Part 5 Offences under domestic law

Supplementary provisions

65 Responsibility of commanders and other superiors

(1) This section applies in relation to—
(a) offences under this Part, and
(b) offences ancillary to such offences.
(2) A military commander, or a person effectively acting as a military commander, is responsible for offences committed by forces under his effective command and control, or (as the case may be) his effective authority and control, as a result of his failure to exercise control properly over such forces where—
(a) he either knew, or owing to the circumstances at the time, should have known that the forces were committing or about to commit such offences, and
(b) he 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.

Part 5 Offences under domestic law

Supplementary provisions

65 Responsibility of commanders and other superiors

(5) In interpreting and applying the provisions of this section (which corresponds to article 28) the court shall take into account any relevant judgment or decision of the ICC.
Account may also be taken of any other relevant international jurisprudence.
(6) Nothing in this section shall be read as restricting or excluding—
(a) any liability of the commander or superior apart from this section, or
(b) the liability of persons other than the commander or superior.

Part 5 Offences under domestic law

Supplementary provisions

66 Mental element

(2) Unless otherwise provided by—
(c) section 65 (responsibility of commanders and other superiors),
a person is regarded as committing such an act or crime only if the material elements are committed with intent and knowledge.

This provision follows the ICC Statute.

The general presumption is that such offences must be committed with knowledge and intent, unless the contrary can be shown.