Colombia
Case Matrix NetworkJanuary 2016
Case Mapping, Selection and Prioritisation
Case Analysis
CommandResponsibility
International Criminal Law Guidelines:
Case Matrix Network
The Case Matrix Network (CMN) provides knowledge-transfer and capacity
development services to national and international actors in the fields of
international criminal and human rights law. We seek to empower those
working to provide criminal accountability for violations of core international
crimes and serious human rights violations, by providing access to legal
information, legal expertise and knowledge tools. The CMN is a department of
the Centre for International Law Research and Policy, which is an international
not for profit organisation, registered in Belgium.
Acknowledgments
The publication was drafted by Alexandre Skander Galand, Emilie Hunter and
Ilia Utmelidze and was reviewed by Olympia Bekou. Sections 3-11 are based
on the legal requirements framework developed by Morten Bergsmo and
Ilia Utmelidze. Additional research was provided by Agnieszka Kasztalska,
Angel Kulakov and Agata Odrobinska. Translation was provided by Alejandro
Chehtman and Mara Luisa Piqu.
Centre for International Law Research and Policy
January 2016
ISBN: 978-82-8348-053-5
Part of the CMN International Criminal Justice Toolkits Project
Designed by Sonda
www.sondadesign.com
Funded by the European Union and the Royal Norwegian Ministry of Foreign Affairs.
This publication has been produced with the assistance of the European
Union. The contents of this publication are the sole responsibility of the
Case Matrix Network and can in no way be taken to reflect the views of the
European Union.
CASE MATRIX NETWORK02
Introduction
Purpose
Structure
Methodology
Glossary of key terms and acronyms
Command Responsibility in International Legal Instruments
The International Criminal Court (1998)
Other Treaties Establishing ad hoc or International(ised) Tribunals
International Humanitarian Law
International Human Rights Treaties
Introduction to Command Responsibility
ICC Art 28(a): Elements of command responsibility according to the ad hoc tribunals and the ICC
Concurrent Conviction
Liability for crimes committed by others
The Underlying Offence or Principal Crime
A crime within the jurisdiction of the Court was committed or was about to be committed by the forces
Superior Subordinate Status
The perpetrator was a military commander or a person effectively acting as a military commander
The perpetrator was a military commander; OR
The perpetrator was effectively acting as a military commander of the forces that committed the crime
Publicists
Control
The perpetrator had effective command and control, or effective authority and control over the forces that committed the crime
INTERNATIONAL CRIMINAL LAW GUIDELINES: COMMAND RESPONSIBILITY
Table of Contents
1.
1.1.
1.2.
1.3.
1.4.
2.
2.1.
2.2.
2.3.
2.4.
3.
3.1.
3.2.
3.3.
4.
5.
5.1.
5.2.
6.
4
6
7
7
13
16
17
20
23
26
28
29
33
41
48
49
54
55
55
56
59
64
65
TABLE OF CONTENTS
CMN ICJ Toolkits Project 03
The perpetrator had effective command and control; OR
The perpetrator had effective authority and control
Publicists
Causation
The crimes committed by the forces resulted from the perpetrators failure to exercise control properly over forces
Acts of Omission
The perpetrator failed to take the necessary and reasonable measures within his or her power to prevent or repress the commission of such crime(s) or failed to submit the matter to the competent authorities for investigation and prosecution
Distinct duties: the duty to prevent, to repress and/or to punish
The perpetrator failed to ta ke the necessary and reasonable measures within his or her power the prevent the commission of such crime; OR
The perpetrator failed to take the necessary and reasonable measures within his or her power to repress the commission of such crime; OR
The perpetrator failed to take the necessary and reasonable measures within his or her power to submit the matter to the competent authorities for investigation and prosecution
Publicists
Mens Rea
The perpetrator either knew or owing to the circumstances at the time, should have known that the forces were committing or about to commit one or more of the crimes
The perpetrator knew that the forces were committing or about to commit the crime
The perpetrator should, owing to the circumstances at the time, have known that the forces were committing or about to commit the crime
Publicists
Index of Cases and Publicists
6.1.
6.2.
7.
8.
8.1.
8.2.
8.3.
9.
9.1.
9.2.
10.
65
71
75
82
83
90
91
99
101
107
112
113
118
119
119
122
131
136
CASE MATRIX NETWORK
INTERNATIONAL CRIMINAL LAW GUIDELINES: COMMAND RESPONSIBILITY
04
1
Introduction
Purpose
Structure
Methodology
Glossary of key terms and acronyms
1.
1.1.
1.2.
1.3.
1.4.
CMN ICJ Toolkits Project 05
1. Introduction
Command responsibility assigns criminal responsibility to higher-ranking members of military for crimes of genocide, crimes against humanity and war crimes committed by their subordinates. It has been adjudicated upon through the form of superior responsibility in a number of cases before the International Criminal Tribunal for the Former Yugoslavia, the International Criminal Tribunal for Rwanda, the Special Court for Sierra Leone, based on overlapping yet distinct legal classifications as well as the International Criminal Court, through the classification of command responsibility.1
While command responsibility has emerged from the practice of international criminal tribunals, its relevance for national criminal justice efforts for conduct that amounts to core international crimes should not be overlooked. The possibility to hold those individuals who are in positions of seniority or leadership accountable for their failures to adequately supervise their subordinates or who turn a blind eye may have a valuable deterrent effect on the commission of future crimes. It can also contribute towards ensuring accountability of those considered to be most responsible before criminal justice institutions at the national and international level.
However, the concept of command responsibility has many guises: it is recognised as a form of criminal liability, a disciplinary offence for violation of military duties and a corollary to other liabilities or separate offences. It is also variously applicable to military leaders as well as leaders of military-like organisations, such as paramilitary groups, armed defence organisations and rebel groups. Moreover, the legal classification of command responsibility as established in the Rome Statute of the International Criminal Court (ICC Statute) introduces a requirement of causation, which cannot be found in the legal definitions of preceding international legal instruments.2 Taken together, it is understandable that the concept of command responsibility as well as its legal codification in the ICC Statute may generate misunderstandings amongst criminal law practitioners for many of the 123 States Parties of the ICC. An absence of information on the construction and application of the liability by national authorities may also limit accountability efforts against those most responsible persons who hold positions of authority. At least 16 State Parties have implemented all or many of the legal requirements of command responsibility, described in Article 28(a) of the ICC Statute (ICC Art.28(a)) and at least 50 other States include various provisions which punish commanders or those in positions of responsibility for the failure to act or of acts of omission.3
This includes Colombia, where the national criminal code establishes the liability of perpetration by irregular commission (commission by omission)4 which shares several of
1 These Guidelines adopt the terminology of Art.28 of the ICC Statute, differentiating between the responsibility of commanders under Art.28(a) and non-
military or military-like superiors in Art.28(b). See 1.4.
2 ICC Statute.
3 A further publication on the status of command responsibility in national laws is under preparation by CMN.
4 Colombian Criminal Code (Law 599/2000), Art. 25.
http://www.legal-tools.org/en/doc/7b9af9/http://www.legal-tools.org/en/doc/7b9af9/
CASE MATRIX NETWORK
INTERNATIONAL CRIMINAL LAW GUIDELINES: COMMAND RESPONSIBILITY
06
the legal requirements of ICC Art.28(a).5 Notwithstanding the availability of commission by omission, some have argued for the direct application of command responsibility through the constitutional block and constitutional provisions on the superiority of international laws,6 although this is a contested issue within the criminal law community in Colombia.7 The vibrancy of this debate is reflective of the overlapping challenges facing accountability efforts in Colombia. It takes into accoun
