The Contours of Command Responsibility

1
The Contours of Command Responsibility

• Philippine Incorporation and Customary Evolution
• PROF. DIANE A. DESIERTO
• UNIVERSITY OF THE PHILIPPINES

2
Historical Contours of Command Responsibility and
Incorporation into the Philippine Legal System

• 1439 Ordinance of Orleans by Charles VII of
  France
• (captains and lieutenants held responsible for
  the abuses, ills, and offenses committed by
  members of his company as soon as he receives
  any complaint concerning any such misdeed or
  abuse, he bring the offender to justice)
• European military codes and articles of war
• US General Order No. 100 (1863 Lieber Code)
• Art. 44. All wanton violence committed against
  persons in the invaded country, all destruction
  of property not commanded by the authorized
  officer, all robbery, all pillage or sacking,
  even after taking a place by main force, all
  rape, wounding, maiming, or killing of such
  inhabitants, are prohibited under the penalty of
  death, or such other severe punishment as may
  seem adequate for the gravity of the offense.A
  soldier, officer or private, in the act of
  committing such violence, and disobeying a
  superior ordering him to abstain from it, may be
  lawfully killed on the spot by such superior.
• Art. 71. Whoever intentionally inflicts
  additional wounds on an enemy already wholly
  disabled, or kills such an enemy, or who orders
  or encourages soldiers to do so, shall suffer
  death, if duly convicted, whether he belongs to
  the Army of the United States, or is an enemy
  captured after having committed his misdeed.

3
Historical Contours of Command Responsibility and
Incorporation into the Philippine Legal System

• 1907 Hague Conventions (No. IV)
• Art. 1. The Contracting Powers shall issue
  instructions to their armed land forces which
  shall be in conformity with the Regulations
  respecting the laws and customs of war on land,
  annexed to the present Convention.
• Art. 3. A belligerent party which violates the
  provisions of the said Regulations shall, if the
  case demands, be liable to pay compensation. It
  shall be responsible for all acts committed by
  persons forming part of its armed forces.
• ANNEX REGULATIONS RESPECTING THE LAWS AND
  CUSTOMS OF WAR ON LAND
• Art. 1. The laws, rights and duties of war
  apply not only to armies, but also to militia and
  volunteer corps fulfilling the following
  conditions
• 1. To be commanded by a person responsible for
  his subordinates

4
Historical Contours of Command Responsibility and
Incorporation into the Philippine Legal System

• In Re Yamashita (US Supreme Court upheld
  Philippine SCs denial of General Yamashitas
  petition for habeas corpus)
• Cited Art.1 of the Annex to the 1907 Hague
  Convention (No. IV) Art. 19 of the 10th Hague
  Convention Art. 26 of 1929 Geneva Convention
  Art. 43 of the Annex of the 4th Hague Convention
• These provisions plainly imposed on
  petitioner, who at the time specified was
  military governor of the Philippines, as well as
  commander of the Japanese forces, an affirmative
  duty to take such measures as were within his
  power and appropriate in the circumstances to
  protect prisoners of war and the civilian
  population. This duty of a commanding officer
  has heretofore been recognized, and its breach
  penalized by our own military tribunals.

5
Historical Contours of Command Responsibility and
Incorporation into the Philippine Legal System

• ELEMENTS OF COMMAND RESPONSIBILITY
• (FROM WW II IMT DECISIONS)
• 1. RELATIONSHIP command authority and
  responsibility between superior and subordinate
• 2. MENS REA information that triggers an
  affirmative duty on the part of the superior to
  act, and/or seek out further information
• - US v. von Leeb actual knowledge and either
  acquiesced, participated or criminally neglected
  to interfere in order to prevent commission of
  offenses
• - US v. List commanders failure to acquaint
  himself with contents of reports on subordinates
  offenses
• - IMT Tokyo Trials actual knowledge
  constructive knowledge due to scale and
  frequency negligence to obtain knowledge under
  command oversight system

6
Historical Contours of Command Responsibility and
Incorporation into the Philippine Legal System

• ELEMENTS OF COMMAND RESPONSIBILITY
• (contd.)
• 3. ACTUS REUS acts or omissions of superior in
  relation to subordinates offenses.
• - disciplinary measures and preventive measures
• - system to secure proper conduct of
  subordinates and protection of civilian
  population
• - causing immediate prosecution of subordinates
  reported to have committed offenses
• Personal neglect amounting to wanton, immoral
  disregard of the action of his subordinates
  amounting to acquiescence (US v. von Leeb)

7
Historical Contours of Command Responsibility and
Incorporation into the Philippine Legal System

• ELEMENTS OF COMMAND RESPONSIBILITY
• (contd.)
• 4. IMPUTED LIABILITY superior incurs the same
  criminal liability as if he personally committed
  the offenses with his subordinates (e.g. grave
  breaches of the laws of war, the 1949 Geneva
  Conventions, the 1907 Hague Conventions, torture,
  crimes against humanity)

8
Historical Contours of Command Responsibility and
Incorporation into the Philippine Legal System

• INCORPORATION IN THE PHILIPPINE LEGAL SYSTEM
• Kuroda v. Jalandoni (G.R. No. L-2662, March 26,
  1949)
• - 1907 Hague Conventions and 1949 Geneva
  Conventions form part of and are wholly based on
  the generally accepted principles of
  international lawform part of the law of our
  nation even if the Philippines was not a
  signatory to the conventions, for our
  Constitution has been deliberately general and
  extensive in its scope

9
Historical Contours of Command Responsibility and
Incorporation into the Philippine Legal System

• INCORPORATION IN THE PHILIPPINE LEGAL SYSTEM
• YAMASHITA v. STYER (G.R. No. L-129, March 26,
  1949)
• (Perfecto, J. concurring)
• (8) That the absence of a codified
  International Penal Code or of a criminal law
  adopted by the comity of nations, with specific
  penalties for specific and well-defined
  international crimes, is not a bar to the
  prosecution of war criminals

10
Doctrinal Nuances of Command Responsibility as
Derivative Imputed Criminal Liability

• COMMAND RESPONSIBILITY corollary to States
  primary duty to control the conduct of its armed
  forces (role of armed forces vis-à-vis civilian
  supremacy)
• - CONST. art. II, sec. 3 art. VII, sec. 18
  art. XVI, secs. 4-6
• HISTORICAL RATIONALE had the superior properly
  exercised command authority, international human
  rights violations, crimes against humanity, grave
  breaches of the Geneva Conventions, torture, etc.
  would not have taken place

11
Doctrinal Nuances of Command Responsibility as
Derivative Imputed Criminal Liability

• As customary law deemed separate and distinct
  from the concept of individualized criminal
  liability
• 1. SUPERIOR-SUBORDINATE RELATIONSHIP
• - can extend to civilian superiors
• - effective control of superior over
  subordinates
• the material ability to prevent or punish
  the commission of offenses, can exist
  without formal
• authority so long as there is de facto
  control

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Doctrinal Nuances of Command Responsibility as
Derivative Imputed Criminal Liability

• MENS REA information triggering the
  superiors affirmative duty to act
• - actual knowledge
• - imputed knowledge
• - negligence in obtaining knowledge
• foreseeability extent to which the superior
  knew or had reason to know that his
  subordinates committed, or were about to commit,
  serious international crimes

13
Doctrinal Nuances of Command Responsibility as
Derivative Imputed Criminal Liability

• ACTUS REUS omission of the superior to prevent
  the subordinates commission of crimes, OR
  omission to punish subordinates for such crimes
• - failure to act prevent, stop, or punish
  commission of crimes
• IMPUTED LIABILITY same penalty for superior and
  subordinate
• - proportionality objections lex lata v. lex
  ferenda

14
Doctrinal Nuances of Command Responsibility as
Derivative Imputed Criminal Liability

• THEORY Basis for superiors liability is not
  from the mere issuance of orders to subordinate,
  but from his failure to prevent or stop
  subordinate from committing serious international
  crime
• - the DAmato paradox
• - subordinate cannot invoke legal defense of
  superior orders (justification presumes a valid
  or lawful order)

15
Post World War II Developments on the Doctrine of
Command Responsibility

• CONVENTIONAL, not customary law
• Arts. 86-87, AP I to 1949 Geneva Conventions
• - lower penalty for superior
• - Art. 86 Superiors Failure to act
• a) fails to repress grave breaches of Geneva
  Conventions, take necessary measures to suppress
  all other breaches
• b) knew, or had information which should have
  enabled him to conclude that the subordinate was
  committing, or about to commit such breach

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Post World War II Developments on the Doctrine of
Command Responsibility

• Arts. 86-87, AP I to 1949 Geneva Conventions
  (contd.)
• Art. 87 Duty of commanders with respect to
  forces under their command AND other persons
  under their control
• a) prevent, suppress, report to competent
  authorities breaches of the Geneva Conventions
  and AP I
• b) commensurate with their level of
  responsibility, ensure that their subordinates
  are aware of their obligations under the
  Conventions and AP I
• c) if the superior is aware that a breach of the
  Conventions is or will be committed, he must
  initiate steps to prevent violations and initiate
  disciplinary or penal action against subordinate

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Post World War II Developments on the Doctrine of
Command Responsibility

• STATUTES of ICTY and ICTR
• Art. 7(3), ICTY The fact that any of the acts
  referred to in articles 2 to 5 of the present
  Statute was committed by a subordinate does not
  relieve his superior of criminal responsibility
  if he knew or had reason to know that the
  subordinate was about to commit such acts or had
  done so and the superior failed to take the
  necessary and reasonable measures to prevent such
  acts or to punish the perpetrators thereof.
• Art. 6(3), ICTR The fact that any of the acts
  referred to in articles 2 to 4 of the present
  Statute was committed by a subordinate does not
  relieve his or her superior of criminal
  responsibility if he or she knew or had reason to
  know that the subordinate was about to commit
  such acts or had done so and the superior failed
  to take the necessary and reasonable measures to
  prevent such acts or to punish the perpetrators
  thereof.
• NOTE Joint Criminal Enterprises doctrine
  from Tadic Appeals Judgment

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Post World War II Developments on the Doctrine of
Command Responsibility

• ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT
• Art. 28. Responsibilities of Commanders and
  Other Superiors.
• In addition to other grounds of criminal
  responsibility under this Statute for crimes
  within the jurisdiction of the Court
• (a) A military commander or person effectively
  acting as a military commander shall be
  criminally responsible for crimes within the
  jurisdiction of the Court committed by forces
  under his or her effective command and control,
  or effective authority and control as the case
  may be, as a result of his or her failure to
  exercise control properly over such forces, where

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Post World War II Developments on the Doctrine of
Command Responsibility

• ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT
  (contd.)
• (i) That military commander or person either
  knew, or owing to the circumstances at the time,
  should have known that the forces were
  committing or about to commit such crimes and
• (ii) That military commander or person failed
  to take all necessary and reasonable measures
  within his or her power to prevent or repress
  their commission or to submit the matter to the
  competent authorities for investigation and
  prosecution.

20
Post World War II Developments on the Doctrine of
Command Responsibility

• ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT
  (contd.)
• (b) With respect to superior and subordinate
  relationships not described in paragraph (a), a
  superior shall be criminally responsible for
  crimes within the jurisdiction of the Court
  committed by subordinates under his or her
  effective authority and control, as a result of
  his or her failure to exercise control properly
  over such subordinates, where
• (i) The superior either knew, or consciously
  disregarded information which clearly indicated
  that the subordinates were committing or about to
  commit such crimes
• (ii) The crimes concerned activities that were
  within the effective responsibility and control
  of the superior and
• (iii) The superior failed to take all necessary
  and reasonable measures within his or her power
  to prevent or repress their commission or to
  submit the matter to the competent authorities
  for investigation and prosecution.

21
Command Responsibility of Civilian and Military
Superiors for Philippine Extrajudicial Killings

• MELO COMMISSION REPORT findings
• 1. AFP did not conduct any formal investigation
  of suspects, but admits a rise in reported
  killings.
• 2. General Esperon is convinced that the recent
  activist and journalist killings were carried out
  by CPP-NPA as part of a purge. Captured
  documents supposedly prove this but were not
  presented to the Commission.
• 3. General Esperon was firm in his position
  that the victims were members of the CPP/NPA and
  that the activist organizations, while legal, are
  infiltrated by the CPP/NPA. He stated that these
  organizations are being manipulated by NPA.
• 4. General Esperon admitted receiving reports
  about Palparan being suspected of conducting
  extrajudicial killings, being called Berdugo,
  etc. but he attributed this to the propaganda of
  CPP/NPA.
• 5. General Esperon admitted that no formal
  investigation was conducted by the AFP on General
  Palparan, simply because no complaint was filed.
  He mentioned that he merely called General
  Palparan on his cellphone and did not go beyond
  the latters denials.

22
Command Responsibility of Civilian and Military
Superiors for Philippine Extrajudicial Killings

• Issues
• 1. Can the doctrine of command responsibility,
  as already incorporated in Philippine law, be
  invoked in the extrajudicial killings cases?
• 2. As incorporated, is command responsibility a
  mere mode of attribution or a species of criminal
  negligence?
• 3. Should there be a prior identification and
  conviction of the subordinate before a superior
  can be prosecuted under command responsibility?
• NOTE Executive Order No. 226 (17 Feb 1995),
  providing for administrative liability for
  command responsibility at all levels of command
  in PNP and all law enforcement agencies

23
Conclusions

• Command responsibility doctrine is already
  incorporated in Philippine legal system.
• 2. The Philippine governments failure to
  utilize this doctrine to prosecute civilian or
  military superiors (architects) can breach
  several international obligations
• a) duty to prosecute persons committing crimes
  against humanity, serious international crimes
• b) duty to ensure there is no denial of justice
• c) duty to protect the fundamental human right
  of all persons to an effective remedy
• 3. Recent refinements to the doctrine are not
  customary law and require legislative enactment.