A. International principles of command responsibility

The doctrine of command responsibility is codified primarily in the Additional Protocol I to the Geneva Conventions. Its status as customary law was confirmed with the explicit inclusion of command responsibility in the Statutes of the International Criminal Tribunal for the former Yugoslavia (article 7) and the International Criminal Tribunal for Rwanda (article 6), as well as the Rome Statute of the International Criminal Court (ICC).

Additional Protocol I to the Geneva Conventions (1977), article 87

1. 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 persons under their control, to prevent and, where necessary, to suppress and to report to competent authorities breaches of the Conventions and of this Protocol.

2. In order to prevent and suppress breaches, High Contracting Parties and 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 obligations under the Conventions and this Protocol.

3. 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.

Military commanders and other persons occupying positions of superior authority may be held criminally responsible for the unlawful conduct of their subordinates, which includes breaches of international and domestic law. This criminal liability may arise either out of the positive acts of the superior—'direct' command responsibility--or from his culpable omissions--'indirect' command responsibility or command responsibility strictu sensu. A superior can hence be held criminally responsible not only for ordering, instigating or planning criminal acts carried out by his subordinates, but also for failing to take measures to prevent or repress the unlawful conduct of his subordinates.

ICC, article 28

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.

Command responsibility is not a form of strict liability; a commander or superior cannot be responsible for the acts of his subordinates purely based on his position of authority. Several factors need to be established before a superior can be guilty for the acts of his subordinates. These factors were expressly set out by the International Criminal Tribunal for the former Yugoslavia (ICTY) in the Celebici case as follows (and were subsequently codified in the Rome Statute of the ICC):

i.    The existence of a superior-subordinate relationship;
ii.    That the superior knew or had reason to know that the criminal act was about to be or had been committed; and
iii.    That the superior failed to take reasonable measures to prevent the criminal act or to punish the perpetrators thereof.

i.    The superior-subordinate relationship

The existence of a superior-subordinate relationship may be established in two independent ways, depending on whether the source of authority is the state (de jure) or a paramilitary structure (de facto). This stems from the fact that international law extends command responsibility to military structures that are not part of any nation state.

In de jure command, the source of authority can be both the military and the civilian state. In this situation, what matters is not rank, but formal subordination.

In de facto command, international law is interested in effective control as opposed to rank or status. Evidence of de facto control requires proof of superior-subordinate relationship.

The doctrine of command responsibility is predicated upon the power of the superior to control the acts of his subordinates, regardless of whether it is de facto or de jure command.

ii.    Applicable standards of knowledge

In the Celebici case, the ICTY ruled that 'actual knowledge' might be established by either direct or indirect evidence. Furthermore, under article 7 (3) of the ICTY statute, the 'had reason to know' requirement does not allow for the absence of knowledge as a defense where the accused did not take reasonable steps to acquire such knowledge. In accordance with this, the court ruled that in order to satisfy the 'had reason to know' standard in the Celebici case, the commander should have had at least the information to put him on alert. Similarly, in the Blaskic case, the court ruled that ignorance cannot be a defense where the absence of knowledge is the result of negligence in the discharge of duties.

iii.    The duty to prevent or punish

In Blaskic, the ICTY defined the obligation to prevent or punish crimes by stating that this standard does not provide commanders with two alternative paths; where the superior knew or had reason to know about the commission of criminal acts and failed to prevent them, he cannot merely punish the perpetrators and escape from criminal responsibility. It is the superior's responsibility to both prevent and punish.

In the Akayesu case the ICTR stated that it is irrelevant whether the commander could in fact prevent the crimes or not, where he did not even attempt to prevent the commission of the crimes.

B. Domestic application of command responsibility doctrine

The following extract indicates instances where the courts in Sri Lanka have held state officers responsible under the command responsibility doctrine.

Thus, where acts of torture in a police station are concerned for instance, the responsibility of the officer-in-charge (OIC) of that police station has been asserted by the Court on more than one instance. Among the more recent cases is Silva vs Iddamalgoda (2003 [2] Sri LR, 63), where an alleged army deserter arrested by the police, died whilst in remand custody.

In this case, the 1st respondent OIC’s responsibility and liability concerning was not restricted to participation, authorisation, complicity and/or knowledge of the acts of torture and cruelty meted out to the petitioner.

He was held liable due to his not ensuring that the petitioner was being treated as the law required; in other words, by virtue of his culpable inaction including failure to monitor the activities of his subordinate police officers that would have prevented further ill treatment of the petitioner and investigation of any misconduct.

In Wewelage Rani Fernando (SC (FR) No 700/2002, SCM 26/07/2004) prison officials were found liable for the death of a detainee, (even though there was no evidence of their direct implication in the assault on the deceased), on the judicial finding that there had been dereliction of their duties [Kishali Pinto Jayawardene, 'Discussing command responsibility and questions of impunity', Sunday Times, 19 June 2005].

C. Enforcing command responsibility

The following are points taken from vol.1, no. 2 of Command Responsibility, a newsletter published by the AHRC.

What the top ranking police officers in Sri Lanka can do to stop the practice of fabricating cases

Give proper instructions

•    Clear instructions should be given both in writing and orally to desist from the practice of fabricating cases
•    These instructions should be repeated constantly until a change of attitude becomes manifest
•    Clearly instruct that serious consequences will follow if such acts come to the notice of higher officers
•    Include such instructions in training courses

Receiving of complaints

•    Provide opportunities for the public to approach high ranking officers to make formal complaints in writing on such fabrications
•    Promptly and impartially investigate the complaints
•    If proved correct, take action to nullify all proceedings made on the basis of such fabrications
•    Punish and eliminate officers that engage in such practices
•    Provide effective witness protection for those who make complaints against the police

Impose the Penal Code against officers who engage in such fabrications

•    Impose sections 188, 189, 190 and 192 of the Penal Code, which imposes goal sentences and fines for engaging in the fabrication of evidence and giving false evidence
•    Clearly enforce discipline on charges relating to such fabrications

Questions For Discussion

1.    Are you aware of similar applications of command responsibility doctrine in your own country?
2.    What do you think are the main obstacles to such application by the courts?
3.    Discuss how command responsibility can become part of the modus operandi of the police and other institutions.