The establishment of the International Criminal Tribunal for Yugoslavia (ICTY) by the United Nations Security Council has led to further international jurisprudence on the doctrine of command responsibility.
Article 7(3) of the ICTY Statute states that the fact that the crimes were 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. In Prosecutor v. Delalic et al (the Celebici case), the ICTY elaborated a threefold requirement for the existence of command responsibility, which has been confirmed by subsequent jurisprudence[90]:
1. the existence of a superior-subordinate relationship;
2. that the superior knew or had reason to know that the criminal act was about to be or had been committed; and
3. that the superior failed to take the reasonable measures to prevent the criminal act or to punish the perpetrator thereof.
The applicable standards of knowledge defined in the second requirement can further be classified as: (a) Actual knowledge which may be established by either direct or indirect evidence; and (b) Had reason to know wherein absence of knowledge is not a defense where the accused did not take reasonable steps to acquire such knowledge. Notably, in the case of Prosecutor v Timohir Blaskic, (the Blaskic case), it was held that ignorance is not a defense where the
absence of knowledge is the result of negligence in the discharge of duties.
The latest expression of the doctrine of command responsibility in international law is in Article 28 of the Rome Statute of the ICC which states:
In addition to other grounds of criminal responsibility under this Statute for crimes within the jurisdiction of the Court:
(a) A military commander or person effectively acting as a military commander shall be criminally responsible for crimes within the jurisdiction of the Court committed by forces under his or her effective command and control, or effective authority and control as the case may be, as a result of his or her failure to exercise control properly over such forces, where:
(i) That military commander or person either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes; and
(ii) That military commander or person failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.
(b) With respect to superior and subordinate relationships not described in paragraph (a), a superior shall be criminally responsible for crimes within the jurisdiction of the Court committed by subordinates under his or her effective authority and control, as a result of his or her failure to exercise control properly over such subordinates, where:
(i) The superior either knew, or consciously disregarded information which clearly indicated, that the subordinates were committing or about to commit such crimes;
(ii) The crimes concerned activities that were within the effective responsibility and control of the superior; and
(iii) The superior failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.
Article 28(a) imposes individual responsibility on military commanders for crimes committed by forces under their effective command and control if they either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes.
Interpreted literally, Article 28(a) adopts the stricter should have known standard. Notably, the Trial Chamber in Celebici strongly suggested that the language of Article 28(a) may reasonably be interpreted to impose an affirmative duty to remain informed of the activities of subordinates. However, given the example afforded by the ICTYs conflicting interpretations of the knowledge requirement in Article 86(2) of AP I, it cannot be assumed that a literal interpretation of Article 28(a) will be adopted by the ICC. In fact, the meaning of the phrase owing to the circumstances at the time, should have known in Article 28(a) has already become a point of contention within international law literature. AP I and the Rome Statute, however, have not been ratified by the Philippines, but clearly the international trend is towards their application.
From the long line of international conventions and cases, it can be seen that the doctrine of command responsibility has evolved from its simplistic meaning at the time of the Hague Convention towards the much more stringent concept under the Rome Statute. Hence, in the Yamashita case, a commander had the duty to take appropriate steps or measures to prevent abuses on prisoners and civilians by his subordinates. In AP I, a superior is responsible if he fails to take feasible measures to prevent or report violations if he had knowledge or information of the same. In the Medina standard, the same responsibility extends to violations or abuses by subordinates which a commander should have knowledge of, meaning that the commander is now responsible for criminal acts of his subordinates of which he had actual or constructive knowledge. In the ICTY Statute and in the cases of Delalic and Blaskic, the commander is liable if he fails to act when he had reason to know that offenses would be or have been committed by his subordinates. The Rome Statute adopts the stricter should have known standard, in which the commander has an affirmative duty to keep himself informed of the activities of subordinates. Clearly, the indubitable trend in international law is to place greater and heavier responsibility on those who are in positions of command or control over military and police personnel, the only forces with the most lethal weapons at their disposal.
Extrajudicial Killings, Melo Commission Report on Extrajudicial Killings
