SPECIAL RESPONSIBILITY OF SUPERIORS (COMMANDERS)
IN THE INTERNATIONAL CRIMINAL LAW
Ferenc SÁNTHA
ABSTRACT : The article deals with the responsibility for a crime committed by
command. In international criminal law exists two types of responsibilities. The first is the
so called direct or active command responsibility, when the commander displays an active
behavior in regards of the crime committed by subordinates, for example, by ordering
them to commit a crime. These cases should be judged based on the traditional individual
responsibility and the commander should be considered as a perpetrator based on the
Statute of the International Criminal Court (hereinafter: ICC), and as an indirect
perpetrator based on the dogmatics of the Hungarian criminal law. The second type – the
command responsibility proper – is the indirect or passive one, the point of which is the
special behavior of the commander in being guilty of negligence. As the task of proving
whether a particular order for committing a crime was given or not is usually a difficult
one, this indirect form of the command responsibility can have a great significance.
KEYWORDS: criminal law, superiors, commanders’ responsibility, subordinates
responsibility
JEL CODE : K 14
1. INTRODUCTION
It is well-known, that the responsibility for a crime committed by command includes
on the one hand the reference to the expression „I did it by command” from the
(subordinate) side of the soldier and resulting from that, the question of a particular
exclusion to punishability and mitigating circumstance, on the other hand, the specific
responsibility of the commander for the crime committed by the subordinate.1
The latter
institute of law is referred to usually by two expressions in the related special literature
and international documents. “Command responsibility” is the classic and traditional
terminology of the military, “superior responsibility” is a more recent, but at the same
time, wider category: it includes the responsibility of civilian superiors as well. We must
note however, that these two expressions today are used as synonyms in many cases.

University docent, ME ÁJK, Institute of Criminal Sciences.
1
See e.g. L.C. Green: Command Responsibility in International Humanitarian Law, Transnational Law and
Contemporary Problems (1995) pg. 319-320
CURENTUL JURIDIC 41
Furthermore, it is worth making a distinction – from a wider standpoint – between two
types of responsibilities. The first is the so called direct or active command responsibility,
when the commander displays an active behavior in regards of the crime committed by
subordinates, for example, by ordering them to commit a crime. These cases should be
judged based on the traditional individual responsibility and the commander should be
considered as a perpetrator based on the Statute of the International Criminal Court
(hereinafter: ICC), and as an indirect perpetrator based on the dogmatics of the Hungarian
criminal law. The second type – the command responsibility proper – is the indirect or
passive one, the point of which is the special behavior of the commander in being guilty
of negligence. As the task of proving whether a particular order for committing a crime
was given or not is usually a difficult one, this indirect form of the command
responsibility can have a great significance. This type of responsibility may be called
specific or special, because in this case the commander does not participate in committing
a crime, neither as a perpetrator, nor as an accomplice, and does not give a particular
order for its commission. Their responsibility is established on the one hand by their
knowledge of the crime committed by their subordinates and the expectation of this
knowledge, on the other hand, by their negligence in preventing or punishing the
perpetration of the crime.
It is well-known, that for a very long time, the subjects of international legal
responsibility were states and international organizations exclusively. However, crimes –
and so, international ones as well – are committed by a natural person, so the principle of
a person’s criminal law responsibility being based directly on international law has
already been recorded by the peace treaties of the First World War. 2
The actual
application of the principle of the individual criminal law responsibility has been initiated
after World War Two, in the exercises of the International Military Tribunal of
Nuremberg and the International Military Tribunal of the Far East in Tokyo, and has also
been defined among the so called Nuremberg Principles.
Later on, the violation of the provisions made by the relevant international treaties –
so, amongst others, the Geneva Conventions of 1949 or the Genocide Convention – also
originated individual responsibility. As an end-point to this process, the principle of
individual criminal law responsibility has been recorded by the Statute of the International
Criminal Tribunal for the former Yugoslavia (hereinafter: ICTY), the International
Criminal Tribunal for Rwanda (hereinafter: ICTR), and also by the Statute of the ICC.3
International crimes are rarely committed as isolated crimes of a single person, it is
more often the case that the number of the perpetrators is greater, the scope of the crime is
wider, and it damages many people. The root of the problem is basically the fact that the
international criminal law, a legal field based primarily on individual responsibility, deals
significantly with criminal phenomena of a collective nature. To solve this problem,
special forms of responsibility surfaced in international criminal law (we can include here
the special command responsibility or the form of joint criminal enterprise).
2
So for example the so called Provisions of punishment of the Treaty of Trianon (Article 157). See the Law
XXXIII of 1921 on the ratification of the Treaty.
3
According to Article 25 of the Statute of the ICC: „A person who commits a crime within the jurisdiction of the
Court shall be individually responsible and liable for punishment in accordance with this Statute.” See the
Statute of the ICC at e.g.: http://www.icc-cpi.int/library/about/officialjournal/Rome_Statute_English.pdf
42 Ferenc SÁNTHA
All of the above is closely related with the function of this special form of
responsibility. The original motivation behind the formulation of the command
responsibility had stemmed from the realization that those highly ranked – usually
military – leaders, the subordinates of whom seriously violated international laws during
war, but who did not participate in the perpetration of these crimes themselves and did not
order them either, cannot be left unpunished.4
Carla del Ponte interprets the special
command responsibility as a legal institute that makes it possible to prosecute central or
local leaders – either from the circles of military, politics or the state – who participated in
the commission of serious international crimes.5
Others emphasize the retaining, deterrent
effect of this form of responsibility: it is the commander, who is in the situation to prevent
his or her subordinates from committing war crimes, so the prospect of impeachment
urges the commander to fulfill his or her duties as a supervisory and controlling
authority.6
The reason for the special command responsibility is the fact, that the commander or
superior is accountable for the behavior of the subordinate or employee, is bound to
control and supervise it. It is a powerful argument to say that if the commander had
fulfilled his or her controlling duties, the crime would not have been committed, or at least
by punishing the perpetrator, future crimes could have been prevented from happening.
2. THE SHORT HISTORY OF THE LEGAL INSTITUTION
The special command responsibility has only become real and an actual referential
point in the post-World War Two trials, however, the origins of the legal institution can be
found earlier in the past. Grotius has already emphasized in the middle of the 17th
century
the necessity of holding those responsible, who had authority over others. If these people
know about the crimes committed by their subordinates, and they do not prevent them
from doing so, they themselves commit a crime as well.7
The conclusion formulated by
Grotius had become the center of attention later, when it first became fully a considerable
issue to make the perpetrators of war crimes accountable, and it is known that this
happened after World War One. At the peace treaty following the war, a committee has
been established, which examined the possibility of punishing the individuals responsible
for the outbreak of the war and which – among others – forecast the impeachment of those
who “had knowledge about actions that were going against the laws and customs of war,
but – although it had been in their power – did not prevent these actions, did not end these
4
See Beatrice I. Bonafé: Finding a Proper Role for Command Responsibility, Journal of International Criminal
Justice 5 (2007) 13. pg. 8-9 An example for this could be the trial of General Strugar who led the siege against
the city of Dubrovnik (ICTY): the prosecution could prove neither the fact of the order for committing war
crimes, nor the effective participation of the general in committing the crimes, but he was found guilty on the
basis of the special command responsibility.
5
Carla Del Ponte: Prosecuting the Individuals Bearing the Highest Level of Responsibility, Journal of
International Criminal Justice (2004) pg. 516-517
6
See e.g. Greg R. Vetter: Command Responsibility of Non-Military Superiors in the International Criminal
Court, Yale Journal of International Law 25 (2000) pg. 89
7
Shane Darcy: Collective Responsibility and Accountability under International Law, Transnational Publishers,
2007. pg. 294-295
CURENTUL JURIDIC 43
actions, and did not punish the perpetrators of these actions”.8
This early formulation of
the special command responsibility had not been included in the peace treaties that ended
the war, thus we can find only one example of a judgment based on this particular
construction of responsibility among the cases of Leipzig after the First World War.
In the Müller-case, a commander of a French war prisoner camp, captain Müller had
been accused of – among other things – treating the war prisoners badly, as according to
the prosecution, he witnessed a subordinate officer assaulting a prisoner of war. The court
found him guilty in assault, because – although he did not order it – he overlooked and
tolerated its perpetration.9
The standard formulation of the special command responsibility by international law
did not happen between the two World Wars, so the elements of responsibility had been
shaped during the trials after the Second World War. It should be noted that the special
command responsibility was not included in the Charter of the Nuremberg Tribunal, nor
in the Charter of the International Military Tribunal for the Far East (it was not necessary
because of the codification of the participation in the execution of a mutual plan of
perpetrating a crime, as a form of responsibility).10
Besides the trials of the main war criminals, other trials took place in Nuremberg, and
at one of these, the responsibility of generals Wilhelm List and Wilhelm Von Leeb had
been established, based on that the accused did not prevent the crimes committed by their
subordinates, and by this, they have implicitly agreed to them.
The command responsibility based on the neglect of one’s duty had appeared in a
procedure at the International Military Tribunal for the Far East as well: a separate count
of indictment had been devoted to the behavior of those people, who deliberately and
knowingly ignored their obligation to secure the adherence to the rights of war and
prevent the violation of military law. Based on this count, almost the entire Japanese
government – so the civil superiors – had been considered responsible for crimes
committed against war prisoners.11
Nevertheless, the case most referred to was the Yamashita-case heard at the U.S.
military court, in which the accused – the commander-in-chief of the Japanese army on
the Philippines – had been charged with the unlawful ignorance and negligence of his
obligations ensuing from his position, as he did not supervise the actions of his
subordinates. With his negligence, he allowed the Japanese soldiers to commit serious
atrocities against the civil population and American war prisoners. According to the
prosecution, the atrocities happened so expansively and in so great quantities that the
accused should have been aware of them, or if he had not been aware of those, it was the
result of the deliberate conduct from the side of the accused, in the sense that he had not
done the expected steps to obtain the necessary information. It was not proven during the
8
Mucić-case (Trial Chamber IT-96-21). 335. (November 16th 1998) www.un.org/icty/celebici/trialc2/judgement/
cel-tj981116e.pdf
9
Stuart E. Hendin: Command Responsibility and Superior Orders in the Twentieth Century – A Century of
Evolution, Murdoch University Electronic Journal of Law, Vol. 10, Number 1 (March 2003) pg. 7-8
10
In front of the Tribunal of Nuremberg, the guiltiness of generals Keitel and Jodl had been established by
referring to the same reason, that the mass elimination of civil people, war prisoners, and in the Soviet Union,
commissars was the consequence of orders given (or transferred) by them, but this does not qualify as the so
called passive command responsibility.
11
Meloni Chantal: Command Responsibility, Journal of International Criminal Justice (2007) pg. 622
44 Ferenc SÁNTHA
procedure in the end, whether the accused had been aware of the crimes committed by the
soldiers, as it was established as a fact, that as a result of the powerful American
offensive, the line of communication between the general headquarters and most of the
troops had been broken. In spite of that, Yamashita had been found guilty by the court –
on a secondary level as well – and the inflicted death-sentence had been carried out.12
Following the World War, the special command responsibility has been codified on an
international level in 1977: Article 87 of Protocol I of the Geneva Conventions obliges
military commanders to prevent and, if needs be, obstruct, and report to the authorities in
charge the violations of the Conventions and the Protocol. Furthermore, they must make
sure that the members of the armed forces subordinated to them are aware of the
obligations laid upon them by the Conventions and the Protocol.13
Finally, when summing
up the results of the development of law, it can be said that the special command
responsibility may be considered as a legal institute generally acknowledged by
international law and a form of responsibility applicable at both international and noninternational
armed conflicts.
3. ELEMENTS OF THE COMMAND RESPONSIBILITY
The elements of the special responsibility of military commanders and civil superiors
had been developed primarily during the practice of international criminal courts, and
more closely, mostly in the trials of the ICTY. (Thus, we also typically rely on the
practice of the ICTY when introducing the elements of the command responsibility, but
we refer to the fact, that the International Law Commission, in its Draft Code of Crimes
againts the Peace and Security of Mankind, also regulates the responsibility of the
superiors, who neglect preventing and punishing the crimes committed by their
subordinates.)14
Point 3 of Article 7 of the Statute of the ICTY15
regulates this special form of
responsibility according to the below:
„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.„
The prerequisite of the responsibility is implicitly the perpetration of a crime which
falls under the scope of the legal authority of the given international court, perpetrated by
a subordinate. And the elements of the responsibility can be summed up thus:
3.1. The existence of the superior (commander) - subordinate relation
12
See e.g. Hendin: ibid. pg 19-22
13
Protocol I to the Geneva Conventions relating to the protection of victims of international armed conflicts. The
document can be found e.g. on the website of the ICRC: www.icrc.org/eng/ It does worth noting, that the Hague
Convention IV of 1907 had previously recorded the basic principle, that the military commander is responsible
for the behaviour of his or her subordinate soldiers.
14
Draft Code of Crimes againts the Peace and Security of Mankind with commentaries (1996). The document –
among others – can be found on the website of the International Law Commission.
http://www.un.org/law/ilc/index.htm
15
The Statute of the tribunal is included in the Annex of Law XXXIX of 1996.
CURENTUL JURIDIC 45
The superior-subordinate relation is based on control in military and other hierarchies.
In certain situations – for example, during a war – the mechanisms of control and ordering
may become unstable, so the formal nature of the relation between superior and
subordinate is not always granted. In this sense, we can make a distinction between the so
called de jure and de facto jurisdictions of control, and consequently, between a de jure
and de facto commander (superior). In the first case, the superior obtains his or her
function based on appointment or commission, in military hierarchies this is represented
by rank or post. The de facto commander does not have a formal function, but based on all
circumstances of the case, he or she must be considered as having one.16
In case of both the de facto and the de jure commander, the main point is that they
should have an effective control over the actions of the subordinated people. Regarding
the validity of effective control, the starting point is obviously the official position held by
the accused, but one must examine the duties actually performed by the accused, and also
the fact, whether they had been entitled to give the order. (So for example the signature of
the accused on an official document about the release of a prisoner refers to the validity of
the jurisdiction of control exercised by the accused, but it is possible, that the signing was
the execution of an order given by someone else.) Effective control means that the
superior possesses the ability to prevent the subordinates from committing crimes, or to
punish the perpetrators.17
As a consequence, a soldier of lower rank may have effective control over the platoon
he or she leads, and it has no significance, if the given military unit had only been created
temporarily – e.g. to do a given task.18
Furthermore, there is nothing to prevent many
superiors from being impeached at the same time because of the actions of a subordinate
leading to a crime, if the perpetrator had indeed been active under the actual supervision
of these commanders. It should be noted, that in the practice of the ad hoc tribunals, and in
the armed conflicts of recent history, the de facto control (de facto command) dominates,
as in many cases the battles are fought by military and paramilitary units with an unstable
hierarchy, subordinated to self-appointed governments which are not acknowledged
officially. In the Celebici-case, the court acquitted Delacić, the commander of the camp
for Serbian war prisoners, by referring to the fact that in spite of his formal function as a
commander, the accused did not have a jurisdiction to control the camp, and did not give
orders either. The court, however, established the responsibility of the other accused,
Mucić, who, although entitled with no such function, had been the de facto commander of
the camp, as on the one hand he referred to himself as commander usually, on the other
hand, he was called commander by the soldiers as well, and finally the prisoners had the
impression that he was in command, as Mucić decided over who should be free and who
should be transferred to another camp.19
It is important, that not only military, but civil people can be punished based on the
construction of the superior responsibility, if they had effective control over the actions of
particular individuals. The jurisdiction of a civil superior – e.g. a major of a city or any
other official – cannot be compared to that of a military commander obviously. According
16
Limaj-case (Trial Chamber IT-03-66). 522.
17
Kordic and Cerkez-case (Appeals Chamber IT-95-14/2). 840.
18
Halilovic-ügy (Trial Chamber IT-01-48). 61.
19
Mucić-case (Trial Chamber IT-96-21)
46 Ferenc SÁNTHA
to practice, the single fact that someone is regarded as an influential person by those
around him or her does not suffice, but if he or she has a valid, actual ability to prevent or
punish crimes, he or she may be impeached as a superior.20
(For example, the person
whose jurisdiction includes the control over the police, but in the practice of the ICTR, the
chief of a local tea-processing company had been qualified as such a person.) This ability
does not necessarily mean the right to carry out punishment or disciplinary action, but
refers to such a position, in which the given person must report a crime to the responsible
authority, if it is revealed to them. By the way, the practice of ad hoc tribunals does not
differentiate between the conditions of impeachment of civil and military superiors
(commanders).
b) The subjective (awareness) side: to impeach the superior, it is necessary to know
for sure that he or she had been aware, or should have been aware of the fact that his or
her subordinate was preparing to commit a crime, or the crime had already been
committed.
The practice visible in the trials following Second World War had been criticized
indeed for the reason that the judgments basically only presumed the fact that the
commander had been aware of the crimes committed by the subordinated soldiers. The
presumption had been based on two factors: (1) the particularly high rank of the accused
(they were the members of the highest military and political command); (2) the expansive
and en masse quality of the crimes committed. According to the then-standard viewpoint,
crimes of such quality could not have been realized in any other way, but with the – at
least implicit – agreement of the commander, thus, the commanders must have been aware
of these crimes.21
The practice of the ad hoc tribunals applies a much more careful approach. According
to this, the awareness of the crime cannot be presumed, or taken for granted, although the
function of the accused is an important starting point in this case as well. It is actually
very difficult for a de jure military commander to base his defense on his or her
unawareness of the actions of the subordinate soldiers with a well-established system of
controlling-ordering behind his or her back. It is more challenging to prove the awareness
in case of other superiors – especially the de facto civil superior. Many external factors are
to be taken into consideration in such cases, so for example the distance between the
location of the superior and the scene of the crime, the information disposed to him or her,
the number of crimes committed, their expansive or en masse quality, the time span of the
perpetration, and the number of people taking part in the perpetration of the crime(s).22
The most problematic term in practice, the one that leads to carelessness, “they should
have known”, means that the commander obtained so called warning information, which
at least indicates the risk of the commission of a crime. Based on this, the commander is
obliged to find out whether the subordinate had committed a crime, or if a crime is being
perpetrated right at that time. To put it more simply: the commander obtained information
referring to the commission – its possibility or risk – of a crime, but due to his or her own
fault, he or she had not found out about it.23
An example for this is the camp commander,
20
Kordić and Cerkez-case (Trial Chamber IT-95-14/2). 416.
21
Lásd Bonafé: ibid. pg. 606
22
Kordić and Cerkez-case (Trial Chamber IT-95-14/2). 427.
23
Mucić-case (Appeals Chamber IT-96-21) 222-241.
CURENTUL JURIDIC 47
who had been aware of the fact that one of the guards committed violent sexual crimes
against the prisoners and he does not relocate him to another post: as a superior, he is
responsible for the sexual violence committed later by the guard.24
Finally, according to
practice, it is not a prerequisite for the commander to know the perpetrator personally: it is
enough to know that the perpetrator is a member of the unit or group lead or supervised by
him or her.25
c) The objective side: the superior neglected to take the measures necessary and
justified for prevention and punishment. In this regard, only those measures can be
considered, that belong under the jurisdiction of the superior and that can be done by him
or her in the given situation: on the one hand, no superior can be forced to do the
impossible, on the other hand, the scope of the expected measures depends on the actual
jurisdiction of control exercised by the superior. According to practice, it is not necessary
to prove the casual relation between the neglect of the superior and the crime committed
by the subordinate (as this would already point to the apprenticeship of the superior).26
For the sake of preventing crimes being prepared, it is an expected behavior of the
superior to inform his or her subordinates about the basics of humanitarian law and make
sure that these standards are adhered to. According to practice, it is also expectable from
the superior to systematically monitor the behavior of the subordinates in order to obtain
knowledge of a crime being prepared. One method for this is the establishment of a
network, which could inform the superior about the preparation for the (or about the
already committed) violation of law, another method would be any means of monitoring
the actions of subordinate people.27
Thus the fact that the commander of the camp
knowingly neglected the monitoring of the actions of his or her subordinates and made
regular violence toward prisoners possible, is a good point to establish the responsibility
of the superior on.
Regarding the actions needed to be taken for the sake of punishing a subordinate for a
crime already committed, the superior usually fulfills his or her obligations by conducting
the necessary (internal) investigations and by notifying the authorities with a jurisdiction
to judge over a crime, if he or she is not entitled to impeach the accused and to apply
sanctions.28
It is not necessary that the crime which was committed by the subordinate to
be finished by a legally binding decision. (Elek: Legal force of decisions in criminal
procedures, DEÁJK, Debrecen, 2012, pp. 223.)29
As the obligations to prevent and to
punish are separate ones, and both are imposed on the superior, if the superior has
knowledge about the subordinate preparing for a crime, but does not take any preventive
24
A similar, so called warning information could be if the commander is aware of the fact that his soldier
consumed alcohol before the mission. See Krnojelać-case (Appeals Chamber IT-97-25) 154.
25
Orić-case (Trial Chamber IT-03-68). 315.
26
It is still a question how the above rule will be interpreted in the future practice of the ICC, as according to the
text of the Statute the subordinate of the superior commits the crime „as a result of his or her failure to exercise
properly over such subordinates”. The existence of the casual relation, as a condition of responsibility, seems to
be contrary to the previously described function of command responsibility, but it is possible to interpret the
above provision in a way which implies that the neglect of the superior significantly increased the risk of the
subordinate committing a crime.
27
Darcy: ibid. pg. 340
28
Limaj-case (Trial Chamber IT-03-66). 529.
29
See Balazs Elek: A jogerő a büntetőeljárásban. DEÁJK, Debrecen, 2012, pp.223.
48 Ferenc SÁNTHA
actions, then the punishment of the perpetrator afterwards will not nullify his or her
neglect, thus, the superior remains impeachable.
4. THE LEGAL NATURE OF THE SPECIAL COMMAND RESPONSIBILITY
The practice of the ad hoc tribunals consistently emphasizes that the command
responsibility is not a replaceable one, so it is not a criminal law responsibility imposed
because of the crimes of another person – the subordinate. The superior is impeached
because of his or her own behavior (neglect), it is another question that the accessorial
nature of this form of responsibility can hardly be denied: the command responsibility is
not understandable without the crime committed by the subordinate. The accessorial
nature of the responsibility is further supported by the fact that the courts declare the
superior guilty for the same crime as the subordinate – but based on the command
responsibility. The special command responsibility is a legal institute that is fully
unknown by the Hungarian criminal law dogmatics, – as we mentioned – it cannot be
inserted into the traditional framework of participation either from the perpetrator’s or the
accessory’s side. No doubt that this is an independent responsibility, which can be mostly
considered as a form of perpetration – best comparable to the special responsibility of the
business executive in Hungarian law. The leader is an independent perpetrator of the
crime committed by the person being under his or her command and supervision, power
and control, regardless of the punishability of this person. The superior’s responsibility
has its own independent objective and subjective elements.30
5. THE SPECIAL COMMAND RESPONSIBILITY IN THE INTERNATIONAL
CRIMINAL LAW OF THE FUTURE
Taking into consideration primarily the practical experiences of the International
Criminal Tribunal for the former Yugoslavia, the Statute of the ICC regulates the legal
institute of superior responsibility in a quite detailed way (Article 28 of the Statute),
making a difference between the responsibility prerequisites of military commanders and
civil officers.
The military commander (de jure commander) or the person actually proceeding as a
military commander (de facto commander) is punishable, if the given crime is committed
by forces under his or her actual command and supervision, or actual power and control,
as a result of not having proper control over these forces, if
- he or she was aware, or under those circumstances, should have been aware what
crimes his or her forces are committing or are willing to commit, and
- did not take all necessary and reasonable measures for the sake of preventing or
obstructing the commission of the crimes, or of forwarding the case to the authorities
with jurisdiction so they could conduct an examination and criminal procedure.
The civil supervisor is responsible in the case when the crime is committed by his or
her subordinates who are under his or her actual power and control, as a result of not
exercising the appropriate control over the subordinates, if the supervisor was aware what
30
See Norbert Kis-Balázs Gellért: Home codification of international crimes de lege ferenda, in: Wiener A. Imre
Ünnepi Kötet, KJK-Kerszöv Kft., Budapest, 2005. pg. 363-392
CURENTUL JURIDIC 49
crimes his or her subordinates had committed or are willing to commit, or deliberately
ignored the information obviously referring to this. (The other prerequisites are the same
as those mentioned in connection with the responsibility of the military commander.)
It can be seen that the responsibility of the civil superior is narrower than that of the
military commander, so the burden of verification is bigger on the shoulder of the
prosecution, as they must verify that the civil superior did have the information, based on
which he or she was aware, or should have been aware of the commission of the crime.31
Based on the practice of the ad hoc tribunals, an interesting conclusion can be made:
this is the form of responsibility, based on which it is the most unlikely that an accused
would be declared guilty. Until the middle of 2007, from the 99 accused people of the two
Tribunals, 55 people had been charged based on special command responsibility, but only
10 accused were declared guilty.32
An explanation for this phenomenon, aside from the
difficulties of verification, could be the practice, that if the responsibility of the accused
regarding a certain crime can be established based on both the principle of the traditional
individual responsibility and on the special command responsibility as well, tribunals
prefer the first solution.
Thus the opinion can be formulated, that – although based on this, the impeachment of
both the military and civil, political leaders is theoretically assured – the special command
responsibility can be applied more effectively in case of crimes – and mostly, war crimes
– committed in the framework of the traditional military hierarchy, for the impeachment
of military leaders.
31
See Péter M. Nyitrai: Nemzetközi és európai büntetőjog, Budapest, Osiris Kiadó, 2006. pg. 139
32
See Bonafé: ibid. pg. 602
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