Command Responsibility

INTERNATIONAL CRIMINAL LAW GUIDELINES: COMMAND RESPONSIBILITY
well as to failure to punish:
“[…] Where the accused is charged with a failure to prevent crimes of subordinates,
it would have to be established that his failure was a significant—though not
necessarily the sole— contributing factor in the commission of the crime. Where
a superior has been charged with a failure to punish crimes, it would have to be
established that his failure was a significant contributing factor in the failure of
the competent authorities to investigate the crimes, and to identify and punish
the perpetrator.” 320
Ambos describes the test to be applied as follows:
“[…] In concrete terms, the prosecution—in accordance with the generally
recognized conditio formula or ‘but for’ test—must prove that the crimes
would not have been committed if the superior had properly supervised the
subordinates. Thus, the conditio formula must be inverted. While normally a
positive act causes a certain consequence, i.e. the consequence would not have
occurred without this act, in the case of omission the argument goes the other way
around: the omission ‘causes’ the consequence, since the omitted act would have
prevented it from occurring. […] As a result, it is sufficient that the superior’s
failure of supervision increases the risk that the subordinates commit certain
crimes. Any higher standard would overstretch the causation requirement, since
we deal with a hypothetical causation of events ‘in an imaginary world’: it is
empirically impossible to say what would have happened if the superior had
complied with the duty of supervision. In other words, the existence of an exact
causal relationship between the failure of supervision and the commission of the
crimes can hardly be proven ex post.” 321
However, Ambos cautions:
“[…] there are cases where the pure (inverted) conditio formula could lead to
unsatisfying results. In such cases, normative theories of (objective) attribution
or the proximate cause doctrine could be helpful.” 322
320 Mettraux, 2009, p. 263 (footnote omitted), supra note 311.
321 Kai Ambos, “Superior Responsibility”, in Antonio Cassese, Paola Gaeta, and John R.W.D. Jones (eds), The Rome Statute of the International Criminal
Court: A Commentary, Oxford University Press, 2002, p. 860 (footnotes omitted).
322 Ibid., p. 861 (footnotes omitted).
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