Command responsibility

A superior may be held accountable for crimes committed by their subordinates. This is the case when:

there is a clear superior-subordinate relationship;
the superior knew or had reasons to know that a criminal conduct by a subordinate was about to be, was being or had been committed;
if the superior failed to take reasonable measures to prevent or punish the conduct.

States party to the 1949 Geneva Conventions and their Additional Protocols are under the obligation to respect and enforce the respect for humanitarian law in situations of armed conflict. They must also punish individuals who violate such laws.

To ensure that these obligations are respected, humanitarian law imposes a precise definition of “armed forces” on States that allows commanders to control combatants through a system of internal hierarchy, organization, and discipline. This chain of command helps determine the different levels of responsibility and culpability of combatants and different ranks of military command.

The principle of authority is always coupled with that of responsibility. In situations of international armed conflict, international humanitarian law clearly and precisely establishes the duties and responsibilities of commanders:

Commanders must ensure that members of the armed forces under their command are aware of their obligations under the Geneva Conventions and their protocols;
Military commanders must prevent members of the armed forces under their command and other persons under their control from committing breaches of the Geneva Conventions and their additional protocols. When necessary, they must punish and report perpetrators of such breaches to competent authorities.
Any commander who is aware that subordinates or other persons under his or her control are going to commit, or have committed, a breach of the Genevan Conventions and their additional protocoles, must initiate such steps as are necessary to prevent such violations and, where appropriate, initiate disciplinary or penal action against the individuals who commit such violations. Otherwise, he or she can be held responsible for the crimes committed by the subordinates.

Other provisions of international humanitarian law also emphasize the specific responsibility of military commanders in international armed conflicts, including on a criminal level:

Commanders must do everything feasible to spare civilian persons and objects when planning or authorizing attacks (API Art. 57).
The penal or disciplinary responsibility of a superior officer is not alleviated by the fact that a violation of humanitarian law was committed by a subordinate, if the superior knew—or had information at the time that should have enabled him or her to conclude—that the subordinate was committing or was going to commit such a breach and did not take all feasible measures within his or her power to prevent or repress the breach (API Art. 86.2).
If a situation is not specifically foreseen or referred to in the Geneva Conventions, or if details of implementation or execution are not provided, a commander-in-chief may not use such absence of a direct reference to justify complete freedom of action. In such cases, the parties to the conflict, acting through their commander-in-chief, have the responsibility to make decisions on unforeseen cases, in conformity with the general principles of the Conventions (GCI Art. 45, GCII Art. 46).

The provisions governing the duty of commanders in situations of internal armed conflicts are not as explicit. However, Additional Protocol II posits that all parties to a conflict are under the obligation to respect humanitarian law, and the armed group involved must be “under [a] responsible command [which is able] to implement this Protocol” (APII Art. 1.1). The provisions governing the duty of commanders, included in Additional Protocol II, can thus always be interpreted according to the rules governing international armed conflicts.
The study published by the ICRC in 2005 on the rules of customary international humanitarian law has confrmed the duty of commanders in both international and non-international armed conflicts. Rule 152 of the customary IHL study provides that “commanders and other superiors are criminally responsible for war crimes committed pursuant to their orders,” while Rule 153 prescribes that “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.” Both rules are applicable in international and non-international armed conflicts.
The implications of the duties of commanders have been analyzed by the International Criminal Tribunals, in particular with regard to their criminal liability for acts or omissions committed by themselves or by their subordinates.