Edición No.9 - Escuela Superior de Guerra

DEFENSE AND SECURITY STUDIES
Command Responsibility in the Rome Statute and in Colombia / V. 5 • N. 1 • 9 th Edition • July 2010
As a result of the ethnic tensions in the region of
Bosnia and Herzegovina in the rst half of the 1990s,
a number of military operations and confrontations
with civilian populations led to the arrest of several
Serbians. Due to the lack of facilities several prisoners
were taken to the Celebici prison camp. Throughout
the process it was demonstrated that the prisoners in
Celebici were victims of crimes such as torture and
unlawful connement of civilians.
The accused Delalic, Mucic and Delic, were charged
with crimes against humanity and grave breaches
to the Geneva Conventions with fundament in article
7.3 of the ICTY Statute –that is, command responsibility.
The grounds for their responsibility in this case
are the result of the position the accused had in relation
to the prison camp. Thus, the tribunal found
that in relation to the Celebici camp: Mucic was the
commander, Delaic had a general command, and Delic
was the commander in charge when the crimes
were committed. The tribunal also found that, in this
case, the fundamental grounds for command responsibility
were clear since there was a relationship of
subordination between the accused and the guards
that committed the crimes; it concluded that –due to
the evidence that conrm the commission of crimes
(such as torture and other inhumane acts) against the
prisoners of the Celebici camp- the accused knew or
had reasons to know of these crimes and in spite of
having effective command and control, did not take
all necessary and reasonable measures to prevent or
punish such conducts. 22
b. Civilian superior responsibility: case Koki Hirota 23
The International Military Tribunal for the Far East
in Tokyo found the Japanese Minister of Foreing Affairs,
Koki Hirota, responsible for the massacres of Nanking.
By the end of 1973 in the Chinese city of Nanking,
Japanese military troops committed grave crimes
against civilian population and members of the
Chinese Army. For approximately forty ve days,
Japanese troops murdered, mutilated, tortured, raped
and committed other inhumane acts of similar
character breaching the International Humanitarian
Law against prisoners of war and civilian population.
Minister Hirota was found responsible of these massacres
by the Tokyo Tribunal and was convicted under
count 55 for violating “the laws of war by having deliberately
and recklessly disregarded their legal duty
to take adequate steps to secure the observance [of
the Laws and Customs of War] and prevent breaches
thereof.” 24
The tribunal’s verdict invoked the arguments of
the Prosecutor which established the criminal responsibility
of Minister Hirota, who having received information
regarding the Nanking massacre was “derelict
in his duty in not insisting before the Cabinet that
immediate action be taken to put an end to the atrocities”
(of Nanking). 25 Taking into account the facts of
this case, it is difcult to support a criminal responsibility
on the basis of civilian superior responsibility
since the elements of such responsibility cannot be
thoroughly conrmed for this case. Although Minister
Hirota could have been negligent, there is neither
clear evidence of dolus, nor the existence of effective
control as a fundamental element of the relationship
of subordination. 26
Enforcement in Colombia
Although in Colombia the legal framework does
not consider explicitly the theory of command responsibility
in the terms analyzed, in cases like that of
Mapiripán the responsibility of military commanders
has been established after the criminal conduct of
their troops.
In the decision SU-1184 of 2002 the Colombian
Supreme Court revises the writ of amparo led by a
46
22 Prosecutor v. Zejnil Delalic (…), supra 11.
23 In 1946, the decree of January 19 signed by General Douglas MacArthur,
established the International Military Tribunal for the Far East in Tokyo, to
judge those responsible of committing crimes against peace, war crimes,
crimes against humanity during the Second World War. The Minister Hirota
was judged by this tribunal.
24 Brook, Timothy; 2001. The Tokyo Judgment and the Rape of Nanking, The
Journal of Asian Studies, vol. 60, No. 3, 2001. Pp. 673-700
25 Ibídem. Taken from the International Military Tribunal for the Far East in
the trial against Koki Hirota.
26 Idem. For a contrary opinion see Juez Pol.