Command Responsibility

1. Introduction
Command responsibility assigns criminal responsibility to higher-ranking members of
military for crimes of genocide, crimes against humanity and war crimes committed by their
subordinates. It has been adjudicated upon through the form of superior responsibility in
a number of cases before the International Criminal Tribunal for the Former Yugoslavia,
the International Criminal Tribunal for Rwanda, the Special Court for Sierra Leone, based
on overlapping yet distinct legal classifications as well as the International Criminal Court,
through the classification of command responsibility. 1
While command responsibility has emerged from the practice of international criminal
tribunals, its relevance for national criminal justice efforts for conduct that amounts to core
international crimes should not be overlooked. The possibility to hold those individuals
who are in positions of seniority or leadership accountable for their failures to adequately
supervise their subordinates or who ‘turn a blind eye’ may have a valuable deterrent effect
on the commission of future crimes. It can also contribute towards ensuring accountability
of those considered to be most responsible before criminal justice institutions at the national
and international level.
However, the concept of command responsibility has many guises: it is recognised as a form
of criminal liability, a disciplinary offence for violation of military duties and a corollary
to other liabilities or separate offences. It is also variously applicable to military leaders as
well as leaders of military-like organisations, such as paramilitary groups, armed defence
organisations and rebel groups. Moreover, the legal classification of command responsibility
as established in the Rome Statute of the International Criminal Court (ICC Statute)
introduces a requirement of causation, which cannot be found in the legal definitions of
preceding international legal instruments. 2 Taken together, it is understandable that
the concept of command responsibility as well as its legal codification in the ICC Statute
may generate misunderstandings amongst criminal law practitioners for many of the 123
States Parties of the ICC. An absence of information on the construction and application
of the liability by national authorities may also limit accountability efforts against those
most responsible persons who hold positions of authority. At least 16 State Parties have
implemented all or many of the legal requirements of command responsibility, described in
Article 28(a) of the ICC Statute (ICC Art.28(a)) and at least 50 other States include various
provisions which punish commanders or those in positions of responsibility for the failure to
act or of acts of omission. 3
This includes Colombia, where the national criminal code establishes the liability of
perpetration by irregular commission (commission by omission) 4 which shares several of
1 These Guidelines adopt the terminology of Art.28 of the ICC Statute, differentiating between the responsibility of commanders under Art.28(a) and nonmilitary
or military-like superiors in Art.28(b). See 1.4.
2 ICC Statute.
3 A further publication on the status of command responsibility in national laws is under preparation by CMN.
4 Colombian Criminal Code (Law 599/2000), Art. 25.
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