TRC Final Report

Volume 6

Section 5

Chapter 2

Subsection 9

Command responsibility (omissions)

118. Under international law, an individual may be held responsible for omissions by the doctrine of superior or command responsibility. As set out earlier in this section, this doctrine is ancient in origin and emerged as an important principle particularly after World War II. It has also been a subject of considerable importance for international tribunals, which have recognised command responsibility as a principle firmly established in international law.

119. Article 7(3) of the ICTY statute reflects this rule:

The fact that any of the acts was committed by a subordinate does not relieve his superior of criminal responsibility if he knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof .

120. The command responsibility principle is also present in Article 86(2) of the First Additional Protocol to the Geneva Conventions of 1949, which provides that:

The fact that a breach of the Conventions or of this Protocol was committed by a subordinate does not absolve his superiors from penal or disciplinary re s p o n-s i b i l i t y, as the case may be, if they knew, or had information which should have enabled them to conclude in the circumstances at the time, that he was committing or was going to commit such a breach and if they did not take all feasible measure s within their power to prevent or repress the bre a c h .

121. Command responsibility requires three elements following proof of the crime itself: a a superior–subordinate relationship between the accused and the perpetrator of the crime; b that the accused knew or had reason to know that the crime was about to be or had been committed; and c that the accused failed to take the necessary and reasonable measures to prevent the crime or punish the perpetrator.

122. The same principle has been applied in dealing with civil responsibility under the Alien Tort Claims Act in the United States. In the case of Paul v April⁵², a federal court held that Prosper Avril, a Haitian military dictator, was personally responsible for a systematic pattern of egregious abuses, since the perpetrators acted under his instructions and within the scope of the authority granted by him. The court heard evidence that he had known that the torture was being committed.

123. In the case of Forti v Suarez-Mason,⁵³ the court noted that:

under International law, responsibility for torture, summary execution or disappearances extends beyond the person or persons who actually committed those acts – anyone with higher authority who authorized, tolerated or knowingly ignored those acts is liable for them.

124. Using this principle, all former heads of the apartheid state could be held responsible for the commission of gross human rights violations committed by their agents.

125. The meaning of each of the elements of command responsibility require some discussion.

Superior–subordinate relationship

1 2 6 . Jurisprudence on this point envisions that the principle of superior responsibility encompasses heads of state, political leaders and other civilian superiors in positions of authority.

127. In clarifying this issue, it is important to note the following: a The commander may be at any level. b The commander, even if in an ad hoc command position, is responsible for the acts of men operating under him. c Control may be direct or indirect . d C o n t rol may be de facto as well as de jure.

128. The Foca⁵⁴ case clarifies that a superior–subordinate relationship cannot be determined by reference to formal status alone. What must be established is whether the superior had the material ability to exercise his powers to prevent and punish the commission of the subordinates’ offences.

129. It is clear that those superiors (either de jure or de facto, military or civilian) who a re clearly part of a direct or indirect chain of command and who have the power to control or punish the acts of subordinates incur criminal responsibility.

130. The tribunals have not interpreted ‘chain of command’ literally but have held rather that as long as the fundamental requirement of an effective power to control the subordinate, in the sense of preventing or punishing criminal conduct is satisfied, the principle will hold.