Chapter 11 – War crimes and crimes against humanity

Section 12 - Responsibility of the superior

A military or other superior shall be sentenced for the offence or the attempt of an offence referred to in section 1, 3 through 7 or 13 in the same way as the offender or participant if forces or subordinates that are factually under the command and supervision of the superior have been guilty of an act as a consequence of the failure of the superior to properly supervise the actions of the forces or subordinates, and if

(1) the superior knew or on the basis of the circumstances he or she should have known that the forces or subordinates committed or intended to committed said offences, and
(2) the superior did not undertake the necessary measures available to him or her and that could have been reasonably expected of him or her in order to prevent the completion of the offences.

Article 28
Responsibility of commanders and other superiors
In addition to other grounds of criminal responsibility under this Statute for crimes within the jurisdiction of the Court:
(a) A military commander or person effectively acting as a military commander shall be criminally responsible for crimes within the jurisdiction of the Court committed by forces under his or her effective command and control, or effective authority and control as the case may be, as a result of his or her failure to exercise control properly over such forces, where:
(i) That military commander or person either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes; and
(ii) That military commander or person failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.