onsibility of commanders and other superiors, and is divided in two sections. Paragraph (a) deals with the responsibility of military commanders. Paragraph (b) details the responsibility of commanders of civilian authorities.
Military commanders
Military commanders may be held responsible for crimes committed by their soldiers if the commanders knew or should have known that the crimes had been committed, and if they neglected to take the necessary measures for preventing or repressing the commission of these crimes. The responsibility of military commanders involves three essential elements:
- effective command and control over the persons committing the crimes;
- the commander knew of or should have known that a crime was about to be committed or had already been committed;
- the commander did not take all necessary and reasonable measures within his or her power to prevent the crime or punish the perpetrator.
Non-military superiors
Non-military superiors may be held responsible for crimes committed by their subordinates when they had knowledge of, or consciously disregarded information which clearly indicated that the subordinates were committing or about to commit ICC crimes; when the crimes were connected to activities under the control of the superior; and when the superior neglected to take the necessary measures for preventing or repressing the crimes or to inform civilian authorities with competency to investigate and initiate appropriate judicial proceedings. The elements of the offence are the same for non-military commanders, with the exception of the element concerning knowledge of commission of crimes. Article 28(b) of the Statute indicates that in the case of a civilian commander, the level of proof required in order to convict is higher than that required for military superiors. Either knowledge of the crime's commission or a conscious disregard of pertinent information must be demonstrated. In other words, to establish the guilty intent of a non-military superior, it is necessary to show that information indicating the significant possibility that subordinates had committed or were about to commit a crime was available, that the superior was in possession of this information, and he or she decided not to act on it. The civilians targeted by these provisions are political leaders, business people and high officials. Military commanders are held to a stricter standard under international humanitarian law because military structure and the need to maintain military discipline make this necessary and appropriate.
Subordinates
The presence of a hierarchy of power is a necessary condition to the determination of responsibility of a superior. However, power does not derive solely from the official title of the accused person. The determining factor is the effective exercise of authority and control over the actions of subordinates. Control can be officially conferred or simply exercised. Also, the legal power to lead subordinates does not constitute an absolute condition for establishing responsibility of the commander, who may in some cases be part of an indirect line of command. For example, military leaders can be held responsible for acts committed by individuals who are not officially under their control in the chain of command, but on whom they could have exercised in fact power to prevent or repress the commission of a crime.
Omission to take necessary measures
A superior can only be held responsible for omitting to take measures that were within his or her capacity to take. Therefore, even if a superior did not officially have the power to take measures concerning offences that had been committed, he or she can be held responsible if it is demonstrated that in the circumstances, he or she could have acted.
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