Three of the four accused - Delalic, Mucic and Delic - are charged in the Indictment with having had "responsibility for the operation of Celebici camp" and with being in "positions of superior authority to all camp guards and to those other persons who entered the camp and mistreated detainees. [They] knew or had reason to know that their subordinates were mistreating detainees, and failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators. By failing to take the actions required of a person in superior authority, [they] are responsible for all the crimes set out in this indictment, pursuant to Article 7(3) of the Statute of the Tribunal."

With respect to some counts, Delalic, Delic and Mucic are additionally charged with individual criminal responsibility as direct participants, under Article 7(1). Landzo is charged solely as perpetrator, under Article 7(1).

As the Statute's Article 7 makes clear, a commander's criminal responsibility can arise in two ways: either directly, under Article 7(1), where he has "planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in articles 2 to 5"; or indirectly, under Article 7(3), where a commander can be held responsible for the acts of his subordinate "if he knew or had reason to know that the subordinate was about to commit such acts or had done so and (...) failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof." It is the latter, imputed criminal responsibility, with which Delalic, Mucic and Delic are charged as commanders.

The Indictment does not allege that they actually issued illegal orders. Thus, the case against them will turn on their alleged failure to act to prevent or punish serious breaches of international humanitarian law.

The concept of command responsibility can be traced back to at least 500 B.C., when Sun Tzu referred to it in his The Art of War.

Hugo Grotius, considered the father of international law, recognised the principle in his De Jure Belli Ac Pacis Libri Tres (1625).

It is alluded to indirectly in the 1907 Hague Conventions and the 1929 Red Cross Convention and was clearly articulated in the Treaty of Versailles. Some jurists consider that by the Second World War, the doctrine had become part of customary international law. Direct command responsibility was recognised in the Nuremberg and Tokyo Charters, and many cases before these Tribunals and during the Subsequent Proceedings broached the question.

Up until WWII, however, most on the focus was on the responsibility of commanders for issuing illegal orders which were carried out by subordinates. The Nuremberg Charter, for example, does not refer to responsibility for omission. It was not until the Yamashita Case, which was heard before a US Military Commission in Manila at the end of WWII, that command responsibility for failure to act received its first full consideration.

Other important cases of command responsibility for failure to act were heard during trials before the International Military Tribunal for the Far East (IMTFE) and the Nuremberg Subsequent Proceedings before US military tribunals (for example, the Hostage and High Command Cases). These are discussed below. In these cases, responsibility for omission was based in particular on Article 1(1) of the 1907 Hague Regulations, which provides that members of the armed forces must be "commanded by a person responsible for his subordinates".

Post-WWII treaties, including the Convention against Torture of 1984 and the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity of 26 November 1968 allude to command responsibility (the latter specifically hints at command responsibility for omission), and it is enumerated as Principle III of the Nuremberg Principles

Although the Geneva Conventions of 1949 do not specifically enumerate the duties of commanders, responsibility for the direct issuance of illegal orders or for omission to act could arise under various articles therein. A grave breach of the Conventions could just as easily be committed by omission as by a positive act.

It was not until 1977 that command responsibility was formally codified, in Protocol I additional to the Geneva Conventions. Its Articles 86 and 87 enumerate the responsibility of commanders in cases where they fail to act and their positive duties, respectively. Of course, grave breaches of the Protocol, enumerated in Articles 11 and 85, can be committed by omission as much as by a positive act.

Article 7(3) of the Tribunal's Statute is clearly modelled on Article 86(2) of Protocol I, although, arguably, liability under 7(3) is broader and presents a more objective test than under 86(2).

Concurrent with the evolution of the doctrine of both direct and indirect command responsibility at an international level has been its development and exposition at a national level, in the military codes of various States and in cases before national military tribunals.

The codification in Protocol I of the principle of command responsibility for failure to act has not definitively resolved the question of the limits of such responsibility. While it is now widely considered that command responsibility for failure to act has the status of customary international law, the extent of commanders' duties remains unclear and subject to interpretation.

In this regard, it is useful to briefly examine some post-World War II cases.

In this leading case, General Tomoyuki Yamashita, who served as commanding general of the Japanese forces in the Philippines as well as military governor of the islands during the latter part of WWII, was accused of having imputed knowledge of war crimes committed by his subordinates.

Although it was not alleged that Yamashita had actually issued illegal orders, in finding him guilty, the US military commission found that the public notoriety of the crimes was such that the accused must have known of them and failed to take action to prevent them or punish those responsible: "the crimes were so extensive and wide-spread, both as to time and area, that they must have been wilfully permitted by the Accused, or secretly ordered by the Accused."

In dismissing Yamashita's appeal, the US Supreme Court ruled that "(...) the law of war presupposes that its violation is to be avoided through the control of the operations of war by commanders who are to some extent responsible for their subordinates."

However, this must-have-known standard (tantamount to the imposition of strict liability) was not subsequently applied at Nuremberg or Tokyo.

In this case, 13 high-ranking German officers were tried before the Nuremberg Military Tribunal Under Control Council Law No. 10 (Subsequent Proceedings) on the basis of command responsibility.

The court rejected the proposal that a commander could be held criminally liable solely on the basis of the commander/subordinate relationship in which he is under the duty to know:

"The authority, both administrative and military, of a commander and his criminal responsibility are related but by no means coextensive. (...) There must be a personal dereliction that can occur only where the act is directly traceable to him or where his failure to properly supervise his subordinates constitutes criminal negligence on his part. In the latter case, it must be a personal neglect amounting to a wanton, immoral disregard of the actions of his subordinates amounting to acquiescence."

In this case, the responsibility of a commander of occupied territory was addressed.

It was held that if a commander "fails to require and obtain complete information, the dereliction of duty rests upon him and he is in no position to plead his own dereliction as a defence ( ...). Want of knowledge of reports made to him is not a defence. Reports to commanding generals are made for their special benefit. Any failure to acquaint themselves with the contents of such reports, or a failure to require additional reports where inadequacy appears on their face, constitutes a dereliction of duty which he cannot use in his own behalf."

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1. The High Contracting Parties and the Parties to the conflict shall repress grave breaches and shall take measures necessary to suppress all other breaches, of the Convention or of this Protocol which result from a failure to act when under a duty to do so.

2. The fact that a breach of the Conventions or of this Protocol was committed by a subordinate does not absolve his superiors from penal or disciplinary responsibility, as the case may be, if they knew, or had information which should have enabled them to conclude in the circumstances at the time, that he was committing or was about to commit such a breach and if they did not take all feasible measures within their power to prevent or repress the breach.

1. The High Contracting Parties and the Parties to the conflict shall require military commanders, with respect to members of the armed forces under their command and other persons under their control, to prevent and, where necessary, to suppress and to report to competent authorities breaches of the Conventions and of this Protocol.

2. In order to prevent and suppress breaches, High Contracting Parties and Parties to the conflict shall require that, commensurate with their level of responsibility, commanders ensure that members of the armed forces under their command are aware of their obligations under the Conventions and this Protocol.

3. The High Contracting Parties and Parties to the conflict shall require any commander who is aware that subordinates or other persons under his control are going to commit or have committed a breach of the Conventions or of this Protocol, to initiate such steps as are necessary to prevent such violations of the Conventions or this Protocol, and, where appropriate, to initiate disciplinary or penal actions against violators thereof.

1. A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in articles 2 to 5 of the present Statute, shall be individually responsible for the crime.

2. The official position of any accused person, whether as Head of State or Government or as a responsible Government official, shall not relieve such person of criminal responsibility nor mitigate punishment.

3. 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.

4. The fact that an accused person acted pursuant to an order of a Government or of a superior shall not relieve him of criminal responsibility, but may be considered in mitigation of punishment if the International Tribunal determines that justice so requires.

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