PROPOSING THE INCORPORATION OF THE DOCTRINE OF COMMAND

RESPONSIBILITY INTO THE INTERNATIONAL HUMAN RIGHTS CONTEXT

By Sarah Dávila A.

In a continent where there is widespread, systematic, and state-sponsored denial of

human rights, there is an urgent need for providing the Inter-American Court (hereinafter

“Court”) and the Inter-American Commission (hereinafter “Commission”) with the necessary

tools for ensuring the protection of human rights in the region. In an effort to provide such tools,

this paper proposes the incorporation of the doctrine of command responsibility to the human

rights context. This doctrine would serve two purposes. First, it would provide a standard for

determining the extent of the superiors’ participation in the unlawful actions by their

subordinates. This would, of course, determine the responsibility of the state vis-à-vis the

actions of its state-agents. Second, the doctrine would aid states in incorporating human rights

protections into their military hierarchy. States could train military forces to comply with such a

standard so that they would also systematically comply with regional and international human

rights instruments. In no way is this paper proposing that the human rights system interferes

with the domestic criminal law systems of the Organization of American States’ member states.

Under this proposition, the doctrine would serve only as a tool to determine the level of

participation by a commander or superior in relation to the human rights violations committed by

his or her subordinates. The application of this doctrine is particularly helpful in situations

where human rights violations are so grave and frequent that they are regarded as a state-

sponsored policy, and where governments are reluctant to investigate deaths or violations

committed by military or law enforcement agencies.

1
 I. SYSTEMATIC STATE-SPONSORED POLICIES

Planned, systematic, and grave violations of human rights cannot be regarded as isolated

or individual instances of illegal behavior on the part of public officials.1 Governments with

such policies are extremely reluctant to investigate deaths where military or law enforcement

agencies are involved.2 As recognized by the Inter-American Court of Human Rights, states that

implement counter-insurgency mechanisms do so in a systematic and generalized manner.3

States have resorted to the systematic practice of forced disappearances as a method to eliminate

members or those suspected of belonging to subversive organizations. Similarly, the Inter-

American Commission on Human Rights recognized that from 1984-1993, Perú engaged in the

systematic practice of extra-legal, arbitrary or summary executions, through its agents, and in

conjunction with the practice of forced disappearances.4 These practices were coordinated as

counter-insurgency efforts, and justified under the auspices of “state of emergency.”5 States use

the concept of “state of emergency” as a justification to implement their systematic practice of

arbitrary or summary executions, as well as forced disappearances.6

1
U.N. Econ. & Soc. Council [ECOSOC], Commission on Human Rights, Joint Report of the Special Rapporteur on
the Question of Torture, Mr. Nigel S. Rodley, and the Special Rapporteur on Extrajudicial, Summary or Arbitrary
Executions, Mr. Bacre Waly Ndiaye, Submitted pursuant to Commission on Human Rights Resolutions 1994/37 and
1994/82, ¶ 109, U.N. Doc. E/CN.4/1995/111 (Jan. 16, 1995).
2
Id. ¶ 109. See also DANIEL O’DONNELL, PROTECCIÓN INTERNACIONAL DE LOS DERECHOS HUMANOS (Lima,
Comisión Andina de Juristas, 2d ed. 1989); NIGEL S. RODLEY, THE TREATMENT OF PRISONERS UNDER
INTERNATIONAL LAW 144-64 (Oxford Clarendon Press, 1987); W. Paul Gormley, The Right to Life and the Rule of
Non-Derogability: Peremptory Norms of Jus Cogens, in THE RIGHT TO LIFE IN INTERNATIONAL LAW 120-44 (B.G.
Ramcharan, ed., Oxford Clarendon Press, 1987).
3
Gómez Palomino v. Perú, Inter-Am. Ct. H.R. (ser. C) No. 136, ¶ 54.1 (2005).
4
Extrajudicial Executions and Forced Disappearances v. Perú, Case 10.247, Inter-Am. C.H.R., Report No. 101/01,
OEA/Ser.L./V/II.114, doc. 5 rev. ¶ 163 (2001).
5
Id. ¶ 170.
6
See Myrna Mack Chang v. Guatemala, Inter-Am. Ct. H.R. (ser. C) No. 101, ¶¶ 134.2, 134.6, 134.7 (2003)
(Guatemala justified arbitrary and summary executions due to the threat that some individuals posed to the national
security of the State. For example, anthropologist Myrna Mack was executed due to the “threat” that her political

2
 As in Perú, Guatemalan state-agents were responsible for repressing, silencing, and

controlling the population by terrorizing it, and “physically eliminating” any person who

opposed the state.7 These state-sponsored policies were generally directed and carried out by the

intelligence branch of the Guatemalan State.8 Such operations were conducted through the

following process. First, the individual was identified as the object of the operation.9 Then,

sufficient information was compiled to determine the person’s daily routine.10 This compiled

information was subsequently “evaluated and interpreted [for the purpose of] planning the

operation.”11 During the planning of the operation, decisions were made as to the personnel’s

assignment of duties, who was to be in supervisory positions, the vehicles and weapons to be

used, and lastly, whether the operation would be public or covert.12

In such state-sponsored policies, states acquiesce to the conspicuous cooperation between

military authorities committing such violations and those responsible for conducting the

appropriate investigations. Many times, reports submitted by state authorities contain

contradictions and fail to fulfill the requirement of an “effective investigation” due to the

involvement of the same or affiliated state-agents in the operations. 13

motivations posed and due to her involvement in her studies of the Guatemalan state toward the displaced
indigenous populations. She was closely monitored and then executed by a military intelligence operation directed
by the security forces of the Guatemalan state. Such systematic policies were part of governmental efforts for
“social cleansing” to “annihilate those considered enemies of the State.”).
7
Id. ¶ 134.10.
8
Id. ¶ 134.11.
9
Id.
10
Id.
11
Myrna Mack Chang, Inter-Am. Ct. H.R. (ser. C) No. 101, ¶ 134.11.
12
Id.
13
Akkum and Others v. Turkey, App. No. 21894/93, 43 Eur. Ct. H.R. Rep. 526, 537, ¶ 41 (2005).

3
 For instance, in Guatemala, counter-insurgency strategies were coupled with tactics

designed to obstruct judicial processes that otherwise investigate potential violations and punish

parties responsible for those violations.14 In many occasions, state tribunals have acted as

subordinates of the executive or military branches, which have led to the application of norms

contrary to the state’s obligations.15 Many times, the authorities in charge of investigating and

sanctioning those responsible are the same that illegitimate or destroy the evidence pointing to

the responsibility of the agents of the state.16 Their lack of impartiality and disruptive tactics

result in the obstruction of the investigative processes. The European Court has held that where

violations are solely, or to a large extent, within the knowledge of authorities, there is “[a] strong

presumption of fact” in favor of the culpability of the state regarding the injuries and deaths that

have occurred.17

In other instances, states use ad hoc military tribunals to judge civilians for offenses

against security in a state of emergency, a practice rejected by both the Inter-American

Commission and Court.18 The justification for such a criticism is that such tribunals generally

lack the independence and the minimum protections that should be afforded in just and impartial

judicial processes.19 In such tribunals, military authorities play a dual role.20 They assume the

role of judges, while continuing as subordinates within the military hierarchy.21

14
Myrna Mack Chang, Inter-Am. Ct. H.R. (ser. C) No. 101, ¶ 134.12.
15
Id. ¶¶ 134.12-134.13.
16
Genie Lacayo v. Nicaragua, Inter-Am. Ct. H.R. (ser. C) No. 30, ¶¶ 68, 76 (1997); see also Akkum and Others, 43
Eur. Ct. H.R. Rep., ¶¶ 62-70, 203.
17
Akkum and Others, 43 Eur. Ct. H.R. Rep., ¶ 210.
18
Inter-Am. C.H.R., Report on Terrorism Part I, ¶ 230, OEA/Ser.L./V/II.116, doc. 5 rev. 1 (Oct. 22, 2002).
19
Id.

4
 A common feature of the dual role of the military hierarchy is the persistent failure of

public prosecutors to pursue complaints initiated by individuals where security forces were

involved in the unlawful act.22 The European Court has found that such defects of the judicial

system undermine the effectiveness of the protection afforded by the internal criminal system.23

Many times, it is the commander or superior who does not take the investigative step necessary

to inquire about the facts and circumstances surrounding the unlawful act.24 The purpose of this

investigative step is to secure the effective implementation of domestic laws protecting the right

to life in situations where state-agents are the perpetrators of unlawful acts.25 Such a step would

theoretically ensure that there is accountability for deaths occurring under the superior’s

responsibility.26 The superior(s) or authorities would account for individuals under their control

by requiring them to take effective measures against the risk of disappearance and to conduct

prompt and effective investigations regarding arguable claims of disappearance.27 This

responsibility has been recognized in life-threatening circumstances or when an individual is

20
In the European Court of Human Rights, Turkey supported the practice of its security forces of labeling certain
individuals as “terrorists” and subsequently allowing for the omission of evidence in the investigations of deaths
carried out by the same security forces. One of the military commanders in charge of supervising the report was the
same commander responsible for the planning of the operation. See Akkum and Others, 43 Eur. Ct. H.R. Rep., ¶¶
62-70.
21
Report on Terrorism Part I, supra note 18, ¶ 231; see also Inter-Am. C.H.R., Report on the Situation of Human
Rights in Chile, Ch. VIII, ¶ 140, OEA/Ser.L./V/II.66, doc. 17 (Sept. 9, 1985); Inter-Am. C.H.R., Third Report on the
Situation of Human Rights in Colombia, Ch. V, ¶ 25, OEA/Ser.L./V/II.102, doc. 9 rev. 1 (Feb. 25, 1999).
22
See Kiliç v. Turkey, App. No. 22492/93 33, Eur. Ct. H.R. Rep. 1357, 1401 (2001).
23
Id.
24
Id. at 1402-03.
25
Akdeniz v. Turkey, App. No. 25165/94, Eur. Ct. H.R. 334, ¶ 103 (2005); see also Adali v. Turkey, App. No.
38387/97, Eur. Ct. H.R. 199 (2005).
26
Akdeniz, App. No. 25165/94, Eur. Ct. H.R. 334, ¶ 103.
27
Id. ¶ 129.

5
detained by the security forces.28 The European Court of Human Rights has recognized that in

situations where such a defective system exists, there is no effective investigation and such a

system allows or fosters a lack of accountability regarding the actions by the members of the

security forces.29

Once a state has created a situation of risk, which is not suppressed or corrected and

promotes impunity, the state’s international obligation is compromised.30 The creation of these

practices imposes on the state a special obligation to prevent and investigate violations resulting

from these practices.31 Once these mechanisms exist, the state has an affirmative responsibility

to prevent such acts, protect the population, and diligently investigate the acts or omissions of

such agents.32 The obligation includes the appropriate, diligent, and preventive protection of the

population living in the area in which there is a hazardous situation.33

The latest judgment from the Inter-American Court incorporated to a great extent a more

flexible standard similar to that of command responsibility. The Inter-American Court held in

Montero Aranguren that states have the duty to monitor their security forces.34 More

specifically, states have the duty to monitor security forces employing the use of force, in order

to assure that the right to life is ensured in their jurisdiction.35 It reinforced that states have the

28
Id. ¶ 131.
29
Kiliç, App. No. 22492/93 33, Eur. Ct. H.R. Rep., ¶ 75.
30
Pueblo Bello Massacre v. Colombia, Inter-Am. Ct. H.R. (ser. C) No. 140, ¶ 151 (Jan. 31, 2006).
31
Id. ¶¶ 126, 151.
32
Id. ¶ 126.
33
Id. ¶ 151.
34
Montero Aranguren and Others (Retén de Catia) v. Venezuela, Case 149, Inter-Am. Ct. H.R. (ser. C) No. 150, ¶
66 (July 5, 2006).
35
Id. at ¶ 66.

6
duty to adopt the appropriate measures to eliminate any existing threat on the right to life and

must establish an effective judicial system that is able to investigate, punish, and provide redress

for those who have been deprived of their rights to life by state-agents.36 The Court recognized

this duty in Baldeón García, Sawhoyamaxa, and Pueblo Bello.37

The Court also asserted that adopting appropriate legislation is not sufficient if states do

not train their armed and security forces regarding the limits which constrain their actions vis-à-

vis violations of human rights.38 Even if agents of the state are prohibited from depriving

individuals of their right to life, in practice, such prohibitions are ineffective without the proper

procedures to monitor the legality of the use of force by state-agents.39 Once the state receives

information regarding the commission of unlawful acts (through the use of force) by its agents, it

has a duty to, immediately and without delay, conduct an effective and independent

investigation.40 In every case that the state’s use of force caused death or an injury to a person,

the state has the duty to provide an appropriate and convincing explanation of what occurred, and

respond to the allegations made regarding its responsibility through sufficient evidence of

proof.41 Additionally, there is a particular need for the adoption of reasonable measures to

36
Montero Aranguren, Case 149, Inter-Am. Ct. H.R. (ser. C) No. 150, ¶ 66; Baldeón García v. Perú, Inter-Am. Ct.
H.R. (ser. C) No. 147, ¶ 85 (Apr. 6, 2006); Comunidad Indígena Sawhoyamaxa v. Paraguay, Inter-Am. Ct. H.R.
(ser. C) No. 146, ¶ 153 (Mar. 29, 2006); Pueblo Bello Massacre, Inter-Am. Ct. H.R. (ser. C) No. 140, ¶ 120.
37
See id.
38
Montero Aranguren, Case 149, Inter-Am. Ct. H.R. (ser. C) No. 150, ¶ 77.
39
Id. ¶ 79.
40
Id.
41
Id., ¶ 80.

7
assure that the necessary evidence for the investigations is preserved, and that there is both a de

jure and de facto independence of the authorities in charge of such an investigation.42

The following sections will discuss the theories of individual and command

responsibility. Both theories provide an analytical framework within the context of state

responsibility.

II. INDIVIDUAL RESPONSIBILITY

The concept of individual responsibility imposes criminal liability on an individual for

engaging in criminal activity where the individual “planned, instigated, ordered, committed or

otherwise aided and abetted in the planning, preparation and execution of the crime . . ..”43 In

order for individual responsibility to be found, both the actus reus and mens rea elements must

be met. The actus reus element requires that the individual participates and contributes in some

way in the commission of the illegal act.44 The prosecution must prove that the defendant’s

act(s) or omission(s) “contributed substantially to the commission of a crime and that, depending

on the mode of participation in question, he was at least aware that his conduct would so

contribute to the crime.”45 On the other hand, mens rea is the actor’s knowledge, intent, or

awareness of his participation in the crime.46 In order for the mens rea requirement to be

fulfilled, “it is necessary that the act of participation be undertaken with knowledge that it will

42
Id. ¶ 81.
43
Prosecutor v. Kayishema & Ruzindana, Case No. ICTR 95-1-T, Judgment, ¶ 191 (May 21, 1999).
44
Id. ¶ 198.
45
Id. ¶ 207.
46
Id. ¶ 198.

8
contribute to the criminal act of the principal.”47 It is, however, imperative to note that in order

for mens rea to be found, it is not necessary for the intent be expressly stated.48 It is sufficient

for the court to infer intent from the relevant circumstances.49

III. COMMAND RESPONSIBILITY

In the case where an individual in a position of authority is not held responsible under the

doctrine of individual responsibility, he or she can still be held criminally liable under the

doctrine of superior responsibility. The doctrine of superior criminal responsibility is also

commonly known as “command responsibility.”50 In the following sections, both names will be

used interchangeably.

For command responsibility to be found, the following elements must be met: 1) the

existence of a superior-subordinate relationship between the commander (the accused) and the

perpetrator of the crime; 2) the accused knew or had reason to know that the crime was about to

be or had been committed; and 3) the accused failed to take the necessary and reasonable

measures to prevent the crime or punish the perpetrator.51

47
Prosecutor v. Delalic (Celebici Judgment), Case No. ICTY, IT-91-21-T, Judgment, ¶ 328 (Nov. 16, 1998). “[T]he
accused need not have the same mens rea as the principal offender. Whilst knowledge or intention will give rise to
individual responsibility . . . the distinction is only of importance in distinguishing whether the accused aids or abets
a crime or is a co-perpetrator.” Kayishema, Case No. ICTR 95-1-T, Judgment, ¶ 205. See also Prosecutor v.
Furundija, Case No. ICTY, IT-95-17/1-T, Judgment, ¶¶ 250-257 (Dec. 10, 1998).
48
Celebici Judgment, Case No. ICTY, IT-91-21-T, Judgment, ¶ 328; see also Prosecutor v. Tadic, Case No. IT-94-
1-l, Judgment, ¶ 676 (May 7, 1997).
49
Celebici Judgment, Case No. ICTY, IT-91-21-T, Judgment, ¶ 328.
50
Id. ¶ 331.
51
Statute of the International Criminal Tribunal for the Former Yugoslavia, S.C. Res. 827, U.N. Doc. S/RES/827
(May 25, 1993); Rome Statute of the International Criminal Court, U.N. Doc. A/CONF.183/9 (July 17, 1998);
Celebici Judgment, Case No. ICTY, IT-91-21-T, Judgment, ¶ 346.

9
 A. Superior-subordinate relationship

Unlike individual responsibility, the doctrine of command responsibility imposes

criminal responsibility on a commander or person in a similar authoritative capacity due to his

responsibility as a superior toward his subordinates.52 For responsibility to be imposed, it is key

to determine the type of authority and control that the superior exerts over his subordinates.53

Generally, courts will look at the degree of control that the superior exerted in order to determine

the extent of his action or inaction in relation to those of his subordinate. “It is sufficient if there

exists, on the part of the accused, a de facto exercise of authority.”54 The critical factor in

determining the exercise of command responsibility is “actual possession” or “non-possession”

of control authority over the subordinate’s actions.55 Consequently, when there is de facto

control and actual exercise of command on the subordinates, proving that there is de jure

authority is not a requisite to find that a superior is responsible for the criminal acts of his

subordinates.56

“[T]he influence that an individual exercises over the perpetrators

of the crime may provide sufficient grounds for the imposition of
command responsibility if it can be shown that such influence was
used to order the commission of the crime or that, despite such de
facto influence, the accused failed to prevent the crime.”57

52
Celebici Judgment, Case No. ICTY, IT-91-21-T, Judgment, ¶ 331.
53
Kayishema, Case No. ICTR 95-1-T, Judgment, ¶ 229 (“This material ability to control the actions of subordinates
is the touchstone of individual responsibility.”).
54
Celebici Judgment, Case No. ICTY, IT-91-21-T, Judgment, ¶ 646.
55
Id. ¶ 736.
56
Id.
57
Kayishema, Case No. ICTR 95-1-T, Judgment, ¶ 492; see also Celebici Judgment, Case No. ICTY, IT-91-21-T,
Judgment, ¶¶ 375-76.

10
 Along with the possibility of imposing liability on a person with de facto control, it is

possible to impose liability on an individual that has a different title or position of authority

outside of the military apparatus. For example, in Celebici Judgment, the International Criminal

Tribunal for Former Yugoslavia (“ICTY”) made reference to the Commission of Experts Final

Report and concurred with the assertion that in most cases in which the doctrine of command

responsibility was applied, the individuals involved were military, paramilitary, political leaders

or public officials.58 This extends superior responsibility to those who are not necessarily in

positions within a military structure.59 Similarly, the applicability of the doctrine encompasses

civilian leaders in positions of authority in addition to the political leaders who are similarly

situated.60 The Trial Chamber in Celebici Judgment endorsed the International Law

Commission’s view that the doctrine of superior responsibility extended to civilian superiors to

the extent that they exercised a degree of control over their subordinates similar to that of

military commanders.61 Superiors, therefore, need to exercise and have the “material ability to

prevent and punish the commission” of the offenses.62 This “material ability” is dependent on

the power to prevent and repress the crimes committed by the subordinates.63 A failure to do so

in a diligent manner would impose liability on the superior for his failure to prevent the crime

from occurring.64 This is especially important for military commanders. A military commander

58
Celebici Judgment, Case No. ICTY, IT-91-21-T, Judgment, ¶ 357.
59
Id. ¶ 356.
60
Id.
61
Id. ¶ 378.
62
Id. ¶ 377.
63
Id.
64
Id.

11
has an enhanced and active duty to inform himself of the activities of his subordinates, more so

than another superior who is not of military capacity.65

B. “Knew or had reason to know”

The second element for superior responsibility is the mens rea which is measured by the

“knew or had reason to know” standard. Under customary international law, it is well accepted

that it is sufficient for a superior to be put on notice to further inquire about the information, or

that the circumstances pointed to the necessity of further inquiry.66 A superior may be held to

have sufficient knowledge or reason to further inquire of a violation if he possessed sufficient

information to be on notice of the violation.67 If, however, he exercised due diligence in the

fulfillment of his duties, yet lacked knowledge that the crimes were about to be or had been

committed, then such lack of knowledge cannot be held against him.68 Accordingly, once the

commander knows or has reason to know about a crime that will occur or had occurred, the third

element is triggered.69 Under this third element, the superior has to take the reasonable and

necessary measures to prevent or punish the crime.70

65
Kayishema, Case No. ICTR 95-1-T, Judgment, ¶ 227.
66
Celebici Judgment, Case No. ICTY, IT-91-21-T, Judgment, ¶ 393.
67
Prosecutor v. Kordic & Cerkez, Case No. IT-95-14/2, Judgment, ¶ 434 (Feb. 26, 2001).
68
Celebici Judgment, Case No. ICTY, IT-91-21-T, Judgment, ¶ 378.
69
The type, number and purpose of illegal acts; duration of the illegal act; number and type of troops involved; the
existing logistics at the time; geographic location of acts; speed in developing the operation; modus operandi of
other similar operations; officials and equipment involved; and the location of the commanders at the moment of the
illegal acts are all indications pointing to the knowledge that the commander had at the time of the violation. See
Celebici Judgment, Case No. ICTY, IT-91-21-T, Judgment, ¶ 232; Prosecutor v. Tihomir, Case No. IT-95-14-T,
Judgment, ¶¶ 307-308 (Mar. 3, 2000).
70
Kayishema, Case No. ICTR 95-1-T, Judgment, ¶ 217.

12
 C. Reasonable and necessary measures to prevent the crime or punish the perpetrator

The third element involves the affirmative duty of the superior to act in order to prevent

the crime from occurring or punishing the perpetrator once the crime has been committed. The

duty to prevent the subordinate from committing the crime arises once the superior acquires

knowledge, or has reasonable grounds to suspect that the crime is being prepared or planned.71

The duty to punish, however, arises once the crime has been committed.72 In the case that the

superior did not take any action, his inaction may be considered a culpable omission.73 Such an

omission of either of these duties can be furthermore regarded as the “encouragement and

support that might be afforded to the principals of the crime.”74 For this reason, if the superior

fails to fulfill his duty to take the reasonable and necessary steps to prevent the crime from

occurring, he is found to have breached his duty, and incurs criminal responsibility.75

D. Causation

Although in traditional criminal law the concept of causation is required to establish that

the commission or omission of the accused resulted in the crime, the doctrine of command

responsibility does not require it as a conditio sine qua non for the imposition of criminal

liability.76 Causation is not recognized as an element of the doctrine of command responsibility,

71
Kordic, Case No. IT-95-14/2, Judgment, ¶¶ 437, 441.
72
Id. ¶ 446.
73
Celebici Judgment, Case No. ICTY, IT-91-21-T, Judgment, ¶ 333.
74
Kayishema, Case No. ICTR 95-1-T, Judgment, ¶ 202; see also Prosecutor v. Akayesu, Case No. ICTR-96-4-T,
Judgment, ¶ 704 (Sept. 2, 1998) (where the accused’s failure to oppose the killings, in light of his authoritative
position, was found to constitute a form of tacit encouragement).
75
Kordic, Case No. IT-95-14/2, Judgment, ¶ 442 (quoting Celebici Judgment, Case No. ICTY, IT-91-21-T,
Judgment, ¶ 395).
76
Celebici Judgment, Case No. ICTY, IT-91-21-T, Judgment, ¶ 398.

13
whether in existing treaty law or jurisprudence.77 This is not to deny that there is a necessary

causal nexus between the superior’s failure to take measures and the acts committed by his

subordinates. In fact, the “recognition of a necessary causal nexus may be considered to be

inherent in the requirement of crimes committed by subordinates and the superior’s failure to

take the measures within his powers to prevent them.”78 Though there is a necessary nexus

between the omission and the illegal act, it is important to note that, as the prosecution argued

and the Court held in Celebici Judgment, in the case of the superior’s failure to punish a

subordinate, it would be illogical to require proof of causation.79 “[A] superior could not be held

responsible for prior violations committed by subordinates” since the “failure to punish” can

only “arise after the commission of the offence.”80

In order to establish that a superior is criminally liable under the doctrine of command

responsibility, it is enough for the prosecution to prove that there was a superior-subordinate

relationship with sufficient control for the superior to have been aware of the circumstances, and

that the latter still failed to take the necessary and reasonable measures to prevent or punish the

commission of the crime.81

Since the commanding general is responsible for maintaining peace and order, punishing

crime and protecting lives and property, his responsibility mandates him to act only to the extent

77
Id.
78
Id. ¶ 399.
79
Id. ¶ 397.
80
Id. ¶¶ 397, 400.
81
Tadic, Case No. IT-94-1-l, Judgment, ¶ 585 (quoting Military and Paramilitary Activities (Nicar. v. U.S.), 1986
I.C.J. 110, ¶ 115 (June 27)).

14
that his authority allows.82 Concurrent with his authoritative position is his duty not to ignore

obvious circumstances indicating that crimes are occurring and subsequently plead ignorance as

a defense.83

IV. CUSTOMARY INTERNATIONAL LAW

In addition to being a strategically vital doctrine of liability within the international

criminal law framework, the doctrine of command responsibility has an imperative role in both

international law and customary international law.84 Since early in the twentieth century, the

concept of command responsibility has been recognized as part of international law. Since 1919

the matter has taken an important position in the discussions of maintaining peace and security.

During the Preliminary Peace Conference in 1919, the International Commission on the

Responsibility of the Authors of the War and on Enforcement of Penalties recommended that a

tribunal be established for the prosecution of all those “who ordered, or, with knowledge thereof

and with power to intervene, abstained from preventing or taking measures to prevent, putting an

end to or repressing, violations of the laws or customs of war.”85 Although this quote does not

state verbatim the three elements that make up command responsibility, it calls for the duty of

the commander to intervene in preventing or punishing his subordinate(s) once he or she obtains

knowledge of the crimes. Furthermore, as Judge Shahabuddeen86 asserted in Hadzihasanovic,

82
In re List and Others (The Hostages Trial), U.S. Military Tribunal, Nuremberg, Case No. 47, U.N. War Crimes
Commission, Law Reports of Trials of War Criminals, Vol. VIII, at 57, 69 (1949), available at
http://www.ess.uwe.ac.uk/WCC/List3.htm (last visited Sept. 29, 2008).
83
Id., at 69-70.
84
Celebici Judgment, Case No. ICTY, IT-91-21-T, ¶ 333.
85
Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties, Report Presented
to the Preliminary Peace Conference (Mar. 29, 1919), reprinted in 14 AM. J. INT’L L. 95, 121 (1920).
86
Prosecutor v. Hadzihasanovic, Case No. IT-01-47, Partial Dissenting Opinion of Judge Shahabuddeen, ¶ 10 (July
16, 2003) (Although Judge Shahabuddeen’s opinion was a dissent, and the specific issue in question was whether
superiors were responsible for crimes committed by their subordinates when the subordinates were in control of

15
the doctrine of command responsibility has been incorporated into customary international law,

which has been codified in the Geneva Conventions.87 Article 86 of the Additional Protocol I to

the Geneva Conventions of 1949 provides that:

(1) The High contracting Parties and the Parties to the conflict shall repress grave
breaches, and take measures necessary to suppress all other breaches, of the
Conventions…(2) The fact that a 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 had 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.88

Article 87 compliments Article 86, and adds:

(1) [M]ilitary commanders, with respect to members of the armed forces under their
command and other persons under their control, [are required] to prevent and,
where necessary, to suppress and report to competent authorities breaches. (3)
The…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.89

Although the Geneva Conventions and its Protocols pertain to times of armed conflict, they

constitute an integral codification of the accepted principles of command responsibility.90

another commander, his opinion is still important for our discussion. He points at key provisions where there has
been an acknowledgement of command responsibility under international criminal law.).
87
Prosecutor v. Hadzihasanovic, Case No. IT-01-47, Decision on Interlocutory Appeal Challenging Jurisdiction in
Relation to Command Responsibility, ¶¶ 11, 13-15 (July 16, 2003).
88
Protocol Additional to the Geneva Conventions relating to the Protection of Victims of International Armed
Conflicts (Protocol I) art. 86, June 8, 1977, 1125 U.N.T.S. 3.
89
Id. art. 87.
90
Though not limited to the doctrine of command responsibility, the Geneva Conventions and its Protocol provide
for a guide of rules protecting civilian, non-civilians, etc., and imposing restrictions on the actions of military leaders
and their subordinates. See generally Geneva Convention for the Amelioration of the Condition of the Wounded
and Sick in Armed Forces in the Field, Aug. 12, 1949, 75 U.N.T.S. 31; Geneva Convention for the Amelioration of
the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949, 75 U.N.T.S.
85; Geneva Convention relative to the Treatment of Prisoners of War, Aug. 12, 1949, 75 U.N.T.S. 135; Geneva
Convention relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 75 U.N.T.S. 287; Protocol
Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International

16
Moreover, Judge Shahabuddeen asserted that international tribunals, as any other court, have the

competence “to interpret an established principle of law and to consider whether . . . the principle

applies to the particular situation before it.”91 He added that customary international law

contained central principles generally known to states, so that their judicial bodies have the

competence to interpret it and determine whether the particular situations fall within the principle

as interpreted.92

V. INTERCONNECTEDNESS BETWEEN HUMAN RIGHTS AND INTERNATIONAL CRIMINAL LAW

Although the doctrine of command responsibility has not yet been formally incorporated

to the human rights analytical framework or jurisprudence, it is crucial to recognize that both the

international criminal and human rights systems are intertwined in their goals of promoting

human rights while criminalizing such breaches of international law.93 “The interconnectedness

and mutuality between international criminal law and international human rights has continued to

attract calls for the recognition and enforcement of the ‘offences against human rights.’”94 An

Armed Conflicts (Protocol I), June 8, 1977, 1125 U.N.T.S. 3; Protocol Additional to the Geneva Conventions of 12
August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), June 8,
1977, 1125 U.N.T.S. 609.
91
Hadzihasanovic, Partial Dissenting Opinion of Judge Shahabuddeen, ¶ 10 (“[T]he tribunal has to take it that a
principle of customary international law concerning command responsibility has been established by State practice
and opinio juris.”).
92
Id. ¶ 9. The doctrine of incorporation establishes that international customary rules are part of the law of the land
and enforced as such, depending on the nature of the subject-matter before the tribunal. IAN BROWNLIE, PRINCIPLES
OF PUBLIC INTERNATIONAL LAW 41(6th ed. 2003).

93
This discussion recognizes, however, that the specific goals of the international criminal and human rights
systems are strategically different in holding the responsible actors. While international criminal law focuses on the
criminalization and responsibility of the individual, human rights systems focus on the responsibility of the state,
rather than the individual. Velásquez Rodríguez Case, Inter-Am. Ct. H.R. (ser. C) No. 4, ¶ 143 (July 29, 1988).
94
George William Mugwanya, Expunging the Ghost of Impunity for Severe and Gross Violations of Human Rights
and the Commission of Delicti Jus Gentium: A Case for the Domestication of International Criminal Law and the
Establishment of a Strong Permanent International Criminal Court, 8 MICH. ST. J. INT’L L. 701, 706 (1999).

17
example of such interconnectedness is seen in the case of Karadzic and Mladic95 in the ICTY.

Several scholars have acknowledged that Karadzic’s complicity must be examined from three

perspectives: “(1) doctrines of individual responsibility under international human rights law; (2)

the doctrine of command responsibility as applied to political leaders; and (3) the doctrine of

state responsibility as applied to the acts of death squads and other surrogates.”96 Similarly, the

ICTY has referred to standards established by the European Court of Human Rights when

assessing the scope of the right to counsel, the length of pre-trial detention, and the legality of

arrest procedures.97 “The liability theories of international criminal law function as the central

doctrinal device through which these normative questions relating to the proper attribution of

responsibility, guilt, and wrongdoing are mediated.”98 In addition, “human rights law binds the

Tribunals in their activities to the extent that it is part of customary international law or

constitutes general principles of law.”99

Despite the fact that there has been a more significant incorporation of human rights law

into international criminal law through the integration of human rights guarantees and standards

95
Prosecutor v. Karadzic, Case No. IT-95-5/18-I (Oct. 2, 1995).
96
Paul Hoffman, Joan Fitzpatrick & Michael Bazyler, Panel III: War Crimes and Other Human Rights Abuses in
the Former Yugoslavia, 16 WHITTIER L. REV. 433, 441 (1995).
97
Göran Sluiter, International Criminal Proceedings and the Protection of Human Rights, 37 NEW ENG. L. REV.
935, 944-46 (2003). In addition, the ICTY has incorporated human rights norms through the often quoted
commentary by the UN Secretary General Comment to Article 21 of the ICTY Statute: “It is axiomatic that the
International Tribunal must fully respect internationally recognized standards regarding the rights of the accused at
all stages of its proceedings.” The Secretary-General, Report of the Secretary-General Pursuant to Paragraph 2 of
Security Council Resolution 808, ¶ 106, delivered to the Security Council, U.N. Doc. S/25704 (May 3, 1993).
98
Allison Marston Danner & Jenny S. Martinez, Guilty Associations: Joint Criminal Enterprise, Command
Responsibility, and the Development of International Criminal Law, 93 CAL. L. REV. 75, 102 (2005).
99
Sluiter, supra note 97, at 937; see also Interpretation of the Agreement of 25 March 1951 between the WHO and
Egypt, Advisory Opinion, 1980 I.C.J. 73 (Dec. 20).

18
into international criminal law, the following section will discuss the reverse. It will focus on the

importance of incorporating international criminal law standards into human rights.

As was already mentioned, command responsibility has been incorporated into customary

international law and recognized as an imperative tool for the international criminal law

machinery. In human rights law, on the other hand, the incorporation of criminal law has been

through the duty of states in preventing, investigating and punishing those responsible through

the domestic criminal law systems.100

Within the Inter-American system, for example, the state’s internal criminal law

processes are scrutinized to assure that the rights of the wronged individual are protected, and

that the perpetrator was punished under the judicial system of the state.101 Should the state fail to

investigate the human rights violations, or fail to provide diligent investigative processes, it will

be held to have violated its obligations toward the American Convention and other appropriate

treaties to which it is a party.102

The purpose of having such obligations imposed on the state is to uphold the inherent

right to life as is recognized by the Inter-American System and customary international law.103

100
Hector Feliz Miranda v. Mexico, Case 11.739, Inter-Am. C.H.R., Report No. 5/99, OEA/Ser.L./V/II.95, doc. 7
rev. ¶ 25 (1999); Velasquez Rodriguez Case, Inter-Am. Ct. H.R. (ser. C) No. 4, ¶ 166 (July 29, 1988).
101
Miranda, Case 11.739, Inter-Am. C.H.R., Report No. 5/99, ¶ 28 (“It must first of all be determined whether the
trial and sentencing of the material authors of the murder constitute full compliance by the . . . State.”).
102
Velásquez Rodriguez Case, Inter-Am. Ct. H.R. (ser. C) No. 4, ¶ 166.
103
“Every human being has the inherent right to life. This right shall be protected by law. No one shall be
arbitrarily deprived of his [or her] life.” International Covenant on Civil and Political Rights, G.A. Res. 2200, art.
6(1), U.N. GAOR, 21st Sess., Supp. No. 16, U.N. Doc. A/6316 (1966); Universal Declaration of Human Rights,
G.A. Res. 217A, art. 3, U.N. GAOR, 3d Sess., U.N. Doc. A/810 (Dec. 12, 1948). Additionally, the Human Rights
Committee’s general comments on the right to life as enunciated in Article 6 of the ICCPR, stresses that extra-legal,
arbitrary and summary executions contravene the human rights and fundamental freedoms proclaimed in the
Universal Declaration of Human Rights. Office of the High Commissioner for Human Rights, Human Rights
Committee, General Comment No. 06: The right to life, 16th Sess. (1982), available at
http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/84ab9690ccd81fc7c12563ed0046fae3?Opendocument. See also UN
Manual on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions, U.N.
Doc. E/ST/CSDHA/.12 (1991); Organization of American States, American Convention on Human Rights, art. 4(1),

19
As held in the case of the Massacre of Pueblo Bello, one of the mechanisms to effectively

guarantee the right to life is through the state’s duty to investigate cases of extra-legal

executions, forced disappearances, and other grave violations.104 States have the obligation to

investigate, protect and provide reparations for the victims and prevent the reoccurrence of such

acts.105 The Inter-American Commission on Human Rights recognizes the duty of military or

non-military public authorities to investigate106 and denounce such violations.107 Additionally,

as the landmark case, Velásquez Rodríguez, stated:

The State is obligated to investigate every situation involving a violation of the

rights protected by the Convention. If the State apparatus acts in such a way that
the violation goes unpunished and the victim's full enjoyment of such rights is not
restored as soon as possible, the State has failed to comply with its duty to ensure
the free and full exercise of those rights to the persons within its jurisdiction. The
same is true when the State allows private persons or groups to act freely and with
impunity to the detriment of the rights recognized by the Convention.108

In the same case, the Inter-American Court of Human Rights asserted that there were
differences between international criminal law and human rights in relation to their objectives.109

Nov. 22, 1969, O.A.S. Treaty Series No. 36, 1144 U.N.T.S. 123 (providing that “[e]very person has the right to have
his life respected. This right shall be protected by law and, in general, from the moment of conception. No one
shall be arbitrarily deprived of this right”); Council of Europe, European Convention for the Protection of Human
Rights and Fundamental Freedoms, art. 2(1), Sept. 3, 1953, 213 U.N.T.S. 222 (providing “[n]o one shall be deprived
of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which
this penalty is provided by laws”).
104
Pueblo Bello Massacre, Inter-Am. Ct. H.R. (ser. C) No. 140, ¶ 66.
105
U.N. Econ. & Soc. Council [ECOSOC], Sub-Comm’n on Prevention of Discrimination and Protection of
Minorities, The Administration of Justice and the Human Rights of Detainees: Question of the impunity of
perpetrators of human rights violations (civil and political), U.N. Doc. E/CN.4/Sub.2/1997/20 (Oct. 2, 1997)
(prepared by Mr. Joinet).
106
Investigations have to be “full and impartial” in order for States to be found compliant. Unzueta, Resolution No.
29/82, Case 7473 (Bolivia), Inter-Am. C.H.R., OEA/Ser.L./V/II.57, doc. 6 rev. 1 ¶ 3 (Mar. 8, 1982).
107
Tomás Porfirio Rondin v. Mexico, Case 11.520, Inter-Am. C.H.R., Report No. 49/97, OEA/Ser.L./V/II.98, doc. 6
rev. ¶ 67 (1997); see also Severiano Santiz Gómez et al. v. Mexico, Case 11.411, Inter-Am. C.H.R., Report No.
48/97, OEA/Ser.L./V/II.98, doc. 6 rev. ¶ 50 (1997).
108
Velásquez Rodriguez Case, Inter-Am. Ct. H.R. (ser. C) No. 4, ¶ 176.
109
“The international protection of human rights should not be confused with criminal justice. States do not appear
before the Court as defendants in a criminal action. The objective of international human rights law is not to punish

20
This assertion does not, however, restrain this discussion. The arguments presented in this
discussion center around the incorporation of the doctrine of command responsibility as a
mechanism to measure and establish the level of participation of a superior (state-agent) in a
breach of human rights by his subordinates.110 As will be shown, some international criminal
law standards constitute an “indispensable tool for the protection and realization of various
human rights.”111
A. Participation of state-agents

This section will discuss how the level of participation of state-agents in a superior-

subordinate position can be established through the incorporation of the command responsibility

elements into the human rights analytical framework.

Within the Inter-American system, state responsibility is derived from such acts or

omissions by state power or organ which are in violation of the American Convention.112 It is

sufficient to prove that public authorities supported or acquiesced to the breach, as to allow for

the violation to occur.113 Once public authorities know or should know of the existence of a real

or immediate risk to the life of an individual or group of individuals, they have the duty to

reasonably prevent the risk from taking place.114 As aforementioned, once the state creates such

those individuals who are guilty of violations, but rather to protect the victims and to provide for the reparation of
damages resulting from the acts of the States responsible.” Velásquez Rodriguez Case, Inter-Am. Ct. H.R. (ser. C)
No. 4, ¶ 134.
110
It is not the purpose of this paper to discuss the criminality of superiors and their responsibility in their individual
capacity, since that is left to the international or national criminal law system.
111
Mugwanya, supra note 94, at 725.
112
Pueblo Bello Massacre, Inter-Am. Ct. H.R. (ser. C) No. 140, ¶ 112; Juan Humberto Sánchez Case, Case 102,
Inter-Am. Ct. H.R. (ser. C) No. 99 ¶ 142 (2003); Cinco Pensionistas Case, Case 98, Inter-Am. Ct. H.R. (ser. C) No.
98 ¶ 163 (2003).
113
Case of Mapiripan Massacre v. Colombia, Inter-Am. Ct. H.R. (ser. C) No. 68 ¶ 108 (2005).
114
Pueblo Bello Massacre, Inter-Am. Ct. H.R. (ser. C) No. 140, ¶ 123; see also Sawhoyamaxa Indigenous
Community v. Paraguay, Inter-Am. Ct. H.R. (ser. C) No. 146 ¶¶ 155-156 (2006); Kilic v. Turkey, App. No.
22492193, Eur. Ct. H.R. ¶¶ 62, 63 (Mar. 28, 2000), available at
http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=696401&portal=hbkm&source=externalbydo
cnumber&table=F69A27FD8FB86142BF01C1166DEA398649; see generally Osman v. The United Kingdom, Eur.

21
a risk, it has an aggravated responsibility to ensure that the appropriate and preventive

protections are adopted for the protection of the population.115 Similarly, as was also previously

mentioned, the Inter-American Court held in Montero Aranguren that states have the duty to

train their armed and security forces regarding the constrains on their power and authority so that

human right protections are not breached.116 This standard does not, however, specifically lay

out the elements needed in order to establish the participation of superiors in relation to the

actions by their subordinates. Measuring such participation, and establishing that the superior

was involved in the commission of the violation, or acquiesced to the commission by his

subordinate is particularly important in states where such violations are widespread and

systematic.

With this recurring pattern of state-sponsored, systematic policies of violations, there is

an urgent need to adopt an applicable standard that will establish the extent of the participation of

the state-agents in commanding positions. As such, if the public official was 1) in a position of

power in relation to his subordinate(s), 2) knew or had reason to know of the crimes, and 3)

failed to take reasonable and necessary measures to prevent the crime or punish the perpetrator,

then he should be held to have failed to comply with his duties as a superior. As the major

resolution in May of 1989 of the Economic and Social Council established: “In order to prevent

extra-legal, arbitrary and summary executions, Governments shall ensure strict control, including

a clear chain of command over all officials responsible for apprehension, arrest, detention,

custody and imprisonment, as well as those officials authorized by law to use force and

Ct. H.R. (Oct. 28, 1998), available at

http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=696134&portal=hbkm&source=externalbydo
cnumber&table=F69A27FD8FB86142BF01C1166DEA398649.
115
Pueblo Bello Massacre, Inter-Am. Ct. H.R. (ser. C) No. 140, ¶¶ 126, 151.
116
Montero Aranguren, Case 149, Inter-Am. Ct. H.R. (ser. C) No. 150, ¶ 77.

22
firearms”117 Consequently, a dual role would be served. First, it would allow for greater

compliance in the inner structures of the military hierarchy, while allowing governments and the

human rights system to monitor violations of human rights committed by such commanders and

their subordinates. More specifically, this test would allow for the monitoring of governments’

failure to control their officials, along the chain of command. It would, ultimately allow the

human rights system to determine to what extent the superior is responsible for the acts of his

subordinates. Governments could ensure with greater facility that there is transparency and that

the perpetrators are held responsible.

Such incorporation would be valuable within the human rights context due to the position

of commanders as state-agents.118 It is through the commander’s responsibility as a state-agent

that the state is held responsible for his acts or those of his subordinates.119 The Resolution of

the Economic and Social Council of the Office of the High Commissioner on Human Rights

imposed an additional obligation to provide resources to facilitate investigations by superiors or

appropriate authorities in cases of human rights violations.120 It further provides that: “In cases

in which the established investigative procedures are inadequate because of lack of . . .

impartiality . . . and the apparent existence of a pattern of abuse, . . . governments shall pursue

investigations through an independent commission of inquiry or similar procedure.”121 In this

manner, once the level of participation is determined, governments can adopt the appropriate

117
Office of the High Commissioner for Human Rights, Principles on the Effective Prevention and Investigation of
Extra-legal, Arbitrary and Summary Executions, ¶ 2, recommended by Economic and Social Council Resolution
1989/65 of May 24, 1989, available at http://www.unhchr.ch/html/menu3/b/54.htm (last visited Sept. 30, 2008)
[hereinafter May 24, 1989 Resolution].
118
Velásquez Rodríguez Case, Inter-Am. Ct. H.R. (ser. C) No. 4, ¶ 172.
119
Id. ¶ 170.
120
May 24, 1989 Resolution, supra note 117, ¶ 10.
121
Id. ¶ 11.

23
measures so that they are in compliance with their obligations under the Inter-American System.

As the previous report stated:

Superiors, officers or other public officials may be held responsible for acts
committed by officials under their authority if they had a reasonable opportunity
to prevent such acts. In no circumstances, including a state of war, siege or other
public emergency, shall blanket immunity from prosecution be granted to any
person allegedly involved in extra-legal, arbitrary or summary executions. The
families and dependents of victims of extra-legal, arbitrary or summary
executions shall be entitled to fair and adequate compensation within a reasonable
period of time.122

In conclusion, by incorporating the command responsibility doctrine as a test to the

human rights framework, superiors would, first, be obligated to investigate the actions of their

subordinates. Second, it would require governments to provide for an independent investigative

commission in cases where the appropriate authorities are unable to provide a full and impartial

investigation. Finally, it would allow for the human rights system to have a standard to apply in

situations where there was a superior-subordinate relationship and the subordinate committed

illegal acts constituting breaches of the American Convention.

122
Id. ¶ 21. Another source that incorporates international criminal law to human rights is the case of Finucane v.
The United Kingdom, where the European Court of Human Rights stated that States had the duty to “secure to
everyone within [its] jurisdiction the rights and freedoms defined in Convention,” as a broader protection, which
includes an effective official investigation. The European Court held in the same case that “[t]he essential purpose
of such investigation is to secure the effective implementation of the domestic laws which protect the right to life
and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their
responsibility.” Finucane v. United Kingdom, 37 Eur. Ct. H.R. 29, ¶ 67 (2003), available at
http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=699062&portal=hbkm&source=externalbydo
cnumber&table=F69A27FD8FB86142BF01C1166DEA398649.

24