CYIL vol. 13 (2022)

FRANTIŠEK TÓTH CYIL 13 ȍ2022Ȏ subordinate relationship, knowledge (the mental element), and failure to act. 34 It is important to point out that even the wording of Article 86 of the AP I suggests that it can be considered as a “ responsibility by omission. ” 35 However, the whole concept of responsibility by omission can seem somehow problematic. In reality, proving that one ‘failed to act’ is not so simple. 36 Moreover, this ‘imputed’ type of responsibility differs considerably from the principles established within municipal criminal law. 37 In fact, within national criminal law doctrines, one is usually not found guilty for a “failure to act’. Rather, negligence or aiding or abetting a criminal act forms part of municipal criminal law doctrines. From this point of view, command responsibility considerably differs from municipal law. To prove that one failed to act, the responsible person has to have a specific duty to act. 38 Within the AP I, Article 86 is not the only provision forming part of the doctrine of command responsibility. Article 87 of the AP I establishes the ‘Duty of Commanders’. In Article 87(1) the principle that military commanders are obliged to prevent breaches of the Geneva Conventions and AP I is laid down. Moreover, they have a duty to suppress these crimes and report them to competent authorities. 39 These obligations are aimed at all persons who have command responsibility, from commanders at the highest level to leaders with only a few men under their command. 40 It is worth noting that these duties of commanders are not limited to apply only with respect to members of the armed forces under their command, but also to “ other persons under their control ”. 41 Subsequently, could employees of private military and security companies (PMSCs or PMSC) be considered as ‘other persons under control of commanders’? Probably yes, but the answer to this question will require a thorough analysis. The next part will therefore focus on few important decisions of ad hoc international criminal tribunals, such as the International Criminal Tribunal for Rwanda (ICTR) and the International Criminal 34 This can be red directly from the wording of Article 86, according to which: “ 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 going to commit such a breach and if they did not take all feasible measures within their power to prevent or repress the breach. ” Article 86, Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, check also FRULLI, note 16, p. 443. 35 FRULLI, note 16, p. 443, For an opposing opinion, check: DAMASKA, M. The Shadow Side of Command Responsibility. The American Journal of Comparative Law , Vol. 49, No. 3, 2001, pp. 455–496 36 “ Failure to Act ” is specific also because it contains not only failure to prevent the commission of crimes, but also failure to punish the perpetrators of these crimes. Check for instance DAMAŠKA, note 34. 37 Ibid. 38 LEHNARDT, Ch. Individual Liability of Private Military Personnel under International Criminal Law. The European Journal of International Law , Vol. 19, no. 5. EJIL 2008, p. 1027. Available at: http://www.ejil.org/ pdfs/19/5/1695.pdf. 39 Art. 87, Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I ), Commentary of 1987, Duty of Commanders. Available at: https:// ihldatabases.icrc.org/applic/ihl/ihl.nsf/Comment.xsp?action=openDocument&documentId=36FC92EB9E 83FBBEC12563CD00437BFB.

40 Ibid. 41 Ibid.

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