convention by increasing the specification of the duties of commanders though not yet in a
manner sufficiently "strictly construed" in the sense of article 22 para. 2 to base criminal
responsibility on. But parallel, though highly disputed in its concept and notion, indirect
individual responsibility of superiors was slowly accepted and more and more extended by
national penal systems, thus preparing the possibility to also hold superiors responsible for
crimes of their subordinates under international criminal law21.
According to this background, not well balanced theoretical considerations nor political 13
compromises for drafting regulations led to a break through after the Second World War.
Decisive were criminological appearances during and after this war, which made it necessary to
handle with more care the different modalities of individual criminal responsibility, to avoid
impunity of those persons, who by their own abuse of power and through their subordinates
were responsible for all "core crimes", committed again and again all over the world without
being sufficiently investigated and prosecuted. However, though proving the need to call
superiors independent of the traditional scope of participation with an additional inherent new
theoretical institution to criminal responsibility, no agreement could be achieved about how to
"strictly construe" such responsibility, in order to avoid criticism raised against cases like
Yamashita and High Command22.
Consequently, a definition or even hints in one or the other direction on the basic structures
of command responsibility are missing in the Nuremberg Statute as well as in the Nuremberg
Principles 1948, in the Genocide Convention 1948 and in the four Geneva Convention 1949.
Though all confirm individual criminal responsibility directly under international law, and partly
expressly even acknowledge criminal responsibility of all persons independent of their different
official positions23, no special modality for commanders concerning crimes committed by their
subordinates could be agreed upon.
Consequently the Special Rapporteur of the ILC on a Draft Code devoted considerable effort
on summarizing the status quo in the national legislation and the jurisprudence at that time. He,
in particular, pointed out, like in a puzzle or a mosaic with uneven pieces, what aspects and
issues had to be taken into consideration for establishing a generally accepted definition of
18

19
20
21

22
23

G. Hankel, DIE LEIPZIGER PROZESSE, DEUTSCHE KRIEGSVERBRECHEN UND IHRE STRAFRECHLICHE


VERFOLGUNG NACH DEM ERSTEN WELTKRIEG (2003) und H. Wiggenhorn, VERLIERERJUSTIZ, DIE LEIPZIGER
KRIEGSVERBRECHERPOZESSE NACH DEM ERSTEN WELTKRIEG (2005).
See, in particular, supra note 17, Commission Report 1919, p. 117 and critical thereto the Memorandum of
the U.S. Delegation, ibid. 127 (135 et seq., 143 et seq.).
Supra note 15, article 26.
YB ILC 1950, Vol. II, Draft Code of Offences Against the Peace and Security of Mankind Report by J.
Spiropoulos, Special Rapporteur 268 et seq., (A/CN.4/25), and the C. Pillaud et al. (eds.), COMMENTARY ON
THE ADDITIONAL PROTOCOLS OF 8 JUNE 1977 TO THE GENEVA CONVENTION OF 12 AUGUST 1949 and 1977
Report ILC; See also below II 1.
See for a compulsive survey on the different regulations and jurisprudence emphasizing more or less aspects
to base command responsibility on, supra note 21 Y.B. ILC 1950, 269, para. 97 and 1977 Report ILC
See Nuremberg Trial Proceedings, Charter of the International Military Tribunal, article 7.

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command responsibility. In this context he emphasized in detail the historical importance of the
responsibility of superiors for omissions resulting in crimes committed by their subordinates till
1950, a clear theoretical structure and the political need for such a possibility, to hold superiors
responsible under international law, dealing with available alternatives and drafting definitions.
His proposals, though with regard to the elements mentioned similar to the elements contained
in article 28, deviated mainly in so far as he did not separate between a failure to control and
supervise subordinates and the failure to interfere in an already ongoing process24. However,
even independent of this aspect, the ILC could not achieve a consensus on what elements in
which definition should be the indispensable requirement to justify and apply responsibility of
superiors for crimes of their subordinates. Consequently, the same lacuna characterizes not only
the 1951 Draft Code but also the 1951 Draft Statute as well as the 1953/1954 Drafts25.
It were those divergent opinions which led quite a few legal scholars like Hans Kelsen and
14
Hans-Heinrich Jescheck to deal with this issue on a scientific basis, more in order to establish its
theoretical basis than to decide in detail its requirements for a broadly accepted definition26.
Their qualified analysis led, for example, and in accordance with the statements of the 1919 War
Crimes Commission, to the unavoidable conclusion that the Act-of-State-doctrine did no longer
prevent responsibility of persons in official positions, acting on behalf of the State, at least in so
far, as they committed grave violations of the "laws and customs of war and the laws of
humanity"27 which were established as crimes under international law.
This general acknowledgement of a rather comprehensive limitation of the Act-of-Statedoctrine was the breakthrough for establishing the criminal responsibility of military and civilian
superiors failing to arrange the implementation and obedience to these laws, and, thus violating
their already in 1864, 1907 and 1929 established duty to prevent by all means, in particular by
information and supervision, that their subordinates violate such regulations by committing such
crimes.
Both authors, like some others, opened the way for a more scientific and theoretically
structured approach. This may well be the reason, why in the 1954 Draft Code and Draft Statute
also not yet a relevant provision was included. In addition, unfortunately, the endeavours to
codify international criminal law within the United Nations, came to a preliminary stop at the
beginning of the Cold War; this delay was officially scheduled till there was an agreement on
the definition of aggression in 197428.
15
However, before this aim was, at least partly, achieved the international community formally
acknowledged in the 1968 Convention on non-statutory limitations of war crimes and crimes
against humanity, the criminal responsibility of "representatives of the State authority who,
as principals or accomplices, participate in or who directly incite others to the commission of"
war crimes and crimes against humanity. Besides these traditional modalities, a responsibility
for "representatives of the State authority was established . who merely tolerate" the
commission of war crimes and crimes against humanity, thereby accepting responsibility not
only for conclusive behaviour (= acts) but also for omissions29.
24
25
26

27
28
29

804

Supra note 21, YB ILC 1950, 268 et seq.


Report ILC, but the Rapporteur had 1950 already at that time, devoted a broad section of his report to this
new institution, supra note 21, Y.B. ILC 1950, 268 et seq.
See e.g. O. Triffterer, Hans Kelsens Bedeutung fr die Entwicklung des Vlkerstrafrechts und einer
Vlkerstrafgerichtsbarkeit, in: R. Walter et al. (eds.), HANS KELSEN UND DAS VLKERRECHT 139 et seq
(2004).
Peace treaty of Versailles, 28. Jun. 1919 (http://www.lib.byu.edu/~rdh/wwi/versailles.htm.).
See UN Res. 29 th Sess., Supp. No. 19, A/3314 (1974).
See article II of the 1968 Convention on the Non-Applicability of Statutory Limitations to War Crimes and
Crimes Against Humanity of 26. Nov. 1968:
"If any of the crimes mentioned in article I is committed, the provisions of this Convention shall apply to
representatives of the State authority and private individuals who, as principals or accomplices, participate in
or who directly incite others to the commission of any of those crimes, or who conspire to commit them,

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When finally a definition of aggression was agreed upon by consensus of the G.A. in 1974,
the time appeared favourable to work again on establishing command responsibility as an
inherent, well accepted legal modality of accountability, which should "contribute to the
prevention of such crimes", Preamble paragraph 5. It should extend individual criminal
responsibility by holding those accountable, who failed to fulfil their duty to prevent
subordinates from committing war crimes and those crimes, which since Nuremberg are more
and more punishable directly under international law30.
This tendency was supported by the ICRC, which, always acting as an independent 16
organization, was from its beginning strongly concerned to codify the ius in bello. It, therefore,
started after 1974 again where it stopped or failed 1949, and afterwards all endeavours within
the UN, with only the above under (b) mentioned small exception in 1968, which emphasized in
the discussion the additional modality of responsibility for (silent) toleration. Thus, a practical
implementation of superior responsibility, its permanent consideration and partly application of
one and/or the other aspect of this new modality in quite a few international and national
criminal proceedings after the Second World War, shaped the discussion.
All aspects together turned the issue favourable towards the creation of a sophisticated
modality of responsibility for staying passive, letting an event occur or continue and, thus,
causing and/or by not interfering at least objectively otherwise supporting crimes, committed by
other persons, in this case their subordinates. The background in its complexity was demanding
a comprehensive regulation in the interest of the rule of law, and, thus, favourable for drafting
articles 86 and 87 Add. Prot. I.
This Article 86 para. 1 creates the basis for anchoring a general responsibility of everybody 17
for breaches, "which result from the failure to act when under a duty to do so". It, thus, in
addition presupposes causality by passive behaviour and a legal pre-established duty, not to stay
passive in a certain situation, but to become active in order to prevent harm. Of course,
paragraph 1 presupposes also that harm can be caused by active behaviour, though this
alternative is not expressly mentioned.
This is the first express international, general acknowledgement of criminal responsibility
for omissions, a modality of human behaviour, which, in particular after the Second World War,
was generally discussed and more and more "strictly construed", also on the national level and
finally accepted in its present notion in almost all major legal systems of the world31. It is based
on the realisation that harm to legally protected values may be caused by and thus "result"
equally from acts and omissions, the punishability of the latter however appearing justified and
necessary only when the perpetrator by the omission violated a pre-established legal duty to
react in a way which would have prevented the result: the omission, thus, by not preventing it, is
one of the conditions for and thus causes the harm.
Paragraph 2 of article 86 Add. Prot. I specifies for a qualified group (superiors) in their 18
relation to their subordinates, a particular failure to act. It clarifies that a commission of a crime
by a subordinate "does not absolve his superiors from penal and disciplinary responsibility, if
they knew or had information which should have enabled them to conclude that he (the
subordinate) was committing or was going to commit such a breach ...". However this
accountability should be triggered only, if the superiors "did not take all feasible measures
within their power to prevent or repress the breach". Article 86 para. 2 Add. Prot. I thus
establishes responsibility of superiors under certain conditions, for failures to prevent or to

30

31

irrespective of the degree of completion, and to representatives of the State authority who tolerate their
commission". See also below III.
This modality is not a crimen sui generis but extending expressly and in a way "strictly construed" the
modalities for participation amending those mentioned in article 25. See for details supra note 2, O.
Triffterer, "Command Responsibility" 901 et seq.
A. Kaufmann, DIE DOGMATIK DER UNTERLASSUNGDELIKTE 23 et seq (2nd. Ed. 1988) and the 6th
International Congress on Penal Law, Conference proceedings, AIDP, Rome (1953).

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repress breaches of the Conventions and Add. Prot. I. In this paragraph 2 not the duty of
superiors to interfere in order to prevent or repress is based, but merely the criminal
responsibility as a consequence of the violation of an otherwise pre-established legal duty to do
exactly what is necessary to hinder or suppress in this specific situation.
Therefore, it was necessary to define and clarify in article 87 Add. Prot. I the "duty of
commanders", defined in all paragraphs, partly as an enumerative list, partly as alternatives.
While paragraph 1 obliges the Parties to "require military commanders, to prevent and, where
necessary, to suppress and to report ", paragraph 2 clarifies that "[i]n order to prevent and
suppress breaches", superiors shall "ensure that members of the armed forces under their
command are aware of their obligations under the Conventions and this Protocol". This means,
that they have to guaranty by all necessary measures such an awareness, in particular by
information, education and also by supervision and control.
Paragraph 3 defines, in addition, obligations of a superior in cases where he "is aware that
subordinates or other persons under his control are going to commit or have committed a
breach". He then is obliged "to initiate such steps as are necessary to prevent such violations of
the Conventions or this Protocol, and, where appropriate, to initiate disciplinary or penal action
against violators thereof".
None of these regulations gives a clear indication how to interpret prevention, suppression
19
and repression respectively the adjectives of this three subjective words. As I have considered in
detail on another occasion, they describe a progressing situation, starting with proper control in
order to avoid that anything like criminal activities comes to the mind of subordinates and
ending with direct or indirect interferences in action, to avoid an attempt or the completion of an
attempt32.
At the same time, there is no indication in articles 86 and 87 Add. Prot. I with regard to the
issue, whether a none interference described in articles 86 para. 2 and 87 para. 3 Add. Prot. I
triggers superiors responsibility by itself or whether the failure to properly educate, control or
supervise is merely one condition, but triggers criminal responsibility only in cases, where, in
addition, the commander is aware of the results of his failure or he should and could have known
them and nevertheless does not interfere in the necessary modality. The latest international
regulation is contained in article 28, but it deviates, at least by the wording, from articles 7 para.
3 Yugoslavian and 6 para. 3 Rwanda Statute.
This difference surprises, because all three regulations take over, mainly verbally,
formulations contained in articles 86 and 87 Add. Prot. I, though without giving any explanation
in the preparatory work. With regard to article 28 Rome Statute this "copying" of articles 86 and
87 Add. Prot. I is the most comprehensive, since two different behaviours are defined in detail:
failing to properly control and failing to interfere.
The relationship between the two relevant regulations for the ad hoc Tribunals and article 28
Rome Statute needs to be clarified. At present, after the Rome Statute entered into force 1 July
2002, a double competence is still possible, since no time limit is provided in article 1 ICTY
Statute. However, the Security Council "endorsed the ICTYs strategy for completing
investigations by the end of 2004, all trial activities at first instance by the end of 2008, and all
of its work in 2010, by concentrating on the prosecution and trial of the most senior leaders
suspected of being most responsible for crimes within the ICTYs jurisdiction and transferring
cases involving those who may not bear this level of responsibility to competent national
jurisdictions, as appropriate, as well as the strengthening of the capacity of such jurisdictions"33.
Summarizing, articles 86 and 87 Add. Prot. I could be interpreted that only if a commander
20
fails to make his "subordinates or other persons under his control" sufficiently aware of their
32
33

806

See for details supra note 4, O. Triffterer, Command Responsibility, Article 28 Rome Statute 213 et seq.
(2004).
See for more details S/RES/1503 (2003).

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obligations so that, as a "result" from this dereliction of duties, they "are going to commit or
have committed a breach of the Conventions or of this Protocol", the superior can be held
responsible.
Consequently, the Parties "shall require any commander who is aware" of such appearances,
because he "knew" or had reasons to know, to initiate the necessary steps "to prevent such
violations and, where appropriate, to initiate action against the violators"34.
In practice these elements of command responsibility for a "failure to act" are based on the 21
laws and customs of war and have shaped since then all further definitions up to the
Consolidated Draft, which was presented at the Rome Conference as a basis for the discussion
"with a view to finalizing and adopting a convention on the establishment of an International
Criminal Court"35. The Diplomatic Conference of Plenipotentiaries met five weeks in Rome, in
June and July 199836. Its important, relevant result was to have combined "the failure to act" (to
control) in the sense of article 86 para. 1 Add. Prot. I and the several "duties of commanders", as
defined in article 87 Add. Prot. I, to serve as a "strictly construed" definition of criminal
responsibility, which clearly expresses the triggering basis upon and the framework within
which prosecution of superior responsibility is admissible before the ICC37.
Only the combination of a (first) failure to control, resulting in criminal activities of 22
subordinates with a (second) failure of the superior, to take the necessary measures, averts strict
liability for not preventing what occurs, but could have already been avoided by a correct
fulfillment of the first obligation of commanders, namely, to take responsibility for their
subordinates by, in particular, informing, educating, supervising and controlling them as much
as necessary, in order to ensure that they act in conformity with the laws and customs of wars
and the laws of humanity. It were the highly disputed precedents after the Second World War
which raised the need, to avoid further criticism by lifting the threshold of responsibility in the
interest of justice by establishing more and precisely detailed requirements in the interest of the
rule of law. To meet the demands of article 22 in the sense of "strictly construed" definitions,
was not only necessary for the crimes as such, but also for all modalities listed in articles 25
para. 3 or 28, to hold superiors individually responsible for crimes under international law,
committed by their subordinates.
Therefore, it is not surprising, that the structure of article 28 is far more complicated and
interwoven than those of earlier comparable regulations like article 7 para 3 ICTY Statute,
drafted five years before. These different formulations demonstrate also the difficulties of the
major legal systems of the world, to define superior responsibility in accordance with their usual

34
35
36

37

Article 87 para. 2 Add. Prot. I


Final Act para. 1.
Already in 1981 the Implementation of the Draft Convention of Apartheid provided for the responsibility of a
"person in authority in a State, group or organization, if he knew or could have reasonably foresee the
commission of such crime and remain a member thereof". See E/CN.4/1426 (1981), articles 21 para. 5 and 20
paras. 10 and 11.
Command responsibility subsequently made it into the Draft Code of Crimes then discussed within the ILC.
The 1988 ILC Report relies on the Add. Prot. I and extends its scope to (all) crimes against the peace and
security of mankind (see 1988 ILC Report, article 10); The regulation was then included as article 12 in the
1991 ILC Draft Code and remained with minor changes as article 6 in the 1996 ILC Draft Code.
1996 the Preparatory Committee II in its article C already contained a provision that included all relevant
parts of article 28. As alternatives though the separation of military and other superiors was not yet formally
established. This regulation including its brackets remained unchanged up till the Consolidated Draft. A more
detailed discussion and a decision only took place during the Rome Conference. See also 1996 Preparatory
Committee I, paras. 202 and 203, Preparatory Committee Decisions Feb. 1997 article C, Zutphen Draft
article 19 (C) and Consolidated Draft article 25.
The Statutes of the ICTY and the ICTR have already combined these two aspects, but there the regulation
does not apply to the standards of "strictly construed".

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theoretical structures for definitions of crimes and in a way satisfying the needs of the principle
nullum crimen sine lege38.
This legal situation raises the question, whether article 28 defines with regard to superior
23
responsibility in the same binding way as all other definitions of crimes and modalities of
individual criminal responsibility in the Rome Statute, the minimum requirements of what is the
existing law, or whether articles 7 para. 3 ICTY and 6 para. 3 ICTR-Statute, describe the laws
and customs of war "beyond any doubt", but differently.
24
Before I can deal with this question in more detail (below II. 3.), can a legal situation with
separate, differently phrased regulations, be characterised as a case of ambiguity? Is the
ambiguity rule applicable though the regulations to be compared are not only different from
each other and are not defined in one, but in two separate contexts, which, in addition, belong to
different codes, though both deal with the same substantive law issue concerning crimes under
international law committed in a certain modality? In case this principle is applicable, does not
the notion of article 28 deserve priority, not only as lex posterior, but because its application
requires prove of more elements and, thus, is more favourable to the suspect? Can the question
of ambiguity be answered by interpreting article 7 para. 3 ICTY Statute in the sense, that the
mere fact that crimes were committed by subordinates in a context where such persons are under
the authority and influence of their superiors, implies a failure of the superior to control
properly?
This conclusion does not have to be drawn expressly or precisely proven, but can be
assumed by circumstantial evidence. It, therefore, can be denied by the defence by presenting
relevant evidence. If the ambiguity rule implies also with regard to different regulations and
even in cases, when those regulations are contained in different statutes, article 28 prevails;
because it is more favourable for suspects, demanding two failures, a lack of control and a lack
of interference, while the ad hoc Statutes, at least according to the wording, require only a
failure to interfere.
II. Practical Importance
25

The fact that in the history of international humanitarian and criminal law so much attention
and energy concentrated rather early on command and superior responsibility is due to the
observations that its practical importance for ensuring respect and obedience to humanitarian
law and, thereby, its contribution to the prevention of crimes under international law, was
obvious right from the beginning. It, therefore, does not surprise, that already in the fifteenth
century a definition of command responsibility was issued which L. C. Green described as
"almost foreshadowing" Add. Prot. I 1977. The relevant Ordinance of Charles VII of Orleans
provides that:
"Each Captain or Lieutenant be held responsible for the abuses, ills and offences committed by members
of his company and that as soon as he receives any complaint concerning any such misdeed or abuse, he
bring the offender to justice ... If he fails to do so or covers up the misdeed or delays taking action, or if,
because of his negligence or otherwise, the offender escapes and thus evades punishment, the Captain
shall be deemed responsible for the offence as if he had committed it himself and be punished in the same
way as the offender would have been"39.

This definition contains mainly objective requirements but at least mentions also on the
mental side negligence as one cause for letting the subordinates escape and, thus "supporting"
the perpetrator after the crime has been committed.

38

39

808

O. Triffterer, Command Responsibility Grundstrukturen und Anwendungsbereiche von Art. 28 des Rom
Statutes, Eignung auch zur Bekmpfung des internationalen Terrorismus?, in: C. Prittwitz et. al. (eds.),
FESTSCHRIFT FR KLAUS LDERSSEN 437 et seq. (2002). See also the new German "Vlkerstrafgesetzbuch",
30.06.2002, which uses there different matters of fact to catch all alternatives contained in article 28.
Emphasis added; quoted from L. C. Green, War Crimes, Crimes against Humanity, and Command
Responsibility, 1 NAVAL WAR COL. REV. 26 et seq. (1997) with further references in footnote 2 there.

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Ever since then, even though this definition does not mention expressly failures to control, 26
supervise or to prevent, but only refers to "bring the offender to justice", commanders, because
of their hierarchically established position appeared with regard to subordinates as the
multiplying factor. Such an influence could be either in favor or against committing grave and
other breaches of the laws and customs of war, depending on the visible attitude of the superior
towards such violations. At the same time, their criminal responsibility appeared as a deterrent
effect, not only with regard to their own future behaviour and to other superiors, but also for
subordinates; because when realizing that their superiors are called to criminal responsibility,
they could not expect or rely on going unpunished for their own commission of or contribution
to such crimes. On the opposite, impunity of superiors may promote violations of humanitarian
law by subordinates; because when such a lack of legal reactions on serious failures of superiors
can be observed, subordinates may expect and count on equally not to be held responsible.
It was this diversity of de facto and mental dependency and the practically unlimited power 27
and influence of superiors over "forces", as experienced, in particular, during the already above
mentioned Balkan Wars 1912/1913, which had demonstrated that silent toleration or failures of
superiors to educate, prohibit, interfere or to stop criminal activities were decisive factors,
resulting in or otherwise supporting violations of international humanitarian law. Nevertheless,
their responsibility was, despite of the above mentioned excellent historical example, at the
beginning not yet shaped in a way, required by principles like nullum crimen, nulla poena sine
lege. But as criminal sanctions appeared more and more indispensable as ultima ratio, also for
international criminal law, such basic pillars to install criminal responsibility were needed more
precisely defined and, therefore stronger founded according to the rule of law.
The experience, that crimes under international law were mainly committed because of 28
conclusive (= active) behaviour of superiors, for instance, "silent toleration"40, or, at least, by
omitting to supervise properly or to stop the subordinates, was ever since it has been articulated
at the beginning of the last century in the context with the Peace Treaty of Versailles, discussed
in connection with the protection of international peace and security of mankind. The debacle of
international criminal justice after the First World War and in between the two World Wars,
therefore, led to increased endeavours to call those to criminal responsibility, who beyond
traditional pattern of participation merely by their position appeared equally responsible for
unlawful harm. The experience had demonstrated that superiors by an indifferent attitude may
cause crimes by simply letting them appear through the hands of others. Thus, by abusing their
political, military and/or de facto power, they violated basic rules of the international community
as a whole in a way, as if they had themselves committed such crimes. The need to call superiors
to responsibility for such passive behaviour had already been promoted and accepted in the 15th
century, as mentioned above. It, therefore, surprises that not more of this definition had been
acknowledged before it partly appeared 1977 in Add. Prot. I. In particular, its concept and notion
"as if he had committed it himself", has since than nowhere else been expressed in any other
definition, not even in a comparable way.
1. Nuremberg, Tokyo and "follow up proceedings" (Nachfolgeprozesse)
The Nazi Regime demonstrated worldwide by the dimension of its crimes, committed to 29
establish and maintain its domination in one way or the other, how much the abuse of political,
military and administrative power of superiors up to top State levels could violate legally
protected values and, in addition, endanger peace and the world legal order41. This experience
made it rather easy to unite the world opinion for the prosecution of superiors as major war

40
41

See also above I. 2.


See for instance O. Triffterer, Preliminary Remarks, margin No. 20 et seq.

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criminals in Nuremberg and Tokyo. Responsibility of commanders and other superiors,


therefore, predominated in all criminal proceedings after the Second World War.
Though command responsibility was not expressly mentioned in either of the Statutes, it was
acknowledged that official positions of perpetrators should be irrelevant and that the fact, the
crime had been committed by subordinates, should not free their superiors from criminal
responsibility and liability to punishment. The Tribunals prosecuted however commanders on
the basis of article 1 Hague Convention IV 1907, which (merely) provides that armed forces
must "be commanded by a person responsible for his subordinates"42. There was no definition
comparable to the one issued 1439 to which I just have referred to.
Convictions in Nuremberg and Tokyo did not need such a reference. They were anyhow
rather easy to achieve; because commanders there were mainly charged with active participation
in one of the traditional modalities, quite often for ordering or otherwise "aiding and abetting"
the execution of violations of international humanitarian law by their subordinates43.
30
Only a few cases dealt with responsibility for omissions; and of those none strictly separated
between failures of superiors to control their subordinates properly, resulting in the commission
of one of the core crimes, and failures to take the necessary measures to prevent what was
already on its way to violate legally protected values. But there were careful tendencies towards
requiring such a failure as the starting point and also towards a mental element44. This at that
time still rather unspecified notion of command or superior responsibility demanded, for
instance, a failure to take steps "as were within their power to prevent the commission of such
crimes", if the superior, in addition, "had knowledge that such crimes were being committed" or,
as an alternative to knowledge, the "fault in having failed to acquire knowledge"45.
31
While the Nuremberg-Trial against civilians like Krupp did not call on superior
responsibility, the IMTFE addressed military and civilian superiors46. Subsequent trials
conducted by the "Besatzungsgerichte" in Germany and by the US Military Commission of the
Far East, though mainly concerned about the responsibility of military commanders, confirmed
this tendency to differentiate between military and civilian superiors.
In addition, they emphasized, almost equally for both, two slightly different basic pillars:
First, a failure to control subordinates properly. This could be required, because it was generally
accepted that those commanders were responsible under international and disciplinary military
law and had the duty to control their "forces" properly. But the final step towards the present
notion of superior responsibility was not yet done47. The failure of a commander to control
properly was not established on a subjective, a mental, but on an objective basis, proven by "the
extensive and widespread atrocities specified"48. The Tribunal took, for instance, as prima facie
evidence, that, by the mere appearance of such crimes, frequently in different areas and
widespread, it was proven that the commander must have omitted to fulfill his duties. Thus, it
was assumed that such an omission had, most probably, caused the crimes of the subordinates.

42
43

44
45
46

47

48

810

See supra note 8, the IV Hague Convention 1907, Article I of the annexed rules of warfare and see also
ICRC, COMMENTARY ON THE ADD. PROT. I, para 3531.
See supra note 39 on General Tomoyuki Yamashita, L. C. Green, War Crimes; supra note 21, Report by J.
Spiropoulous, Special Rapporteur with Reference to Trial of War Criminals IX margin No. 71 et seq. and
1950 YB ILC Vol. II, see also below supra note 44
Yamashita, UNWCC, XXI LAW REPORTS OF TRIALS OF WAR CRIMINALS, Part I, (viii), p. 12 (1948).
Quoted from supra note 21, Report of Special Rapporteur J. Spiropoulous, margin No. 98.
W. J. Fenrick in the First Edition of this Commentary, article 28, margin No. 3 (1999). See also B.
Rling/C.F. Ruter, THE TOKYO JUDGMENT 446 et seq. (1977); The Government Commissioner of the General
Tribunal for the French Zone of Occupation in Germany v. Directions of the Roechling Enterprises, XIV
LAW REPORTS OF TRIALS OF WAR CRIMINALS 1116 (1949).
Yamashita would have needed further reasoning to avoid the criticism of vicarious criminal responsibility ,
see for further information R. Herde, COMMAND RESPONSIBILITY 325 et seq. (2001) and E. Levine,
Command Responsibility, The Mens Rea Requirement, GLOBAL POLICY FORUM 3 et seq. (2005).
Supra note 44, Yamashita, Part IV, (v), p. 43.

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For the defence, denying such a causal connection, the burden of proof thus was shifted to the
accused49.
There was however, already at that time, a slowly but more precisely developing second 32
element, concerning the mens rea. It established responsibility for not reacting properly though
there was information to conclude that something should happen to avoid or to prevent the
commission of crimes by subordinates. It was called "negligent" behaviour and as such had to be
confirmed by the evidence presented at trial50. Already this argumentation shows that
responsibility exclusively based on "strict liability" was rejected51. This requirement, through
which the Tribunal refused "strict liability", demands an element of personal guilt on the side of
the commander. He could only be held responsible if he knew or should have known about the
commission of crimes by his subordinates and, nevertheless, did not interfere with the criminal
appearances of a certain behaviour of his subordinates which was on the way to be realized or
already producing criminal harm52.
It this context, up and on a few additional arguments were presented in order to more and 33
more shape superior responsibility as a separate and independent modality of individual criminal
responsibility: In the case of Yamashita, for instance, the perpetrator had neither committed nor
directed acts that were subject of the judgment. The US Supreme Court based its decision on the
sentence: "[t]he gist of the charge was that he had committed an unlawful breach of his duty as
an army commander to control the operations of the members of his command by 'permitting
them to commit' the extensive and widespread atrocities specified"53. Describing the relevant
behaviour as "permitting", the Supreme Court presupposes a causal link between the passivity of
Yamashita and the crimes committed by his subordinates, though, this conclusion was not
expressly mentioned anywhere. However, such an interpretation may well be the reason, why
the defence argued that Yamashita did not commit a specific violation of a particular duty nor
any specific act or omission which could be interpreted as "permitting" the crimes of the
troops54. The defence, thus, denied any conclusive and express behaviour and thereby not only a
causal link, but also any mental attitude of Yamashita with regard to the crimes committed by
his subordinates.
The mental side was, however, emphasized by the prosecution, who blamed Yamashita "that 34
he did not make an adequate effort to find out. It was his duty to know what was being done by
his troops under his orders"55. It was this substitution of knowledge or awareness by the failure
to access or collect information to conclude that crimes were committed, which according to the
prosecution should be sufficient for personal guilt. But again, the US Supreme Court refers to a
causal connection when it argues "for his failure to take such measures when violations result"56
and thus using once more an objective standard.
49

50

51

52
53
54
55
56

Trial of S.S. Brigadefhrer Kurt Meyer (The Abbaye Ardenne Case), UNWCC, XXII LAW REPORTS OF
TRIALS OF WAR CRIMINALS, Part IV, see under headline 9. Summing up of the Judge advocate, p. 108
(1948).
In this regard the judge advocate in the Belsen Trial, pointed out that it did not matter "whether he [Kramer]
acted wilfully or merely with culpable neglect: the question was whether the Prosecution had proved that
Kramer did not carry out his duties as far as he was able to do so and that he had caused at any rate physical
suffering " See Trial of Josef Kramer and 44 others (The Belsen trial), UNWCC, X LAW REPORTS OF
TRIALS OF WAR CRIMINALS, Vol. II, Part XI, see under headline K. The summing up of the Judge advocate,
p. 120 (1947).
See for instance M. Elewa Badar, Mens rea Mistake of Law & Mistake of Fact in German Criminal Law: A
Survey for International Criminal Tribunals, 5 INT'L CRIM. L. REV. 213 et seq. (2005) and R. Clark, The
Mental Element in International Criminal Law, 12 CRIM. L. REV. 301 et seq (2001) on the issue of strict
liability compared with dolus eventualis.
See for instance supra note 51, R. Clark, The Mental Element 205 et seq.
See supra note 44, Yamashita, Part IV, (v), p. 43.
Supra note 44, Yamashita, Part III, under the headline 12. The Verdict and Sentence, pp. 34 et seq.
Supra note 44, Yamashita, Part III, under the headline: 11. The closing address for the Prosecution, p. 30.
Supra note 44, Yamashita, Part IV, pp. 43 and 86 et seq.

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Also in the Abbaye Ardenne Case (= Kurt Meyer) the shifting of the burden of proof was
confirmed. The prosecution had already charged the evidence that "the accused ordered the
commission of war crimes, or verbally or tacitly acquiesced in its commission, or knowingly
failed to prevent its commission"57. In addition, the court emphasized the intentional failure to
control properly. It mentions "willfully failed in his duty" and thus practically gives a hint with
regard to the first alternative of article 28 Rome Statute, which implies an intentional failure to
control; because according to article 30 non-intentional behaviour is only sufficient when
mentioned expressly, as later on in article 28 in the context with the failure to take the necessary
measures by the wording "knew or should have known"58.
The "Hostages Case" equally refers to such an alternative by requiring that the commander
36
"knew or ought to have known about" the criminal behaviour of his subordinates. The Tribunal
further emphasized that commanders must in such a situation "be held responsible for the acts of
his subordinatecommanders in carrying out his orders"59.
The German High Command Tribunal refuses also expressly strict liability by finding that
criminal responsibility can "not automatically attach to him for all acts of his subordinates.
There must be an unlawful act on his part or a failure to supervise his subordinates constituting
criminal negligence on his part". The Tribunal, thus, diminishes the threshold of intent and
knowledge, by demanding merely that the mental side must be "amounting to a wanton, immoral
disregard of the action of his subordinates amounting to acquiescence"60.
37
At the Trial of Takashi Sakai, the Tribunal thought "it was inconceivable that he [the
commander] should not have been aware of the acts of atrocity committed by his subordinates
"61. This argument, however, is not convincing. It comes close to charging the accused with
"strict liability"; because it assumes the mental element without proving it. What is conceivable
for the judges may nevertheless not have come to the mind of the accused. The Court could and
should have argued, for instance, that it has not been convinced by the argument of the defence
that the superior has not been aware of what the subordinates committed; because such a
neglecting of obvious evidence appears inconceivable and, therefore, the Court believes, that the
accused has in fact been aware62. In the later trial of Kurt Student this argumentation was
expressed by the statement that "the repeated occurrence of offences by troops under one
command [is] prima facie evidence of responsibility of the commander for those offences".
But this wording still does not point out clearly enough the differentiation between what
everybody would and should have known and why the Court does believe that the defendant has
had the same awareness as everybody would have had in the same situation, even though the
perpetrator denies any such awareness63.
38
Looking at this small survey on post war decisions presented here, the diversity in describing
elements required for an inherent responsibility of commanders surprises64. In addition, though
many aspects expressed in the regulation of 1439 except "as if he had committed it himself"
show up in the later discussion, no element of command responsibility was finally sufficiently
clear formulated and, consequently, no "strictly construed" definitions became available. It
35

57
58
59
60

61
62
63
64

812

See supra note 49, The Abbaye Ardenne Case.


See supra note 49, The Abbaye Ardenne Case.
Trial of Wilhelm List et. al.. (Hostages Trial) UNWCC, VII LAW REPORTS OF TRIALS OF WAR CRIMINALS,
Part VI, under the headline 2. The extent of the Responsibility of commanding Generals, p. 89 (1949).
Supra note 21, Report of Special Rapporteur J. Spiropoulous, margin No. 97 and Trial of Wilhelm von Leeb
et al. (The German High Command Trial),UNWCC, XII LAW REPORTS OF TRIALS OF WAR CRIMINALS, pp.
76 et seq.(1948).
Trial of Takashi Sakai (Nanking), UNWCC, LAW REPORTS OF TRIALS OF WAR CRIMINALS, under the
headline 4. The accused's guilt as to War Crimes and Crimes against Humanity, p. 7 (1948).
O. Triffterer, STERREICHISCHES STRAFRECHT ALLGEMEINER TEIL, 94 et seq. (2nd ed.1994).
Supra note 44, Yamashita, Part VI, (v), p. 85 (brackets added).
See also T. Weigend, Bemerkungen zur Vorgesetztenverantwortlichkeit im Vlkerstrafrecht, 4 ZSTW 1001
(2004).

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obviously needed more theoretical work and practical experience to come to a satisfying
agreement.
2. Continuing to focus primarily on commanders increased the acknowledgement of an
inherent superior responsibility, but did not crystallise elements "strictly construed"
The relevant comprehensive jurisprudence in the context with the crimes committed during 39
the Second World War reminds us on a puzzle with tiny little mosaic pieces: when you see them
isolated, you know they ought to be filled into "the picture" of requirements for superior
responsibility, though together with others not yet known. It, therefore, is not so easy to deposit
them in the right place; because they are not only shaped very individually, but are also of
different size, colour and importance for a "strictly construed" definition of an independent
modality for individual criminal responsibility of superiors under international law, which
characterizes all its specifities in comparison with the traditional modes of participation.
The relevant but rather small development on the national level after the "Nuremberg-era"
did not contribute much to solve the task, to define and structure the minimum requirements for
command responsibility as an additional mode of criminal liability beyond traditional
boundaries. The main common approach was to also or even mainly address commanders when
crimes were committed by their "forces". Therefore it was not surprising that, whenever
spectacular war crimes or crimes against humanity were committed after Nuremberg, the public
opinion demanded individual criminal responsibility of those commanders, who were "in
charge" of the persons, suspected for committing such crimes and, therefore, had to have the
responsibility for their behaviour.
But they were primarily accused of direct participation in the execution of such crimes,
together with ordering or at least "permitting the commission" in the sense of "tolerating them"
by not fulfilling their duty to supervise and guarantee that their subordinates obey to the law.
Thus all these alternatives were subsumed under one of the traditional modalities of supporting
crimes and therefore, required intentional acts or omissions.
This rather neutral attitude towards a missing definition became, for instance, obvious in the 40
context with the massacre in My Lai, Vietnam, 1968. The commanding Lieutenant was charged
with killing the victims as principal perpetrator. He claimed as a defence to have acted on
superior orders65. His superior also was charged with a traditional mode, namely to have ordered
the massacre. He argued, to have "only subsequently learned of the outrage" but confessed that
he "decided to hush it up instead of taking steps to report its perpetration or punish those
responsible"66.
On this occasion the presiding judge gave guidelines to the jury, emphasizing that even after
"issuing an order a commander must remain alert and make timely adjustments as required by a
changing situation". The judge demanded further "actual knowledge plus a wrongful failure to
act", and continues, "[t]hus mere presence at [the] scene will not suffice. That is, the
commandersubordinate relationship alone will not allow an inference of knowledge"67.
Green points out in this context: "It might even be felt that lack of knowledge in such
circumstances amounts to criminal indifference equivalent to a failure to exercise proper
command". In general, the superior "has actual knowledge, or should have knowledge, through
reports received by him or through other means".
The four elements Green mentions from the information of the presiding judge to the jury 41
are an attempt to structure the charge, however by giving more consideration to the facts than to
the legal approaches. He requires as the first element, "[t]hat [the] deaths resulted from the
omission of the accused in failing to exercise control", but "after having gained knowledge that
65
66
67

See supra note 39, L. C. Green, with further references in footnote 44.
Supra note 39, id., with further references in footnote 46.
Supra note 39, id., with further references in footnote 45.

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his subordinate were killing noncombatants". In addition, "this omission must constitute
culpable negligence and an unknown number of victims must have been killed by subordinates
under his control"68.
Green further reports in the context with the My Lai massacre of a Major General who has
been held responsible, though he "may not have deliberately allowed an inadequate investigation
to occur, but he let it happen, and he had ample resources to prevent it from happening"69. Green
refers in this context also to the demand that "the military commander who acts to prevent future
war crimes is criminally liable only if he did not act promptly enough when he learned of
subordinates' crimes"70.
The case of Eichmann is sometimes reported in this context. But Eichmann was a superior
42
giving orders to organize the transportation of Jews to the concentration camps and thus was one
of the principles. He claimed not to have known what happened there to the detainees but the
circumstantial evidence obviously appeared to be beyond reasonable doubt sufficient to sentence
him71.
The Kafr Qassem "incident" also is an example for traditional responsibility of commanders,
43
but not for a new independent modality. The Court states, for instance, that "[t]here is no doubt
that the death of all victims who fell at Kafr Qassem was the probable result of M's order, even
though as regards some of them, and perhaps most of them, there was no intention of murder in
the sense of [the Criminal Code]. For these reasons we must uphold the conviction for
murder"72.
Besides emphasizing the recklessness of the order, the Kahan Report on the massacre in the
refugee camps Sabra and Shatila in Lebanon points out "that the Israeli military authorities were
aware of the killings that were taking place, but took no step to order the Israeli troops to stop
the massacre, nor was any action taken by the Minister of Defence to this end". The requirement
of these two elements comes closer to the regulations of an inherent responsibility for
commanders. This assessment is confirmed by the further statement: Finally, "no attempt was
made to seek out or punish any of those responsible for what happened"73.
Though most of the reported regulations, statements and decisions refer to one or more
44
singular aspects which later have been defined in articles 86 and 87 Add. Prot. I 1977, (and in
article 28 Rome Statute) none of them offers not even an approximately comprehensive scope
and notion of a consistent definition for command responsibility. However, this small outline
(under 2.) confirms in a similar manner as those presented before (under 1. and I. 3.), how strong
the theoretical and the practical development, in particular after the Second World War,
concentrated to hold superiors more and more responsible, in particular for ordering, committing
or participating in the commission of one of the classical Nuremberg Crimes. But on these
occasions it quite often became equally obvious, that the cases for the indictments did not catch
the complete spectrum of responsibility of superiors. The investigators obviously could get hold
of situations, in which superiors merely silently tolerate or "letting such crimes just happen"
through their subordinates. Command responsibility as an independent, additional responsibility
therefore becomes more and more important, in particular, when none of the traditional
modalities of participation could be proven by sufficient evidence.
Starting to develop its scope and notion out of this case to case experience, Add. Prot. I
finally represents the main results of this development. Articles 86 and 87 define an accepted
number of elements in order to have them "strictly construed". They contain a political
68
69
70
71
72
73

814

For all these quotations see L. C. Green, Command Responsibility in International Humanitarian Law, 3
TRANSNATL L. & CONTEMP. PROBS 354 with other references in footnotes 110 et seq. (1995).
Id. supra note 58, 355 with further references in fn. 114.
Id. supra note 58, 356 with further references in fn. 116.
Id. supra note 58, 356 with further references in footnotes 119 and 120.
Quoted according to supra note 58, 360 with further references in fn. 130.
Supra note 58, id., 363 et seq. with further references in fn. 137.

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compromise which did not clearly differentiate command responsibility from traditional
modalities of participation, in which superiors are involved together with their subordinates.
This task was therefore left, with all due respect to the value of Add. Prot. I, to future
developments by international Tribunals and their jurisprudence.
3. Command responsibility, dominating the international and the transitional justice
regimes up to the top of hierarchically based authorities, requiring more legal
guaranties
Keeping this background in mind, it does not surprise, that since 1977, more than fifteen 45
years not much has been changed or moved in one or the other direction: There were actually no
new cases brought before the judiciary to promote solutions for the open questions. It therefore
was practically the result of a delayed development, when the Statutes for the ICTY and the
ICTR, adopted under time pressure in 1993 and 1994, included some, though not all, of the
formulations contained in articles 86 and 87 of Add. Prot. I, as a definition of an additional
responsibility for superiors. Concept and notion appeared broadly accepted and quickly
available, because provisions were needed, according to which higher ranking superiors could
be held responsible even beyond the limits of traditional ordering or other participation, and
which by its acceptance through the Security Council received an additional worldwide
approval.
The situation on the territory of Former Yugoslavia had demonstrated since 1991, what
everybody knew since the Balkan Wars 1912/13 and the World Wars, namely that commanders
as well as other superiors play the most important role for ongoing atrocities and for stopping
them immediately. They, therefore, should be targeted with regard to end their impunity and
thus to contribute to the prevention of crimes committed by their subordinates.
The relevant provisions in articles 7 para. 3 and 6 para. 3 ICTY and ICTR Statutes try to 46
achieve this aim, together with paragraphs 1 and 2, defining all traditional modalities. They were
at that time the only binding international definitions applicable in a "direct enforcement
model".
Even after article 28 Rome Statute had defined in 1998 a more comprehensive regulation for
all superiors who could by their political, military, legal, administrative and de facto power
contribute in various ways to one of the core crimes, those new regulations were not yet
available, because the Rome Statute came into force only on 1. July 2002 and even then it took
more than 3 years before the first cases, from which till now only one is in the trial phase, were
pending at the ICC. Therefore the ad hoc Statutes and the jurisprudence of the Tribunals
dominated the situation for more than one decade.
In addition, the Tribunals had clearly confirmed again and demonstrated the practical
importance of an institution like command responsibility for those persons, not on the spot but
pulling the strings from behind and thus taking responsibility for what was beyond the
traditional modalities of participation. I recall only the indictments against Milosevic, Mladic
and Karadzic as well as the relevant final jurisprudence of the ICTY and, after the first case of
Akayesu was pending, also before the ICTR. These decisions are listed above together with the
literature and other jurisprudence.
But it was not only the shortness of the formulations in these Statutes which make them 47
preferable in comparison with article 28 Rome Statute, which is much more extensive. States in
transition need worldwide accepted regulations and jurisprudence when looking for an
international legal basis upon which to create Special Courts or Commissions to deal with past
atrocities (post-conflict justice). They, therefore, rather prefer and copy articles 7 or 6 of the ad
hoc Statutes instead of article 28 Rome Statute.
This preference was further backed by the fact, that the decisions of the Security Counsel to
accept these regulations represented the legal opinion of all members of the UN, while the Rome
Statute is up till now only in force for 105 States.
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It is self evidence, that relevant decisions of the ad hoc Tribunals will play an important role
for the cases pending and coming up to the ICC. According to article 21 para. 2 Rome Statute
the previous decisions of the Court and even more those of other courts or the Tribunals are not
binding. But they will play an important role for the interpretation and application of the Rome
Statute. It, therefore, is necessary, shortly to deal with the scope and notion of the relevant
provisions in the Statutes of the ad hoc Tribunals that cover command responsibility.
When for the first time in history two ("really") international ad hoc Tribunals were
49
established to prosecute genocide, war crimes and crimes against humanity, it became quite
obvious that the Security Council, when referring to the laws and customs of war, used, partly
verbally, the concept and notion of articles 86 and 87 Add. Prot. I to define criminal
responsibility of superiors in articles 7 para. 3 ICTY and 6 para. 3 ICTR Statute74. The
Secretary-General in his Report of 23 May 1993 to the Security Council expresses the opinion,
that "the application of the principle nullum crimen sine lege requires that the international
Tribunal should apply rules of international humanitarian law, which are beyond any doubt part
of customary law"75.
He further emphasizes that "virtually all of the written comments received draw upon the
precedents following the Second World War", and confirm "the irrelevance of official
capacities"76. Therefore, not only the "unlawful order to commit a crime" should trigger superior
responsibility, but also a "failure to prevent a crime or to deter the unlawful behaviour of the
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"77.
According to the interpretation suggested above (under I. 3.) two failures are listed in the just
50
mentioned quotations, namely "to prevent a crime or to deter " on the one side, and "failure to
take steps to prevent or repress" on the other side. These two omissions should be separated,
at least in theory78 though they may be interwoven in praxis. This dependency is needed to
establish personal guilt, the indispensable element for all modes of criminal responsibility.
Because only when a "failure to prevent a crime or to deter the unlawful behaviour" results in an
action, where "subordinates were about to commit or had committed crimes", liability can be
triggered. It is further based on the fact that the superior, though he knew or had reasons to know
about it, "yet failed to take the necessary and reasonable steps to prevent or repress the
commission", which he had not prevented and thus caused, for instance by not ensuring that his
subordinates were sufficiently informed and motivated to obey the law. This passive behaviour
of the superior appears as a whole to be of sufficient gravity to trigger his responsibility for the
crime committed by the subordinates79.
However, it has to be admitted that article 7 para. 3 ICTY Statute, as well as 6 para. 3 ICTR
51
Statute, do not express this underlying structure by requiring a link between the failure to
exercise control properly and the crimes of the subordinates. Both regulations, therefore, may be
interpreted, at first sight, in a way, that the failure to take the necessary and reasonable measures
or to punish, may by itself trigger superior responsibility even if the superior has not caused
these criminal actions of his subordinates.
48

74
75
76
77
78
79

816

For further information see Res. 808 (1993) and Res. 955 (1994) of the SC.
Rep. of the Secretary General pursuant to para. 2 of SC Res. 808, para. 34 (1993)
Supra note 75, para. 55.
Supra note 75, para. 55.
See supra note 38, O. Triffterer, Command Responsibility Grundstrukturen und Anwendungsbereiche 448
et seq.
See supra note 2, O. Triffterer, "Command Responsibility" 912 et seq. and supra note 4, O. Triffterer,
Command Responsibility, article 28 Rome Statute 228 et seq.

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To investigate whether such an interpretation is admissible and acceptable under the aspect,
that the Secretary-General intended to define "laws which are beyond any doubt part of
customary law", is the purpose of the following considerations. They therefore have to deal, for
instance, with the issue, whether article 28 Rome Statute also defines what is accepted "beyond
any doubt", even though its requirements establish a much higher threshold for superior
responsibility which has to prevail. This priority is justified because article 28 is more
favourable to the accused than article 7 para. 3 ICTY Statute, at least when both regulations
express what is acknowledged in international customary law and only defined in Add. Prot. I as
well in the ad hoc Statutes and the Rome Statute.
For answering this question and with regard to the general notion of command responsibility
in its historical context it has to be kept in mind that the competence of the ICTY and of the
ICTR is created by the Security Council. But the law "to prosecute persons responsible for
serious violations of international humanitarian law, in accordance with the provisions of the
present Statute", article 1, is statutory and customary international law, as far as such regulations
are generally accepted and acknowledged by the international community as a whole80, as
referred to above. It is not created by the Security Council because this organ is not the
legislative body of the UN. The Security Council merely accepted what has been proposed by
the Secretary-General as the already existing law and accepted his formulation. Created has the
Security Council only the ad hoc Tribunals and their competence with those regulations to
guarantee the getting into operation and the functioning of the Tribunals.
While article 2 ICTY Statute establishes the right and duty of the Tribunal "to prosecute
persons committing or ordering to be committed grave breaches", article 3 defines liability for
all persons, violating the laws or customs of war. Genocide, article 4, mentions expressly for
these crimes besides committing, conspiracy, complicity as well as direct and public incitement,
while article 5 (as 3) does not refer to any mode of participation for crimes against humanity. All
these definitions describe either the direct commission or presuppose personal activities, which
have at least material contact with or some psychological influence on the commission of the
crime, a context, which characterizes participation and complicity in most of the legal systems
of the world.
The enumeration of the crimes in articles 2 to 5 ICTY Statutes puts the main emphasize on
describing material elements. A general statement concerning the mental element is missing.
This justifies according to general principles of law recognized by all major legal systems the
conclusion that, as far as nothing else is otherwise provided in the Statute, these crimes and all
their appearances expressly mentioned in the Statutes have to be committed intentionally. Such
an interpretation is confirmed by some definitions, using expressly words like "wilful" or
"wanton", which exclude negligent behaviour, or tacitly by formulations like "compelling" or
"plunder".
With regard to genocide the requirement of an intentional act becomes evident by the
additionally required special mental element, namely the "intent to destroy in whole or in part, a
national, ethnical, racial or religious group, as such". Such an intent presupposes that the act as
such needs to be committed intentionally; because who kills negligently, cannot intent to destroy
a protected group just by his negligent behaviour. Negligent behaviour, therefore, is in principle
excluded as basis for international criminal responsibility under these Statutes, equally for
committing and for participation, unless "otherwise provided". This principle is clearly
expressed also in article 30 Rome Statute.
With regard to omissions, the situation is similar, though in the outcome different.
Omissions are not mentioned either expressly in articles 25 ICTY Statute. But the
consequences described there, like "causing great suffering or serious injury to body or health",
respectively, "seriously bodily or mental harm" can be equally without difference to the
80

See supra note 75, para. 32.

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victims achieved by an act or by an omission; for instance, by denying access to food or


information about further cruel treatment by the guards or an execution without any proceeding
according to the rule of law.
The requirement of a legal duty for holding somebody responsible for a failure to act, is
acknowledged expressly already in article 86 para. 1 Add. Prot. I. Such an element serves the
purpose to establish and to guarantee equality of crimes committed by active or passive
behaviour. They have to be comparable not only with regard to the consequences they may
trigger. But since an active violation of the law needs a decision to step out of passivity, while
an omission is the continuance of an already existing status quo, not all passivity is comparable
with an aimed action. To compensate this deficit, a violation of a pre-established legal duty is
required, to equalize an omission with active behaviour.
Article 7 para. 1 ICTY Statute describes, partly repeating or including modalities already
mentioned in articles 2-5, all relevant appearances of committing crimes or participating in
crimes as accomplices. For all of them the above statements with regard to intent and omission
are applicable, as far as, for instance, like with regard to ordering or planning, a commission by
omission does not appear per se impossible, because the definition describes an actus reus and
thus, exclude omissions.
Article 7 para. 2 ICTY Statute only clarifies, that "the official position of any accused person
shall not relieve such a person of criminal responsibility ". This means, all modalities listed
in the definitions of the crimes or in article 7 para. 1, are equally applicable on persons with any
"official position", thus including superiors as well on the military as on the administrative level.
Article 7 para. 3 ICTY Statute presupposes and is based on these principles, which provide
responsibility for different modalities, when committed intentionally and individually, whether
by an act or an omission and independent of the official position. None of these regulations,
however, is recalled by article 7 para. 3. It, on the opposite, deviates partly from these principles
and establishes an additional (new) criminal responsibility for superiors81, though under certain
conditions, which deviate from what is the basis for a general criminal responsibility otherwise
provided with regard to all perpetrators in these Statutes. For instance, article 7 para. 1
establishes that "a person who planned, instigated, ordered, committed or otherwise aided and
abetted in the planning, preparation or execution of a crime referred to in articles 2 to 5 of the
present Statute, shall be individually responsible for the crime". Individual criminal
responsibility means to be personally responsible for his own behaviour and the caused harm. It
does not mean responsibility for behaviour of others, unless someone supports the principle
perpetrator through, for instance, "otherwise aiding or abetting" in the commission of the
crime82.
According to these basic rules, the mere fact that any of the crimes referred to in articles 25
of the present Statute was committed by a subordinate, does, in principle, "relieve his superior of
criminal responsibility". This is true, however, only as long as he does not himself fulfil the
requirements of article 7 para. 1 by participating in one of the modalities provided for in this
regulation or in articles 25 ICTY Statute.
In addition, in its second half article 7 para. 3 ICTY Statute expresses a further exception:
Responsibility of a superior for crimes of other persons, his subordinates, if the superior "knew
or had reason to know" about their criminal activities and, nevertheless, "failed to take the
necessary and reasonable measures" to effectively interfere. Article 7 para. 3, thereby,
establishes an additional individual criminal responsibility beyond the traditional modalities
mentioned in articles 7 para. 1 or 25 ICTY Statute.
81
82

818

See supra note 2, O. Triffterer, "Command Responsibility" 902 et seq. and supra note 4, O. Triffterer,
Command Responsibility, article 28 Rome Statute 230 et seq.
Instead of "and" in the original text, there must be "or", see for further K. Ambos, Article 25, margin Nos. 17
et seq.

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Such an extension, transgressing traditional boundaries, creates practically a "new crime" in


the sense of an additional modality of the crime committed by the subordinate83. It, therefore,
needs to meet the requirements of nullum crimen, nulla poena sine lege, as established by
customary international law and expressed in article 22 Rome Statute. The ICTY, therefore, had
and has to face the question whether this additional modality of criminal responsibility is
"strictly construed" in the sense of article 22 Rome Statute. Does article 7 para. 3 ICTY Statute
mirrors the law "beyond any doubt" as it was defined in 1993? Or is this law expressed in
1998, when 146 States of the world community drafted and with a great majority adopted article
28 Rome Statute, the correct definition of what is generally acknowledged?
The wording of article 7 para. 3 ICTY Statute is fairly clear, though at the end of the day,
finally, it may leave room for doubt. In case it does, the general rule may become applicable,
that in case of ambiguity an interpretation in favour of the accused has to prevail, article 22 para.
2 Rome Statute.
The basic law in both regulations, articles 7 para. 3 ICTY Statute and 28 Rome Statute, is
beyond doubt: No responsibility of superiors for crimes of their subordinates in principle, but
exceptionally yes, if "he knew or had reason to know that the subordinate was about to commit
such acts or had done so and the superior failed to take the necessary and reasonable measures to
prevent such acts or to punish the perpetrators thereof", article 7 para. 3 ICTY Statute. The
difference constitutes an additional requirement, expressly formulated in article 28 Rome
Statute, namely an additional failure to control resulting in criminal activities of subordinates,
which is not mentioned in article 7 para. 3 ICTY Statute, but perhaps needs to be interpreted into
this regulation, in case it is ambigious.
One condition for accepting such an extension of individual criminal responsibility is in both
regulations clearly formulated: "knew or had reason to know" about a concrete criminal
behaviour of his subordinates. This means, that the superior must not intent to support, by what
act or omission ever, such behaviour of his subordinates. Because if this is the case, one of the
traditional modalities according to article 7 para. 1 ICTY Statute combined with those expressly
mentioned in articles 25 ICTY Statute would be applicable. "Knew" or "reason to know",
therefore, does not mean an intent to participate by an omission. It must be less, which it is,
when interpreted as describing only the intellectual part of "intent and knowledge", namely
awareness as defined in article 30 Rome Statute84, of a criminal situation characterised by the
behaviour of his subordinates.
The failure to take the necessary measures, must as such, as far as concerning the passivity
of the superior, be intended. But it is sufficient that the superior did not intend more than just
doing nothing, though he should and could have been motivated by the triggering situation to
become active. Article 7 para. 3 ICTY Statute specifies the mental approach of the superior to
the criminal behaviour of the subordinate in a way, which is different from the mental element
needed with regard to all other modes of individual criminal responsibility for perpetrators and
accomplices as described in article 25 para. 3 Rome Statute85.
While in so far "intent and knowledge" is required, here obviously awareness of the situation
without an emotional, a voluntative decision or a negligent approach to the situation and its
demands is sufficient. This means, the superior knew but for whatever reasons did not react
to get an emotional approach, or had reason to know, but was not aware of the situation
requiring "to take the necessary and available measures to prevent such acts or to punish the
perpetrators thereof". His state of mind, "knew" or "reason to know", means, though he "knew"
or though he had "reason to know", he did not conclude, or did not have the idea, that he could
83
84
85

See supra note 4, O. Triffterer, Command Responsibility, article 28 Rome Statute 215 et seq.
See for more details supra note 2, O. Trifferer, "Command Responsibility" 909 et seq.
See for further information supra note 4, O. Triffterer, Command Responsibility, article 28 Rome Statute 215
et seq.

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and should take action. The situation was not motivating him to prevent or interfere with the
criminal behaviour of his subordinates. Whatever this lack of a mental decision to take action in
the necessary and relevant direction means, it is sufficient that the superior draws no conclusion
in this direction. He is "not open" for the situation, for being addressed by the situation which
triggers his duty to react, and therefore he fails to take the required measures.
Is this structure comparable with the one underlying "direct and public incitement" in article
65
4 ICTY Statute? Comparable is that with regard to incitement, the mere act, and with regard to
command responsibility, the mere failure to act triggers criminal responsibility. But there is a
difference, because in the second case it must be established that the superior had the power,
which means, was in fact capable to take the required measures, had he "correctly" reacted on
what he "knew" or "had reason to know". Incitement, on the opposite, requires only to address
persons in a certain way at all, independent of whether the act has persuaded the addressee,
while failures to take necessary measures implies that such actions would have caused a result, if
not omitted, namely to prevent or repress the criminal activities of the subordinates.
Though not mentioned expressly in the definitions of crimes or in the general principles,
66
there are such further elements tacitly included by the structure of the definitions of crimes or of
the responsibility according to article 7 para. 3 ICTY Statute. Shall the superior really be
responsible for the crime, which the subordinate was about to commit, though the subordinate
did not yet reach the state of an attempt, a possibility not excluded in article 7 para. 3 ICTY
Statute, though in article 28 Rome Statute? Such a situation may occur, if, for instance, a third
person stops the criminal attempt of the subordinate by taking the necessary measures, shortly
after the superior failed to do so, or if the subordinate gave up his plan to complete the crime or
abandons his activities before he reached the status of a punishable attempt.
The situation requiring counter-actions of the superior is described in article 7 para. 3 ICTY
67
Statute as the subordinate "was about to commit such acts or had done so", a formulation,
corresponding in its first part, "about to commit" with those in article 28 Rome Statute. There it
does not mean "only", but includes an attempt which is defined differently to article 25 para. 3
(f) Rome Statute86.
For the answer it has to be taken into consideration that two different formulations in the
same law cannot have the same meaning, because otherwise no two divergent expressions would
have been chosen. "About to commit", therefore, does describe first a behaviour very close to
the commission, for instance one second before a criminal attempt occurs, but it includes also an
attempt, by which, in the ordinary course of events, a crime is about to be completed.
Such an interpretation is convincing independent of whether the attempt is incomplete or
finalized, as long as the crime is not yet completed. In all these intermediate, different situations,
the superior has "to prevent such acts". This means, he has to prevent further activities of his
subordinates, which either are already an attempt or could lead to an attempt, or which could
bring an attempted crime to completion. This means, in other words, the superior has to stop all
activities by which the subordinates were "about to commit" relevant crimes. Because otherwise
his failure to stop the subordinates would cause either the continuance of their "criminal"
behaviour and, thereby, further activities leading to an attempt, or cause an already existing
criminal attempt to develop towards a completed crime. Is this the requirement of causality to be
proven by the Prosecutor before criminal responsibility of superiors can be established? The
answer is yes, because only when it can be established that the superior was capable to take the
necessary measures and thus could have prevented, or repressed the crime or initiated criminal
investigation, he can be blamed for the failure to do so and, thus, for the failure to achieve such
an effect, which means for not causing it.

86

820

Also to the following considerations supra note 2, O. Triffterer, "Command Responsibility" 911 et seq. and
supra note 4, id., Command Responsibility, article 28 Rome Statute 217 et seq.

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The alternative "or had done so" refers to "had committed" and thus comprehends a final or
interrupted attempt and a completed crime. In both cases the criminal activities of the
subordinate have already come to an end and the superior, therefore, can no longer by his failure
to take action "support" or just "let happen" the criminal activities of the subordinates in a way,
which establishes a causal connection between his failure and the perpetration of the crime. This
is the reason why the superior in such cases has to take (mere) measures "to punish the
perpetrator thereof".
While, with regard to the first alternative, "to prevent", what was about to be committed, an
action to control or an order to stop may be sufficient to reach impunity of the superior, the
second situation, "or had done so", describes a rather static situation which cannot be changed
anymore. It, therefore, only has to be evaluated by the superior with regard to its criminal
importance in order to trigger preventive influence on future behaviour of the same or other
subordinates.
There is for both alternatives no word on causality in the ad hoc Statute. But this element is
inherent to all omissions, because the duty to prevent presupposes and means the power to
prevent, since nobody can be obliged by law to do what is for him or her ultra vires. The
superior therefore must have prevented or at least taken measures which appear to be in
principle adequate to achieve such a result87. Who fails to take the necessary measures to prevent
or to punish is responsible for what occurs in a situation, in which it was his duty to hinder
further developments towards the commission of the crime or the impunity of the perpetrator.
This hypothetical causality has to be established; because (a) it must have been not ultra vires,
what was demanded, and (b) the necessity is only proven, when the omission causes what would
have been avoided by the omitted act, in case it would have been executed.
Even if these considerations are accepted it remains with regard to article 7 para. 3 ICTY
Statute still open, whether the superior, in addition, must have caused the departing situation, the
criminal behaviour of his subordinates. Triggers merely his former omission to control, educate
and inform his subordinates "properly" and its result, illegal activities of his subordinates, the
duty of the superior to react, when his subordinates "commit or are about to commit crimes"? At
first sight, the answer is no. In article 7 para. 3 ICTY Statute no such requirement is mentioned.
But is an interpretation of the mere wording sufficient? No, because a teleological interpretation,
taking into consideration the historical background and the ratio legis of this regulation may
close a lacuna, and thus come to a different result.
It can, for instance, be argued that article 7 para. 1 ICTY Statute extends the responsibility
for committing crimes by including certain behaviour, which aids or abets the execution as an
additional modality. Such an extension broadening the scope and notion of the crimes, needed to
be "strictly construed"; because otherwise it would violate the principle nullum crimen sine lege.
In addition, it is self evidence, that since all crimes listed within the above mentioned Statute can
be committed only on the mental side intentionally, also participation as being a specific
modality of such a crime, equally requires such a mental element.
Article 7 para. 3 ICTY Statute contains also such an extension of the responsibility for
crimes, but one applicable exclusively for superiors. This means, the superior is responsible, as
"if he had committed it (the crime) himself", a formulation, already quoted in margin No. 25. It
implies, in addition, that command responsibility demands as a specific modality of
participation, in principle, also an intentional behaviour, unless (and as far) as not otherwise
provided.
Article 7 para. 3 ICTY Statute is based on articles 86 and 87 Add. Prot. I. Though not
expressly referring to these regulations, some of them are quoted more or less verbally. For
instance, a superior should be relieved from responsibility, except when "he knew or had reason
87

To these considerations above and below see supra note 4, O. Triffterer, Command Responsibility, article 28
Rome Statute 238 et seq. and supra note 2, O. Triffterer, "Command Responsibility" 917 et seq.

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to know" about the criminal behaviour of his subordinate and nevertheless failed to react. But is
such a "low" mental element really sufficient, though for all other modalities a much higher
mental threshold closer to the harm, namely an intentional behaviour, mentally "dealing" with
and "considering" the harm, whether caused by a failure or an actus reus, is required?
Is this special "lower" mental element, required for command responsibility, comparable
with negligence? Is it the only one and as such sufficient, while all other modalities for the
commission of crimes demand a stronger mental "affiliation" of the mind of the perpetrator to
the material elements?
Already this aspect makes it desirable and perhaps indispensable, in the interest of equality
74
before the law, to consider at least an equally high threshold for command responsibility, which
would otherwise establish a more remote relation to the harm than most of the other modalities
for participation.
In addition, a high threshold on the mental side could compensate the fact that superiors are
without exception responsible and liable for punishment beyond the traditional modalities,
which means, even for such omissions, which do not fulfil the objective or mental requirements
for a punishable participation.
This implies that the requirement of "strictly construed" elements needs to be independently
established, in particular, when command responsibility reaches the top level of the hierarchy,
perhaps located far away from the actual events.
75
All these aspects have led already to a more precise definition in article 28 Rome Statute. It,
therefore, seems to be necessary and justified to include the additional element demanded there,
namely an "intentional failure to control properly" resulting in criminal activities of their
subordinates, in favour of the superior via interpretation also in articles 7 para. 3 ICTY and 6
para. 3 ICTR Statute.
III. Guidelines for investigation and prosecuting superior responsibility
The considerations above have pointed out some aspects which may serve as guidelines
when dealing with situations, in which the commission of crimes, falling within the jurisdiction
of the Court, is shaped by a hierarchically structured superior/subordinates relationship88. In
order to locate whether such a relationship is involved, it is recommendable to investigate first,
whether a failure of the superior to exercise control properly over his subordinates can be
established.
For the concept and notion of such a failure, a list of elements has been published in the First
77
Edition, which still may be helpful to find out, what the commander should have done to fulfil
his duties. He must, in particular,
76

78

ensure his forces are adequately trained in international humanitarian law,


ensure that due regard is paid to international humanitarian law in operational decision making,
ensure that an effective reporting system is established so that he or she is informed of incidents when
violations of international humanitarian law might have occurred,
monitor the reporting system to ensure it is effective, and
take corrective action when he or she becomes aware that violations are about to occur or have
occurred89.

A similar list of relevant aspects is available for finding out, whether the superior "knew" or
"should have known" about the criminal activities of his subordinates. In this context it was
pointed out by W. Fenrick that "actual knowledge may be established by direct or circumstantial
88

89

822

For more details concerning basic principles for such guidelines see supra note 38, O. Triffterer, Command
Responsibility Grundstrukturen und Anwendungsbereiche 438 et seq., supra note 4, O. Triffterer,
Command Responsibility, article 28 Rome Statute 229 et seq. and supra note 2, O. Triffterer, "Command
Responsibility" 919 et seq. with references.
See supra note 46, W. Fenrick, First Edition, article 28, margin No. 9.

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means". But with regard to "determining whether or not the commander did have the requisite
knowledge" a variety of indicia may be, in addition, helpful, including

the number of illegal acts,


the type of illegal acts,
the scope of illegal acts,
the time during which the illegal acts occurred,
the number and type of troops involved,
the logistics involved, if any,
the geographical location of the acts,
the widespread occurrence of the acts,
the tactical tempo of operations,
the modus operandi of similar illegal acts,
the officers and staff involved, and
the location of the commander at the time90.

With regard to the further elements, in particular the intent covering the failure to control
properly, it has to be taken into consideration, that command responsibility is an additional,
inherent responsibility "for crimes within the jurisdiction of the court", and not for a crimen sui
generis91. Further decisive is the aspect, that command responsibility is not merely an extending
mode of the traditional responsibility for participation, though it comes close to facilitating or
supporting crimes of subordinates in a way, similar to "otherwise assists in its commission or its
attempted commission"92.
When applying these guidelines to locate command responsibility it therefore has in addition
to be taken into consideration, that this modality of responsibility is based on omissions only. It
combines an intentional omission of the superior, violating pre-established duties with a kind of
negligent passivity in a way, that the influence of the first failure shapes the activities of the
subordinates. This is the reason why the second failure, to take the necessary measures,
aggravates the situation and, therefore, triggers the responsibility of the superior, when he knew
or should have known about its criminal character: The superior misses his chance to
compensate his first violation by preventing what could and should have been avoided already
earlier.
The last guideline to be mentioned in this non exhausting summary, concerns another trigger
mechanism: There must be a "crime within the jurisdiction of the court committed by
subordinates" which means at least an attempted crime, to base command responsibility upon.
The responsibility then is according to article 28 "for crimes within the jurisdiction of the
Court". This means, the commander has to be sentenced for committing, for instance, a specific
war crime or for genocide "per command responsibility". The commission of the crime by the
subordinates, thus, has to be established beyond any doubt.
According to the concept and notion developed above, it follows that the commander does
not need to have the genocidal intent himself. It is sufficient, when he includes in "his mind" that
the crimes possibly resulting from his failure to control properly, could be war crimes, crimes
against humanity or even genocide. Later on, when defined and accepted by the Assembly of
States Parties, a similar structure will be applicable with regard to aggression.
With regard to the second failure it is sufficient that the superior is aware ("knew"), that
there are atrocities committed by the subordinates, which possibly are attempted or completed

90
91
92

Supra note 46, W. Fenrick, First Edition, article 28, margin No. 10; see also supra note 3, Celebici, para.
386.
This aspect also has already broadly discussed on another occasion see supra note 2, O. Triffterer,
"Command Responsibility" 903 et seq.
This aspect also has already broadly discussed on another occasion see supra note 4, O. Triffterer, Command
Responsibility, article 28 Rome Statute 236 et seq.

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crimes falling within the jurisdiction of the Court, perhaps even genocide, or that he should have
come because of available information to such conclusions. Command responsibility thus shows
on the material and on the mental side lesser "involvement" than traditional participation of
superiors, for which a stronger influence in the actual committing of the actus reus of the
principal perpetrator and a more precise mental element of the superior is required.
All these aspects should be taken into consideration when a situation of passivity of a
84
superior has to be analysed and interpreted in order to find out, whether article 28 Rome Statute
or, still for a while, article 7 para. 3 ICTY or 6 para. 3 ICTR Statute has to be applied.

B. Analysis and interpretation of elements


I. Two alternatives with only a few deviating elements
85

Article 28 ICC Statute provides that "A military commander or person effectively acting as
a military commander shall be criminally responsible for crimes within the jurisdiction of the
Court committed by forces under his or her effective command and control, or effective
authority and control as the case may be, as a result of his or her failure to exercise control
properly over such forces". There is a clear reference to military commanders on the one hand
and persons acting with a similar function on the other hand. The underlying idea is that what is
relevant is not the rank, but rather the existence of a superior-subordinate relationship, as
established by the ICTYs Trial Chamber in its leading case on command responsibility, i.e.
Prosecutor v. Delalic et. al., usually referred to as the Celebici Case93. In that decision the Trial
Chamber concluded that the existence of a superior-subordinate relationship is the first element
of a three stage test required to establish command responsibility, namely:
(i)
(ii)
(iii)

the existence of a superior-subordinate relationship;


that the superior knew or had reason to know that the criminal act was about to be or had been
committed; and
that the superior failed to take the necessary and reasonable measures to prevent the criminal act or
punish the perpetrator thereof94.

But what constitutes a "superior and subordinate relationship"? Is this the equivalent of
military command?
1. Military command or other "superior and subordinate relationships"
The military is hierarchically organised, with a strictly defined chain of command, the
functioning of which will be discussed later. This implies the existence of a superior-subordinate
relationship, which aims at the disciplined execution of orders by the subordinates and the
facilitated control thereof by the superior. This is the reason why, under the Geneva Conventions
of 1949, in particular article 4(A) para. 2 of the III Geneva Convention on the protection of
prisoners of war, there is the requirement that a member of an irregular armed force will only be
granted prisoner of war (and therefore combatant) status if that force was lead by a responsible
commander. The underlying idea is that where there is a commander in charge, there is also
control and maintenance of order. It logically follows that where this kind of control is
impossible, a superior shall not be liable for crimes committed by third parties.
87
An analogy can be made with the concept of Garantenstellung (guarantor position/position
de garantie/posizione di garante) known to civil law systems. This guarantor position is
attached to persons who have either the legal obligation to protect a specific object/person,
86

93
94

Supra note 3, Celebici,, paras. 647, 704 and 742.


See supra note 3, Celebici, para. 346. These criteria recall the ones established in the Trial of Soemu Toyoda,
Official Transcript of Record of Trial, 5005 and 5006. See also supra note 21, COMMENTARY ON THE
ADDITIONAL PROTOCOl, para. 3543.

824

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which is set under their supervision, from external dangers, or to persons who have originated a
source of danger to the external world and are, thus, under the obligation to prevent third parties
to be affected thereby95. The intrinsic meaning of the superior-subordinate relationship
requirement is that a superior shall be first of all responsible towards his/her own men/women
by protecting them from external dangers and, secondly, he shall be responsible towards the
external world by supervising them as a potential source of danger96. For instance, in the
Musema Case the Trial Chamber of the ICTR held that the accused, the director of an important
tea factory, had a superior-subordinate relationship with his employees. It further held that
particularly through his power to appoint and remove the employees, he had exercised legal and
financial control over them. On this basis Musema was found guilty under the doctrine of
command responsibility for having failed to prevent the commission of crimes by his
employees97. The underlying idea was that there was a contractual relationship between them
and that the employer had a supervisory role to observe.
Thus, only where there is this kind of relationship between the commander be this a 88
military or civilian and the offenders, the first may incur liability for the acts committed by the
latter. However, the fact of belonging to a chain of command is not per se sufficient: the superior
must have had formal authority over the units alleged to have committed the crime and must
have been in their control98. Otherwise we would be facing a form of strict liability, which was
adopted in the Yamashita Case99. According to this test, which was rejected in the High
Command Case100 a superior shall be criminally responsible for acts committed by his/her
subordinates, without it being necessary to prove his/her criminal intent and to take into
consideration the existing circumstances at the time of occurrence of the facts. This test is unfair,
however, since a commander may incur liability for the mere fact of holding a high rank,
whereas he/she should only be liable where he/she failed to prevent the occurrence of crimes
notwithstanding the effective possibility to control his/her subordinates and to intervene. In the
Yamashita Case, for instance, General Yamashita was held responsible for the atrocities
committed by members of the Japanese armed forces, even though at the time of the events he
was and could no longer be in the position to exercise effective control over them. The argument
of the judges was that in that situation, he could have opted for retirement from his position.
This argument is unfair, since it does not take into consideration the principle of culpability.
Under current international criminal law, the doctrine of command responsibility requires the

95

96
97
98

99
100

According to Swiss criminal law, a person who creates a danger is responsible for the prevention of any
possible harm deriving from it. An analogous duty is incumbent upon parents with respect to their children.
See. G. Stratenwerth, SCHWEIZERISCHES STRAFRECHT, ALLGEMEINER TEIL I: DIE STRAFTAT 408 (2nd ed.,
1996).
See R. Arnold, Command Responsibility: a case study of alleged violations of the laws of war at Khiam
detention centre, 7 J. OF CONFLICT AND SECURITY L. 2, 207 (2002).
Prosecutor v. Musema, Case No. ICTR-96-13-A, Judgement, Trial Chamber, 27 Jan. 2000, para. 880.
W. D. Burnett, Criminal liability for the actions of subordinates the doctrine of command responsibility and
its analogous in United States law, 38 HARV. INTL L.J. 272 et seq. (1997); Prosecutor v Aleksovski, Case
No. IT-94-14/1-T, Judgement, Trial Chamber, 25 Jun. 1999, paras 73 et seq.; see supra note 3, Celebici,
paras. 354 and 647; Prosecutor v Kordic and Cerkez, Case No. IT-95-14/2-T, Judgement, Trial Chamber, 26
Feb. 2001, para. 369.
See supra note 44, Yamashita, Part VI, ii, p. 84.
See supra note 60, The German High Command Trial, p. 76 "Criminality does not attach to every individual
in this chain of command from that fact alone. There must be a personal dereliction. That can occur only
where the act is directly traceable to him or where his failure to properly supervise his subordinates
constitutes criminal negligence on his part. In this latter case it must be a personal neglect amounting to a
wanton, immoral disregard of the action of his subordinates amounting to acquiescence". The case was
referred to in Prosecutor v Blaskic, Case No. IT-95-14-T, Judgement, Trial Chamber, 3. Mar. 2000, para.
321. The court concluded that there had to be, instead, a causative, overt act or omission from which a guilty
intent could be inferred, therefore rejecting the strict liability test.

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proof, instead, that a superiors "powers are "real" for criminal responsibility to be attached to
them"101.
It may, therefore, occur that notwithstanding superior status "on the paper", a person holding
a higher rank does not de facto exercise effective control, in which case he or she shall not be
held liable under this doctrine. For this very same reason it is always important to assess, in each
single case, what the real responsibilities of a high ranking officer were, whether he/she fulfilled
a role as tactical commander in charge of military operations or whether he/she simply had a
role in non-operational activities such as logistics, before assessing responsibility under this
doctrine. This holds true in particular for high ranking officers like generals, upon whom there is
a tendency to attach responsibility for whatever crimes committed by the lower ranking
members of the military. It is in particular important to distinguish moral obligations from legal
obligations.
89 On the contrary, especially with regard to paramilitary and guerrilla groups, it is also possible
that a person holding no official military rank may exercise de facto authority over third persons.
This means that a superior-subordinate relationship does not require the existence of a military
chain of command or of a military contest. This was stated by the Appeals Chamber in the
Delalic Case, which concluded that even people holding equal status may exercise command
over each other102. The Appeals Chamber further ruled that:
" substantial influence as a means of control in any sense which falls short of the possession of
effective control over subordinates, which requires the possession of material abilities to prevent
subordinate offences or to punish subordinate offenders, lacks sufficient support in State practice and
judicial decisions"103.

It may even happen that where a state relies on guerrilla groups or private subcontractors in
order to resort to illegal methods of warfare without incurring into any kind of state liability, the
leaders of this state may be held accountable individually under the doctrine of command
responsibility for the acts committed by such guerrilla groups. Therefore, the lack of a
hierarchical and formal superior-subordinate structure does not detract from the possibility of
incurring into command responsibility. Everyone holding de facto authority over someone guilty
of war crimes is subject to this doctrine, independently from affiliation to a regular or irregular
armed group.
Forces also include armed police units and paramilitary units.
2. Any of the crimes within the jurisdiction of the Court when
committed by forces under effective control or authority and control, litera (a),
or when
concerning "activities that were within the effective responsibility and control of the
superior", litera (b) (ii)
90

Article 28 (a) highlights the fact that command responsibility can only be initiated by the
commission of a crime falling within the Courts jurisdiction. This reference is very important
for the following reasons: first of all it shall be recalled that the ICC has exclusively jurisdiction
over those offences which are specially enlisted as genocide, crimes against humanity and war
crimes under articles 5, 6, 7 and 8 Rome Statute(aggression still needs to be defined). There are,
in fact, other offences recognized as war crimes by the International Laws of Armed Conflict,

101
102

103

826

See supra note 98, Prosecutor v Kordic and Cerkez, para. 422 and for further information see supra note 96,
191.
Prosecutor v. Delalic, Case No. IT-96-21-A, Judgement, Appeals Chamber, 20 Feb. 2001, para. 303:
" it is possible to imagine scenarios in which one of two persons of equal status or rank such as two
soldiers or two civilian prison guards could in fact exercise "effective control" over the other at least in the
sense of purely practical ability to prevent the conduct of the other by, for example, force of personality or
physical strength".
See supra note 102, Delalic, para. 266.

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such as the use of biological weapons and chemical weapons, which, however, do not fall within
the ICCs jurisdiction.
Secondly, since command responsibility is not included in the catalogue of crimes contained
in article 5 and specified in articles 6-8 of the Statute, it cannot be considered as a crime per se.
Command responsibility is a principle which, as such, is contained in Part III of the Statute on
general principles of criminal law under article 28, and not in Part II on Jurisdiction,
Admissibility and Applicable Law. Therefore, even though in some jurisdictions command
responsibility may be considered as an offence per se, indicating a superiors liability for the
mere fact of having failed to properly supervise his/her subordinates, the ICC Statute considers
it only as a form of participation to the crimes enlisted under article 5.
This conclusion, as it will be explained in more details later, has an impact on issues like
double liability as primary perpetrator and commander, and attempt.
Therefore, the first clarification to be made with regard to the phrasing "any of the crimes
within the jurisdiction of the Court" is that the subordinates must have committed a crime falling
within the ICCs jurisdiction.
The second clarification to be made is whether, in order to incur into command 91
responsibility, the subordinates must have committed, i.e. successfully brought to an end, the
underlying crimes. Under most domestic criminal codes, the question would be whether the
underlying offence is either a so-called Erfolgsdelikt (result crime/infraction de rsultat/reato d
evento) or a Gefhrdungsdelikt (crime of danger/infraction de mise en danger/reato di
pericolo)104. The Erfolgsdelikte are those offences which contain, as element of crime, the
violation of a specific good, in the sense that the conduct, in order to be criminally relevant,
needs to have had some effects. The Gefhrdungsdelikte, instead, are those conducts which are
criminally relevant for the mere fact of being dangerous and likely to have criminally relevant
consequences even if, in a concrete case, they had no negative effects. An example may be the
fact of driving while drinking: such conduct is punished for the mere fact of being dangerous,
even if no one actually needs to be hurt.
Under the ICC Statute, mere failure by a commander to exercise proper control over his/her
subordinates is not criminally relevant, if such failure did not allow the commission of one of
the crimes enlisted under article 5. The same may not be true under domestic military criminal
law, which may trigger at least disciplinary measures against a commander failing to exercise
properly his duty105. Thus, what is it meant with the requirement that the underlying offence
must have been committed?
The question becomes very interesting with regard to the crime of genocide. According to 92
the Elements of Crimes of the ICC Statute106, the crime of genocide is objectively fulfilled by
the killing of one or more persons. It is not required that millions of people are exterminated.
This means that in this case a superior if he knew or could have understood that his
subordinates were acting with genocidal intent may be liable even if only one person was
killed: no full scale effect of the crime is required. Therefore, the term committed must always
be interpreted in the light of the elements of the single crimes falling within the Courts
jurisdiction.
The interpretation of the term committed is interesting also in relation to the question of 93
withdrawal by the primary perpetrator. As observed by Triffterer, according to article 25 para. 3
Rome Statute the abandonment of the commission of the crime by the primary perpetrator may

104

105
106

On this aspect see P. Noll/S. Trechsel, SCHWEIZERISCHES STRAFRECHT, ALLGEMEINER TEIL I, ALLGEMEINE
VORAUSSETZUNG DER STRAFBARKEIT 77 (6th Ed., 2004) and for further information R. Arnold, The Mens
Rea of genocide under the Statute of the International Criminal Court, 14 CRIM. L.F. 2, 15 et seq.
See supra note 2, O. Triffterer, "Command Responsibility" 913 (2005).
UN Doc. ICC-ASP/1/3

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Part 3. General principles of criminal law

acquit him/her from criminal responsibility. The same, however, does not necessarily hold true
for the superior who remained inactive until the end. There are two possible scenarios:
1) The first scenario is that of a superior who knows or should know that his subordinates have
already begun with the commission of a crime and decides to intervene before the
subordinates can spontaneously decide to abandon it and withdraw. In this case the superior
will not incur any responsibility.
2) The second scenario is that of a superior who decides to remain passive and where the
completion of the crimes is prevented by the perpetrators spontaneous
abandonment/withdrawal. Is the commander liable, in this case? As said, command
responsibility is not a crime per se: it requires the commission of a crime by the
subordinates. The text of article 28 is straight. Moreover, participation is always accessory to
the main crime, meaning that it would be unfair to hold a participant more liable than the
primary perpetrator.
94
The second part of the sentence contained in article 28 lit. a relates instead to the kind of
control required in order to hold a superior liable. Under lit. a reference is made to the notions of
effective command and control or effective authority and control. The underlying idea, as it
will be examined in details next, is that as long as a person exercised command in a military
sense, or authority a far more suitable concept for civilian superiors she/he may be liable for
the acts committed by the persons under his/her command or authority. At the same time, the old
concept of strict liability established in the Yamashita Case has long been abandoned, therefore
a superior may only be liable for activities that were within his/her effective responsibility and
control. A superior, in fact, shall only respond for having failed to intervene in a situation which
was within his/her competences and in which he/she could effectively intervene.
3. Minimum mental element for the second failure:
"should have known", or
"consciously disregarded information which clearly indicated that the, subordinates
were committing or about to commit such crimes"
95

The mental elements of the doctrine of superior responsibility were analysed in details by the
ICTY in the Celebici Case. Different standards have been adopted in the doctrines history. The
most controversial one, as already mentioned, was the strict liability test followed in
Yamashita107. According to it, a superior shall be criminally responsible for acts committed by
his/her subordinates, without it being necessary to prove his/her criminal intent108. The
assumption is that a commanders duty is to control his/her subordinates, independently from the
circumstances. Failure to do so implies liability. This test, however, was rejected in the High
Command Case109. The Court recalled that due to the modern dictates of war, necessitating
decentralisation, a high commander could not be kept informed about all the details of a military
operation. Therefore the knew or should have known test was introduced110, which relies on the
concepts of actual (knew) and constructive (should have known) knowledge. According to it, a
commander may be liable if "he failed to exercise the means available to him to learn of the
offence and, under the circumstances, he should have known and such failure to know

107
108
109
110

828

See supra note 44, Yamashita, Part II, p. 29.


Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Judgement, Trial Chamber, 2 Sep. 1998, para. 488.
See supra note 60, The German High Command Trial, p. 76 and for further information see also W. H. Parks,
Command Responsibility for War Crimes, 62 MIL. L. REV. 1, 90 (1973).
Supra note 94, Toyoda, 5006, referred to in supra note 3, Celebici, para. 389 and supra note 100, Blaskic, para.
316. For details see supra note 109 W. H. Parks, 71 and W. D. Burnett, Command responsibility and a case study of
the criminal responsibility of Israeli military commanders for the pogrom of Shatila and Sabra, 107 MIL. L. REV. 71,
118 et seq. (1985) and A. P. V. Rogers, LAW ON THE BATTLEFIELD 147 (1996).

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Responsibility of commanders and other superiors

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constitutes criminal dereliction"111. Likewise the Hostage Case held that the commander of an
occupied territory "is charged with notice of occurrences taking place within that territory"112.
He/she may fulfil his/her duty by requiring reports but, if these are incomplete, he/she is obliged
to require supplementary ones. In the courts words: "If he fails to require and obtain complete
information, the dereliction of duty rests upon him and he is in no position to plead his own
dereliction as a defence"113. The Toyoda Case ruled that this (constructive) knowledge may also
be presumed when the carrying out of the crimes was so widespread that a reasonable man could
come to no other conclusion than that the accused must have known of the facts. Thus, even
though a commander cannot possibly keep track of all events, lack of knowledge is no defence
when due to negligence in attempting to obtain all possible information.
The Celebici Case clarified the status of customary law, holding that the knew or should 96
have known test has been replaced by the knew or had reason to know test set forth in article 86
of Add. Prot. I of 1977114. This test no longer encompasses the liability of a commander for
dereliction of duty to obtain information within his reasonable access 115. This view, debated in
Blaskic116, was later confirmed in the Celebici Appeal Judgement and the Kordic and Cerkez
Case117. According to it, a superior is only liable if:
1) he had actual knowledge (established through direct118 or circumstantial119 evidence) that his
subordinates were committing or about to commit crimes, or,
2) if he had reason to know that crimes were being committed on the basis of information available to
him and indicating the need for additional investigation120.

The novelty is that the commander is no longer required to actively search for the 97
information and that he shall only be liable for failure to acknowledge information already
111
112
113
114
115
116

117
118
119

120

See supra note 59, Hostages Trial, Part IV, p. 71, referred to in supra note 3, Celebici, para. 389 and supra note
100, Blaskic, para. 322. For details see supra note 109, W. H. Parks, Command Responsibility, 61 et seq.
See supra note 59, Hostages Trial, Part IV, p. 71. For details see supra note 109, W. H. Parks, Command
Responsibility, 61 et seq.
See supra note 59, Hostages Trial, Part IV, p. 71, referred to in supra note 3, Celebici, para. 389.
This provision is now part of customary law. See supra note 3, Celebici, paras 383 and 390 and supra note 100,
Blaskic, para. 310.
See supra note 3, Celebici, para. 393, confirmed in supra note 102, Delalic, para. 224.
See supra note 100, Blaskic, para. 314 332 (in particular, para. 324). The Trial Chamber seems to support the view
that there is no contradiction between the mens rea applied in post Second World War cases and articles 86 and 87
of Add. Prot. I. The Trial Chamber also refers to the findings of the Kahan Commission (para. 331). The latter held
that "[t]he absence of a warning from experts cannot serve as an explanation for ignoring the danger of a
massacre. The Chief of Staff should have known and foreseen by virtue of common knowledge, as well as
the special information at his disposal that there was a possibility of harm to the population in the camps at
the hands of the Phalangists (para. 497 of the Report). However it seems to the author that the Commission
relied on a had reason to know test, rather than a should have known test requiring him to obtain the
information. The Commission namely observed that: If it indeed becomes clear that those who decided on
the entry of the Phalangists into the camps should have foreseen from the information at their disposal and
from things which were common knowledge that there was danger of a massacre, and no steps were taken
which might have prevented this danger or at least greatly reduced the possibility that deeds of this type
might be done, then those who made the decisions and those who implemented them are indirectly
responsible for what ultimately occurred, even if they did not intend this to happen and merely disregarded
the anticipated danger". Israel, Final Report of the Israeli Commission of Inquiry into the Events at the
Refugee Camps in Beirut, 7.2.1983, 22 I.L.M. 497(1983).
See supra note 102, Delalic, para. 241 and supra note 98, Kordic and Cerkez, para. 430 and 432 et seq.
See supra note 3, Celebici, para. 386.
See supra note 3. Celebici, para.386, supra note 100, Blaskic, para. 307 and supra note 98, Kordic and Cerkez, para
427. The Trial Chamber in Celebici referred to the Final Report of the UN Commission of Experts for the
ICTY, which contains a list of elements that may be used as indicia. These include the number, type and
scope of illegal acts, the time during which these occurred, the number and type of troops involved, the
logistics involved, the geographical location of the acts, their widespread occurrence, the tactical tempo of
operations, the modus operandi of similar illegal acts, the officers and staff involved and the location of the
commander at the time. Commission of Experts Report, S/1994/674, p. 17, referred to in M. Ch. Bassiouni
and P. Manikas, Law of the International Criminal Tribunal for the Former Yugoslavia, 91 TRANSNATL
PUBLISHERS 2, 343 (1997).
See supra note 3, Celebici, para. 383

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Part 3. General principles of criminal law

available to him. The Trial Chamber did not analyse whether current customary law has been
modified by article 28 of the Rome Statute121, which reintroduced a kind of should have known
test. Such an undertaking was made by the ICTR in Kayishema and Ruzindana122, which held
that a superior is only liable for having failed to take notice of information that may have
indicated the occurrence of crimes, but not for the failure of obtaining that information. It
recalled that in article 28 ICC Statute, the should have known formula is completed by the
phrasing "owing to the circumstances at the time", which seems to bring it in line with the had
reason to know test supported in Celebici. Therefore, even though it will be the ICCs task to
define the details of the mens rea requirements under its Statute, it may be concluded that,
notwithstanding a slightly different wording, the applicable test is still whether someone, on the
basis of the available information, had reason to know in the sense of Add. Prot. I.
II. Paragraph (a)
1. Qualification: "military commander or person effectively acting as a military
commander"
98

A military commander is usually a member of the armed forces of a party to the conflict who
is assigned to or has assumed command over one or more units of the armed forces.
A commander has the authority to issue direct orders to subordinates, including commanders
of subordinate units. There is usually more than one commander in a chain of command. The
latter may include, e.g., a section leader, a platoon commander, a company commander, a
battalion commander, a brigade commander, a division commander and others in ascending
seniority. The significant element, for the purpose of command responsibility, is a persons
effective exercise of command, not the fact that he or she holds a particular rank. As already
mentioned, the Celebici Case123 established a three-stage test. With regard to the first condition,
the Trial Chamber observed that the status of a person could not possibly be determined on the
basis of formal hierarchical structures. It held that "the mere absence of formal legal authority to
control the actions of subordinates should not be understood to preclude the imposition of such
responsibility" and that command responsibility could be based also on a de facto rather than a

121

122
123

See supra note 3, Celebici, para. 393. On this issue see also the Prosecutors view in supra note 98, Kordic and
Cerkez, para. 430. Article 28 Rome Statute states:
"In addition to other grounds of criminal responsibility under this Statute for crimes within the jurisdiction of the
Court:
(a) A military commander or person effectively acting as a military commander shall be criminally responsible for
crimes within the jurisdiction of the Court committed by forces under his or her effective command and control, or
effective authority and control as the case may be, as a result of his or her failure to exercise control properly over
such forces, where:
(i) That military commander or person either knew or, owing to the circumstances at the time, should have known
that the forces were committing or about to commit such crimes; and
(ii) That military commander or person failed to take all necessary and reasonable measures within his or her power
to prevent or repress their commission or to submit the matter to the competent authorities for investigation and
prosecution.
(b) With respect to superior and subordinate relationships not described in paragraph (a), a superior shall be
criminally responsible for crimes within the jurisdiction of the Court committed by subordinates under his or her
effective authority and control, as a result of his or her failure to exercise control properly over such subordinates,
where:
(i) The superior either knew, or consciously disregarded information which clearly indicated, that the subordinates
were committing or about to commit such crimes;
(ii) The crimes concerned activities that were within the effective responsibility and control of the superior; and
(iii) The superior failed to take all necessary and reasonable measures within his or her power to prevent or repress
their commission or to submit the matter to the competent authorities for investigation and prosecution".
Prosecutor v. Kayishema and Ruzindana, Case No. ICTR-95-1-T, Judgement, Trial Chamber, 21 May 1999,
paras. 225-228.
See supra note 3, Celebici, paras. 647, 704 and 742.

830

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de jure position of authority124. It concluded that the doctrine applies to all individuals125, as
long as these exercised effective control over the offenders and had "the material ability to
prevent and punish the commission of these offences"126. The Appeals Chamber concurred with
this view by holding that this standard had been also adopted by article 28 of the Statute for an
International Criminal Court 127.
In fact, the issue whether command responsibility should be limited to military commanders 99
was very debated at the Rome Conference in 1998128. A broad majority held the view that
responsibility should also extend to civilian superiors. However, few delegations, including
China, held the opposite view. A first draft produced by Canada and consolidated by the UK
foresaw the same requirements for both categories. However, the United States raised the
important remark whether civilian superiors would be in the same position as military
commanders to prevent or repress the commission of crimes by their subordinates. The outcome
was the drafting of different requirements, but there was agreement that definitely both
categories shall be encompassed.
Therefore the showing of effective control is required in cases involving both de jure and de
facto superiors. Celebici also drew an interesting distinction between the duties of a tactical and
an executive commander. This approach was followed in the High Command Case, which
involved high-ranking German officers129. The tribunal discussed also the duties of an executive
commander who, unlike a tactical commander, is not in charge of troops assigned to him, but of
a territory. The court held that he:
"is per se responsible within the area of his occupationregardless of the fact that the crimes committed
were due to the action of the state or superior military authorities that he didnt initiate or in which he
didnt participate"130.

The same view was shared in the Hostage Case131 and referred to in Celebici132.
This means further, that the commander of regular troops may be responsible for acts 100
committed by irregular troops or guerrilla movements, who acted upon his/her orders. This is an
important alternative in cases where states may decide to rely on guerrilla movements, trained
by their regular forces, in order to delegate responsibility for the commission of breaches of the
international laws of armed conflict. In this type of situation, in fact, the hidden involvement of
a state may be derived by establishing command responsibility of a member of its regular armed
forces133.

124

125
126
127
128
129
130
131

132
133

See supra note 3, Celebici, para. 354 et seq. Confirmed in supra note 102, Delalic, para. 195. See supra note 98,
Aleksovski, paras. 75 et seq. This position was confirmed by Prosecutor v. Aleksovski, Case No. IT-95-14/1-A,
Judgement, Appeals Chamber, 24. Mar. 2000, paras 74 et seq. See supra note 96, R. Arnold, Khiam Detention Centre
191.
See supra note 3, Celebici, paras 354 et seq. and 735. See also supra note 98, Kordic and Cerkez, paras. 416
et seq.
See supra note 3, Celebici, para. 378.
See supra note 102, Delalic, paras. 196 and 197.
P. Saland, International criminal law principles, in: R. Lee (ed), THE INTERNATIONAL CRIMINAL COURT,
THE MAKING OF THE ROME STATUTE: ISSUES, NEGOTIATIONS, RESULTS 202 (1999).
See supra note 60, The German High Command Trial, p. 76.
See supra note 60, The German High Command Trial, p. 76, referred to in supra note 109, W. H. Parks,
Command responsibility 43 and 44.
See supra note 59, Hostages Trial, Part IV, p. 71. See supra note 96, R. Arnold, Khiam Detention Centre 191 and
supra note 109, W. H. Parks, Command Responsibility, 60 et seq. The tribunal concluded that there had to be a
causative, overt act or omission from which a guilty intent could be inferred, therefore rejecting a theory of strict liability.
See supra note 3, Celebici, paras. 372;648 and 649 and supra note 102, Delalic , para. 258 (footnotes omitted). For
details see J. Bing Bing, The Doctrine of Command Responsibility in International Law, 3 CHINESE J. INTERL L. 143.
For details on this aspect see supra note 96, R. Arnold, Khiam Detention Centre 191.

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2. Commanders and subordinates


a) Structure of "forces"
101

Armed forces, in the international laws of armed conflict, are defined in article 43 of Add.
Prot. I of 1977134. According to this provision, the armed forces of a Party to the conflict consist
of all organized armed forces, groups and units which are under a command responsible to that
Party for the conduct of its subordinates, even if that Party is represented by a government or an
authority not recognized by the adverse Party. Such armed forces shall be subject to an internal
disciplinary system which, inter alia, shall enforce compliance with the rules of international
law applicable in armed conflict. Thus, an intrinsic element is that armed forces be organized
under a command responsible to a Party to the conflict for the conduct of its subordinates. The
same requirement appears in article 4 A of the III Geneva Convention on Prisoners of War of
1949. According to the latter, belligerents can only be recognized as combatants i.e. the status
granted automatically to members of regular armed forces if they a) either belong to regular
armed forces of a state, therefore automatically having a responsible commander, or, b) if they
belong to irregular armed forces, which fulfil several criteria, among which that of being led by
a responsible commander135. Therefore, the two notions of armed forces and commander are in
symbiosis. The first can only exist with the presence of the latter. The underlying idea is that
only those belligerent groups which are organized and have responsible leaders will have the
discipline necessary to conduct warfare operations in observance of international humanitarian
law.
Forces per se, instead, are a wider category, which may also include armed police forces and
paramilitary units.
b) "[E]ffective command and control"

102

As already mentioned, a superior may only be held liable for the crimes committed by a
subordinate if he/she effectively exercised command and control over him/her. Forces under the
effective command and control of a commander are forces which are subordinate to the
commander in either a de iure or de facto chain of command and to which the superior may give
orders. These may be transmitted directly or through intermediate subordinate commanders.
When multiple chains of command exist, responsibility is assigned to the chain of command that
holds the power to give orders related to the conduct of hostilities or the care or victims of war.
The assessment whether the indicted subordinate was under the effective command of a superior
is done on the basis of objective criteria, independently from the question of his/her subjective
incompetence. The requirement of "effective command and control" relates primarily to

134

135

832

1. The armed forces of a Party to a conflict consist of all organized armed forces, groups and units which are
under a command responsible to that Party for the conduct of its subordinates, even if that Party is
represented by a government or an authority not recognized by an adverse Party. Such armed forces shall be
subject to an internal disciplinary system which, inter alia, shall enforce compliance with the rules of
international law applicable in armed conflict.
2. Members of the armed forces of a Party to a conflict (other than medical personnel and chaplains covered
by article 33 of the Third Convention) are combatants, that is to say, they have the right to participate directly
in hostilities.
3. Whenever a Party to a conflict incorporates a paramilitary or armed law enforcement agency into its armed
forces it shall so notify the other Parties to the conflict
The other criteria are that;
a)
They belong to a State
b)
they have a fixed distinctive sign recognizable at a distance;
c)
they carry arms openly;
d)
they conduct their operations in accordance with the Laws and Customs of War.
For more details see supra note 96, R. Arnold, Kiam Detention Centre 191.

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superiors of regular and irregular armed forces with a disciplined and hierarchical internal
structure.
c) "[E]ffective authority and control"
This requirement was introduced to take into consideration the situation where someone 103
holds de facto authority or command and control over third parties who do not belong to his/her
chain of command or armed forces. It particularly comes into play when the commander of a
regular armed force may exercise authority and control over members of a paramilitary group
which act on its behalf or on its side. There is also the case of so-called "executive
commanders", i.e. those in charge of a territory136. These, in addition to their operational
responsibility have authority as occupation zone commanders and, as such, may give orders to
all forces within their occupation zone. The distinction between operational (or tactical) and
executive commanders was drawn e.g. in the High Command Case, which involved highranking German officers137. The tribunal discussed the duties of an executive commander
holding that the latter, unlike a tactical commander:
"is per se responsible within the area of his occupationregardless of the fact that the crimes committed
were due to the action of the state or superior military authorities that he didnt initiate or in which he
didnt participate"138.

This view was shared in the Hostage Case 139 and referred to in Celebici, which held:
"[t]he matter of subordination of units as a basis of fixing criminal responsibility becomes important in
the case of a military commander having solely a tactical command. But as to the commanding general of
occupied territory who is charged with maintaining peace and order, punishing crime and protecting
lives and property, subordination are relatively unimportant. His responsibility is general and not limited
to a control of units directly under his command"140.

3. "[F]ailure to exercise control properly"


As reflected in article 87 Add. Prot. I, a commanders duty is to take all possible measures to 104
ensure the compliance by his/her forces with international humanitarian law. They shall at least
take all necessary and reasonable measures to prevent the commission of offences by their
subordinates or, if such crimes have been committed, to punish them141. It is irrelevant, whether
or not they had the power to intervene, as long as they did not attempt to do so142. At operational
level this duty requires commanders to:

136
137
138
139

140
141
142

ensures that forces are adequately trained in International Humanitarian Law


ensure that due regard is paid to International Humanitarian Law in operational decision making
ensure an effective reporting system is established so that he/she is informed of incidents when
violations of International Humanitarian Law might have occurred
monitor the reporting system to ensure it is effective

See supra note 3, Celebici, para. 720.


See supra note 60, The German High Command Trial, p. 36.
See supra note 60, The German High Command Trial, p. 76, referred to in supra note 109, W. H. Parks,
Command responsibility infra note 43 and 44.
See supra note 59, Hostages Trial, Part IV, p. 71. See supra note 96, R. Arnold, Kiam Detention Centre 191,
supra note 109, W. H. Parks, Command responsibility 43 and 44 and supra note 104, P. Noll/S. Trechsel,
SCHWEIZERISCHES STRAFRECHT 242 et seq. The tribunal concluded that there had to be a causative, overt act or
omission from which a guilty intent could be inferred, therefore rejecting a theory of strict liability.
See supra note 3, Celibici, paras. 372, 648 and 649 and supra note 102, Delalic, para. 258 (footnotes omitted). For
details see supra note 132, J. Bing Bing, The Doctrine of Command Responsibility 143.
See supra note 98, Aleksovski, para. 81 and supra note 3, Celebici, para. 395.
I. Bantekas, Contemporary Law of Superior Responsibility, 93 AM. J. INTL L. 3, 591 (1999), L. C. Green, Superior
orders and command responsibility, 27 CANADIAN YB INTL L. 200 (1989) and supra note 108, Akayesu, para. 46.

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a) Passivity and duty to become active


105

Responsibility for omission of intervention is explicitly stated in articles 86 and 87 of Add.


Prot. I of 1977. The idea is that due to his/her "guarantor" position, a superior shall intervene to
prevent the occurrence of a crime he/she has knowledge of, or at least refer the case to the
military judicial authorities. As stressed by the ICTY in Celebici, omission of intervention may
imply an accumulative charge for individual and command responsibility143. The Court held that
although prima facie it would be illogical to hold a superior criminally responsible for planning,
instigating or ordering the commission of crimes and, at the same time, reproach him for not
preventing or punishing them, the concurrent application of article 7 para. 1 and 7 para. 3 of the
ICTY Statute is acceptable where his failure to intervene allows the commission of subsequent
crimes. This may occur in relation with the failure to punish144. The same view was shared in the
Celebici and Aleksovski appeal judgements, ruling that these cases will result in a single but
aggravated conviction for command responsibility145.
b) "Crimes committed" as a result
aa) Completed or attempted crimes

106

Responsibility of superiors may only be triggered if a crime was completed or at least


attempted by the subordinates. The question of attempt is discussed in more details later.
bb) Committed in which modality of article 25 para. 3 ever

What is the relationship between superior responsibility under article 28 and individual
responsibility under article 25? Article 25 para. 3 (a) (e) defines five groups of conduct. Litera
a deals with the commission, litera b with the initiation of the commission and litera c with
facilitating the commission of a crime by assisting the principal perpetrator. Pursuant to litera d,
contribution in any other way to the commission or attempted commission of the crime is only
punishable when a "group of persons acting with a common purpose" sets a criminal conduct
and the participating perpetrator fulfils additional demands, such as acting intentionally, aiming
to further the criminal activity or criminal purpose of the group and when he acts "in the
knowledge of the intention of the group to commit the crime". Litera e, instead, establishes
individual criminal responsibility for incitement to commit genocide under certain conditions.
On the other hand, failure to control pursuant to article 28 does not require the initiation of a
108
crime. It is sufficient that due to the authority of the superior, his passivity is perceived by the
subordinates as a "green light" to go ahead with their plans, feeling that there will be no
obstacles thereto. Moreover, command responsibility is primarily constructed on omission of
intervention, whereas the forms of participation referred to under article 25 refer to active
participation such as incitement. Under article 28 it is enough that because of the failure to
control or intervene, crimes are committed which most probably would not have been
committed otherwise. As previously mentioned, however, given certain circumstances inactivity
by a superior may also consist in a form of direct participation, thereby aggravating the
culpability of the superior146. In such cases the active participation should prevail as lex
specialis147. Another difference is that whereas direct responsibility requires willful intent, the
107

143
144
145
146

147

834

See supra note 100, Blaskic, paras 263, 270 and 284.
See supra note 100, Blaskic, paras 337 and 338.
See supra note 124, Aleksovski, para 183 and supra note 102, Delalic, paras 736 and 743 et seq. The issue of
direct responsibility is nevertheless beyond the scope of this paper.
See supra note 98, Kordic and Cerkez, para. 371 and supra note 102, Delalic, para. 736: "proof of active
participation by a superior in the criminal acts of subordinates adds to the gravity of the superiors failure to
prevent or punish those acts and may therefore aggravate the sentence".
See supra note 2, O. Triffterer, Causality 188.

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doctrine of superior responsibility states that the latter may be incurred also on the basis of
negligence148.
cc) Causality
In Celebici the Trial Chamber of the ICTY ruled that causation is a separate element which 109
needs to be proven, since this may be:
"considered to be inherent in the requirement of crimes committed by subordinates and the superiors
failure to take the measures within his powers to prevent them. In this situation, the superior may be
considered to be causally linked to the offences, in that, but for his failure to fulfil his duty to act, the acts
of his subordinates would not have been committed"149.

Causation seems to be presumed as inherent to the passive attitude of the superior and in
his/her status. Prima facie this position may seem to imply strict liability. A difference,
however, is made by the fact that according to the three-stage test established in Celebici, a
commander is only liable if he exercised effective control over the subordinates. Therefore, the
basis is his power to intervene, not his status. This ruling seems to follow the so called
Garantenstellung (guarantor position) doctrine, which is common to the central European legal
systems. According to this, a guarantor position is attached to persons who have either the legal
obligation to protect a specific object/person under their supervision from external dangers, or to
persons who have set a danger and who are under the duty to protect the external world from its
effects. It can be identified in the first requirement of the three-stage test of command
responsibility. The criterion of a superior-subordinate relationship indicates that the person must
have been under the duty to take charge of his men by 1) protecting them from external dangers
and 2) supervising them as a dangerous source for the external world150. It could be argued that a
commander failing to intervene falls under the second heading. In the ICTYs view, this should
be sufficient to hold a commander liable. The Trial Chamber seems to adopt the so-called
Risikoerhhungstheorie (theory of risk aggravation or of "added peril"/thorie du risque
aggrav/ teoria dellaggravamento del rischio) supported by a number of Swiss criminal law
scholars151. According to this doctrine, it is sufficient to prove that the intervention may have
prevented the commission of the crime152, However, it would be probably more appropriate to
follow the leading Wahrscheinlichkeitstheorie153, (probability theory/thorie de la
probabilit/teoria della probabilit) according to which a crime can only be imputed if the
intervention would most likely have prevented its occurrence154. This is particularly true for
those situations in which there has been a change in command. For example, a former
commander should only be responsible if a novus actus interveniens cannot be established and if
the breaches would not have occurred but for his failure to control his/her men155.

148

149
150
151
152
153
154
155

See supra note 3, Celibici, para. 383 et seq., supra note 110, A.P.V. Rogers, Law on the battlefield 132 and supra note
142, I. Bantekas, Contemporary Law 590. By indirect intent he means dolus eventualis, i.e. those circumstances in
which the prosecuted has no wilful intent to perpetrate the acts but nevertheless fails to take preventive measures
notwithstanding the knowledge of the risk. On the issue of negligence, see supra note 3, Celebici, paras. 328 and 392
and supra note 108, Akayesu, para. 489 and supra note 97, Musema, para. 131, indicating that negligence may be a
basis for prosecuting where this is so serious that is tantamount to acquiescence or even malicious intent.
See supra note 100, Blaskic, para 285 and 339. For example, in regard of failure to punish, Blaskic held that
this may constitute instigation only if a causal nexus is proven. See supra note 3, Celebici, para. 399.
See supra note 104, P. Noll and S. Trechsel, SCHWEIZERISCHES STRAFRECHT 242 et seq.
See supra note 95, G. Stratenwerth, DIE STRAFTAT 156.
See supra note 95, G. Stratenwerth, DIE STRAFTAT 43. See for example the Swiss Supreme Court decisions
BGE 101 IV 152, BGE 108 IV 7 et seq.
See supra note 104, P. Noll/ S. Trechsel, SCHWEIZERISCHES STRAFRECHT 252 et seq.
See supra note 104, P. Noll/ S. Trechsel, SCHWEIZERISCHES STRAFRECHT 252 et seq.
See supra note 142, I. Bantekas, Contemporary Law 590.

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110

Part 3. General principles of criminal law

Interestingly, however, a causal connection between the omission of the superior and the
commission of the crime by the subordinate needs to be established only for failure to prevent,
whereas it is not required to establish liability for failure to punish156. This is because:
"while a causal connection between the failure of a commander to punish past crimes committed by
subordinates and the commission of any such future crimes is not only possible but likely, no such
causal link can possibly exist between an offence committed by a subordinate and the subsequent failure
of a superior to punish the perpetrator of that same offence. The very existence of the principle of
superior responsibility for failure to punish, therefore, recognised under Article 7(3) and customary law,
demonstrates the absence of a requirement of causality as a separate element of the doctrine of superior
responsibility"157.

The Trial Chamber further explained its position by stating that:


"a causation requirement would undermine the failure to punish component of superior responsibility,
whichcan only arise after the commission of the offenceas a matter of logic a superior could not be
held responsible for prior violations committed by subordinates if a causal nexus was required between
such violations and the superiors failure to punish those who committed them"158.

111

The absence of a causal link may be further explained with the fact that under article 7 para.
3 ICTY Statute, the failure to punish does not need the coming into effect of a result. It is
sufficient that this failure set a risk for the commission of further crimes, in regard of which the
causal nexus can be merely hypothetic. This may be explained in analogy to the Swiss doctrine
of the abstrakte Gefhrdungsdelikte (crime of abstract danger/infraction de mise en danger
abstracte/reato di pericolo astratto), according to which there are some acts which need not
effectively result in injury, harm, death or damage a crime in order to imply liability, since they
are prosecutable for the mere fact of creating a danger (inchoate endangerment)159. An analogy
can probably be drawn with the crime of incitement to genocide, under article 6 of the ICC
Statute in connection with article 25 para. 3 lit. e)160.
dd) Accountability

112

As already mentioned, a superior shall be held liable only where he/she (in addition to
failure to control properly) derelicted his/her duty to take all possible measures to prevent the
commission of a crime that he/she had or should have had knowledge of, or where he/she failed
to report the facts to the competent authorities.
A particular case is the responsibility of a superior for acts committed prior to becoming the
superior of the perpetrator. This issue arose in the Hadzihasanovic Case 161. Amir Kubara was
charged with command responsibility for, inter alia, the Dusina killings in the Zenica
municipality and the destruction and plunder of property in January 1993. Kubara, however, had
only taken up his position as acting commander of the 7th Muslim Mountain Brigade of the
Bosnian Army 3rd Corps on 1 April 1993. The Trial Chamber held that command responsibility
did arise in the case of a superior who assumed command after the events mentioned in the
indictment, even though it would be a matter of degree as to when liability attached, depending
partly on the length of time that had elapsed between the events and the assumption of
command. Where the crimes came to knowledge only after the change of command, it would not
156
157

158
159
160
161

836

See supra note 3, Celebici, para 400. See also supra note 2, O. Triffterer, Causality, 185.
See supra note 3, Celebici, para. 400. On the thesis that the legal requirement of causation has been
overcome by the needs of a policy of deterrence (the more removed a superior is from the scene of the crime,
the more difficult it is to prove the causal nexus) see supra note 119, M. C. Bassiouni/P. Manikas, Law of the
International Criminal Tribunal 350 and M. C. Bassiouni, CRIMES AGAINST HUMANITY IN INTERNATIONAL
CRIMINAL LAW 372 et seq. (1992).
See supra note 3, Celebici, para. 397.
See supra note 104, P. Noll/S. Trechsel, SCHWEIZERISCHES STRAFRECHT77 et seq.
W. A. Schabas in the First Edition of this Commentary, article 6, margin No. 15 (1999).
Prosecutor v Hadzihasanovic, Alagic and Kubura, Case No. IT-01-47-PT, Interlocutory Appeal on Decision
on Joint Challenge to Jurisdiction, Appeals Chamber, 27. Nov. 2002. On this see C. H. B. Garraway,
Responsibility of Command - A Poisoned Chalice?, in: R. Arnold/P. A. Hildbrand, INTERNATIONAL
HUMANITARIAN LAW AND THE 21ST CENTURYS CONFLICTS: CHANGES AND CHALLENGES 126 (2005).

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be possible to proceed against the original commander if he/she had had no reason to know that
they were being or had been committed by subordinates. In this case, Kubaras liability to take
action ceased on his relinquishment of command but, on the Defence reading of the case, would
not be transferred to the new superior. The Appeals Chamber observed that there was no
practice or opinio juris to support the view that a commander can be held responsible for crimes
committed by a subordinate prior to his/her assumption of command. Dissenting Judge Hunt,
however, referred to the Kordic judgment where the Trial Chamber said, albeit obiter:
"Persons who assume command after the commission [of the crime] are under the same duty to
punish"162.

As observed by Charles Garraway, although the majority in the Hadzihasanovic opinion 113
pointed out that responsibility is limited to the commander who "knew, or had information
which should have enabled [the commander] to conclude in the circumstances at the time, that
[the subordinate] was committing or was going to commit [a crime]"163, this does not mean that
commanders who discover crimes after the event are not to be held responsible at all164.
However, a link must be established, in that the commander shall not be subject to strict liability
and should incur responsibility only where he/she had power to intervene and failed to do so.
c) Mental element: intent and knowledge
There are three mental elements mentioned under article 28 Rome Statute:

114

the commander shall have either known or should have known that the forces were committing or
about to commit such crimes;
the commander must have failed to take the necessary and reasonable measures within his or her
power to prevent or repress their commission or to submit the matter to the competent authorities
the commander must have consciously disregarded information which clearly indicated, that the
subordinates were committing or about to commit such crimes;

Article 30 is a default rule defining the mental elements of crime which apply unless
otherwise provided in the ICC Statute. Pursuant to article 25 para. 3, principal perpetrators and
accomplices can only be held accountable when acting intentionally. The intent of the
accomplice shall moreover encompass the mens rea of the principal perpetrator. Pursuant to
article 28 Rome Statute, negligence shall lead to liability. It shall apply as a lex specialis in
relation to article 30.
Unlike the principal perpetrator or the accomplice, the superior does not have to know all the
details of the crimes planned to be committed. It is sufficient that he/she believed that one or
more of his/her subordinates may commit one or more crimes encompassed by the ICC Statute.
The "knew" or "should have known" element is particular in that it requires only one of the 115
two component elements of the mens rea, i.e. the intentional (Wollen/vouloire/volere) and
knowledge (Wissen/savoir/ sapere) sides, as known to civil law systems. It is not necessary that
the superior shared the intent of the principal perpetrator. Mere knowledge, or failure to acquire
knowledge where this would have been required by the circumstances, is per se enough. This
kind of failure to acquire knowledge may constitute either unconscious negligence (unbewusste
Fahrlssigkeit/ ngligence inconsciente/negligenza inconsapevole) or conscious negligence, i.e.
recklessness (bewusste Fahrlssigkeit/ngligence conscient/negligenza consapevole), too.
Failure to take all necessary measures may further be classified into an intentional or 116
unintentional (negligent) act. However, as observed by Triffterer, if the superior intentionally
162

163
164

Separate and Partially Dissenting Opinion of Judge David Hunt to Prosecutor v. Hadzihanovic, Alagic and
Kubura, Case No. IT-01-47-AR72, Interlocutory Appeal Challenging Jurisdiction in Relation to Command
Responsibility,, Appeals Chamber, 16. Jul. 2003, para. 23, quoting from para. 446 of the Judgment delivered
in supra note 98, Kordic and Cerkez,
See the majority opinion to supra note 162, Hadzihanovic, Alagic and Kubura, Command Responsibility,
para. 47.
See supra note 161, C. H. B. Garraway, A Poisoned Chalice? 134.

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decides to remain passive, he/she may fulfil one the criteria of article 25 para. 3 and thus become
liable as a direct participant165. This may be the case, e.g., where passivity expresses a
psychological support to the subordinates. This problem was raised by the ICTY in the Kordic
and Blaskic cases166.
4. Failure "to take all necessary and reasonable measures"
a) "[K]new or should have known that the forces were committing or about to commit
such crimes"
117

As previously mentioned, a superior can no longer be held responsible for having failed to
search for information allowing him to become aware of the possibility of crimes being
committed by his/her subordinates. However, responsibility will be imputed to him/her where,
owing to the circumstances, he/she should have known that his/her forces were committing or
about to commit such crimes.
b) Dereliction of duty and power to react

118

Although recent jurisprudence, like the Hadzihasanovic Judgement, seems to blur the
distinction between the two doctrines of direct individual responsibility (article 25) and superior
responsibility (article 28), it should be recalled that the underlying idea of the doctrine of
command responsibility is that a superior shall be liable for having failed to exercise his/her
duty to control his/her subordinates, thereby allowing them the perpetration of breaches of
international law. Therefore, the criminal attitude at the core of this provision is his/her
dereliction of duty, notwithstanding power to intervene. This additional requirement is important
to avoid the situation where a commander may be held responsible for whatever act. Only where
he/she had the effective power to intervene, and failed to do so, liability shall be incurred.
c) Measures needed to avoid or to compensate the result caused by the "failure to exercise
control properly"
aa) Dependence on the stage of the commission

119

What measures shall be taken by a commander? This depends on the stage of the
commission of the crimes. The attempt by the subordinates to commit a crime is sufficient to
trigger command responsibility.
bb) "[T]o prevent or repress or to submit"

120

If the underlying crime is only at its initial stage, i.e. it is merely being attempted, the
superior has the duty to intervene to impede its occurrence. Alternatively, where the crime has
already been committed and it is too late to prevent it, the commander shall take measures to
repress it, he/she shall highlight to the other subordinates the fact that such conduct was wrong,
thereby interrupting a possible "chain effect" which may lead to other similar events. If a
superior lacks disciplinary powers, or where disciplinary measures appear to be insufficiently
severe to punish the crime that has been committed this shall always be the case with regard to
the crimes outlawed by the ICC Statute he/she shall submit the case to the competent
authorities, who shall then delegate the case to the military justice.

165
166

838

See supra note 2, O. Triffterer, Command responsibility, Article 28 Rome Statute 247.
See on this M. Nybondas, Civilian responsibility in the Kordic Case, 59 NETH. INTL L. REV. 72 et seq.

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(1) ex post or ex ante evaluation? The objective comparable commander "in the situation at
the time", article 87 para. 2 Add. Prot. I
It would be too simplistic to judge a situation, in particular the possibility of intervention of a 121
commander, ex post. A commanders position and possibility to intervene shall rather be
assessed on the basis of what any commander, in such a situation, would have objectively done
at the time of the facts. On the other hand, in assessing the measures that a commander may
have possibly undertaken, it is also important to take into consideration the preventive measures.
Article 87 para. 2 Add. Prot. I provides that:
"In order to prevent and suppress breaches, High Contracting Parties and Parties to the conflict shall
require that, commensurate with their level of responsibility, commanders ensure that members of the
armed forces under their command are aware of their obligations under the Conventions and this
Protocol".

In practice, thus, this obligation rests with the high levels of command. Taking the Swiss
example, military training on International Humanitarian Law is undertaken by a special office
within the Staff of the Chief of the Swiss Armed Forces. One of the aims of this office is to train
specially designed instructors (normally officers with a legal qualification) in international
humanitarian law and provide them with the teaching material to be used during military
courses. The level of International Humanitarian Law teaching differs according to the rank of
the students: a basic approach is taken in teaching soldiers, whereas a more detailed instruction
is obviously imparted to officers and professional officers. In sum, it is assured that each
member of the Swiss armed forces will have at least once heard about his/her obligations under
the laws of armed conflict. This, however, may not be the standard for all armed forces. Given
these different standards and circumstances on a world-wide scale, it would be unfair to shift the
responsibility of a government for having failed to provide special legal training programs to its
armed forces, to the single commander engaged in the field.
(2) Hypothetical causation?
Causation is hypothetical insofar as the question that needs to be assessed is whether, in the 122
hypothesis that the commander had intervened to prevent the occurrence of crimes, the crimes
would have been prevented or whether they would have nonetheless occurred. Reference can be
made to what has been said previously in relation to the Wahrscheinlichkeits- and
Risikoerhhungstheorie (probability and risk aggravation theory) pursuant to the civil law
doctrine.
c) Threshold of unreasonable demands?
If an offence has not been committed yet, any commander shall issue orders to ensure that 123
the offences do not occur and that the orders will be carried out. Every commander shall further
ensure that where crimes have been committed an investigation is led. In some situations,
however, a commander may have little power to intervene, beyond the possibility of referring
the case to other superiors. This difficulty may arise in particular in multinational contingents,
where it is important to establish who holds the authority over the perpetrators. For this reason it
is always important to asses who holds the de facto, not the de jure, command and not to
confuse the moral obligation of a high ranking officer with his/her legal duties. The mere fact of
holding a higher rank is not per se a sufficient reason to hold a person liable for everything
which may have been committed by members of his/her armed forces. Another practical
difficulty is the rigidity of the chain of command. A middle officer in charge of subordinates
who have committed a crime may have to refer the case to a commander without the guarantee
that the case will be considered any further without having the chance to report it directly to
the judicial military authorities. However, in this case, the mere fact of having reported the
occurrences to the competent superior shall exempt him/her from liability.
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III. Paragraph (b)


1. "[S]uperior and subordinate relationships
not described in paragraph (a)"
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Paragraph (a) refers to military or quasi-military relationships in which persons exercise


command over forces. However, the recent occurrences in Rwanda and the former Yugoslavia
raised awareness about the fact that in some cases civilians who are not de facto enrolled in the
military may exercise a similar kind of authority over forces, in which case they should incur a
responsibility similar to that of military commanders. Reference is made in particular to nonmilitary members of governments, political parties, or business companies.
2. Subsidiarity based on a different notion of
"relationship" and "effective authority and control"

Paragraph (b) is a subsidiary provision to paragraph (a). Therefore, it only comes into play in
those cases where a hierarchy of a military or quasi-military nature cannot be established. The
essence is that the superior shall have de jure or de facto authority enabling him/her to control
his/her subordinates conduct. A leading case is Akayesu, in which the Trial Chamber of the
ICTR confirmed the applicability of the doctrine of command responsibility to non-international
conflicts and its extension to civilians holding de facto positions of authority167.
However, the assessment and the underlying criteria of whether someone is to be
126
considered as exercising a military or a quasi-military function, or whether he/she has civilian
status, is a matter that will have to be assessed by the ICCs jurisprudence. In the Kordic Case,
the Trial Chamber concluded that Kordic could not be considered a military commander
because:
125

"while he played an important role in military matters, even at times issuing orders, and exercising
authority over HVO forces, he was, and remained throughout the indictment period, a civilian, who was
not part of the formal command structure of the HVO"168.

This motivation, however, is quite superficial. For the purposes of the ICTY Statute, the
question whether someone was a military commander or a civilian exercising commanding
functions may have been less dramatic, since the knowledge requirement is the same. This,
however, may have serious impacts on liability under article 28 ICC Statute, since if the accused
is a civilian, the burden of responsibility will be much lower169. Therefore, the criteria for the
assessment of whether someone shall be tried under paragraph (b) rather than paragraph (a) of
article 28 will have to be carefully developed by the ICC.
3. "[F]ailure to exercise control properly"
127

As reflected in article 86 Add. Prot I, a superior is under the duty to establish and maintain
an effective reporting system to ensure the compliance of his/her subordinates with international
humanitarian law in the course of their duties. However, under paragraph (b) a superior shall not
be responsible for acts committed by subordinates which were not related to their work. If, e.g.,
the employees of a paint factory engage in genocidal activities beyond the working hours, it is
unlikely that the factory manager would be regarded as liable under article 28.

167
168
169

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See supra note 108, Akayesu, para. 492.


See supra note 98, Kordic and Cerkez, para. 838.
See supra note 166, M. Nybondas, Civilian responsibility 79.

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4. Failure "to take all necessary and reasonable measures"


a) "[K]new or consciously disregarded information which clearly indicated, that the
subordinates were committing or about to commit such crimes"
The mens rea threshold for civilian superiors was intentionally set below the standard 128
applicable to military commanders. It was deemed that military commanders, because of their
position within a strictly hierarchical and organised structure, would have far more possibilities
to receive information on the conduct of their subordinates. For non-military commanders,
therefore, it is necessary to establish:

That information clearly indicating a significant risk that subordinates were committing or were
about to commit offences existed
That this information was available to the superior, and
That the superior, while aware that such a category of information existed, declined to refer to the
category of information.

b) Crimes concerning "activities that were within the effective responsibility and control of
the superior"
As mentioned, a civilian superior shall only be liable for activities that were within his/her 129
effective responsibility and control. Therefore, a civilian superior shall not be held liable for the
misconduct of subordinates that occurred beyond the working hours or which were not related to
their working activities. As mentioned, the doctrine of command responsibility is based on the
idea of the guarantor position of the superior. However, this guarantor position shall be limited
to the sphere of his/her competences. To do otherwise would imply a collective punishment.
c) The objective comparable superior "in the situation at the time"
Like the responsibility of military commanders, also the responsibility of civilian superiors 130
shall be assessed ex ante, considering the facts "in the situation at the time of occurrence of the
facts".
d) Threshold of reasonable demands?
Civilian superiors, unlike military commanders, are unlikely to have disciplinary powers. 131
Therefore, what can be reasonably expected from them, is reference of a case of misconduct to
the competent civil judicial authorities for investigation. Dismissal may be the first step,
although care should be taken in assuring that once the employee/the subordinate has been
dismissed, a criminal proceeding will be opened by the competent authorities. This may hold
true in particular for NGOs or other institutions engaged in peace support operations, often
availing themselves of the support of private subcontractors. There have been cases reported of
such subcontractors committing crimes. Very often the first consequence is immediate dismissal
and repatriation, according to the employment contract. However, it should be assured that once
repatriated the individual will be subject to a criminal investigation procedure.

C. Special Remarks
I. Assisting in Command Responsibility, a participation
in the crime committed by subordinates?
Command responsibility can only be incurred by a special category of persons holding 132
authority over the principal perpetrator. Thus, if someone joins a commander in his/her failure to
intervene, he/she will only be liable under article 28 if he/she held the same kind of commanding
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position over the primary perpetrator. This is not so unlikely, since in the chain of command a
perpetrator may have several commanders.
Alternatively, if the participant holds a guarantor position over the primary perpetrator, by
assisting the commander and the main perpetrator through passive attitude he may incur liability
under the doctrine of individual responsibility, for active participation by omission in the crime
and not, however, under the doctrine of command responsibility.
Similarly, any other kind of support to the primary perpetrator, (instigation, assistance, or
otherwise support, e.g. by assisting the commander in his failure to intervene) may be performed
without any particular qualification or guarantor position. In this case, however, the accomplice
or instigator will be liable under the doctrine of individual criminal responsibility for having
assisted the performance of the underlying crime.
On this basis, participation as "co-author" in command responsibility is conceivable e.g.
133
where a commander fails to report to his superior the misconduct of a subordinate, and, at the
same time, his/her own superior, who is the next in the chain of command and who has also
acquired knowledge of the facts, also fails to investigate or report the matter. In this case both
commanders may incur liability under article 28.
If instead a commander, who has acquired information revealing the commission of crimes
by subordinates, asks another subordinate to destroy this information, the subordinate may be
liable for active support to the underlying crime and, therefore, be liable under article 25. If the
commander, in the same case, told instead to a third person, who has a guarantor position
towards the primary perpetrator, to stay passive, this person may be liable for assistance by
omission under article 25.
II. Attempted Command Responsibility, an attempted crime
within the jurisdiction of the Court?
134

Attempt can only be given in those cases where the perpetrator acts intentionally but, for
some reasons, his conduct does not lead to the expected results.
With regard to attempt and command responsibility, therefore, two scenarios arise:
1) the first concerns the situation where a commander "attempts" to incur into liability under
the doctrine of command responsibility;
2) the second concerns the case where the primary perpetrator merely attempts to commit a
crime, and the commander, without knowledge of the fact that the acts will not lead to any
effects, fails to intervene.
The first case may be given where a commander is not intending to report a case to his/her
superiors or to intervene to stop a crime he has heard about, and in the end it turns out that these
were only rumours: the subordinates never had the intention to commit any crime. In this case
the commander has simply attempted to "cover" his/her subordinates. It is an "impossible"
attempt, since the underlying offence was not committed, nor even attempted at all.
In German this would be defined as an untauglicher Versuch (impossible attempt/dlit
135
impossible, delitto impossibile). As said, command responsibility is a crime which requires a
certain result, namely the commission of an underlying crime. Mere failure to control the
subordinates does not per se bring into play this charge. The conclusion, therefore, should be
that the commander will not be liable in this case, since command responsibility is not a crime
per se, but a mere form of participation into another crime. Participation is always to be
considered accessory to the primary conduct, so that a participant cannot be charged more
severely than the primary perpetrator.
136
The second scenario is given where a commander who gets knowledge of his/her
subordinates planning to commit crimes, decides not to intervene and, due to external reasons,
the conduct of the subordinates does not lead to the expected results. Also in this case, since
command responsibility is not a crime per se, it cannot be concluded that failure to intervene
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was completed and that, therefore, the commander should be liable. The outcome is rather that
since the underlying offence was merely attempted, and since command responsibility is a form
of participation requiring the commission of the crime, the commander should also be liable for
attempt.
III. Concurring Responsibility?
1. Authorities in a hierarchial chain all failing to fulfil their duties
If there is more than one person responsible for the acts of a subordinate in the same chain of 137
command, be this horizontally or vertically, all of them may be held responsible under article 28
ICC Statute. A commanding general, for instance, may have to take responsibility all the way
down to private soldiers, even though there may be other officers holding command in between,
who are equally responsible for failure to control them and to take measures.
2. Command Responsibility and participation according to article 25
Yamashita was not being punished "for a separate offence of failure to control, but for the 138
actual offences committed by his subordinates"170. In the Hadzihasanovic Case, judge
Shahabuddeen drew a distinction between direct responsibility and command responsibility
stating:
"Command responsibility imposes responsibility on a commander for failure to take corrective action in
respect of a crime committed by another; it does not make the commander party to the crime committed
by that other"171.

As noted by Charles Garraway, unfortunately, this distinction is not necessarily reflected in 139
the jurisprudence. The counts against Amir Kubura were, for example, alleged murder, violence
to life and person, cruel treatment, wanton destruction of cities, towns or villages, not justified
by military necessity and plunder. The convictions would be for those offences, though based on
the notion of command responsibility. There is no separate offence of "failure to supervise".
This is consistent with a long line of authorities beginning with the Yamashita case itself.
However, in the civil law tradition, it could be argued that command responsibility is a separate
offence, aiming to punish the commander for his dereliction of duty to supervise his
subordinates. The underlying offence will simply provide the basis to establish the sentence, but
will not imply the superiors direct participation in the commission of the crime. However, as
observed by Otto Triffterer:
"The common chapeau for all alternatives contained in Article 28, explicitly mentions that superior
responsibility for acts of their subordinates should be in addition to other grounds of criminal
responsibility under this Statute. It therefore does not substitute, but supplements all forms of
participation as listed in Article 25(3) sub a-f. Article 28 thus extends the scope of individual criminal
responsibility for perpetrators in the position of superiors"172.

In cases where participation under article 25 concurs with article 28, the former shall prevail
as lex specialis. As mentioned above, following to the ICC Statute command responsibility is
conceived as a form of participation into the crimes enlisted under article 5, and not as a crime
per se.

170
171

172

See C. Greenwood, Command Responsibility and the Hadzihasanovic Decision, 2 J. INTL C. JUSTICE 2, 599.
Partial Dissenting Opinion of Judge Shahabuddeen to Prosecutor v. Hadzihanovic, Alagic and Kubura, Case
No. IT-01-47-AR72d, Decision, Appeals Chamber, Interlocutory Appeal Challenging Jurisdiction in Relation
to Command Responsibility, 16. Jul. 2003, para. 33.
See supra note 2, O. Triffterer, Causality 186.

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