Command Responsibility

INTERNATIONAL CRIMINAL LAW GUIDELINES: COMMAND RESPONSIBILITY
“The Chamber is of the view that, in the case of failure to punish, a superior’s
responsibility may arise from his or her failure to create or sustain among the
persons under his or her control, an environment of discipline and respect for
the law. For example, in Čelebići, the Trial Chamber cited evidence that Mucic,
the accused prison warden, never punished guards, was frequently absent from
the camp at night, and failed to enforce any instructions he did happen to give
out. In Blaškić, the accused had led his subordinates to understand that certain
types of illegal conduct were acceptable and would not result in punishment.
Both Mucic and Blaškić tolerated indiscipline among their subordinates, causing
them to believe that acts in disregard of the dictates of humanitarian law would
go unpunished. It follows that command responsibility for failure to punish may
be triggered by a broadly based pattern of conduct by a superior, which in effect
encourages the commission of atrocities by his or her subordinates.” 390
On the duty to punish, the ICTY Trial Chamber in Halilović stated:
“The duty to punish is a separate form of liability, distinct from the failure to
prevent it has in fact developed from the importance attached to a commander’s
duty to take preventative actions.” 391
“The argument that a failure to punish a crime is a tacit acceptance of its
commission is not without merit. The Trial Chamber recognises that a
commander, as the person in possession of effective control over his subordinates
is entrusted by international humanitarian law with the obligation to ensure
respect of its provisions. The position of the commander exercising authority
over his subordinates dictates on his part to take necessary and reasonable
measures for the punishment of serious violations of international humanitarian
law and a failure to act in this respect is considered so grave that international
law imputes upon him responsibility for those crimes. He has, in the words of
the ICRC Commentary to the Additional Protocol “tolerated breaches of the law
of armed conflict”.” 392
“Finally, the Trial Chamber considers that punishment is an inherent part
of prevention of future crimes. It is insufficient for a commander to issue
preventative orders or ensure systems are in place for the proper treatment of
civilians or prisoners of war if subsequent breaches which may occur are not
punished. This failure to punish on the part of a commander can only be seen by
the troops to whom the preventative orders are issued as an implicit acceptance
that such orders are not binding.” 393
The ICC Pre-Trial Chamber in the Bemba Confirmation of Charges Decision held on the
duty to punish and the duty to repress:
“The duty to ‘repress’ encompasses two separate duties arising at two different
stages of the commission of crimes. First, the duty to repress includes a duty
390 ICTR, Bagilishema, TC I, Judgement, Case No. ICTR-95-1A-T, 7 June 2001, para. 50.
391 ICTY, Halilovic, TC I, Judgement, Case No. IT-01-48-T, 16 November 2005, para. 94.
392 Ibid., para. 95
393 Ibid., para. 96.
108
CASE MATRIX NETWORK