Commentary on Sections Part 5: Offences under Domestic Law Section 65: Responsibility of commanders and other superiors
104.This section provides for an additional form of criminal responsibility, namely that of commanders and superiors for the acts of their subordinates. This is a well known concept of international law and was reflected in the jurisprudence of the Nuremberg and Tokyo Tribunals. As well as the ICC Statute, it also appears in the Statutes of the Tribunals for the former Yugoslavia and Rwanda. It reflects the hierarchical structure of military and administrative control over subordinates in the context of these crimes. Inclusion of command responsibility with respect to the crimes in this Part is intended to permit the investigation and prosecution of cases before domestic courts in all the circumstances where the ICC might found a case on that basis. The wording of this section is taken directly from Article 28 of the Statute. The wording draws a distinction between the standards expected of military and quasi-military commanders in relation to military forces under their command, and other superiors such as government officials or heads of civilian organisations, as it is recognised that the latter may not have the same degree of control over the actions of their subordinates.
105.Subsections (4) and (6) make plain that liability under this provision is a form of aiding and abetting and does not preclude any other liability that the commander or superior might have, for example where the commander has in fact ordered the commission of the offences.