of the Philippines the criminal justice system is - Article 2

… the fact that a breach of the Conventions or of this Protocol was committed
by a subordinate does not absolve his superiors from…responsibility…if
they knew, or had information which should have enabled them to conclude
in the circumstances at the time, that he was committing or about to commit
such a breach and if they did not take all feasible measures within their
power to prevent or repress the breach.
Article 87 obliges a commander to “prevent and, where necessary, to suppress
and report to competent authorities” any violation of the Conventions and of
AP I. In Article 86(2) for the first time a provision would “explicitly address the
knowledge factor of command responsibility.” While the Philippines signed
and ratified the Geneva Convention of 1949, it has only signed and has not
ratified AP I.
The establishment of the International Criminal Tribunal for Yugoslavia (ICTY)
by the United Nations Security Council has led to further international
jurisprudence on the doctrine of command responsibility.
Article 7(3) of the ICTY Statute states that the fact that the crimes ‘were committed
by a subordinate does not relieve his superior of criminal responsibility 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.’ In Prosecutor v.
Delalic et al (“the Celebici case”), the ICTY elaborated a threefold requirement
for the existence of command responsibility, which has been confirmed by
subsequent jurisprudence:
1. the existence of a superior-subordinate relationship;
2. that the superior knew or had reason to know that the criminal act was
about to be or had been committed; and
3. that the superior failed to take the reasonable measures to prevent the
criminal act or to punish the perpetrator thereof.
The applicable standards of knowledge defined in the second requirement can
further be classified as: (a) “Actual knowledge” – which may be established by
either direct or indirect evidence; and (b) “Had reason to know” wherein
absence of knowledge is not a defense where the accused did not take reasonable
steps to acquire such knowledge. Notably, in the case of Prosecutor v Timohir
Blaskic, (“the Blaskic case”), it was held that ignorance is not a defense where
the absence of knowledge is the result of negligence in the discharge of duties.
The latest expression of the doctrine of command responsibility in international
law is in Article 28 of the Rome Statute of the ICC which 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.
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article 2 • February 2007 Vol. 6, No. 1