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Dictionary of Gross Human Rights Violations

Command Responsibility

This is the legal principle that a leader is responsible for those subordinates that he/she exercises effective control over. In other words, a commander is responsible for the criminal actions of those he/she commands. This principle dates back to the Nuremberg Tribunal and is found today in the statutes of the International Criminal Court (ICC, Article 28), International Criminal Tribunal for the Former Yugoslavia (ICTY, Article 7 (3)), the International Criminal Tribunal for Rwanda (ICTR, Article 6 (3)), and the Special Court for Sierra Leone (Article 6 (3)). In order for an individual to incur criminal responsibility on the grounds of command responsibility three conditions must be present. Firstly, there needs to be a superior-subordinate relationship between the perpetrators of the crime and their superiors. This relationship can be de facto (without a formal chain of command) or de jure. A de facto superior-subordinate relationship may also include civilian leaders if they are shown to exercise effective control (either directly or indirectly). Effective control was defined in the Celebici case at the ICTY as “a material ability to prevent or punish criminal conduct, however that control is exercised.”

Secondly, the requisite mental element (mens rea) is that the superior must have known that their subordinate was going to engage in illegal acts or had reason to know. In the second scenario, the commander may have had some information that their subordinate was going to commit an illegal act but failed to seek further information.

Thirdly, the failure to prevent or punish. If a commander had the ability to prevent or punish illegal acts but failed to do so, he/she is criminally liable.

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