CYIL vol. 13 (2022)

CYIL 13 ȍ2022Ȏ COMMAND RESPONSIBILITY FOR CRIMES COMMITTED BY PRIVATE MILITARY… that for superiors of PMSCs, it would be difficult to meet the effective control test because they are bound by the contract only. Consequently, does the PMSCs subordinates have the obligation to follow orders from their superiors, when they are bound only by the contract? In order to answer this question, one has to look also to provisions of AP I, which establish that the duty to prevent and repress the breaches of the Conventions and AP I is incumbent upon commanders “ with respect to members of the armed forces under their command and other persons under their control ”. The wording “ other persons under their control ” leaves room for a flexible interpretation and in the author’s view, this applies especially to de facto commanders. As a result, superiors of PMSCs may be found liable either for failing to prevent the crime by not putting in place a proper reporting mechanism, or for failing to report the crime to competent authorities. 102 Finally, if it would be accepted that also Article 28(b) could apply to superiors within PMSCs, it could help to combat the underlying problem from the past, when private contractors escaped international criminal responsibility. Concluding Remarks The present article tried to stress some important aspects connected to the doctrine of command responsibility. As the present article has shown, the doctrine of command responsibility has historical origins. However, this does not mean that the doctrine has not developed considerably. It can be agreed with the opinion of Jamie Allan Williamson that the advances in regard to the development of command responsibility have given rise to a number of questions, with many questions and aspects of the doctrine left unresolved. This stems from the fact that the jurisprudence, by not giving a uniform standard on how to solve the cases, has contributed to the uncertainty relating to the applicability of the doctrine of command responsibility. For instance, the relatively recent decisions of international criminal tribunals, such as Delalić or Bemba differ considerably from the Yamashita case. Especially the mens rea element has considerably developed and changed, because General Yamashita was found culpable even though it was not proven that he had any actual knowledge of the crimes. He was found guilty even though the mens rea element was absent. On the other hand, in Delalić , the mental element of knew or had reason to know was applied. As stated in the present article, liability of the commander or superior will only arise if only it was proven that the commander or superior knew or had the ability to find out about the crimes which were committed or were about to be committed. Such ability could be proven through relevant information about the atrocities the commander had obtained. In regard to superiors of PMSCs, it can be argued that there often may be a sufficient basis to prove that these persons at least failed in regard to the supervision of their subordinates. Such failure can have many different forms, such as a failure to report the crimes, failure to provide adequate training, failure to have effective control, or even failure to implement an effective reporting system. 103 In fact, if the superior fails to duly supervise their subordinates, there is nothing to stop them from committing the atrocities, once they have lost all moral barriers in the field. The doctrine of command responsibility has been ‘proven’ by more than half of a century. Nevertheless, its application is somehow in decline. On the other hand, the wide usage of private military and security companies should alert international lawyers

102 Ibid., p. 157. 103 FRULLI, note 17, p. 466.

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