3 - Superior responsibility

Summary

The doctrine of superior responsibility is the means by which superiors may be held criminally responsible in relation to crimes committed by their subordinates. The customary international humanitarian law study of the International Committee for the Red Cross (ICRC) concludes 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.

The ICRC study affirms that ‘[s]tate practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts’. Superior responsibility is a form of omission liability: the superior is responsible for failing to prevent or punish crimes committed by his subordinates, as opposed to crimes he has in fact committed, planned, ordered, instigated, or otherwise aided and abetted. Criminal responsibility for omissions exists where there is a lawful duty to act and the superior fails to do so.

The terms ‘command’ and ‘superior’ have sometimes been used interchangeably as labels for this form of responsibility, but have also been employed in different contexts, particularly to distinguish between a military superior, or commander, and a civilian superior. Unless otherwise specified, the authors employ the term ‘superior responsibility’ to denote responsibility attaching to all superiors.