Part 2: Serious violation of the Second Protocol Section 5: Responsibility of commanders and other superiors
This section provides for an additional form of criminal responsibility, namely that of commanders and superiors for the acts of their subordinates. Such criminal responsibility complies with general principles of international law referred to in Article 15(2) of the Second Protocol and is contained within the Statute of the International Criminal Court, which is regarded as an authoritative statement of the general principles of international law in relation to criminal liability. The wording of the section is based on Article 28 of that Statute and similar provision is made in section 65 of the International Criminal Court Act 2001. As subsection (6) makes clear, courts will be obliged to take account of the jurisprudence of the International Criminal Court in interpreting and applying this section.
	Subsection (1) makes it clear that liability under this provision is a form of aiding and abetting. Under section 8 of the Accessories and Abettors Act 1861, which extends to England and Wales and Northern Ireland, a person who has aided or abetted the commission of an offence is liable to be prosecuted, and is subject to the same penalty, as a principal offender. In Scotland broadly equivalent provision is made in relation to statutory offences by section 293 of the Criminal Procedure (Scotland) Act 1995.
	The wording in subsections (2) and (4) 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. A commander will incur liability under this provision where he or she knew, or owing to the circumstances at the time should have known, that his or her forces were committing an offence. On the other hand, a superior other than a commander will only be liable where he or she knew or consciously disregarded information indicating that the subordinate was committing an offence.
	Subsection (7) makes it clear that this section does not preclude any criminal liability which arises apart from this section. So if a commander is prosecuted under this section, they could still also be prosecuted as a principal offender.