“License to Kill”

In addition, the doctrine of superior responsibility under international law imposes liability
on superiors for the unlawful acts of their subordinates where the superior knew or had
reason to know of the unlawful acts, and failed to prevent and punish those acts. 272 The
doctrine of superior responsibility is a well-established component of customary
international law. 273
Superiors possess the requisite culpable mental state for the imposition of criminal
responsibility when they have actual knowledge or “reason to know” that their
subordinates were committing crimes. 274 Superiors’ actual knowledge is “established
through direct and circumstantial evidence.” 275 The second type of knowledge—“had
reason to know”—requires superiors to remain informed about the activities of their
subordinates; they cannot willfully blind to what is going on. 276 Superiors can be liable if
they possessed any information that should have put them on notice of crimes committed
or about to be committed by their subordinates. Although superiors cannot be expected to
“perform the impossible,” they can be held criminally liable for failing to take actions
within their “material possibility.” 277
Finally, customary international law and the Rome Statute of the International Criminal
Court, to which the Philippines is a party, prohibit crimes against humanity. Crimes against
humanity are certain acts, including murder, torture, and other inhumane acts committed
as part of a widespread or systematic attack against a civilian population. 278
272 ICTY, Prosecutor v. Zejnil Delalić, Zdravko Mucić, Hazim Delić, and Esad Landžo, Case No. IT-96-21-T, Trial Chamber,
November 16, 1998, http://www.icty.org/x/cases/mucic/tjug/en/981116_judg_en.pdf, para. 346 (Celebici). In Celebici, the
Trial Chamber of the ICTY traced the development of the concept of superior responsibility from its first international judicial
recognition in the Nuremberg and Tokyo trials after World War II. The Trial Chamber broke down the principle of superior
responsibility into three essential elements: (i) the existence of a superior-subordinate relationship; (ii) the superior knew or
had reason to know that the criminal act was about to be or had been committed; and (iii) the superior failed to take the
necessary and reasonable measures to prevent the criminal act or punish the perpetrator thereof.
273 Ibid. This decision was later amended, see, ICTY, Prosecutor v. Delalić et al., Appeals Chamber, February 20, 2001,
http://www.icty.org/x/cases/mucic/acjug/en/cel-aj010220.pdf, para. 333.
274 Ibid., para. 383.
275 Ibid.
276 Ibid., paras. 387-88.
277 Ibid., para. 395.
278 Rome Statute of the International Criminal Court ("Rome Statute"), U.N. Doc. A/CONF.183/9, July 17, 1998, entered into
force July 1, 2002, http://legal.un.org/icc/statute/99_corr/cstatute.htm, arts. 7, 34(b), 35(1), 36(1), 36(6)(a), 36(9)(a).
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