Karo vadų pareigos, jų įgyvendinimas ir atsakomybė pagal tarptautinę humanitarinę teisę ; Duties and Responsibility of Commanders under International Humanitarian Law

Abstract

Superior responsibility, otherwise known as command responsibility, is a well established doctrine in both treaty and customary international law. Superiors are held criminally responsible for breaches of international humanitaran law committed by their subordinates. Responsibility arises only after superior fails to take any preventive or punitive action when he was under a duty to do so. There is no common opinion of what that doctrine should stand for, is it a mode of liability for subordinates crimes or a separate offence of superior. It is a crime of omission which has no or little support in national legislation systems. Superior responsibility is a sui generis form of responsibility for omission. Superior responsibility, according to ad hoc tribunals jurisprudence, is constructed of three elements which are superior-subordinate relationship, superior's mens rea and ability to take necessary and reasonable measures to prevent subordinate's crime and punish. All these elements must be proofed beyond reasonable doubt. Superior-subordinate relationship can only be established if there existed effective command and control between those two. Effectiveness is a material ability to influence subordinates actions in a way of either stopping them from committing a crime or being able to punish. Superiors mens rea in Rome Statute for military commander and a person, effectively acting as such is more strict than for other superiors, described in art. 28(b). Travaux préparatoires of the Rome Statute suggests, that civilians, unlike military commanders, are not capable of fulfilling their obligations in the same way. Due to this reason, a lower standard was introduced. Rome Statute has applied an internationally not known superior duty which could entail criminal responsibility – to keep oneself constantly informed. It is not only contradictory to customary law, but also narrows superiors fundamental right to defense. Ad hoc tribunals have removed a requirement of causality, since International Criminal Court applied it directly in its statute as a compulsory element of the doctrine. Causality may exist between superiors failure to prevent the crime and its occurrence. While in the duty to punish case, causality exists between superiors failure to punish and subordinates remained unpunished.