Melo Commission Report: Findings

Feb. 23, 2007

2. Command Responsibility as Binding Customary International Law

As early as 1949, the Philippine Supreme Court had the occasion to rule that the Hague Convention, including the doctrine of command responsibility, was adopted as a generally accepted principle of international law by the Philippines. In this case, shortly after the end of World War II, Shigenori Kuroda, a Lieutenant General in the Japanese Imperial Army, questioned before the Supreme Court the creation of a military tribunal that tried him for his command responsibility in failing to prevent his troops from committing abuses and atrocities against the Filipino populace during World War II. He claimed that the Hague Convention on Rules and Regulations covering Land Warfare, of which he was accused of violating, among others, was inapplicable since the Philippines was not yet a signatory or party to it when the alleged violations took place.

In ruling against Kurodas objection, the Supreme Court of the Philippines[91] categorically stated that while the Philippines was indeed not a party or signatory to the Hague Convention at the times in question, it nonetheless embodied generally accepted principles of international law adopted by the 1935 Constitution as part of the law of the land. The Supreme Court, through Chief Justice Moran, stated:

It cannot be denied that the rules and regulations of the Hague and Geneva conventions form part of and are wholly based on the generally accepted principles of international law. In fact, these rules and principles were accepted by the two belligerent nations, the United States and Japan, who were signatories to the two Conventions. Such rules and principles, therefore, form part of the law of our nation even if the Philippines was not a signatory to the conventions embodying them, for our Constitution has been deliberately general and extensive in its scope and is not confined to the recognition of rules and principles of international law as contained in treaties to which our government may have been or shall be a signatory.[92]

Even without Kuroda, the doctrine of command responsibility has truly acquired the status of customary international law, and is thus binding on all nations despite the lack of any ratified treaty embodying it, at least insofar as the Philippines is concerned. Its long and universally accepted application since WWI until the present allows this. In fact, based on the jurisprudence of the ad hoc international tribunals, and of other international tribunals and national courts, as well as on state practice, no less than the International Committee on the Red Cross (ICRC), has pronounced the following as a rule of customary international humanitarian law, in both international and non-international armed conflicts, binding on all States:

Rule 153. Commanders and other superiors are criminally responsible for war crimes committed by their subordinates if they knew, or had reason to know, that the subordinates were about to commit or were committing such crimes and did not take all necessary and reasonable measures in their power to prevent their commission, or if such crimes had been committed, to punish the persons responsible.[93]

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