Command responsibility for criminal acts of subordinates

Can a military commander be held liable for the criminal acts of his subordinates?

The Supreme Court touched on that issue in Lourdes D. Rubrico, et al. vs. Gloria Macapagal-Arroyo, et al., G.R. No. 183871, February 18, 2010. However, that case did not provide a venue for the Supreme Court to provide a definitive ruling on the matter.

The case involved a petition for a writ of amparo filed against the President, the Chief of the Armed Forces of the Philippines (AFP), and the Chief of the Philippine National Police (PNP), among others.  The petition was originally filed with the Supreme Court, which referred the case to the Court of Appeals.  The Court of Appeals eventually dropped the President as a respondent (based on presidential immunity from suit during her term).

The Court of Appeals also ordered the dismissal of the case against the AFP Chief and the PNP Chief. According to the Court of Appeals, AFP Chief Gen. Esperon and PNP Chief P/Dir. Gen. Razon were included as respondents on the theory that they, as commanders, were responsible for the unlawful acts allegedly committed by their subordinates against petitioners. According to the Court of Appeals, “the privilege of the writ of amparo must be denied as against Gen. Esperon and P/Dir. Gen. Razon for the simple reason that petitioners have not presented evidence showing that those who allegedly abducted and illegally detained Lourdes and later threatened her and her family were, in fact, members of the military or the police force.” The Court of Appeals hinted that the two generals would have been accountable for the abduction and threats if the actual malefactors were members of the AFP or PNP.

The Supreme Court discussed the current status of Philippine law regarding command responsibility for criminal acts of subordinates:

The evolution of the command responsibility doctrine finds its context in the development of laws of war and armed combats. According to Fr. Bernas, “command responsibility,” in its simplest terms, means the “responsibility of commanders for crimes committed by subordinate members of the armed forces or other persons subject to their control in international wars or domestic conflict.” In this sense, command responsibility is properly a form of criminal complicity. The Hague Conventions of 1907 adopted the doctrine of command responsibility, foreshadowing the present-day precept of holding a superior accountable for the atrocities committed by his subordinates should he be remiss in his duty of control over them. As then formulated, command responsibility is “an omission mode of individual criminal liability,” whereby the superior is made responsible for crimes committed by his subordinates for failing to prevent or punish the perpetrators (as opposed to crimes he ordered).

The doctrine has recently been codified in the Rome Statute of the International Criminal Court (ICC) to which the Philippines is signatory. Sec. 28 of the Statute imposes individual responsibility on military commanders for crimes committed by forces under their control. The country is, however, not yet formally bound by the terms and provisions embodied in this treaty-statute, since the Senate has yet to extend concurrence in its ratification.

While there are several pending bills on command responsibility, there is still no Philippine law that provides for criminal liability under that doctrine.

It may plausibly be contended that command responsibility, as legal basis to hold military/police commanders liable for extra-legal killings, enforced disappearances, or threats, may be made applicable to this jurisdiction on the theory that the command responsibility doctrine now constitutes a principle of international law or customary international law in accordance with the incorporation clause of the Constitution.

While the Supreme Court left open the possibility that command responsibility for criminal acts  is part of international law and is deemed incorporated into Philippine law pursuant to the “incorporation” clause of the Constitution, the Supreme Court held that command responsibility “as a concept defined, developed, and applied under international law, has little, if at all, bearing in amparo proceedings.” According to the Supreme Court:

Still, it would be inappropriate to apply to these proceedings the doctrine of command responsibility, as the CA seemed to have done, as a form of criminal complicity through omission, for individual respondents’ criminal liability, if there be any, is beyond the reach of amparo. In other words, the Court does not rule in such proceedings on any issue of criminal culpability, even if incidentally a crime or an infraction of an administrative rule may have been committed. As the Court stressed in Secretary of National Defense v. Manalo, the writ of amparo was conceived to provide expeditious and effective procedural relief against violations or threats of violation of the basic rights to life, liberty, and security of persons; the corresponding amparo suit, however, “is not an action to determine criminal guilt requiring proof beyond reasonable doubt x x x or administrative liability requiring substantial evidence that will require full and exhaustive proceedings.” . . .

If command responsibility were to be invoked and applied to these proceedings, it should, at most, be only to determine the author who, at the first instance, is accountable for, and has the duty to address, the disappearance and harassments complained of, so as to enable the Court to devise remedial measures that may be appropriate under the premises to protect rights covered by the writ of amparo. As intimated earlier, however, the determination should not be pursued to fix criminal liability on respondents preparatory to criminal prosecution, or as a prelude to administrative disciplinary proceedings under existing administrative issuances, if there be any.