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									The Contours of Command
Responsibility


Philippine Incorporation and
Customary Evolution
                      PROF. DIANE A. DESIERTO
                 UNIVERSITY OF THE PHILIPPINES
   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.
   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
   Historical Contours of Command
Responsibility and Incorporation into the
       Philippine Legal System

   In Re Yamashita (US Supreme Court upheld Philippine SC’s denial
    of General Yamashita’s 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.”
   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: commander’s 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
   Historical Contours of Command
Responsibility and Incorporation into the
       Philippine Legal System

    ELEMENTS OF COMMAND RESPONSIBILITY
     (cont’d.):

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

   ELEMENTS OF COMMAND RESPONSIBILITY
    (cont’d.):


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

    INCORPORATION IN THE PHILIPPINE LEGAL
     SYSTEM

1.   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 law”…”form 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…”
    Historical Contours of Command
 Responsibility and Incorporation into the
        Philippine Legal System

    INCORPORATION IN THE PHILIPPINE LEGAL
     SYSTEM


2.   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…”
    Doctrinal Nuances of Command Responsibility
       as Derivative Imputed Criminal Liability

    COMMAND RESPONSIBILITY: corollary to State’s 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
    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
     Doctrinal Nuances of Command Responsibility
        as Derivative Imputed Criminal Liability


2.     MENS REA: “information” triggering the superior’s
       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
     Doctrinal Nuances of Command Responsibility
        as Derivative Imputed Criminal Liability


3.     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

4.     IMPUTED LIABILITY: same penalty for superior and
       subordinate

       - proportionality objections: lex lata v. lex ferenda
    Doctrinal Nuances of Command Responsibility
       as Derivative Imputed Criminal Liability

    THEORY: Basis for superior’s 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 D’Amato paradox

     - subordinate cannot invoke legal defense of “superior
     orders” (justification presumes a valid or lawful order)
Post World War II Developments on the Doctrine
         of Command Responsibility

    CONVENTIONAL, not customary law

1.   Arts. 86-87, AP I to 1949 Geneva Conventions

     - lower penalty for superior

     - Art. 86: Superior’s “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
Post World War II Developments on the Doctrine
         of Command Responsibility

1.   Arts. 86-87, AP I to 1949 Geneva Conventions (cont’d.):


     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
Post World War II Developments on the Doctrine
         of Command Responsibility

2.    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
Post World War II Developments on the Doctrine
         of Command Responsibility

3.   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:
Post World War II Developments on the Doctrine
         of Command Responsibility

3.   ROME STATUTE OF THE INTERNATIONAL
     CRIMINAL COURT (cont’d.)

       (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.
Post World War II Developments on the Doctrine
         of Command Responsibility

3.   ROME STATUTE OF THE INTERNATIONAL CRIMINAL
     COURT (cont’d.)

     (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.”
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 latter’s denials.
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
                          Conclusions

1.   Command responsibility doctrine is already incorporated in
     Philippine legal system.

2.   The Philippine government’s 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.

								
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