The Contours of Command Responsibility: Philippine Incorporation and Customary Evolution

Asia-Pacific Yearbook of International Humanitarian Law, Vol. 2, No. 2, 2006

35 Pages Posted: 9 Oct 2009

See all articles by Diane Alferez Desierto

Diane Alferez Desierto

Yale Law School; Peking University School of Transnational Law

Date Written: 2006

Abstract

In the wake of the ongoing “extrajudicial killings” of journalists, political dissidents, and other civilians dubbed by several military leaders as “enemies of the state,” the Philippine Supreme Court issued Administrative Order 25-2007, designating special courts to hear, try, and decide cases involving killings of political activists and members of media. Soon afterwards, Chief Justice Reynato Puno declared that the Supreme Court will hold a multi-sectoral summit on extrajudicial killings and set the stage for the possible rewriting of Philippine legal procedures in order to facilitate and expedite the prosecution of the perpetrators.

The Supreme Court’s initiatives are the first concrete proposals to revise the current legal framework in order to address the problem of extrajudicial killings in the Philippines. While the Chief Executive had constituted the Melo Commission to conduct fact-finding investigations (and the Commission’s Report has already been made public), the Chairman of the Commission himself declared that the Commission’s Report was “complete, but not final," in view of the continuation of extrajudicial killings. Significantly, the Melo Commission Report itself recommends the drafting of a special law for “strict chain-of-command responsibility." "The President should propose legislation to require police and military forces and other government officials to maintain strict chain-of-command responsibility with respect to extrajudicial killings and other offenses committed by personnel under their command, control, or authority. Such legislation must deal specifically with extralegal, arbitrary, and summary executions and forced 'disappearances' and provide appropriate penalties which take into account the gravity of the offense. It should penalize a superior government official, military, or otherwise, who encourages, incites, tolerates, or ignores, any extrajudicial killing committed by a subordinate. The failure of such a government official to prevent an extrajudicial killing if he had a reasonable opportunity to do so, or his failure to investigate and punish his subordinate, or to otherwise take appropriate action to deter or prevent its commission or punish his erring subordinate would be criminalized. Even 'general information' - e.g. media reports - which would place the superior on notice of possible unlawful acts by his subordinate should be sufficient to hold him criminally liable if he failed to investigate and punish his subordinate.”

The foregoing judicial and legislative responses to the problem of extrajudicial killings in the Philippines make it imperative to revisit the doctrine of command responsibility under international law, and particularly as incorporated in Philippine law. Owing to the lack of clarity on the precise content and elements of the doctrine of command responsibility in Philippine jurisdiction, there has been some reluctance to fully exhaust this doctrine as a species of attribution for criminal prosecution in the Philippines. This should not be the case. The doctrine of command responsibility is the articulation of a global consensus that the architects of the most egregious wartime atrocities, crimes against humanity, grave breaches of the Geneva Conventions, and serious violations of human rights should not escape criminal legal sanction and responsibility. As will be subsequently shown, considering the marked provenance of the doctrine of command responsibility (traceable to the Philippines, among other jurisdictions), there is a greater impetus for the doctrine to be fully utilized in the Philippine legal system.

Part I of this paper traces the historical contours of the doctrine of command responsibility, its status as customary international law, and its incorporation in Philippine law, as affirmed and articulated in post-World War II cases decided by the Philippine Supreme Court.

Part II then examines the doctrinal nuances of command responsibility as a form of derivative imputed criminal liability upon superiors, scrutinizes the requirements of mens rea and actus reus to satisfy legal attribution, and addresses the extent of the applicability of the defense of “superior orders”. Part III discusses emerging refinements to the doctrine of command responsibility from the recent rules and jurisprudence of international criminal tribunals such as the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), and the International Criminal Court (ICC). Part IV analyzes the applicability and limitations of the command responsibility doctrine to the extrajudicial killings, considering its present customary international law status and the extent of its incorporation in Philippine law.

Keywords: command responsibility, extrajudicial killings in the Philippines, international criminal law

Suggested Citation

Desierto, Diane Alferez, The Contours of Command Responsibility: Philippine Incorporation and Customary Evolution (2006). Asia-Pacific Yearbook of International Humanitarian Law, Vol. 2, No. 2, 2006, Available at SSRN: https://ssrn.com/abstract=1485557

Diane Alferez Desierto (Contact Author)

Yale Law School ( email )

New Haven, CT 06520-8215
United States

Peking University School of Transnational Law ( email )

University Town,
Xili, Nanshan District
Shenzhen, Guangdong 518055
China

Do you have negative results from your research you’d like to share?

Paper statistics

Downloads
201
Abstract Views
1,128
Rank
273,540
PlumX Metrics