Do you know that high-ranking officials within the police
structure can be held criminally liable for the crimes committed by their
subordinates?
Under international humanitarian law, the doctrine of command responsibility holds that both the police/military and non-military commanders can be held individually accountable should those serving under them fail to uphold the rule of law.
The concept of command responsibility is a form of indirect responsibility and is based on the commander’s failure to act.
The ongoing proceedings on Baby Pendo who lost her life during post-election violence in 2017 is a classic example of the application of command responsibility.
Police officers involved are on trial demonstrating that those who inflict harm on civilians will face justice.
Police officers involved in the brutal killing of human rights lawyer Willy Kimani are also serving death sentences under this principle.
According to the International Commission of Jurists (ICJ) Kenya, the doctrine of command responsibility mandates that not only the officer who directly commits an act but also their supervisors, from the officer in charge of a riot to the Officer Commanding Station, Officer Commanding Police Division, all the way up to the Inspector General and the Minister of Interior, are accountable for the actions of their subordinates.
Advocate Leah Aoko who is also the Programs Associate at Utu Wetu Trust human rights lobby explains that this chain of accountability is essential in preventing abuses and ensuring that law enforcement operates within the bounds of the law.
“What we are saying is that where an offence has been committed by an officer, we hold the person who gave the orders responsible. For example, I am part of a mission and I went to an area, committed an offence whether its sexual assault, my boss is going to be held responsible,’’ she explains.
“This is very important because we found that in most instances police officers are not willing to disclose their colleagues who have committed offences so this concept is internationally recognized and ensures that superiors within the police service are very well aware of what the junior officers are doing”.
She believes that a successful application of this doctrine can help in ensuring justice for victims of atrocities committed by those who are supposed to protect them.
“This can be very effective if it's applied successfully because police bosses will be aware of what their juniors are doing because if something wrong happens, they will come looking for them. They will be very keen to ensure that their juniors do not commit crimes. The issue of following orders will come to an end,’’ she states.
Utu Wetu Trust Executive Director Yvonne Oyieke says the doctrine that has been efficient in other jurisdictions is being tested for the first time in Kenya and can lead to convictions which will in turn bring justice and accountability for those involved.
“Command responsibility under international law has shown itself to be an efficient way of ensuring that international crimes are accounted for. It has the same potential in Kenya by ensuring that survivors get justice,” she explains.
“If you look at the spectrum of what survivors or victims consider to be a just outcome, part of that also includes the recognition of their suffering.”
The system established in the Geneva Conventions of 1949 for repressing grave breaches targets persons who have committed or ordered the commission of such a breach. Persons who by failing to act have allowed a grave breach to happen can also be held criminally liable.
Command responsibility according to the Statute of the International Criminal Court (ICC)
The Statute of the International Criminal Court distinguishes two kinds of ‘superior’ responsibility.
Responsibility of military commanders Article 28 of the Statute lays down that a military commander or a person effectively acting as a military commander is criminally responsible for crimes within the jurisdiction of the ICC committed by forces or persons under his effective command and control, or effective authority and control, where:
- He/she either knew or owing to the circumstances, should have known that the forces or persons were committing or about to commit such crimes.
- He/she failed to take all necessary and reasonable measures within his power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.
Human rights defenders believe that by adhering to these principles, law enforcement can better protect human rights and ensure justice for all.