Command responsibility

LECTURE
BY
MAJ GEN NILENDRA KUMAR
DIRECTOR
LEX CONSILIUM FOUNDATION

ISIL
PG Diploma Course
on
Human Rights, IHL and
Refugee Law

The scope of the lecture is to study
the notion of command
responsibility under the
Conventions, Protocols thereto, ICC
Statute, ICTY and ICTR.
SCOPE :-

COMMAND AND SUPERIOR
RESPONSIBILITY
Command responsibility is
associated foremost with
military commanders, whereas
superior responsibility covers
both military and civilian
leaders.

WHATISCOMMANDRESPONSIBILITY?
It is the legal doctrine of hierarchal responsibility
in war crimes.
It is also known as Yamashita Standard or the
Medina Standard.
Command responsibility can be broadly explained
as the duty to supervise subordinates and liability
in the absence thereto.
It is a commander’s duty that his subordinates
conduct themselves in a civilized manner during
an armed conflict.

EVOLUTION
Post second world
war trials of
Japanese and
German
commanders.
The Tribunal of
Tokyo effectively
dealt with joint
criminal
enterprise.
However,its earlier
background can
be traced from
Lieber Code.

 Article 71 :- Whoever
intentionally inflicts
additional wounds on
an enemy already
wholly disabled or kills
such an enemy or who
orders or encourages
soldiers to do so, shall
suffer death if duly
convicted, whether he
belongs to the army of
the United States, or an
enemy captured after
having committed his
misdeed.

YAMASHITA CASE
General Tomoyuki Yamashita commanded
the Japanese army in the Phillipines from
9th oct 1944 to 3rd march 1945.
His HQ was 125 miles north of Manila.
While defending the city of Manila, the
Japanese forces tortured and killed
thousands of civilians. Yamashita was at
his HQ during the operations and knew
nothing of what was happening in the city.
The communications had been cut off.

Yamashita was charged
with, “Unlawfully
disregarding and failing to
discharge his duty as a
commander, to control the
acts of his command by
permitting them to commit
brutal atrocities and other
high crimes against the
people of the United States
and of its allies and
dependencies particularly
the Phillipines.”
He was sentenced to death
and hanged on 23rd Feb
1946.

DEFENCE OF YAMASHITA
This was a case where Yamashita was himself not directly
accused of atrocities, he took steps to prevent them. But he
either could not communicate with his subordinates or they
disobeyed his orders. He had poor communications with his
units and had no ability to control them physically.

 Due to the nature of military service , an
officer is the leader of the men placed under
him. He commands them. His orders often
require implicit compliance . They are to be
carried out in letter and spirit .
 Severe consequences follow where the orders
of the superior are disregarded by the
subordinates , specially during a war like
situation.
OFFICER

For a better understanding of
command responsibility, it would
be desirable to appreciate the
position, role and authority of
‘officers’ and those subordinate to
them .

 A soldier during the course of his
training undergoes the process of
attestation. He is administered on
oath/affirmation, the text of which ,
clearly indicates the nature of
expectations from him.

 I do solemnly affirm that I will bear true faith and
allegiance to the constitution of India as by law
established and that I will as the duty bound ,
honestly and faithfully serve in the regular Army of
the Union of India and go wherever ordered by land ,
sea or air, and that I will observe and obey all
commands of the President of the Union of India and
the command of any officer set over me even to the
peril of my life.
Oath Affirmation To Be Taken On
Attestation
Army Rule 9

 Strict obedience of orders is not only
expected from the soldiers but it applies
with equal vigor to the officers . This
becomes obvious from the text of the
commission parchment issued to an
officer at the time of commissioning .

To __________ ,Greetings
Reposing special trust in your fidelity, courage and good
conduct do by the present constitution and appoint you to
be Lieutenant in the regular Army from the ___ day of _____
Two Thousand ___.
I therefore charge you to carefully and diligently to discharge
your duty in that rank or in any higher rank to which you may
from time to time hereafter be promoted or appointed, of
which a notification will be made in the Gazette of India,
The President Of India

And to obey such directions as from time to time you shall
receive from one or any of your superior officers and to
observe and execute the rules, regulations and orders for the
Government of the regular Army.
And , I do hereby charge and command the officers and men
subordinate to you to conduct themselves with due respect
and obedience to you as their superior officer.
Given at New Delhi on ___ day of month __ , year ____.
President of India
Integrated Headquarter of MOD (Army)

 During the battle environment , a soldier
would have little time to assess the reason ,
justification , implications and consequences
of an order issued to him by his commander .
It is therefore expected from the superior that
the order ( read command) being issued by
him is proper , justified and legal ( read
lawful).

INGREDIENTS OF A LAWFUL
COMMAND
1. Must relate to a military duty, hence its disobedience
must impede, restrict or delay a military operation.
2. Should be addressed to a specific individual or group of
individuals.
3. Must emanate from a superior military authority.
4. Must have reference to a date or time.
5. Must be capable of individual execution.

demands implicit
obedience and
compliance of orders

OBVIOUSLY, MILITARY HAS NO
PLACE FOR DISOBEDIENCE OF
LAWFUL COMMAND WHICH
CARRIES STIFF PENALTIES

DISOBEDIENCE TO
SUPERIOR OFFICER
Section 41 of the Army Act 1950 :-
1. Any person subject to this act who disobeys in such manner as to
show a willful defiance of authority any lawful command given
personally by his superior officer in the execution of his office
whether the same is given orally, or in writing or by signal or
otherwise , shall, on conviction by court-martial, be liable to suffer
imprisonment for a term which may extend to fourteen years or
such less punishment as in this act mentioned.
2. Any person subject to this Act who disobeys any lawful command
given by his superior officer shall , on conviction by court martial,
If he commits such offence when on active service , be liable to suffer
imprisonment for a term which may extend to 14 years or such less
punishment as is in this Act mentioned ; and
If he commits such offence when not on active service , be liable to
suffer imprisonment for a term which may extend to 5 years or such
less punishment as is in this Act mentioned.

A STRICT VIEW IS TAKEN
OF AN OFFICER WHO
MISBEHAVES WITH A
SUBORDINATE
ILL-TREATING A
SUBORDINATE
Section 47 of the Army Act, 1950:-
Any officer , Junior Commissioned officer, Warrant officer or
Non Commissioned Officer who uses criminal force to or
otherwise ill treats any person subject to this act, being his
subordinate in rank or position, shall on conviction by court
martial, be liable to suffer imprisonment for a term which may
extend to 7 years or such less punishment as is in this Act
mentioned.

It is to be noted that
1. The subordinate has an obligation
to obey only the lawful command .
In other words , an unlawful
command need not be complied
with, and
2. While enforcing his command upon
those subordinate , a superior
cannot or is not allowed to ill treat
or otherwise bully the junior.

CUSTOMARY
INTERNATIONAL
HUMANITARIAN LAW

ESSENTIAL ELEMENTS OF
SUPERIOR RESPONSIBILITY
1. Element of Relationships – Superior subordinate
relationship to link the accused and share who committed
the underlying offences, at the time of commission of the
crime.
2. Element of knowledge – The superior knew that his
subordinates have committed or taken a culpable part in
the commission of the crime or are about to do so.
3. Failure of Superior- To take necessary and reasonable
measures to prevent or punish the offenders.

RULE 151 :-
•Individuals are criminally
responsible for war
crimes they commit.

RULE 152 :-
•Commanders and other
superiors are criminally
responsible for war crimes
committed pursuant to their
orders.

RULE 153 :-
• Commanders and other supervisors 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 person responsible

RULE 154:-
•Every combatant has
the duty to disobey an
unlawful order.

RULE 155:-
•Obeying a superior order does not
relive a subordinate of criminal
responsibility if the subordinate knew
that the act ordered was unlawful or
should have known because of the
manifestly unlawful nature of the act
ordered.

GRAVE BREACHES UNDER
LAW OF WAR
1. Willful Killing
2. Torture or inhuman treatment, including biological
experiments.
3. Willfully causing great suffering or serious injury to
body or health.
4. Extensive destruction and appropriation of property
not justified by military necessity and carried out
unlawfully and willfully.
5. Compelling a prisoner of war or a protected person
under the Fourth Convention to serve in the forces of
hostile power.

6. Depriving a prisoner of war or a protected
person under the Fourth Convention of the
rights of fair and regular trial prescribed in the
Conventions
7. Taking of hostages.
8. Unlawful confinement of protected persons
under the Fourth Convention.
9. Unlawful deportation or transfer of
protected persons under the Fourth
Convention.

WAR CRIMES
A war crime is any
serious violation of
the law of armed
conflict that entails
individual criminal
responsibility.

GRAVE BREACHES
The most serious war
crimes are called grave
breaches. They are
specifically listed in the
Conventions and AP-1.

GRAVE BREACHES
 These have two special aspects, one is the
duty of the contracting partners to take any
legislative measures necessary to establish
adequate penal sanctions to be imposed on
persons who have committed, or have
ordered to be committed any such
breaches. The other is that such breaches
are subject to universal jurisdiction.

A commander is responsible for
ensuring respect for the law . It will be
a great deal easier for him if his
soldiers know what the law is.
The respect for the law of war is really
a matter of discipline .
Discipline is a product of leadership,
professionalism and training.

PROTOCOL I
 Article 86 – Failure to Act
1. The High contracting parties and the
parties to conflict shall repress grave
breaches and take measures
necessary to suppress all other
breaches of the Conventions or of
this period which result from a failure
to act when under a duty to do so.

2. The fact that the breach of the
Conventions or of this protocol was
committed by a subordinate does not
absolve his superiors from penal or
disciplinary responsibility, as the case may
be , if they knew , or have 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 measures within their
power to prevent or repress the breach.

REPRESS AND SUPPRESS
Repression means subdue by
force , restrain , prevent or
inhibit.
 Suppress means forcibly put
an end to , prevent the
development , action or feeling
impulse , idea etc, restrain.

To repress is :-
- To hold back, or
- To put down by force.
Suppress is broader and more
common, means ,
 To put an end to ,
 To inhibit, and
 To keep from being revealed.

The term “ Repression” has
been used in context of grave
breaches . The term “Suppress”
appears in relation to all acts
contrary to the Conventions
other than grave breaches.

*
*The term ‘act’ used in
the conventions should be
understood to mean
‘conduct’, as it also
covers failure to act i.e.
omission.

Difference between Command and Control
• Command and Control are inter related .
Command resides with commanders. It
consists of authority, decision making and
leadership. Control is how commanders
execute their command .
• Command is insufficient without control.

ARTICLE 87 – Duty of Commanders
• The high contracting parties and the parties to
the conflict shall require military commanders ,
with respect to members of the armed forces
under their command and other person under
their control, to prevent and , where necessary ,
to suppress and report to competent authorities
breaches of the Conventions and of this Protocol.

• In order to prevent and suppress breaches
, High Contracting Parties to the conflict
shall require that , commensurate with
their level of responsibility , commanders
ensure that members of the Armed Forces
under their command are aware of their
actions under the Convention and this
Protocol

• The High Contracting Parties and Parties to the
conflict shall require any commander who is
aware that subordinates or other persons under
his control are going to commit or have
committed a breach of the Conventions or of this
Protocol, to initiate such steps as are necessary
to prevent such violations of the Conventions or
this protocol and where appropriate, to initiate
disciplinary or penal action against violators
thereof.

ICC STATUTE – Article 28
• Also known as the Rome Statute, Article 28 states as follows :-
RESPONSIBILITY OF COMMANDERS AND OTHER SUPERIORS - 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.

INTERNATIONAL CRIMINAL
TRIBUNAL FOR THE FORMER
YUGOSLAVIA (ICTY)

ARTICLE 7(3)
The fact that any of such acts referred to in
Articles 2 to 5 of the present statue was
committed by a subordinate does not
relive 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.

INTERNATIONAL
CRIMINAL TRIBUNAL
FOR RWANDA (ICTR)

ARTICLE 6(3)
The fact that any of the acts referred to in Articles
2 to 4 of the present statute was committed by a
subordinate does not relieve his or her superior of
criminal responsibility if he or she 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
measure to prevent such acts or to punish the
perpetrators thereof.

THE KORDIK AND CERKEZ
CASE
• Conflict between the Muslims and Croats
took place in Central Bosnia during 1992-
1995. Both the accused had played prominent
parts in that conflict. Dario Kordić was an
influential politician of the area. Mario
Čerkez, commanded a brigade of the Croat
armed forces of Bosnia. The charges against
them were based on war crimes committed
during the conflict.

• Their indictment contained 44 counts. It charged
each accused with eight grave breaches of the
Geneva Conventions, ten violations of the laws
or customs of war and four crimes against
humanity. The first two counts charged the
accused with persecution, a crime against
humanity. The other charges related to murder,
inhuman treatment, detention and destruction.

PROSECUTION CASE
• The prosecution contended that Kordic and Cerkez
should be held criminally responsible for participation in
various meetings held at Hotel Vitez :-
(a) Participation in the military planning of the attack on
Ahmići;
(b) Providing assistance to the military police units
involved in the attack by way of providing means of
transportation and preventing UNPROFOR from
entering the Ahmici area; and
(c) Performing physical acts of persecution by detaining
Muslims in Ahmici .

• It was alleged that the accused had
participated in a widespread or
systematic persecution of the Bosnian
Muslims of the region culminating in a
series of attacks over a two year
period on towns and villages in the
Lašva Valley and surroundings. Many
Muslim civilians were killed, seriously
wounded or detained. Their homes
were burned. Towns, villages and
places of worship were destroyed, and
property plundered.
• Both the accused were found guilty
and convicted by the trial chamber .

• The trial took over 20 months
to conclude. It saw a great
deal of evidence led before
the court. In all, 241
witnesses gave evidence and
over 4,500 exhibits were
produced. The transcript ran
to 28,000 pages.

• The Trial Chamber’s findings on the counts of
the indictment are as follows.
• Counts 1 and 2: crimes against humanity and
persecutions
• Counts 3 - 6: violations of the laws or
customs of war (unlawful attack on civilians).
• Counts 7 - 20: crimes against humanity, grave
breaches of the Geneva Conventions, and
violations of the laws or customs of war
(murder, willful killing, inhumane acts,
willfully causing great suffering or serious
injury, inhuman treatment).
• Both the accused were found guilty.

•On remaining 24
counts both were
found guilty of
some and not
guilty of others

APPEAL CHAMBER
• Kordic disowned any responsibility for the events
forming subject matter of the charges.
• The appeal chamber held that Kordic and
Cerkez were present at various meetings with
different groups of people on 15th April 1993 at
Hotel Vitez. This showed their knowledge and
awareness of the crimes that were planned and
committed thereafter.

•Dario Kordić, was sentenced
to 25 year imprisonment &
Mario Čerkez was sentenced
to 15 year imprisonment by
the International Criminal
Tribunal for the former
Yugoslavia (ICTY).

RECOMMENDED
READING
• The Army Act ,1950
• Customary International Humanitarian law,Vol
I Rules by Jean Marie Henckaerts and Louise
Doswald Beck
• Elements of war crimes under the Rome Statute
of the International Criminal Court by Knut
Dormann.
• Commentary of the Additional Protocols of 8th
June 1977 by ICRC.

• HandBook of IHL and Human Rights Law for
the use of armed forces and police by Lt Col
David L Roberts and Dr S Subramaniam ,IPS
(Retd).

CONCLUSION
• Adherence and dissemination of law
of war requires that the commanders
and superiors are made to answer and
account for the grave and other
breaches of the Conventions and the
Protocol

Command responsibility

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