The Treatment of Superior Responsibility

Criminal Law Forum (2019) 30:61–107 Springer Nature B.V.
2018
https://doi.org/10.1007/s10609-018-9359-6
HÉCTOR OLASOLO*
and JANNLUCK CANOSA CANTOR**
THE TREATMENT OF SUPERIOR RESPONSIBILITY

IN COLOMBIA: INTERPRETING THE AGREEMENT
BETWEEN THE COLOMBIAN GOVERNMENT
AND THE FARC
ABSTRACT. The Colombian Constitutional and Supreme Court’s interpretation of

superior responsibility as cases of commission by omission and indirect perpetration
excludes most military superiors’ omissions of their duties to prevent, repress and
submit subordinates’ international crimes to the competent authorities. Nevertheless,
the notion of complicity by omission, as a form of accessorial liability, and the crime of
abetting could cover this gap with regard to omissions carried out by military superiors
with dolus. Furthermore, although Colombian criminal law does not provide for

This article is part of the following research projects: (i) ‘‘The Role of Interna-
tional Judicial and Arbitration Bodies in the execution of an Eventual Peace
Agreement in Colombia as a result of the Renegotiation brought forward by the
Result of the Referendum of October 2, 2016’’; and (ii) ‘‘Principles of Harmonization
between the Function and Scope of Justice and the Demands Arising in Transitional
Processes’’. Both Projects are funded by the Universidad del Rosario, Bogotá,
Colombia.
* Héctor Olasolo, Law Degree, University of Salamanca; LL.M. in Law, Co-
lumbia University; Ph.D. in Law, University of Salamanca. Prof. Olasolo holds the
Chair in International Law at Universidad del Rosario, Bogotá, Colombia, and is
chairman of the Ibero-American Institute of The Hague for Peace, Human Rights
and International Justice (‘‘IIH’’) and director of the Anuario Iberoamericano de
Derecho Internacional Penal (Ibero-American Yearbook of International Criminal
Law). Prof. Olásolo previously held the Chair in International Criminal Law at the
University of Utrecht (2010–2012), and served as Legal Officer in Chambers of the
International Criminal Court (2004–2010) and the Office of the Prosecutor of the
International Criminal Tribunal for the former Yugoslavia (2002–2004). He was
Legal Adviser to the Spanish Delegation to the Preparatory Commission for the
International Criminal Court (1999–2002) and expert witness before the Inter-
American Court of Human Rights (2014). E-mail: hectorolasolo@gmail.com.
** Jannluck Canosa Cantor, Law Degree. Universidad del Rosario, Bogotá,
Colombia. He is currently a researcher at the Law Faculty of Universidad del
Rosario. E-mail: jannluck.canosa@urosario.edu.co, canosa.jannluck@gmail.com.
62 ´ CTOR OLASOLO AND JANNLUCK CANOSA CANTOR
HE
negligent military superiors’ omissions, the Colombian Armed Forces Operational law
attaches disciplinary responsibility to military superiors’ omissions, which are carried out
with gross negligence. Moreover, the Peace Agreement of 24 November 2016 between the
Colombian Government and the Revolutionary Armed Forces of Colombia – Popular
Army (Ôthe FARC’), explicitly provides for criminal liability for gross negligent omissions
of Colombian Security Forces superiors and FARC superiors with regard to subordi-
nates’ international crimes related to the armed conflict. Further, the provisions of the
Agreement on superior responsibility of Colombian Security Forces superiors have been
subsequently incorporated into the Colombian Constitution by the 4 April 2017 Leg-
islative Act 01/2017 and the provisions relating to FARC superiors were incorporated
into Colombian law through the 30 November 2017 Law on the Special Jurisdiction for
Peace. Although this approach was upheld by the 24 November 2017 Colombian Con-
stitutional Court (ÔCCC’) judgment C-674/2017 and the CCC’s 16 August 2018 public
statement, which declared, respectively, the constitutionality of Legislative Act 01/2017
and the Law on the Special Jurisdiction for Peace, this position has come at a high prize
because not only have all references to international law been eliminated from the defi-
nition of superior responsibility for Colombian Security Forces superiors (they have only
been kept in relation to FARC superiors), but several additional requirements have also
been added to the definition. The result significantly restricts the scope of application.
Last but not least, the notion of superior responsibility for civilian superiors is not yet
applicable in Colombia due to the absence of an explicit reference to it under Colombian
law and the Colombian Constitutional Court’s Ôdistinctive approach’ doctrine.
I INTRODUCTION
Superior responsibility is based on the principle of criminal liability

for omissions when there is a legal obligation to act.1 Its foundation
lies on the duties that superiors have, by reason of their effective
control over their subordinates, to take all necessary and reasonable
measures at their disposal to prevent, suppress and submit to the
competent authorities the international crimes committed by their
subordinates.2 These obligations aim to limit the commission of
international crimes.3,4
1
Bemba, Appeals Judgment, ICC-01/05-01/08-3636-Red, 08 June 2018, para 5–8
(ÔBemba Appeals Judgment’); Bemba, Confirmation Decision, ICC-01/05-01/08-424,
15 June 2009, para 405 (ÔBemba Confirmation Decision’).
2
Popovic, Appeals Judgment, IT-05- 88-A, 30 January 2015, para 1846 at seq
(ÔPopovic Appeals Judgment’).
3
J. Acevedo, ÔLa Responsabilidad del Superior Ôsensu estricto’ por Crı´menes de
Guerra en el Derecho Internacional Contemporáneo’ (2007) 10 International Law
Review 153–160.
4
In relation to military superiors, it has been stressed that Ô[b]y virtue of the
authority vested in them, commanders are qualified to exercise control over troops
and the weapons they use; more than anyone else, they can prevent breaches by
THE TREATMENT OF SUPERIOR RESPONSIBILITY IN COLOMBIA 63
Despite the treaty5 and customary6 regulation of superior

responsibility in international law, prior to the signature on 24
November 2016 of the Final Agreement to End the Conflict and Build a
Footnote 4 continued
creating the appropriate frame of mind, ensuring the rational use of the means of
combat, and by maintaining discipline.’ Hadzihasanovic, Trial Judgment, IT-01-47,
15 March 2006, para 66 (ÔHadzihasanovic Trial Judgment’). See also Halilovic, Trial
Judgment, IT-01-48, 16 November 2005, para 85 (ÔHalilovic Trial Judgment’).
5
The case before the US Supreme Court against Japanese general, Tomoyuki
Yamashita, commander of the Japanese Army in the Philippines between 1944 and
1945, is considered as the first precedent in the application of superior responsibility
(Yamashita, Trial Judgment, 427 U.S. 1946). In the following two years, the US
Military Tribunal acting under Control Council Law Num. 10 also relied on superior
responsibility to convict German civilian and military superiors in the High Com-
mand (Wilhelm Von Leeb et al., Trial Judgment, 72 US M.T.N, 28 October 1948 para
542), the Hostages (Wilhelm List et al., Trial Judgment, 47 US M.T.N, 19 February
1948) and the Medical Personnel (Karl Brandt et al., Trial Judgment, 1 US M.T.N,
21 November 1947) cases. Based on these precedents, article 86 (2) of the 1977
Additional Protocol I to the Geneva Conventions and articles 7 (3) of the 1993
Statute of the International Criminal Tribunal for the Former Yugoslavia (ÔICTY
Statute’) and 6 (3) of the 1994 Statute of the International Criminal Tribunal for
Rwanda (ÔICTR Statute’), developed the notion of superior responsibility. Never-
theless, the most elaborate definition of superior responsibility that exists to date in
conventional international law came into force only with article 28 of the ICC
Statute on 1 July 2002, See J. Pictet et al., Commentary on The Additional Protocols
of 8 June 1977 to The Geneva Conventions 12 August 1949 (Geneva: Martinu Nijhoff
Publisher, 1984); K. Ambos and S. Bock, ÔIndividual Criminal Responsibility’ in
Anne-Marie de Brouwer and Alette Smeulers (eds.), The Elgar Companion to the
International Criminal Tribunal for Rwanda (Cheltenham: Edward Elgar Publishing,
2015) ch 7; A. Kiss, ÔCommand Responsibility under Article 28 of the Rome Statute’
in C. Stahn (ed.) The Law and Practice of the International Criminal Court (Oxford:
Oxford University Press, 2015), 611.
6
In addition to its conventional regulation, superior responsibility is also part of
customary international law, as reflected in rule 153 of the study of the International
Committee of the Red Cross (ÔICRC’) on customary international humanitarian law
(ÔIHL’). According to this rule, Ô[c]ommanders and other superiors are criminally
responsible for war crimes committed by their subordinates […].’ The ICRC reached
this conclusion based on the application of superior responsibility by the ICTY, the
ICTR and several national jurisdictions. See J. Henckaerts and L. Doswald-Beck,
Costumary International Humanitarian Law (Geneva: CICR, 2007), 623, 663–664.
Superior responsibility has also been embraced by the European Court of Human
Rights (ÔECtHR’), when underlining that, in the framework of war crimes investi-
gations, for an investigation to be sufficient according to article 2 of the European
Convention on Human Rights (which protects the right to life), it must distinguish
between the responsibilities of superiors and subordinates, in light of their regulation
by international criminal law (ÔICL’). See Jelic, Judgment, 169 Eur. Ct. H.R. 12
January 2014, 88–90.
HE
Stable and Lasting Peace (Ôthe Agreement’) by the Colombian

Government and the Revolutionary Armed Forces of Colombia –
Popular Army (Ôthe FARC’),7 superior responsibility was only pro-
vided for in Colombian law by the Colombian Armed Forces
Operational law.8 In the absence of any express reference to superior
responsibility in the Penal and Military Penal Codes, the Colombian
Constitutional Court (ÔCCC’) considered superior responsibility as a
case of commission by omission.9 The Penal Chamber of the
Colombian Supreme Court (ÔPCCSC’) took a different approach; it
treated superior responsibility as a case of indirect perpetration
through an organized structure of power.10
The Agreement created the so-called ÔIntegral System of Truth,
Justice, Reparation and Non-Repetition’,11 which established, among
other institutions, the Special Jurisdiction for Peace (ÔSJP’),12 with the
mandate, inter alia, to investigate and punish serious violations of
international human rights law (ÔIHRL’) and international humani-
tarian law (ÔIHL’) committed Ôon occasion, because of, or in direct or
indirect relation to, the armed conflict’.13 As part of the Agreement,
superior responsibility is provided for military superiors in the
Colombian Security Forces (armed forces and police) and the FARC
with regard to their subordinates’ international crimes related to the
7
See Colombian Government & FARC, Acuerdo Final para la Terminación del
Conflicto de una Paz Estable y Duradera, 24 November 2016, available at http://www.
altocomisionadoparalapaz.gov.co/mesadeconversaciones/PDF/acuerdo-final-1473286
288.pdf, accessed on 4 September 2018.
8
Ejército Nacional de Colombia, MFE 6-27 Derecho Operacional Terrestre.
(Bogotá: CEMIL, 2016). See, sections 4.2 to 4.5.
9
CCC. Tutela (Protection Ruling) Judgment, SU-1184/2001, 13 November 2001.
10
Mangones Lugo, Appeals Judgment, PCCSC, Rad. 38250, 26 September 2012,
para 20 (ÔMangonez Appeals Judgment’).
11
Colombian Government & FARC, ÔAgreement’ (n. 7) 145. In this regard see also
H. Olasolo, International Criminal Law, Transnational Criminal Organizations and
Transitional Justice (The Hague: Brill/Nijhoff, 2018), 157–162; L. Joana, ÔLa justicia
transicional en Colombia: ¿Un instrumento creado para erradicar la impunidad?’
(2017) 5 Anuario Iberoamericano de Derecho Internacional Penal 32–61.
12
See Colombian Government & FARC, Agreement (n. 7) 143. For a compre-
hensive analysis of Integral System of Truth, Justice, Reperation and Non-Repeti-
tion’’, see: H. Olasolo and J. Ramı́rez, ÔThe Colombian Integrated System of Truth,
Justice, Reparation and Non-Repetition’ (2017) 15 Journal of International Criminal
Justice 1011–1047. doi: https://doi.org/10.1093/jicj/mqx057.
13
Colombian Government & FARC, Agreement (n. 7) 149. The SJP also has the
mandate to decide on requests for amnesties, pardons and other benefits for FARC
members or a Ôdistinctive and equitable’ treatment for State agents.
armed conflict. Moreover, the Agreement makes explicit reference to

international law when defining superior responsibility for FARC’
superiors.14 Nevertheless, no reference to international law can be
found in the definition of superior responsibility for Colombian
Security Forces superiors.15 Moreover, while the provisions of the
Agreement on superior responsibility of Colombian Security Forces
superiors have been incorporated into the Colombian Constitution
by the 4 April 2017 Legislative Act 01/2017,16 the provisions relating
to FARC’ superiors have been incorporated into Colombian law by
the 30 November 2017 Law on the Special Jurisdiction for Peace (Ôthe
SJP Law’).17 This approach has been upheld by the CCC’s 24
November 2017 judgment C-674/201718 and the 16 August 2018
public statement,19 declaring, respectively, the constitutionality of
Legislative Act 01/2017 and of the SJP Law.
14
Ibid. 164.
15
El Espectador, Criticas de Human Rights Watch por cambios de última hora en el
acuerdo de paz, 24 November 2016, available at https://www.elespectador.com/noti
cias/paz/criticas-de-human-rights-watch-cambios-de-ultima-hora-e-articulo-667296,
accessed on 4 September 2018.
16
Under Colombian law, a ÔLegislative Act’ is a norm issued by the Congress
whose goal is to amend, add or repeal some text in the Colombian Constitution. See
Legislative Act 01/2017. Por medio del cual se crea un tı´tulo de disposiciones transi-
torias de la Constitución para la terminación del conflicto armado y la construcción de
una paz estable y duradera y se dictan otras disposiciones, 4 April 2017, O.D. No.
50196.
17
As the definition of superior liability for FARC’ superiors provided for in page
164 of the Agreement was not included in Legislative Act 01/2017, article 67 of the
SJP Law (Ley Estatutaria que regula la administración de justicia de la Jurisdicción
Especial para la Paz) has incorporated it into the Colombian legal system (but not as
part of the Colombian Constitution). Concerning the definition of superior
responsibility for Colombian Security Forces superiors, the SJP Law provides in its
article 68 that this is a matter regulated in Legislative Act 01/2017.
18
CCC, Constitutional Judgment, C-674/2017, 24 November 2017.
19
According to the 16 August 2018 CCC’s public statement, the SJP Law is,
for the most part, consistent with the Colombian Constitution. Only the regula-
tion of a few issues other than superior responsibility for FARC’ superiors is
problematic. Among them, the CCC has expressly referred to inter alia the
requirements for judgeship at the SJP, the conditions for political participation of
FARCs members, and the situation of those responsible for crimes related to the
armed conflict who are not members of the FARC or the Colombian Security
Forces. It is expected that the CCC will issue its judgement on the constitu-
tionality of the SJP Law in the coming weeks. See, J.D. Castilla, Corte Consti-
tucional avala la ley estatutaria que regula la Jurisdicción Especial para la Paz, 17
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In this context, this article analyses the treatment of superior

responsibility in Colombian law, with a view to determining whether
it is consistent with the regulation of superior responsibility under
international criminal law (ÔICL’). Thus, the focus of the article is on
the Colombian Armed Forces Operational law (section II), the CCC
and PCCSC case law (section III) and the Agreement, Legislative Act
01/2017 and the SJP Law (section IV). An overview of the elements
and legal nature of superior responsibility under the statutes and case
law of international criminal tribunals is also provided for with a
view to see the similarities and differences with its treatment under
Colombian law.
The analysis is carried out against the backdrop of the preliminary
examination conducted by the ICC Prosecutor since June 2004 into
the most responsible persons for the crimes against humanity and war
crimes committed in the Colombian situation by paramilitary groups,
guerrilla groups and Colombian Security Forces.20
II THE TREATMENT OF SUPERIOR RESPONSIBILITY

BY THE COLOMBIAN ARMED FORCES
OPERATIONAL LAW
2.1 From the 2009 Road Map to the 2016 MFE 6-27 Land Operations
Manual
Until the Agreement, only the Colombian Armed Forces Operational
law expressly provided for superior responsibility in Colombian law.
The 2007 Colombian Defense Ministrys Integral Policy on Human
Rights and International Humanitarian Law (Ôthe 2007 Integral Pol-
icy’) placed special emphasis on the need to develop a true opera-
tional law to provide clearer instructions to military units, by
implementing international treaties and case law into national legis-
August 2018, available at https://www.asuntoslegales.com.co/actualidad/corte-con
stitucional-avala-la-jep-2760837, accessed on 4 September 2018.
20
See International Criminal Court, Office of the Prosecutor (2012), Situation in
Colombia: Interim Report. 14 November 2012, available at: https://www.icc-cpi.int//
Pages/item.aspx?name=Situation-in-Colombia-Interim-Report, accessed on 5
September 2018. See also the subsequent reports on the preliminary examination of
the Colombian situation issued by the ICC Prosecutor on 25 November 2013, 2
December 2014, 12 November 2015, 14 November 2016 and 4 December 2017. All
are available at the ICC web site: https://www.icc-cpi.int/colombia, accessed on 5
September 2018.
lation.21 Among the most relevant elements of the 2007 Integral

Policy was the need for the implementation of the notion of superior
responsibility, because Colombian military superiors lacked clarity
about: (i) the legal framework in which they operated; and (ii) the
operational discipline that they had to impose on their subordi-
nates.22
To this end, the 2009 Human Rights and International Humani-
tarian Law Road Map of the National Army (Ôthe 2009 Road Map’)
provided for the notion of superior responsibility. In doing so, the
2009 Road Map acknowledged that military superiors were not only
responsible for their conduct, but also for their subordinates’ con-
duct.23 It subsequently defined the elements of superior responsibility
in the following manner: (i) the existence of a de jure superior-sub-
ordinate relationship with respect to those persons responsible for
gross IHRL violations and grave IHL breaches; (ii) the superiors’
prior knowledge of their subordinates’ intention to commit such
breaches; and (iii) the superiors’ omission to prevent such breaches,
despite having the means necessary to do so.24
In particular, with regard to the first element, the 2009 Road Map
defined military superiors as those who, by legal mandate and
according to their rank, hierarchy and position, exercised command
and control over a military unit.25 It also defined Ôcommand and
control’ as the authority or power exercised by military superiors over
a group of persons to instruct, direct, limit or employ them, according
to the superiors’ own criteria and within the established legal
framework.26 As a result, the 2009 Road Map showed an under-
standing of the superior-subordinate relationship based on the de jure
military superiors’ position.
Once the negotiations with the FARC were underway, the new
Colombian government approved the National Strategy for the
Protection of Human Rights 2014–2034 (Ôthe 2014 National Strat-
21
Ministerio de Defensa de Colombia (2007), Polı´tica Integral de DDHH y DIH,
Fuerza Ae´rea de Colombia, https://www.fac.mil.co/sites/default/files/Politica_
DDHH_MDN.pdf, accessed on 5 September 2018.
22
Ibid.
23
Ejército Nacional de Colombia, Los derechos humanos y el derecho internacional
humanitario. hoja de ruta del Eje´rcito Nacional (Bogotá: Editorial Ejército Nacional
de Colombia, 2009) 247.
24
Ibid. 249, 252.
25
Ibid. 249.
26
Ibid. 249.
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egy’).27 It provided for the training of military superiors in the

investigation, prosecution and punishment of gross IHRL violations
and grave IHL breaches, and the development of investigation pro-
tocols with the involvement of the Colombia Armed Forces and the
military criminal justice system.28
The 2014 National Strategy was linked to the Minerva Plan, which
initiated the reform of military doctrine emphasising the modern-
ization and tactical improvement of the Colombian Army. In
implementing the Minerva Plan, a new military doctrine (known as
the ÔDamascus doctrine’) was developed by 17 new operational
manuals (ÔMFEs’) that were published on 7 August 2016.29 Among
them, the MFE 6-27 Land Operations Manual30 defined superior
responsibility in the following terms:
[4-2] On the other hand, military commanders are responsible as superiors

when: (1) The commander knows of the commission of a crime and does not
take the necessary and reasonable measures to prevent it. (2) The commander
has reasons to know that an unlawful act is going to be committed. (3) The
commander does not know about the crime, but after its commission, he does
not take the necessary measures for a criminal and disciplinary investigation.
[4-3] For the purpose of establishing the responsibility of the commander, the
following elements must be taken into account: (1) Effective control. (2)
Knowledge of the unlawful act. (3) Reasonable and necessary measures to
prevent, to investigate and to punish.
[4-4] ÔEffective control’ is understood as the superior’s material power over the
actions of his subordinates and, in that sense, it is a power of real control, such
as giving orders and ensuring their execution, conducting operations that are
carried out by their subordinates, imposing sanctions and relieving their sub-
ordinates from office.
[4-5] The commander must use the means available in the doctrine to efficiently
and effectively prevent the occurrence of unlawful acts, which he must leave a
record of. Likewise, the commander must apply the Mission-Type Command
27
Consejerı́a Presidencial para los Derechos Humanos, Estrategia Nacional para
la Garantıá de los Derechos Humanos 2014–2034. (Bogotá: Imprenta Nacional, 2015).
28
Ibid. 120.
29
Ejército Nacional de Colombia, Manuales Fundamentales de Eje´rcito. (Bogotá:
CEMIL, 2016).
30
Ejército Nacional de Colombia, MFE 6-27 Derecho Operacional Terrestre.
(Bogotá: CEMIL, 2016).
(MTM) to achieve the balance between the art of command and the science of
control.31
The question thus arises as to the level of consistency of the defini-

tions of superior responsibility provided for in the 2009 Road Map
and the MFE 6-27 Land Operations Manual with the treatment of
superior responsibility in ICL.
2.2 Are the Definitions of Superior Responsibility in the 2009 Road

Map and the MFE 6-27 Land Operations Manual consistent
with the Treatment of Superior Responsibility in ICL?
In order to answer the above-mentioned question, it is first necessary to
elaborate on the elements of superior responsibility in the statutes and
case law of the International Criminal Court (ÔICC’) and the ad hoc
tribunals (the International Criminal Tribunal for the former Yugoslavia
(ÔICTY’) and the International Criminal Tribunal for Rwanda (ÔICTR’)).
The aim is not to engage in a detailed analysis of all controversial issues
surrounding the notion of superior responsibility (particularly, those
relating to the subjective element and causation, which the Majority of
the ICC Appeals Chamber decided not to address in the 8 June 2018
Appeal Judgment in the case against former vice-president of the
Democratic Republic of the Congo, Jean Pierre Bemba),32 but to provide
a general overview of the definition of superior responsibility in ICL.
2.2.1 The Elements of Superior Responsibility in ICL

The statutes and case law of the ad hoc tribunals classify the duties
imposed on military and civilian superiors by international law in a
different manner than the ICC Statute and case law. For the former,
the legal obligations of military and civilian superiors consist of their
duties: (i) to prevent the commission of international crimes by
subordinates (which also includes the superiors’ duty to put an end to
international crimes that are being committed by subordinates); and
(ii) to punish subordinates who have been involved in the commission
of international crimes (which also includes the superiors’ duty to
submit the matter to the competent authorities whenever superiors do
not have the legal power to punish subordinates).33
31
Ibid. Authors’ translation.
32
Bemba Appeals Judgment (n. 1) para 32.
33
Kajelijeli, Trial Judgment, ICTR-98-44A, 1 December 2003, para 740 (ÔKajelijeli
Trial Judgment’); Halilovic Trial Judgment (n. 4) para 87; Hadzihasanovic Trial
Judgment (n. 4) para 127.
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For the ICC Statute and case law, the legal obligations of military
and civilian superiors consist of their duties: (i) to prevent the com-
mission of international crimes by subordinates; (ii) to repress the
commission of such crimes by (a) putting an end to international
crimes that are being committed by subordinates; and (b) punishing
subordinates who have been involved in their commission; and (iii) to
submit the matter to the competent authorities whenever superiors do
not have the legal power to punish subordinates.34
The various legal obligations of superiors are autonomous, arise at
different times and their breach cannot be compensated for the ful-
filment of the others.35 Superiors’ obligation to prevent arises prior to
the commission of international crimes by subordinates and can only
be satisfied before the crimes are carried out.36 Concerning superiors’
obligation to repress, their duty to put an end to the commission of
international crimes by subordinates only arises when the crimes
begin to be executed,37 while superiors’ duty to punish arises once
international crimes have been committed.38 Finally, the obligation
to submit the matter to the competent authorities for investigation
and prosecution arises after the commission of international crimes
by subordinates.39 As international law imposes these obligations on
all civilian and military superiors, superior responsibility for failing to
fulfil them is not limited to the immediate superiors of the direct
perpetrators. On the contrary, superior responsibility is applicable to
34
Bemba Appeals Judgment (n. 1) para 5; Bemba, Trial Judgment, ICC-01/05-01/
08-334, 21 March 2016, para 170 (ÔBemba Trial Judgment’). Bemba Confirmation
Decision (n. 1) para 436–442.
35
This means, for instance, that superior liability for violations of superiors’ duty
to prevent cannot be exempted as a result of the subsequent fulfilment of superiors’
duty to repress. See Blaskic, Trial Judgment, IT-95-15, 3 March 2000, para 515
(ÔBlaskic Trial Judgment’); Hadzihasanovic Trial Judgment (n. 4) para 126; Bemba
Trial Judgment (n. 34) para 336.
36
Strugar, Trial Judgment, ICTY-01-42-T, 31 January 2005 (ÔStrugar Trial
Judgment’); Hadzihasanovic Trial Judgment (n. 4) para 125. Bemba Trial Judgment
(n. 34) para 202–204.
37
Bemba Trial Judgment (n. 34) para 205–209; Bemba Confirmation Decision (n.
1) para 439–440.
38
1) para 442.
39
Bemba Trial Judgment (n. 34) para 208–209. Bemba Confirmation Decision (n.
1) para 442.
all superiors in the chain of command, including the highest leaders.40

The divergences in the classification of superiors’ legal obligations
are the origin of some differences in the elements of superior
responsibility between the ad hoc tribunals on the one hand, and the
ICC on the other hand. In this regard, the ad hoc tribunals have
highlighted that for superiors to incur criminal liability under articles
7 (3) and 6 (3) of the ICTY and ICTR statutes, in addition to
establishing beyond a reasonable doubt that subordinates are crimi-
nally liable for international crimes, the following elements must be
proven: (i) the existence of a superior-subordinate relationship; (ii)
that superiors knew, or had reason to know, that subordinates were
going to commit the crimes, or had committed them; and (iii) that
superiors did not take the necessary and reasonable measures to
prevent subordinates’ unlawful conduct or to punish them.41
In turn, the ICC has stressed in the Bemba case that the elements
of superior responsibility for military superiors under article 28 (a) of
the ICC Statute are the following: (a) to be in a position of a military
superior, or to act as such; (b) to have effective command and con-
trol, or effective authority and control, over the forces (subordinates)
that committed the crimes; (c) that subordinates’ crimes resulted from
superiors’ failures to exercise adequate control over them; (d) that
superiors knew or, due to the circumstances ruling at the time, should
have known that their subordinates were going to commit, or were
already committing, the crimes; and (e) that superiors did not adopt
the necessary and reasonable measures at their disposal to prevent or
repress the commission of the crimes, or to submit the matter to the
competent authorities for its investigation and prosecution.42
Despite the differences that seem to exist between both lists of
elements of superior responsibility, a more detailed analysis shows a
high degree of correspondence between them.43 Thus, elements (a)
and (b) of the ICC list refer to different aspects of element (i) of the ad
40
Bemba Trial Judgment (n. 34) para 184; Bemba Confirmation Decision (n. 1)
para 410.
41
Oric, Appeals Judgment, IT-03-68, 3 July 2008, para 18 (ÔOric Appeals Judg-
ment’). See also Bagilishema, Judgment. ICTR-95-1A-T, 7 June 2011, para 42
(ÔBagilishema Trial Judgment’).
42
para 407. See also Bemba Appeals Judgment (n. 1) para 167–170. At the time of this
writing there is no case law in relation to civilian superiors.
43
H. Olasolo, Tratado de Autorıá y Participación en Derecho Penal Internacional
(Valencia: Tirant lo Blanch, 2013) 770–772.
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hoc tribunals list: the existence of a superior-subordinate relationship

based on the effective control of military and civilian superiors over
subordinates who are responsible for the commission of international
crimes.44
In this regard, the ICC has affirmed in the Bemba case that,
according to article 28 (a) of the ICC Statute, effective control con-
sists of the material ability, regardless of de jure power,45 to prevent
or suppress subordinates’ international crimes, or, where appropriate,
to submit the matter to the competent authorities.46 In turn, the ad
hoc tribunals have defined effective control as the material ability or
de facto power: (i) to prevent the subordinates’ international crimes
as a result of superiors’ ability to issue orders and have them exe-
cuted; or (ii) to punish subordinates, which includes the power to
initiate investigations, suspend subordinates under investigation from
their official duties and impose sanctions.47 De jure appointments or
powers are considered by the ICC and the ad hoc tribunals as mere
indicia of superiors’ effective control.48
Element (e) of the ICC list corresponds to element (iii) of the ad
hoc tribunals list. As a result, the second element of superior lia-
bility is comprised of the military and civilian superiors’ omissions
of their legal obligation to adopt all reasonable and necessary
44
V. Nerlich, ÔSuperior Responsibility under Article 28 ICC Statute’ (2007) 5 (1)
Journal of International Criminal Justice 669.
45
Together with the de jure military superiors, art. 28 (a) of the ICC Statute refers
to those who, without being legally appointed as military superiors, and without
performing exclusively military functions, act effectively as military superiors. Fur-
thermore, art. 28 (b) of the ICC Statute provides for the superior responsibility of
those who are de jure or de facto civilian superiors. In both scenarios, superiors are
required to have ‘‘effective authority and control’’ over subordinates who are
responsible for ICC crimes. See Bemba Trial Judgment (n. 34) para 177.
46
Bemba Appeals Judgment (n. 1) para 5; Bemba Trial Judgment (n. 34) para 183;
Bemba Confirmation Decision (n. 1) para 407.
47
According to both definitions, the existence of intermediate superiors in the
chain of command is irrelevant, as long as the required material ability to prevent or
punish is retained. This is applicable to all military and civilian superiors, regardless
of their de jure appointment. See Mucic et al. (Celebici camp), Appeals Judgment,
IT-96-21, 8 April 2003, para 198 (ÔCelebici Appeals Judgment’); Oric Appeals
Judgment (n. 41) para 20; Bagilishema Trial Judgment (n. 41) para 45; Kayishema
and Ruzindana, ICTR- 95-1-T, 21 May 1999 (Kayishema and Ruzindana Trial
Judgment) para 229–231.
48
Bemba Trial Judgment (n. 34) para 183–184; Celebici Appeals Judgment (n. 47)
para 198; Oric Appeals Judgment (n. 41) para 20; Kayishema and Ruzindana Trial
Judgment (n. 47) para 217–223.
measures within their material (de facto) ability to prevent,49

repress50 and submit to the competent authorities their subordi-
nates’ international crimes.51 Superiors are not obliged to perform
the impossible. They can only be held liable for not taking the
49
In the Bemba Trial Judgment the ICC has identified ten measures that superiors
may adopt to prevent the commission of international crimes by their subordinates:
(i) ensuring that subordinates have been trained in IHL; (ii) securing reports on the
level of subordinates’ compliance with IHL in carrying out military operations; (iii)
issuing orders aimed at bringing the relevant practices into accord with the rules of
war; (iv) issuing orders specifically meant to prevent the crimes, as opposed to merely
issuing routine orders; (v) protesting against or criticising unlawful conduct; (vi)
insisting before a superior authority that immediate action be taken to prevent, halt
or punish unlawful conduct; (vii) postponing military operations; (viii) suspending,
excluding, or redeploying violent subordinates; (ix) conducting military operations in
such a way as to lower the risk of specific crimes or to remove opportunities for their
commission; and (x) taking disciplinary measures to prevent the commission of
atrocities by the forces under the superiors’ command. See Bemba Trial Judgment (n.
34) para 204–205. Moreover, the Majority in the Bemba Appeals Judgment has
emphasized that Ô[s]imply juxtaposing the fact that certain crimes were committed by
the subordinates of a commander with a list of measures which the commander could
hypothetically have taken does not, in and of itself, show that the commander acted
unreasonably at the time. The trial chamber must specifically identify what a com-
mander should have done in concreto’. See Bemba Appeals Judgment (n. 1) para 170.
The ICTY has highlighted the existence of other preventive measures, such as: (i)
initiating an investigation when there is information indicating that subordinates
may be on the verge of committing international crimes; (ii) suspending those sub-
ordinates who are allegedly planning to commit international crimes or have a
violent criminal record (or, at least, leaving them out of combat operations) and
limiting, as much as possible, their interaction with enemy civilians and prisoners of
war; (iii) transmitting reports to the competent authorities warning of the risk that
war crimes could be committed in the execution of some military operations, and
proposing measures to avoid such risks; and (iv) informing the competent authorities
of allegations of war crimes allegedly committed in the past by subordinate units. See
Strugar Trial Judgment (n. 36) para 374.
50
As for the obligation to repress, the ICC distinguishes between appropriate
measures to: (i) end, restrain or contain subordinates’ international crimes; and (ii)
sanction subordinates by investigating their crimes and, eventually, open disciplinary
and/or criminal proceedings. In the absence of the power to impose sanctions,
superiors must at least (i) inform their superiors about the situation by writing a
report; (ii) propose the imposition of sanctions on subordinates; and (iii) when
necessary, due to the gravity of the case, refer the case to the competent judicial
authorities with as much evidence as possible about the facts. See also, Bemba
Confirmation Decision (n. 1) para 443.
51
M. Nybondas, ÔCivilian Superior Responsibility in the Kordic Case’ (2003) 50
Netherlands International Law Review 68; W. Jamie, ÔCommand Responsibility in the
Case Law of the International Criminal Tribunal for Rwanda’ (2002) 13 (3) Criminal
Law Forum 380.
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measures that are within their material reach,52 regardless of their

de jure powers.53 The determination of what measures are de facto
available to superiors is an evidentiary issue that must be assessed
on a case-by-case basis.54
Finally, element (d) of the ICC list refers to element (ii) of the ad
hoc tribunals list. Therefore, the third element of superior responsi-
bility consists in its subjective element, which, according to articles 28
of the ICC Statute, 7 (3) of the ICTY Statute and 6 (3) of the ICTR
Statute, is comprised of two alternative sub-elements. The first
alterative sub-element consists in the military and civilian superiors’
actual knowledge that their subordinates were about to commit, were
committing or had committed international crimes. In the absence of
such knowledge, the second alternative sub-element differs between
the ad hoc tribunals Statutes on the one hand, and the ICC Statute on
the other hand. For the former, superiors must, at the very least, have
reason to know that their subordinates were about to commit inter-
national crimes or had done so.55 In comparison, for the ICC Statute,
the second alternative sub-element varies between civilian and mili-
tary superiors. For civilian superiors, it is required that they Ôcon-
sciously disregarded information which clearly indicated’ that their
subordinates were about to commit or were committing international
crimes.56 Nevertheless, for military superiors, it is sufficient if they
Ôshould have known’ that their subordinates were about to commit or
were committing international crimes.57
The ad hoc tribunals did not equate the Ôhad reason to know’
standard with a negligence standard, because superior responsibility
does not punish the lack of superiors’ due diligence when fulfilling
52
Mucic et al. (Celebici camp), Trial Judgment, IT-96-21, 20 February 2003, para
395 (ÔCelebici Trial Judgment’); Strugar Trial Judgment (n. 36) para 73; Hadzi-
hasanovic Trial Judgment (n. 4) para 122; Kayishema and Ruzindana Trial Judgment
(n. 47) para 217; Bemba Appeals Judgment (n. 1) para 167; Bemba Trial Judgment (n.
34) para 199.
53
Kamuhanda, Trial Judgment, ICTR-99-54A, 22 January 2004, para 601. Bemba
Appeals Judgment (n. 1) para 168; Bemba Trial Judgment (n. 34) para 199–200.
54
Bemba Appeals Judgment (n. 1) para 170–171; Blaskic, Appeals Judgment, IT-
95-15, 29 July 2004, para 72 (ÔBlaskic Appeals Judgment’); Celebici Trial Judgment
(n. 52) para 394; Strugar Trial Judgment (n. 36) para 45; Hadzihasanovic Trial
Judgment (n. 4) para 124.
55
Articles 7 (3) of the ICTY Statute and 6 (3) of the ICTR Statute.
56
Article 28 (b) (1) of the ICC Statute.
57
Article 28 (a) (1) of the ICC Statute.
their duty to inform themselves about subordinates’ activities.58 As a

result, for superior responsibility to arise, superiors must have some
general information in their possession, which put them on notice of
the possible unlawful conduct by their subordinates and the need to
initiate an investigation to clarify this situation.59
Some academic commentators60 and the Defence in the appeals
proceedings of the Bemba case61 also endorse this approach in relation
to the interpretation of the ‘‘should have known’’ standard provided
for military superiors in article 28 (a) of the ICC Statute. Nevertheless,
as Kiss has pointed out, the travaux preparatoires of article 28 of the
ICC Statute show that the ICC drafters favoured the adoption of a
negligence standard with the expression Ôshould have known.’62
Moreover, the different approaches taken by the trial63 and appeal64
judgments in the Blaskic case before the ICTY also show the differ-
ences between the Ôhad reasons to know’ and Ôshould have known’
standards. As a consequence, the trial judgment in the Bemba case,65
the ICC Prosecutor in the appeals proceedings of the Bemba case66 and
58
Celebici Appeals Judgment (n. 47) para 226; Bagilishema, Appeals Judgment,
ICTR-95-1A, 3 July 2002, para 35 (ÔBagilishema Appeals Judgment’).
59
Ibid. para 35–42; See also Krnojelac, Appeals Judgment, IT-97-25, 17 September
2003, para 151 (ÔKrnojelac Appeals Judgment’); Celebici Appeals Judgment (n. 47)
para 241; Blaskic Appeals Judgment (n. 54) para 62; Oric Appeals Judgment (n. 41)
para 51.
60
E. van Sliedregt, The Criminal Responsibility of Individuals for Violations of
International Humanitarian Law (The Hague: TMC Asser Press, 2007) 54; B. Lan-
dum, ÔThe Yamashita War Crimes Trial: Command Responsibility Then and Now’
(1995) 149 Military Law Review 300.
61
Bemba case, Defence for Mr. Jean Pierre Bemba Gombo, Public, Public Re-
dacted Version of Appellant’s document in support of the appeal, ICC-01/05-01/08-
3434-Red 28-09-2016 1/196 EO A, 28 September 2016 (ÔBemba Defence Appeals
Brief’) para 287–308.
62
A. Kiss, Command Responsibility (n. 5) 643–646.
63
Blaskic Trial Judgment (n. 35) para 332.
64
Blaskic Appeals Judgment (n. 54) para 62.
65
Bemba Trial Judgment (n. 34) para 192.
66
Bemba case, ICC Prosecutor, Public Redacted Version of ‘‘Corrected Version of
ÔProsecution’s Response to Appellant’s Document in Support of Appeal’’’, 19 Jan-
uary 2017 (originally filed on 21 November 2016), ICC-01/05-01/08-3472-Conf, ICC-
01/05-01/08-3472-Corr-Red 19-01-2017 1/199 RH A, 19 January 2017 (ÔBemba ICC
Prosecutor’s Response to Defence Appeals Brief’) para 178–194.
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several authors67 have considered that the expression Ôshould have

known’ provides for a negligence standard for military superiors. The
Majority of the ICC Appeals Chamber in the Bemba case decided not
to address this issue.68
The interpretation of the ‘‘consciously disregarded information
which clearly indicated’’ standard for civilian superiors under article
28 (b) of the ICC Statute is also controversial. For some academic
commentators,69 it requires a Ôknowledge’ that is reached through
circumstantial evidence (constructive knowledge), whereas Werle
considers it a gross negligence standard.70 As Ambos has underlined,
Werle‘s approach seems more appropriate to accord this standard an
autonomous normative meaning.71
From the above-mentioned, it can be concluded that only ele-
ment (c) of the ICC list of elements of superior responsibility has no
equivalent element in the ad hoc tribunals list. This is due to the
rejection by the ad hoc tribunals of any nexus of causality for
superior responsibility.72 As a result, although the Majority of the
ICC Appeals Chamber in the Bemba case omitted this issue,73 article
28 of the ICC Statute requires a fourth element of superior
67
I. Bantekas, ÔThe Contemporary Law of Superior Responsibility’ (1999) 93 (3)
American Journal of International Law 590; K. Keith, ÔThe Mens Rea of Superior
Responsibility as Developed by ICTY Jurisprudence’ (2001) 14 (3) Leiden Journal of
International Law 632; A. Kiss, Command Responsibility (n. 5) 643–646; W. Sch-
abas, ÔGeneral Principles of Criminal Law in the International Criminal Court
Statute, Part III’ (1998) 6 (4) European Journal of Crime, Criminal Law and Criminal
Justice 417.
68
Bemba Appeals Judgment (n. 1) para 32. For a more detailed discussion on this
matter, see K. Ambos, Treatise on International Criminal Law, Vol. I (Oxford: Ox-
ford University Press, 2013) 220 et seq.
69
R. Arnold & O. Triffterer & R., ÔArticle 28. Responsibility of Commanders and
Other Superiors, in O. Triffterer & K. Ambos (eds.), Commentary on the Rome
Statute of the International Criminal Court, 3ed. (Munich: C.H. Beck, Hart Pub-
lishing & Nomos, 2016) mn. 85 et seq.; W. Schabas, An Introduction to International
Criminal Law, 5ed. (Cambridge: Cambridge University Press, 2017), pp. 221–222.
70
G. Werle, Principles of international criminal law (The Hague: TMC Asser press,
2005), p. 321.
71
K. Ambos, ÔSuperior Responsibility’ in Antonio Cassese, Paola Gaeta and John
Jones (eds.), The Rome Statute of The International Criminal Court: A Commentary
(Oxford: Oxford University Press, 2002), p. 852; H. Olasolo, Tratado (n. 43) 802.
72
Krnojelac Appeals Judgment (n. 59) para 170–172; Blaskic Trial Judgment (n.
35) para 77; Celebici Trial Judgment (n. 52) para 400; Halilovic Trial Judgment (n. 4)
para 75–78.
73
Bemba Appeals Judgment (n. 1) para 32.
responsibility.74 This element requires the existence of a nexus of

causality between superiors’ omissions and subordinates’ commis-
sion of international crimes.75
2.2.2 The 2009 Road Map and the MFE 6-27 Land Operations
Manual as the First Steps Towards the Implementation of Su-
perior Responsibility in Colombian Law
As seen above, the 2009 Road Map presents an understanding of the
superior–subordinate relationship and the requirement of superiors’
effective control over subordinates based on the de jure military
superiors’ position. This is not consistent with the ICL standard
because it treats the superiors’ legal position as a mere indicium of
their material ability to prevent subordinates’ crimes, repress them
and submit the matter to the competent authorities.76
Furthermore, the 2009 Road Map linked military superiors’
guarantor position to their territorial area of responsibility. Al-
though, as seen in the following section, this link is consistent with
CCCs case law, it does not constitute an element of superior
responsibility under ICL.77 In this regard, it is important to note that
a central issue in the appeals proceedings of the Bemba case was that
at all material times the Appellant (a military superior) was remotely
located (he was in the Democratic Republic of the Congo) from his
subordinates, who materially committed the crimes in a neighboring
country (Central African Republic). For two of the three judges of
the Majority of the ICC Appeals Chamber (Judges Van den Wyn-
gaert and Morrison), the geographic and structural remoteness of
74
K. Ambos, Treatise (n. 68) 219–220; E. van Sliedregt, ÔCommand Responsibility
and Cyberattacks’ (2016) 21 (3) Journal of Conflict and Security Law 514–515; H.
Olasolo, Tratado (n. 43) 793.
75
1) para 424. See also, Bemba, Concurrent Separate Opinion of Judge Eboe-Osuji to
the Bemba Appeals Judgment, ICC-01/05-01/08-3636-Anx3 para 151 et seq (ÔBemba
Concurrent Separate Opinion of Judge Eboe-Osuji’).
76
Bemba Trial Judgment (n. 34) para 183–184; Celebici Appeals Judgment (n. 47)
para 198; Oric Appeals Judgment (n. 41) para 20.
77
Together with de jure military superiors, article 28 (a) of the ICC Statute refers
to those who, without being legally appointed as military superiors, and without
performing exclusively military functions, act effectively as military superiors. In
turn, article 28 of the ICC Statute provides for the superior liability of those who are
de jure or de facto civilian superiors. In both scenarios, superiors are required to have
‘‘effective authority and control’’ over their subordinates who are responsible for
ICC crimes. See Bemba Trial Judgment (n. 34) para 177.
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military superiors always has an impact on their level of actual

effective control over the material perpetrators of the crimes (the
subordinates).78 Nevertheless, Judge Eboe-Osuji (the third judge of
the Majority) disagreed with this approach and agreed with the two
Judges of the Minority (Judges Monageng and Hofmanski) that
military superiors’ remoteness does not necessarily have an impact on
their level of effective control over the material perpetrators, as it is
only a factor to be considered among the other circumstances of the
case.79
Moreover, according to the 2009 Road Map, for military superi-
ors to incur superior responsibility it is necessary that they have: (i)
prior knowledge of their subordinates’ intention to commit the
crimes; and (ii) the necessary means to prevent them.80 Neither of
these two requirements is applicable in ICL because: (i) there is no
need for military superiors to have knowledge of subordinates’
intentions prior to the commission of international crimes; (ii) it is
sufficient if military superiors meet the Ôhad reason to know’ standard
(ad hoc tribunals) or the Ôshould have known’ standard’ (ICC); and
(iii) military superiors may incur in superior responsibility for sub-
ordinates’ crimes even if they do not have the means to prevent them.
As long as military superiors do not take all measures at their dis-
posal to prevent or repress subordinates’ crimes, or to submit the
matter to the competent authorities, they incur in superior respon-
sibility, regardless of whether such measures are sufficient to prevent
or repress the crimes.81
78
Bemba, Separate Opinion of Judge Christine Van den Wyngaert and Judge
Howard Morrison to the Bemba Appeals Judgement, ICC-01/05-01/08-3636-Anx2
(ÔBemba Separate Opinion of Judge Christine Van den Wyngaert and Judge Howard
Morrison’) paras 33–36.
79
Bemba, Concurrent Separate Opinion of Judge Eboe-Osuji (n. 75) para 3, 158.
See also Bemba, Dissenting Opinion of Judge Sanji Mmasenono Monageng and
Judge Piotr Hofmanski to the Bemba Appeals Judgment, ICC-01/05-01/08-3636-
Anx1-Red (ÔBemba Dissenting Opinion of Judges Monageng and Hofmanski’) para
127.
80
Ejército, ÔLos derechos’ (n. 23) 252.
81
The 2009 Road Map expressly suggests that superior responsibility has a
broader scope of application in the international criminal tribunals, because supe-
riors are responsible for their omissions as long as they had not complied with their
duties despite having reason to know that their subordinates intended to commit
international crimes or were doing so (no reference to the ICC ‘‘should have known’’
standard is provided for in the 2009 Road Map). See Ejército, ÔLos derechos’ (n. 23)
252.
In light of the above-mentioned, it can be concluded that, al-

though the 2009 Road Map was a first step towards the implemen-
tation of superior responsibility in the Colombian Armed Forces
Operational law, it does not fully meet the ICL standard.
The definition of superior responsibility for military superiors in
the MFE 6-27 Land Operations Manual is more consistent in that
regard. This is particularly so in relation to: (i) the definition of
effective control, which, according to the MFE 6-27 Manual, is based
on material ability, and is not limited to legal and/or jurisdictional
considerations; and (ii) a clearer definition of the military superiors’
duties (preventing subordinates’ crimes, which includes putting and
end to their commission, and investigating and punishing them)
whose breach gives rise to superior responsibility. Consequently, the
MFE 6-27 Manual constitutes an additional important step in the
process of implementing superior responsibility in the Colombian
Armed Forces Operational law.
Nevertheless, there are still some important differences between
the MFE 6-27 Manual and article 28 of the ICC Statute. First, the
subjective element in the MFE 6-27 Manual definition of superior
responsibility embraces the ad hoc tribunals Ôhad reason to know’
standard without mentioning the Ôshould have known’ standard
provided for military superiors in article 28 (a) (i) of the ICC Statute.
Second, the MFE 6-27 Manual makes no reference to the nexus of
causality between the military superiors’ omissions and their subor-
dinates’ crimes. Third, the MFE 6-27 Manual does not provide for
superior responsibility for civilian superiors.
Finally, concerning the normative value in Colombian law of the
Colombian Armed Forces Operational law, it is important to high-
light that the 2009 Road Map and the MFE 6-27 Manual are mere
administrative acts.82 Therefore, while they are mandatory for all
members of the Colombian Security Forces and non-compliance by
military superiors with their provisions on superior responsibility
gives rise to disciplinary liability, they have no impact on the modes
of liability provided for in the Colombian Penal and Military Penal
Codes, and their interpretation by the CCC and the PCCSC.
82
J.O. Santofimio Gamboa, Tratado de Derecho Administrativo. Tomo II: Acto
Administrativo. (Bogota: Universidad Externado de Colombia 2006) 161–164.
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III THE TREATMENT OF SUPERIOR RESPONSIBILITY

BY THE COLOMBIAN CONSTITUTIONAL COURT
AND THE PENAL CHAMBER OF THE COLOMBIAN
SUPREME COURT
3.1 The Treatment of Superior Responsibility by the Colombian

Constitutional Court: A Case of Commission by Omission
Legislative Act 02/2001 amended the 1991 Colombian Constitution
to allow for the ratification of the ICC Statute by Colombia and its
incorporation into the Colombian legal system. This was done despite
the fact that some of the provisions contained in the ICC Statute,
such as the ones providing for the penalty of life imprisonment and
the non-application of the statute of limitations for ICC crimes, were
contrary to the Colombian Constitution. To address this problem,
Legislative Act 02/2001 established that these controversial provi-
sions did not violate the Colombian Constitution because they pro-
vided for a ‘‘distinctive treatment’’ under the ICC Statute. Therefore,
such provisions were only applicable to proceedings conducted by the
ICC, and Colombian judges could not apply them in national pro-
ceedings.83
Subsequently, the Colombian Congress approved Law 742/2002,
by which Colombia ratified the ICC Statute. This law was subject to
constitutional review by the CCC in its judgment C-578 of 2002. The
CCC stated that, although no Colombian law dealt specifically with
superior responsibility, article 28 of the ICC Statute was consistent
with the Colombian Constitution because: (i) Colombian case law
had applied superior responsibility to military superiors through the
notion of commission by omission; and (ii) its application to civilian
superiors was, as provided for in Legislative Act 02/2001, a ‘‘dis-
tinctive treatment’’ under the ICC Statute, which was not applicable
by Colombian judges in national proceedings.84
The CCC embraced the application of the notion of commission
by omission, provided for in article 25 of the Colombian Penal Code,
to military superiors because they are in a guarantor position against
the risk of breaching civilians’ rights as a result of unlawful conduct
by their subordinates or by third parties (such as, members of guer-
83
CCC, Constitutional Judgment, C-290/2012, 12 April 2012.
84
Ibid. para 6.2.
rilla or paramilitary groups) operating in their area of responsibil-

ity.85 Likewise, the PCCSC stated in the Mapiripán Massacre case
that military superiors may be criminally liable as perpetrators by
way of commission by omission for the conduct of third parties as
long as they are in a guarantor position.86
According to the CCC, military superiors’ guarantor position can
arise from either organizational or institutional competence.
According to the former, citizens can create legally-accepted risks in
modern societies, as long as they take special measures to prevent
such risks from causing unlawful damage.87 As a consequence, mil-
itary superiors have the duty to take special measures to avoid
unlawful damage to civilians as a result of the risk generated by (i)
objects, such as weapons, that are under their effective control and
are potentially dangerous for civilians; and (ii) the conduct of sub-
ordinates who are under their effective control.88
The second source of military superiors’ guarantor position is
institutional competence. As the CCC has explained, by virtue of the
special social relevance of the functions performed by some citizens
(i.e. military personnel), specific duties are imposed on them to pro-
tect certain societal values against risks that have not necessarily been
created by them.89 As a result of the obligation imposed by the
Colombian Constitution on military superiors to guarantee the
constitutional order and defend the rights of Colombian citizens,
military superiors have also the duty to take special measures to
protect civilians’ rights when a third party puts them at risk.
According to the CCC, this duty is limited to the adoption of those
measures that military superiors can take as part of their material,
functional and territorial competence.90
3.2 The Treatment of Superior Responsibility by the Penal Chamber

of the Colombian Supreme Court: A Case of Indirect Perpetration
through an Organized Structure of Power
85
G. Cote, ÔResponsabilidad del superior jerárquico y responsabilidad penal por
omisión de miembros de la fuerza pública en Colombia: ¿convergencia entre el
derecho penal nacional e internacional?’ (2016) 28 Revista Colombiana de Derecho
Internacional 76.
86
Uzcátegui, Appeals Judgment, PCCSC, Rad. 35113, 5 June 2005.
87
CCC, Tutela (Protection Ruling) Judgment, SU-1184/2001, 13 November 2001.
88
Idem.
89
Idem.
90
Idem.
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In the case against paramilitary commander, José Antonio Mangones

Lugo, the Justice and Peace Chamber of the Higher Court of Bo-
gotá91 found that, according to ICL, superior responsibility has three
main elements: (i) the existence of a superior-subordinate relation-
ship; (ii) superiors’ omissions to comply with their legal duties to take
the necessary and reasonable measures at their disposal to prevent
subordinates’ international crimes, repress them and submit the
matter to the competent authorities; and (iii) superiors’ knowledge of
subordinates’ crimes.92 The Justice and Peace Chamber also found
that all three elements were met by the accused’s actions and con-
firmed the charges against him for his alleged superior responsibility
for his subordinates’ crimes.93
Nevertheless, despite the attempt of the Justice and Peace
Chamber to apply the notion of superior responsibility as embraced
by ICL, the PCCSC found, in its decision on appeal, that such a
notion did not exist under Colombian law. As a result, the PCCSC
confirmed the charges against Mangones Lugo for his alleged crim-
inal liability under article 25 of the Colombian Penal Code, as an
indirect perpetrator through an organized structure of power.94
According to the PCSCS, Mangones Lugo had control over the
crimes committed by his subordinates in the paramilitary group that
he led, because he was in control over his subordinates’ will, since the
91
The Justice and Peace Chambers were created by virtue of Law No. 975 of 2005,
which provides for the justice component of the transitional justice system for armed
groups outside the law (mainly, paramilitary groups) put forward by the government
of former President Álvaro Uribe Vélez. For more information see: J. Garcı́a-Godos
& K.A. Lid, ÔTransitional Justice and Victims’ Rights before the End of a Conflict:
The Unusual Case of Colombia’ (2010) 42 (3) Journal of Latin American Studies; C.
Diaz, ÔColombia’s Bid for Justice and Peace’ in K. Ambos, J. Large & M. Wierda
(eds.), Building a future on Peace and Justice: Studies on Transitional Justice, Peace
and Development. The Nuremberg Declaration on Peace and Justice (Springer, 2008);
C. Lopez Diaz, ÔLa estructura del procedimiento establecido en la Ley de Justicia y
Paz’ in A Forer & C. Lopez Diaz (eds.), Colombia: un Nuevo modelo justicia tran-
sicional (Bogotá: ProFis – GIZ, 2012); A. Aponte Cardona, ÔColombia’ in K. Am-
bos, E. Malarino & G. Elsner (eds.), Justicia de Transición: Informes de Ame´rica
Latina, Alemania, Italia y España (Montevideo: Konrad Adenauer Stiftung, 2009); J.
Cuervo, F. Bechara & J.P. Hinestrosa, Justicia transicional: modelos y experiencias
internacionales. A propósito de la ley de justicia y paz (Bogotá: Universidad Exter-
nado de Colombia, 2007).
92
Mangones Lugo, Trial Judgment, Justice and Peace Chamber of the Higher
Court of Bogotá, Rad. 1215, 5 December 2011, para 388 and 389.
93
Ibid. 392–393.
94
Mangones Lugo, Appeals Judgment (n. 10).
latter were mere interchangeable tools. As a result, Mangones Lugo’s

orders were automatically executed by his subordinates, and thus he
retained power of final decision on the commission of crimes by his
subordinates.95
According to the PCCSC, superiors who do not participate di-
rectly in the material execution of subordinates’ crimes are neither co-
perpetrators nor inducers. They are only liable as indirect perpetra-
tors, due to the level of control that they had over the organizations
that they lead.96 As of this decision, the Justice and Peace Chambers
have consistently followed this approach.97
3.3 Are the Interpretations of Superior Responsibility by the CCC

and the PCCSC consistent with its Legal Nature in ICL?
3.3.1 The Legal Nature of Superior Responsibility in the ICTY
and ICTR
One of the most outstanding features of the definition of superior
responsibility in articles 7 (3) of the ICTY Statute and 6 (3) of the
ICTR Statute is the absence of a nexus of causality between superi-
ors’ omissions and subordinates’ international crimes.98 Therefore,
superior responsibility does not result from the superiors’ contribu-
tion by omission to the commission of international crimes by sub-
ordinates. On the contrary, it arises from the superiors’ lack of
compliance with the duties imposed on them by international law to
control their subordinates’ activities.99 As a result, the legal nature of
superior responsibility under the ICTY and the ICTR statutes and
case law seems to be that of an independent crime of omission.100
According to Roman-Germanic legal systems, to which the
Colombian legal system belongs, the main consequence of defining
95
Ibid. para 21.
96
Garcia, Appeals Judgment, PCCSC, Rad. 32805, 23 February 2010, para 77–78.
97
Sánchez, Trial Judgment, Supreme Tribunal of Bogotá, Rad. 1177, 13 May
2017.
98
Karadzic, Trial Judgment, IT-95-5/18-T, 24 March 2016, para 590.
99
Krnojelac Appeals Judgment (n. 59) para 171; Halilovic Trial Judgment (n. 4)
para 75–78; Hadzihasanovic Trial Judgment (n. 4) para 38–42. See also G. Mettraux,
The Law of Command Responsibility (Oxford: Oxford University Press, 2009) 309; C.
Meloni, Command Responsibility in International Criminal Law (The Hague: T.M.C.
Asser Institute, 2010) 126–128.
100
K. Ambos, Treatise (n. 68) 215. H. Olasolo, The Criminal Responsibility of
Political and Military Leaders for International Crimes (Oxford: Hart Publishing,
2009) 107.
HE
superior responsibility as an independent crime of omission is to

consider that civilian and military superiors are not liable for the
international crimes committed by their subordinates.101 Hence,
superiors are only liable for failing to comply with their duties to
prevent subordinates’ international crimes, repress them and submit
the matter to the competent authorities. Furthermore, in application
of the principle of culpability, which, inter alia, requires propor-
tionality between the punishment and the specific characteristics of
the unlawful conduct, the penalty imposed on superiors should be
notably lower than the penalty imposed on subordinates who are
responsible for international crimes.102
Nevertheless, while the ad hoc tribunals case law tend to show that
penalties imposed for superior responsibility are lower than those
imposed for subordinates’ principal or accessorial liability for inter-
national crimes,103 indictments and final judgments continue to see
superior responsibility as a mode of liability for subordinates’
crimes.104 This practice is inconsistent with the definition of superior
responsibility as an independent crime of omission. As a conse-
quence, the need to end this practice has been highlighted.105 This
appears to be the position also adopted by ICTY Trial Chamber II in
the Halilovic case.106
101
W. Eckhard, ÔCommand Criminal Responsibility: A Plea for a Workable
Standard’ (1982) 97 Military Law Review 4.
102
For this reason, sections 13 and 14 of the 2002 German Code of Crimes against
International Law provide for penalties of up to five years imprisonment for supe-
riors’ omissions to prevent and punish subordinates’ international crimes.
103
C. Bishai, ÔSuperior Responsibility, Inferior Sentencing: Sentencing Practice at
the International Criminal Tribunals’ (2013) 11 Northwestern Journal of Interna-
tional Human Rights 89–104; M.B. Harmon & F.G., ÔThe Sentencing Practice of
International Criminal Tribunals: Ordinary Sentences for Extraordinary Crimes’
(2007) 5 Journal of International Criminal Justice 712.
104
H. Van der Wilt, ÔOn Joint Criminal Enterprise, Aiding and Abetting and
Command Responsibility’ (2015) 62 (2) Netherlands International Law Review 237–
239.
105
H. Olasolo, Tratado (n. 43) 812.
106
Halilovic Trial Judgment (n. 4) para 54. According to ICTY Trial Chamber II,
‘‘[t]he Trial Chamber finds that under Article 7 (3) command responsibility is
responsibility for an omission. The commander is responsible for the failure to
perform an act required by international law. This omission is culpable because
international law imposes an affirmative duty on superiors to prevent and punish
crimes committed by their subordinates. Thus ‘‘for the acts of his subordinates’’ as
generally referred to in the jurisprudence of the Tribunal does not mean that the
commander shares the same responsibility as the subordinates who committed the
Nevertheless, some authors consider that superior responsibility is

not an independent crime of omission, because its definition in the
ICTY and ICTR statutes and case law has been developed without
taking into account comparative criminal law.107 Consequently, for
them, superior responsibility has a sui generis nature, because it at-
tributes criminal responsibility to military and civilian superiors for
subordinates’ international crimes, despite the absence of a nexus of
causality between superiors’ omissions and subordinates’ crimes.108
3.3.2 The Legal Nature of Superior Responsibility in the ICC

One of the main developments in the definition of superior respon-
sibility provided for in article 28 of the ICC Statute is the nexus of
causality that is required between superiors’ omissions and subordi-
nates’ international crimes.109 Despite its rejection by Judges Van den
Wyngaert and Morrison in their Separate Opinion in the Bemba
Appeals Judgment,110 the other three judges of the ICC Appeals
Chamber in the Bemba case (Judges Eboe-Osuji, Monageng and
Hofmanski) have underlined in their respective Concurrent-Sepa-
rate111 and Dissenting Opinions112 that the chapeau of this provision
introduces the said nexus of causality through the expression Ôas a

crimes, but rather that because of the crimes committed by his subordinates, the
commander should bear responsibility for his failure to act. The imposition of
responsibility upon a commander for breach of his duty is to be weighed against the
crimes of his subordinates; a commander is responsible not as though he had com-
mitted the crime himself, but his responsibility is considered in proportion to the
gravity of the offences committed. The Trial Chamber considers that this is still in
keeping with the logic of the weight which international humanitarian law places on
protection values.’’ See also Hadzihasanovic Trial Judgment (n. 4) para 75.
107
D. Robinson, ÔHow Command Responsibility Got So Complicated: A Cul-
pability Contradiction, Its Obfuscation, and a Simple Solution’ (2012) 13 (1) Mel-
bourne Journal of International Law 27; G. Werle & F. Jessberger, Principles of
international criminal law, 3ed (Oxford: Oxford University Press, 2014) 223; E. van
Sliedregt, Individual criminal responsibility in international law (Oxford: Oxford
University Press, 2012) 206.
108
See also Krnojelac Appeals Judgment (n. 59) para 171.
109
K. Ambos, Treatise (n. 68) 215.
110
See Bemba, Separate Opinion of Judge Christine Van den Wyngaert and Judge
Howard Morrison (n. 78) para 51–56.
111
Bemba, Concurrent Separate Opinion of Judge Eboe-Osuji (n. 75) para 188–
193.
112
Bemba, Dissenting Opinion of Judges Monageng and Hofmanski (n. 79) para
330–339.
HE
result of his or her failure to exercise control properly over such

forces.’
Nevertheless, it is still rather controversial whether such a nexus of
causality applies to all superiors’ omissions provided for in article 28
of the ICC Statute or only to superiors’ omissions to prevent sub-
ordinates’ crimes. While the Majority decisions in the appeal and trial
judgments in the Bemba case have not dealt with this issue,113 the
confirmation of the charges decision114 has affirmed that the nexus of
causality is only applicable to superiors’ omissions to prevent sub-
ordinates’ crimes. It is not, therefore, applicable to superiors’ omis-
sions to comply with their duties to repress subordinates’ crimes (at
least, insofar as superiors’ failure to punish subordinates is con-
cerned)115 and submit them to the competent authorities.116
Van Sliedregt117 and the ICC Prosecutor in the appeals proceed-
ings in the Bemba case118 have endorsed this position, because by the
time the superiors’ omissions take place, subordinates’ crimes have
already been committed. Hence, they cannot retroactively cause the
crimes.119
Nevertheless, judges Steiner120 and Ozaki121 in their Separate
Opinions to the Trial Judgment in the Bemba case, Judges Monageng
113
Bemba Appeals Judgment (n. 1) para 32. Bemba Trial Judgment (n. 34) para
210–213.
114
115
Idem. Under article 28 of the ICC Statute, superiors’ duty to repress subor-
dinates’ crimes requires suppression of on-going crimes and punishment of crimes
already committed. Superiors’ omissions to suppress on-going subordinates’ crimes
may be seen as contributing to their commission. As a result, for the purpose of the
discussion of the nexus of causality in this section, the references to superiors’
omissions to repress subordinates’ crimes must be understood as limited to superiors’
failures to punish subordinates’ crimes.
116
117
E. van Sliedregt, Command (n. 74) 514–515.
118
Bemba ICC Prosecutor’s Response to Defence Appeals Brief (n. 66) para 220–
222.
119
120
Bemba, Separate Opinion of Judge Sylvia Steiner to the Judgment of the Trial
Chamber, ICC-01/05-01/08-3343-AnxI (Bemba Separate Opinion of Judge Steiner)
para 4–15.
121
Bemba, Separate Opinion of Judge Kuniko Ozaki to the Judgment of the Trial
Chamber, ICC-01/05-01/08-3343-AnxII (Bemba Separate Opinion of Judge Ozaki)
para 10–19.
and Hofmanski122 in their Dissenting Opinion to the Bemba Appeals

Judgment and the Defence in the Bemba appeals proceedings123 have
interpreted the expression Ôas a result of his or her failure to exercise
control properly over such forces’ as requiring always a nexus of
causality between superiors’ omissions and subordinates’ crimes.
According to their approach, in cases of superiors’ omissions to re-
press and submit subordinates’ crimes to the competent authorities,
subordinates’ crimes must be caused by superiors‘ failures to comply
with their pre-existing general obligation to Ôexercise proper control’
over their subordinates by putting in place effective systems of
supervision and discipline.124 However, this approach is problematic,
because it is based on a causal link between subordinates’ crimes and
superiors’ omissions of obligations other than their duties to prevent,
repress and submit subordinates’ crimes to the competent authorities.
As a result, Judge Eboe-Osuji has affirmed in his Concurring Se-
parate Opinion to the Bemba Appeals Judgment that in those cases of
superiors’ omissions to comply with their duties to punish subordi-
nates’ crimes and submit them to the competent authorities, the nexus
of causality must be assessed in relation to future crimes committed
by subordinates.125 As a result, Judge Eboe-Osuji acknowledges that
no nexus of causality may exist, and therefore no criminal liability
may arise under article 28 of the ICC Statute, with regard to Ôthe first
instance of subordinates’ commission of crimes.’126
In light of the afore-mentioned, the authors consider that the
approach taken in the Bemba confirmation of charges decision is
preferrable. This means that the legal nature of superior responsi-
bility in cases of omissions by superiors to repress and submit sub-
ordinates’ crimes to the competent authorities is the same in article 28
of the ICC Statute as in articles 7 (3) of the ICTY Statute and 6 (3) of
the ICTR Statute.
122
Bemba, Dissenting Opinion of Judges Monageng and Hofmanski (n. 79) para
336–339.
123
Bemba Defence Appeals Brief (n. 61) para 381–388.
124
Bemba Separate Opinion of Judge Steiner (n. 120) para 14–15; Bemba Separate
Opinion of Judge Ozaki (n. 121) para 19; Bemba Dissenting Opinion of Judge Sanji
Mmasenono Monageng and Judge Piotr Hofmanski (n. 79) para 336–339; Bemba
Defence Appeals Brief (n. 61) para 381–388.
125
Bemba, Concurrent Separate Opinion of Judge Eboe-Osuji Judgment (n. 75)
para 207–215.
126
Ibid. para 211–212.
HE
With regard to superiors’ duty to take all necessary and reasonable

measures at their disposal to prevent the commission of international
crimes by subordinates, there is a nexus of causality between supe-
riors’ omissions and subordinates’ crimes.127 This means that supe-
riors’ omissions only give rise to criminal liability when they, at the
very least, facilitate their subordinates’ unlawful conduct. As a con-
sequence, what is really being punished in these cases is not the
omission of a legal duty by superiors, but the superiors’ contribution
to their subordinates’ crimes by omission.128 In this context, the
question arises as to whether superior responsibility for failing to
prevent amounts, according to article 28 of the ICC Statute, to
principal liability (i.e. commission by omission, indirect perpetration
by omission or co-perpetration by omission) or accessorial liability
(i.e. complicity by omission).
As Judge Steiner129 and the Defence in the appeals proceedings in
the Bemba case130 have highlighted, the expression ‘‘as a result of’’
appears, at first glance, to indicate that the nexus of causality must be
of such intensity that subordinates’ crimes cannot be committed
without superiors’ omissions, or, at the very least, that superiors’
omissions must increase to a high probability the risk of subordi-
nates’ crimes. If this interpretation is followed, superiors could then
be considered principals to their subordinates’ international crimes
by way of commission by omission.131
Nevertheless, as Meloni132 has pointed out, this interpretation also
requires that superiors fail to take all necessary and reasonable
measures at their disposal to prevent subordinates’ international
crimes with the subjective element required for the active commission
of the crimes. However, this requirement cannot be found in article
28 of the ICC Statute because the knowledge requirement provided
for in article 30 of the ICC Statute for the active commission of ICC
127
para 422, 423.
128
Bemba, Concurrent Separate Opinion of Judge Eboe-Osuji (n. 75) para 198–
202; Olasolo, Tratado (n. 43) 813.
129
Bemba Separate Opinion of Judge Steiner (n. 120) para 16–24.
130
Bemba Defence Appeals Brief (n. 61) para 381–388.
131
Bemba Confirmation Decision (n. 1) para 425 and 426.
132
C. Meloni, ÔCommand Responsibility: Mode of Liability for the Crimes of
Subordinates or Separate Offence of the Superior?’ (2007) 5 Journal of International
Criminal Justice 636–637.
crimes133 is just one of the two alternative subjective elements of the

definition of superior responsibility. As a result, as seen above,134
military and civilian superiors can incur in superior responsibility for
failing to comply with their duty to prevent subordinates’ crimes even
if they do not know, at the time of their omissions, that their sub-
ordinates are about to commit the crimes.
Furthermore, whenever subordinates commit international crimes
that require a dolus specialis or ulterior intent, such as genocide135 or
the crime against humanity of persecution,136 military and civilian
superiors can be responsible for their omissions to prevent them even
if they (i) do not have such dolus specialis; and (ii) are unaware that
their subordinates have it.137 As a result, the legal nature of superior
responsibility for failing to prevent subordinates’ international crimes
under article 28 of the ICC Statute appears to be much closer to
accessorial liability (i.e. complicity by omission) than to any form of
principal liability.138
3.3.3 The Restrictive Scope of Superior Responsibility

under the CCC’s and PCCSC’s Interpretations
From the above-mentioned, two main conclusions can be reached.
First, unless otherwise explicitly provided for by Colombian law, the
133
M. Badar, ÔRethinking the Mental Element in the Jurisprudence of the ICC’ in
C. Stahn (ed.) The Law and Practice of the International Criminal Court (Oxford:
Oxford University Press, 2015), pp. 653–657, 667–668.
134
See supra section 2.2.1.
135
According to article 6 of the ICC Statute, genocide is any of the acts provided
for in that provision committed ‘‘with intent to destroy, in whole or in part, a
national, ethnical, racial or religious group’’.
136
According to article 7 (1) of the ICC Statute, the crime against humanity of
persecution must be committed ‘‘on political, racial, national, ethnic, cultural, reli-
gious, gender as defined in paragraph 3, or other grounds that are universally rec-
ognized as impermissible under international law’’. Furthermore, the ICC Elements
of the Crimes explicitly states that ‘‘[t]he perpetrator targeted such person or persons
by reason of the identity of a group or collectivity or targeted the group or collec-
tivity as such’’.
137
138
C. Meloni, ÔCommand’ (n. 99) 636–637. Judge Oboe- Osuji also understands
superior responsibility as a form of complicity. See Bemba, Concurrent Separate
Opinion of Judge Eboe-Osuji (n. 75) para 198–202. The same position is held by M.
Damaska, ÔThe Shadow Side of Command Responsibility’ (2001) 49 The American
Journal of Comparative Law 463, 464; W. Schabas, General Principles (n. 67) 417; K.
Ambos, ÔSuperior’ (n. 71) 852. For a more detailed discussion, see D. Robinson, ÔA
Justification of Command Responsibility’ (2017) 28 Criminal Law Forum 633 et seq.
HE
CCC’s Ôdistinctive treatment’ doctrine impedes the application in

Colombia of the notion of superior responsibility to all civilian
superiors’ omissions of their duties to prevent, repress and submit
subordinates’ crimes to the competent authorities.139 Second, the
CCC’s and PCCSC’ interpretations of the notion of superior
responsibility as cases of commission by omission and indirect per-
petration through an organized structure of power substantially limit
its scope of application to military superiors’ omissions.
Despite the CCC’s approach, the notion of commission by omis-
sion under Colombian law does not encompass the notion of superior
responsibility as provided for in the statutes and case law of the
international criminal tribunals. On the one hand, superiors’ omis-
sions to repress and submit subordinates’ crimes to the competent
authorities take place after subordinates’ crimes and therefore they
cannot retroactively cause them.
On the other hand, commission by omission, as a form of principal
liability under article 25 of the Colombian Penal Code, requires some
objective and subjective elements that cannot be found in the notion of
superior responsibility for failing to prevent subordinates’ crimes.
From an objective perspective, commission by omission requires that
superiors’ omissions increase to a high probability the risk of subor-
dinates’ crimes.140 From a subjective perspective, commission by
omission requires that superiors omissions are carried out with do-
lus.141 As a result, superiors must fail to comply with their duty to
prevent subordinates’ crimes with: (i) intent to bring about subordi-
nates’ crimes (dolus directus in the first degree); (ii) awareness that
subordinates’ crimes will be the necessary outcome of their omissions
(dolus directus in the second degree); or (iii) awareness of the risk that
subordinates’ crimes may result from their omissions, and acceptance
of such an outcome by reconciling themselves with it or consenting to
it (dolus eventualis).142 Moreover, superiors must also breach their duty
139
See supra section 3.1.
140
G. Cote, ÔResponsabilidad’ (n. 85) 76.
141
According to article 21 of the Colombian Penal Code, dolus is the general
subjective element of the crimes provided for in the Colombian Penal Code. Criminal
liability for negligent conduct only arises in those cases in which the Colombian
Penal Code explicitly says so. See Law 599/2000. Por la cual se expide el Código
Penal. July, 24, 2000.
142
Colombian Penal Code, article 21.
to prevent subordinates’ crimes with any additional ulterior intent

(dolus specialis) required by the relevant crimes.143
A similar conclusion is reached with the PCCSCs interpretation
of superior responsibility as a case of indirect perpetration through
an organized structure of power under article 25 of the Colombian
Penal Code. In addition to the unfeasible application of indirect
perpetration to superiors’ omissions that take place after subordi-
nates’ crimes, indirect perpetration through an organized structure of
power also requires some objective and subjective elements that
cannot be found in superior responsibility for failing to prevent
subordinates’ crimes.
From an objective perspective, indirect perpetration requires that,
in addition to having effective control over subordinates to affirm the
existence of a superior-subordinate relationship, superiors must also:
(i) have effective control over their subordinates’ specific unlawful
conduct; and (ii) set in motion the organizations that they control to
secure the commission of subordinates’ crimes.144 It is very unlikely,
if not unfeasible, that by not taking measures to prevent subordi-
nates’ crimes, superiors can set in motion the said organizations to
have the crimes committed.145 From a subjective perspective, indirect
perpetration through an organized structure of power requires for
superiors to breach their duty to prevent subordinates’ crimes with
dolus and any additional ulterior intent required for such crimes by
the Colombian Penal Code.146
As a result, the CCC’s and PCCSC’s interpretations of the notion
of superior responsibility as cases of commission by omission and
indirect perpetration exclude from their scope most military superi-
ors’ omissions that give rise to criminal liability under ICL.
143
E.M. Lynett, ÔThe Colombian Prosecutorial Strategy for Cases of Superior
Responsibility in Organized Armed Groups’ (2015) 3 Columbia Human Rights Law
Review 277 et seq.
144
Mangones Lugo, Appeals Judgment (n. 10) para 42–47.
145
H. Olasolo, Tratado (n. 43) 300 et seq.
146
See Colombian Penal Code, articles 21 and 25. See also E.M. Lynett (n. 143)
277 et seq.
HE
3.4 Can the CCC’s and PCCSC’s Restrictive Interpretations

of the Notion of Superior Responsibility Be Overcome by Applying
Other Forms of Criminal Liability under the Colombian Penal
Code?
Given that most superiors’ omissions that give rise to criminal lia-
bility under ICL are outside the scope of application of commission
by omission and indirect perpetration under Colombian law, the
question arises whether they could be covered by instigation and
complicity as forms of accessorial liability under article 30 of the
Colombian Penal Code, or by the crime of abetting under article 446
of the Colombian Penal Code. Nevertheless, it is important to
highlight that this question only arises in relation to military supe-
riors’ breaches of their duties to prevent, supress and submit subor-
dinates’ crimes to the competent authorities, because in the absence
of an explicit legal reference to civilian superiors’ omissions, the
CCC’s Ôdistinctive approach’ doctrine prevails.
Instigation is defined in article 30 of the Colombian Penal Code as
prompting another person to commit a crime that is subsequently
attempted or committed. It is not possible to retroactively instigate a
crime.147 According to the PCCSC, as long as the instigator inten-
tionally reinforces the perpetrator’ previous idea to commit the crime,
it is sufficient to incur criminal liability for instigation.148 As a result,
military superiors’ omissions of their duties to repress and submit
subordinates’ crimes to the competent authorities are not encom-
passed by instigation under Colombian law. The same holds true for
non-intentional military superiors’ omissions to prevent subordi-
nates’ crimes. Finally, in relation to military superiors’ omissions to
prevent that aim at reinforcing subordinates’ ideas to commit the
crimes, no Colombian case law exists to date embracing the notion of
instigation by omission.149
The definition of complicity under Colombian law requires an
intentional contribution that facilitates in some way the commission
147
PCCSC, Case Num. 29221, Judgment, 2 September 2009.
148
Idem.
149
In this regard, the PCCSC has not followed the approach taken by some
authors in Germany and Spain, who embrace the notion of instigation by omission.
See inter alia U. Stein, Die strafrechtliche Beteiligunsformenlehre (Berlin: Duncker &
Humblot, 1988) 273 et seq.; M.C. Gómez Rivero, La inducción a cometer el delito
(Valencia: Tirant lo Blanch, 1995) 207 et seq.; Olmedo Cardenete, M.D., La induc-
ción como forma de participación accesoria (Madrid: Edersa, 1999) 507 et seq.; J.
Sánchez-Vera Gómez-Trelles, ÔEn los lı́mites de la inducción’ (2012) 2/2012 Indret 34.
of a crime by the perpetrator.150 As a result, any contribution to a

crime that has already been committed is not covered by complicity.
Hence, military superiors’ omissions of their duties to repress and
submit subordinates’ crimes to the competent authorities are not
encompassed by complicity under Colombian law. Nevertheless,
unlike instigation, the PCCSC151 and several Colombian authors152
have explicitly admitted the possibility of complicity by omission.
Even the CCC has recently endorsed this view in its recent judgment
C-674/2017.153
From a subjective perspective, Colombian law only attaches
accessorial criminal liability to those contributions that are made
with dolus. As a result, military superiors’ omissions to prevent
subordinates crimes can only amount to complicity as long as they
breach their duty with: (i) intent to contribute by omission to the
commission of subordinates’ crimes; (ii) awareness that contributing
to the commission of subordinates’ crimes is the necessary outcome
of their omissions; or (iii) awareness of the risk that their omissions
may contribute to subordinates’ crimes and acceptance of such an
outcome by reconciling themselves with it or consenting to it.154
Furthermore, under Colombian law, for accomplice liability to
arise, contributions must also be made in the awareness of the like-
lihood that perpetrators have any ulterior intent (dolus specialis) re-
quired by the relevant crimes.155 This means that military superiors
must be aware, at the time of their omissions to prevent subordinates’
crimes, that it is likely that their subordinates have the ulterior intent
required by the crimes that they intent to commit.156
Military superiors’ omissions of their duties to repress and submit
subordinates’ crimes to the competent authorities can only be
encompassed by the independent crime of abetting, which, according
150
Colombian Penal Code, article 30 (3).
151
PCCSC, Case Num. 12742, Judgment, 4 April 2003.
152
F. Velásquez, Manual de Derecho Penal Parte General, 5ed. (Bogotá: Ediciones
Jurı́dicas Andrés Morales, 2013) 590; J. Forero, El Delito de Omisión en el Nuevo
Código Penal (Bogotá: Editorial Legis, 2002) 58.
153
CCC, Constitutional Judgment C-674/2017 (n. 18).
154
PCCSC, Case Num. 37638, Judgment, 23 November 2017 (ÔSanto Domingo
bombardment case’).
155
PCCSC, Case Num. 46185, Judgment, 28 October 2015. See also PCCSC, Case
Num 20704, Judgment, 8 July 2003.
156
PCCSC, Case Num. 36784, Judgment, 28 April 2015 (ÔUnlawful Wiretapping
by Department of Administrative Services (ÔDAS’) case’).
HE
to article 446 of the Colombian Penal Code, attaches criminal liability

to intentional contributions made after the commission of the crimes
to consolidate their effects or further the impunity of the perpetrators.
Nevertheless, as the abettor must act under Colombian law with
dolus, all military superiors’ omissions carried out with negligence or
gross negligence are outside the scope of application of the crime of
abetting.
As a result, prior to the Agreement and Legislative Act 01/2017,
all military superiors’ omissions carried out with negligence or gross
negligence, that gave rise to criminal liability under ICL, generated
under Colombian law, at best, disciplinary liability under the 2016
MFE 6-27 Land Operations Manual. Furthermore, prior to the
Agreement and Legislative Act 01/2017, civilian superiors’ omissions
to prevent, repress and submit subordinates’ crimes to the competent
authorities did not give rise to criminal liability under Colombian
law.
IV THE TREATMENT OF SUPERIOR RESPONSIBILITY

IN THE AGREEMENT, LEGISLATIVE ACT 01/2017
AND THE SJP LAW
4.1 First Approach: The Different Definitions of Superior Responsi-

bility for Colombian Security Forces and FARC
In light of the above-mentioned, the question arises whether the Final
Agreement to End the Conflict and Build a Stable and Lasting Peace,
Legislative Act 01/2017 and the SJP Law address the gaps found in
the treatment of the notion of superior responsibility under Colom-
bian law prior to the Agreement.
At the outset, it is important to highlight that, unlike the
Colombian Penal and Military Penal Codes, the Agreement, Leg-
islative Act 01/2017 and the SJP Law explicitly provide for superior
responsibility for Colombian Security Forces superiors and FARC
superiors with regard to subordinates’ crimes amounting to gross
IHRL violations and grave breaches of IHL,157 committed on
157
According to Colombian Government & FARC, Agreement (n. 7), at 147, 151,
this group of crimes is comprised of genocide, crimes against humanity, serious war
crimes (understood as all systematic breaches of international humanitarian law),
kidnapping or other severe deprivation of physical liberty, torture, extrajudicial
executions, enforced disappearance of persons, rape and other forms of sexual vio-
lence, abduction of minors, forcible displacement and recruitment of children. See
also articles 23, 30, 45 of Law 1820/2016, por medio de la cual se dictan disposiciones
occasion of, because of, or in direct or indirect relation to, the armed
conflict.158 Nevertheless, the notion of superior responsibility is not
applicable to: (i) other persons effectively acting as military superi-
ors,159 such as paramilitary commanders; (ii) civilian superiors; and
(iii) international crimes committed by subordinates of Colombian
Security Forces and FARC which are unrelated to the Colombian
armed conflict.160
Superior responsibility for Colombian Security Forces superiors is
defined in the Agreement161 and in transitory article 24 of Legislative
Act 01/2017 as requiring the following three elements: (i) military
superiors’ effective control over subordinates’ specific unlawful con-
duct; (ii) military superiors’ knowledge of subordinates’ crimes in
light of the information available to them prior, during and after their
commission; and (iii) military superiors’ omissions to use the means
available to them under the circumstances ruling at the time to pre-
vent subordinates’ crimes, end them, and, if the crimes have already
occurred, promote their investigation.
A different definition of superior responsibility is provided in the
Agreement162 and in article 67 of the SJP Law for FARC superiors,
because the expression Ôeffective control over subordinates’ specific
unlawful conduct’ is defined as Ôthe material ability of FARC supe-
riors to exercise appropriate control over subordinates’ unlawful
conduct, as established in international law.’
The differences between both definitions of superior responsibility,
and in particular the absence of any reference to international law in
the definition of superior responsibility for Colombian Security
Forces superiors,163 are due to a last-minute change on the text of the

sobre amnistı́a, indulto y tratamientos penales especiales y otras disposiciones
(ÔAmnesty Law’).
158
Colombian Government & FARC, Agreement (n. 7) 145, 152, 164; Legislative
Act 01/2017 (n. 16) transitory article. 24; SJP Law (n. 17), articles 67 and 68.
159
Under article 28 (1) of the ICC Statute, the notion of superior responsibility is
applicable to military commanders and persons acting as military commanders.
160
Colombian Government & FARC, Agreement (n. 7) 145, 152, 164; Legislative
Act 01/2017 (n. 16) transitory article. 24; SJP Law (n. 17) articles 67 and 68.
161
Colombian Government & FARC, Agreement (n. 7) 152.
162
Ibid. 164.
163
With regard to the definition of superior responsibility for Colombian Security
Forces superiors, the SJP Law provides in its article 68 that this is a matter regulated
in Legislative Act 01/2017. As a result, the reference to international law contained in
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Agreement made unilaterally by Colombian President Juan Manuel

Santos.164
Human Rights Watch has stated that this amendment was the
result of a complaint made by army officers about the definition of
superior responsibility in the Agreement.165 The ICC Prosecutor and
the Inter-American Commission on Human Rights have also ex-
pressed their concern regarding the definition of superior responsi-
bility for Colombian Security Forces superiors in the Agreement.166
In particular, in her November 2016 Report on preliminary exami-
nations, the ICC Prosecutor explained that she had not yet taken any
position on the Agreement. As a result, she decided to keep the SJP’s
applicable law under analysis, including the definition of superior
responsibility therein contained, to identify substantive gaps that
could undermine the SJP’s ability to investigate and prosecute in a
genuine manner potential ICC cases that could arise from an ICC
investigation into the Colombian situation. Subsequently, in an am-
icus curiae sent to the CCC on 18 October 2017 as part of the con-
stitutionality review proceedings of Legislative Act 01/2017, the ICC
Prosecutor noted with concern that in the final text of the Agreement
all references to article 28 of the ICC Statute had been eliminated.167
Nevertheless, she was still hopeful that the definition of superior
responsibility finally adopted in Colombia to implement the Agree-
ment would be fully consistent with the ICC Statute.

the definition of superior responsibility for FARC superiors provided for in article 67
of the SJP Law is not applicable to the definition of superior responsibility for
Colombian Security Forces superiors.
164
El Espectador, Criticas (n. 15).
165
J. Vivanco, Carta sobre ‘‘responsabilidad de mando’’ en la legislación de
implementación del acuerdo de paz, 25 January 2017, available at: https://www.hrw.
org/es/news/2017/01/25/carta-sobre-responsabilidad-de-mando-en-la-legislacion-de-
implementacion-del-acuerdo, accessed on 5 September 2018.
166
International Criminal Court, Office of the Prosecutor, Report on Preliminary
Examination Activities (2016) para 257, available at https://www.icc-cpi.int//Pages/
item.aspx?name=161114-otp-rep-PE, accessed on September 2018. See also El
Espectador, CIDH tiene dudas sobre la Justicia para la Paz, 21 March 2017, available
at https://colombia2020.elespectador.com/politica/cidh-tiene-dudas-sobre-la-justi
cia-para-la-paz, accessed on 5 September 2018.
167
ICC Prosecutor (2017). Escrito de Amicus Curiae de la fiscal de la Corte Penal
Internacional sobre la Jurisdicción Especial para la Paz ante la Corte Constitucional de
la República de Colombia, available at http://cr00.epimg.net/descargables/2017/10/
21/17135b6061c7a5066ea86fe7e37ce26a.pdf?int=masinfo, accessed on 5 September
2018.
As a result, questions arise as to whether (i) the actual implications

of the different definitions of superior responsibility for Colombian
Security Forces superiors and FARC superiors; and (ii) how such
implications may affect the extent to which the Agreement168 and
Legislative Act 01/2017169 fill some of the existing gaps in the treat-
ment of superior responsibility for Colombian Security Forces
superiors under Colombian law.
4.2 The Sources of Interpretation of the Definition of Superior

Responsibility
Legislative Act 01/2017 establishes in the chapeau of transitory article
24 that the sources of interpretation of superior responsibility in
relation to Colombian Security Forces superiors are: (i) the Colom-
bian Penal Code; (ii) IHL as lex specialis; and (iii) the Colombian
Army Forces Operational law, as long as it is not contrary to
Colombian legislation.
As for the Colombian Penal Code, it does not contain any specific
provision on superior responsibility. Moreover, the CCC and PCCSC
interpretations of superior responsibility as cases of principal liability
(commission by omission and indirect perpetration) under article 25
of the Colombian Penal Code significantly restrict the scope of
application of superior responsibility.
With regard to consideration of IHL as lex specialis, it should be
noted that the traditional understanding of IHL as excluding the
application of international human rights law in armed conflicts
whenever IHRL is contrary to IHL, has been overcome in the last
fifteen years by international case law.170 As a result, whenever there
168
Colombian Government & FARC, Agreement (n. 7) 152.
169
Legislative Act 01/2017 (n. 16), transitory article 24.
170
S. Borelli, ÔThe (Mis)-Use of General Principles of Law: Lex Specialis and the
Relationship Between International Human Rights Law and the Laws of Armed
Conflict’ in L. Pinechi (ed.), General Principles of Law – The Role of the Judiciary
(Heildelberg: Springer, 2015); J. Chevalier, ÔHas human rights law become lex spe-
cialis for the European Court of Human Rights in right to life cases arising from
internal armed conflicts’ (2010) 14 (4) The International Journal Of Human Rights; E.
Salmon, ÔInstitutional Approach between IHL and IHRL: Current trends in the
jurisprudence of the Inter-American Court of Human Rights’ (2014) 5 (1–2) Journal
of International Humanitarian Legal Studies 165–168.
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is an armed conflict, IHL and IHRL are complementary bodies that

are concurrently applied.171
Finally, Legislative Act 01/2017 endows constitutional nature to
transitory article 24, generating a normative conflict between: (i)
several elements of the definition of superior responsibility in this
provision; and (ii) IHRL and IHL rules that are part of the
Colombian Constitution through the Bloque de Constitucionalidad
doctrine.172 Given the chapeau of transitory article 24, it is not pos-
sible to resolve this conflict by applying the definition of superior
responsibility contained in the MFE 6-27 Land Operational Manual,
which is notably closer to international standards than the definition
of superior responsibility provided for in transitory article 24.
4.3 The Existence of a Superior-Subordinate Relationship: From

Superiors’ Effective Control over Subordinates to Superiors’
Effective Control of Subordinate’s Specific Unlawful Conduct
Transitory article 24 of Legislative Act 01/2017 underlines that
superior responsibility for Colombian Security Forces superiors
cannot be based exclusively on superiors’ rank, hierarchy or juris-
dictional reach. This is consistent with ICL, because they are only
indicia of the existence of a superior-subordinate relationship. Nev-
ertheless, they are never sufficient to prove it. Ultimately, what must
be proven is the superiors’ material ability to prevent subordinates’
international crimes, repress them or submit the matter to the com-
petent authorities.173
The problem arises when transitory article 24 defines Ôeffective
command and control’ as requiring effective control over subordi-
nates’ unlawful conduct. Nevertheless, according to ICL, a superior-
subordinate relationship is based on the superiors’ effective control
over those subordinates who are responsible for international crimes.
171
M. Milanovic, ÔThe lost origins of lex specialis: Rethinking the relationship
between human rights and international humanitarian law’ in J. Ohlin (ed.), Theo-
retical boundaries of armed conflict and human rights (Cambridge University Press,
2016).
172
V. Suelt, ÔEl Bloque de Constitucionalidad como mecanismo de interpretación
constitucional. Aproximación a los contenidos del Bloque en derechos en Colombia’
(2016) 65 Vniversitas 327–328.
173
International Criminal Court, Office of the Prosecutor, Report on Preliminary
Examinations Activities (2017) para 145, available at https://www.icc-cpi.int/item
sDocuments/2017-PE-rep/2017-otp-rep-PE_ENG.pdf, accessed on 5 September
2018.
Thus, ICL does not require effective control over subordinates’

specific unlawful conduct,174 because this is only an element of
indirect perpetration as a form of principal liability.175
Transitory article 24 also establishes four additional requirements
that must be met for Colombian Security Forces superiors to have
Ôeffective command and control.’ First, subordinates’ unlawful con-
duct must be committed within the area of responsibility assigned to
the unit under superior’s command and must be related to activities
under superior’s command. This requirement unjustifiably applies to
Colombian Security Forces superiors a limitation of responsibility
provided for in article 28 (b) of the ICC Statute for civilian superiors.
While the control of civilian superiors over their subordinates is
limited to work-related matters, the control of military superiors over
their subordinates covers all aspects of military life. Furthermore,
requiring subordinates’ crimes to be carried out within superiors’
assigned area of responsibility forgets that in international law what
is relevant is the superiors’ de facto powers (material ability), and not
their normative attributions.176
Second, Colombian Security Forces superiors must have the legal
and material ability to issue, amend, and enforce orders. This
requirement is contrary to articles 28 of the ICC Statute, 7 (3) of the
ICTY Statute and 6 (3) of the ICTR Statute, because it excludes the
responsibility of de facto superiors, who, despite not having been
legally appointed, can hold authority and effective control by having
the material ability to issue, amend and enforce orders.177
Third, Colombian Security Forces superiors must have effective
ability to develop and carry out military operations within the geo-
graphical area in which subordinates’ crimes are committed,
according to the level of command assigned to them. This require-
ment does not take into consideration that military superiors may
order de facto subordinates to travel to areas outside their area of
responsibility, and still retain effective control over them.
In this regard, as seen above,178 three of the five judges (Eboe-
Osuji, Monageng and Hofmanski) of the ICC Appeals Chamber in
the Bemba case do not consider that the geographic remoteness of
174
Colombian Government & FARC, Agreement (n. 7).
175
H. Olasolo, Tratado (n. 43) 815.
176
177
Idem.
178
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military superiors has necessarily an impact on their level of effective

control over subordinates who commit international crimes, as it is
only a factor to be considered among other circumstances of a given
case.179 In applying this test, the Majority decision (judges Eboe-
Osuji, Van der Wyngaert and Morrison) found that, although the
Appellant, who was the president and commander-in-chief of the
Movement for the Liberation of the Congo (ÔMLC’), did not have
control over the geographical area of the neighbouring Central
African Republic where the MLC operations took place, he retained
the material ability to take various measures to prevent, repress and
submit subordinates’ international crimes to the competent authori-
ties (effective control).180 The Appellant was, nevertheless, acquitted
because, for the Majority of the ICC Appeals Chamber, he took all
necessary and reasonable measures within his power, in the circum-
stances existing at the time.181
Fourth, Colombian Security Forces superiors must have Ômaterial
and direct’ ability to take appropriate measures to prevent and re-
press subordinates’ crimes, provided that they know about their
subordinates’ crimes or have enough information at their disposal to
put them on notice about such crimes. This raises the question
whether the Ômaterial and direct’ ability requirement excludes the
liability of military superiors who are not immediate commanders of
those who commit the crimes. If the answer is affirmative, this will be
consistent with the approach taken by the Defence Appeal Brief in the
Bemba case, where it is argued that, in principle, a far removed
commander cannot be held responsible for lack of control. Never-
theless, this approach is rejected by Judges Oboe-Osuji, Monageng
and Hofmanski (three of the five judges of the ICC Appeals Chamber
179
Bemba, Concurrent Separate Opinion of Judge Eboe-Osuji (n. 75) para 3, 158.
See also Bemba Dissenting Opinion of Judges Monageng and Hofmanski (n. 79) para
127. A different approach is taken by the other two judges of the ICC Appeals
Chamber in the Bemba Case (Van den Wyngaert and Morrison). For these two
judges, the geographic and structural remoteness of a commander is a factor that has
always an impact on the actual effective control of the commander over the material
perpetrators of the crimes. See Bemba, Separate Opinion of Judge Christine Van den
Wyngaert and Judge Howard Morrison (n. 78) paras 33–36.
180
Bemba Appeals Judgment (n. 1) paras 172–173. See also M. Ospina and J.
Canosa, ÔSituación en África Central, caso del Fiscal contra Jean Pierre Bemba
Gombo, Sentencia conforme al artı́culo 74 del ECPI, ICC-01/05- 01/08, de 21 de
marzo de 2016’ (2017) 5 Anuario Iberoamericano de Derecho Internacional Penal 162.
See also Popovic Appeals Judgment (n. 2) para 1859 et seq.
181
Bemba Appeals Judgment (n. 1) para 174–193.
in the Bemba case), as well as by the Bemba trial and pre-trial

chambers. In their view, superior responsibility arises for all superiors
in the chain of command, provided that superiors of higher rank,
who are generally far away from the place of the crime, retain their
material ability to prevent, suppress or submit subordinates’ inter-
national crimes to the competent authorities for investigation and
prosecution.182
4.4 Superiors’ Failure to Take Available Measures to Prevent Subor-

dinates’ Crimes, Repress Them or Submit the Matter to the Com-
petent Authorities
Transitory article 24 of Legislative Act 01/2017 establishes that
superior responsibility is based on the means available to Colombian
Security Forces superiors, under the circumstances ruling at the time,
to prevent subordinates’ crimes, put an end to them, and, if the
crimes have already occurred, promote their investigation. This is, in
principle, consistent with articles 28 of the ICC Statute, 7 (3) of the
ICTY Statute and 6 (3) of the ICTR Statute. Nevertheless, in order to
keep consistency with these provisions, the expression Ômeans at the
disposal’ of Colombian Security Forces superiors must be interpreted
as a synonym of Ôall necessary and reasonable measures’ at the
superiors’ disposal, with the understanding that, among all measures
available to them, superiors must take those that are: (i) suitable to
prevent, suppress and submit subordinates’ crimes to the competent
authorities; and (ii) proportional to the threat posed by such
crimes.183
4.5 The Subjective Element: The Exclusion of Negligence

With respect to the subjective element of superior responsibility,
transitory article 24 of Legislative Act 01/2017 states in its second
paragraph, and in its fourth additional requirement for the existence
of effective control, that superior responsibility is based on the ex-
182
Bemba, Concurrent Separate Opinion of Judge Eboe-Osuji (n. 75) para 3, 158;
Bemba, Dissenting Opinion of Judges Monageng and Hofmanski (n. 79) para 127.
Bemba Trial Judgment (n. 34) para 184; Bemba Confirmation Decision (n. 1) para
410. For a different approach see, Bemba Defence Appeals Brief (n. 61) para 175–
185.
183
Bemba Appeals Judgment (n. 1) para 8; Bemba Trial Judgment (n. 34) para
197; Bemba Confirmation Decision (n. 1) para 477; M. Nybondas, Civilian (n. 51) 68;
J. Williamson, ÔCommand Responsibility in the Case Law of the International
Criminal Tribunal for Rwanda’ (2002) 13 (3) Criminal Law Forum 365–384.
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press or actual knowledge of Colombian Security Forces superiors, in

light of the information at their disposal prior, during or after the
commission of subordinates’ crimes.
This standard is closely related to the standard envisaged in the
expression ‘‘knew or had reasons to know’’ provided for in articles 7
(3) of the ICTY Statute and 6 (3) of the ICTR Statute.184 Conse-
quently, it is at least necessary that Colombian Security Forces
superiors have at their disposal enough information of a general
nature to alert them of (i) the crimes that their subordinates are
planning to commit, are committing or have committed; and (ii) the
need to initiate an investigation to clarify this situation.185 While it
could be argued that the standard ‘‘had reasons to know’’ is part of
customary international law, it is also true that Colombia has vol-
untarily bound itself to implement in its domestic legislation the
Ôshould have known’ (negligence) standard provided for in article 28
of the ICC Statute.186
4.6 The Absence of a Nexus of Causality between Superiors’ Omissions

and Subordinates’ Crimes
184
The ICTY Trial Judgment in the Blaskic case interpreted the expression ‘‘had
reasons to know’’ as it were a negligence standard, similar to that encapsulated in the
expression ‘‘should have known’’ in article 28 (a) (i) of the ICC Statute. The reasons
provided for in paragraph 332 of the judgment in support of this interpretation are
the following: ‘‘[i]f a commander has exercised due diligence in the fulfilment of his
duties yet lacks knowledge that crimes are about to be or have been committed, such
lack of knowledge cannot be held against him. However, taking into account his
particular position of command and the circumstances prevailing at the time, such
ignorance cannot be a defence where the absence of knowledge is the result of
negligence in the discharge of his duties: this commander had reason to know within
the meaning of the Statute.’’ Nevertheless, the Appeals Chambers of the ICTY and
the ICTR have systematically rejected this interpretation. See Bagilishema Appeals
Judgment (n. 58) para 35–42; Celebici Appeals Judgment (n. 47) para 241; Krnojelac
Appeals Judgment (n. 59) para 15; Blaskic Appeals Judgment (n. 54) para 62; Oric
Appeals Judgment (n. 41) para 5. See also in this regard, M.R. Lippman, ÔThe
Evolution and Scope of Command Responsibility’ (2000) 13 Leiden Journal of
International Law 157; N. Keijzer and E. Van Sliedregt, ÔCommentary to Blaskic
Judgment’ in A. Klip and G. Sluiter (eds.), Annotated Leading Cases of International
Criminal Tribunals (Oxford, Hart Publishing, 2001) 656, 657; M.F. Tinta, ÔCom-
manders on Trial: The Blaskic Case and the Doctrine of Command Responsibility’
(2000) 47 Netherlands International Law Review 293–322.
185
Popovic Appeals Judgment (n. 2) para 1912–1913.
186
Nevertheless, some academic commentators have argued that there is no
substantial difference between both standards. See in particular, K. Ambos, Treatise
(n. 68) 223–226.
Transitory article 24 of Legislative Act 01/2017 does not include in its

definition of superior responsibility any reference to a nexus of
causality between Colombian Security Forces superiors’ omissions
and subordinates’ crimes. Therefore, it follows on this matter the
definition of superior responsibility provided for in the Statutes and
case law of the ad hoc tribunals, to the detriment of the definition
contained in article 28 of the ICC Statute.
The absence of a nexus of causality in the definition of superior
responsibility adds an additional difference between superior
responsibility and the notions of commission by omission, indirect
perpetration and complicity by omission. Therefore, the legal nature
of superior responsibility in transitory article 24 of Legislative Act 01/
2017 appears to be that of an independent crime of omission, which is
consistent with the ad hoc tribunals approach, as shown by the Ha-
lilovic187 and Hadzihasanovic et al.188 cases.
Consequentially, it is disconcerting that at the same time that
transitory article 24 has chosen this approach, it also requires the
Colombian Security Forces superiors’ effective control over their
subordinates’ specific unlawful conduct. This understanding of
superiors’ effective control amounts to a core element of indirect
perpetration through an organized structure of power, which always
requires a nexus of causality between the relevant omissions and the
commission of the crimes.
4.7 Tempered Expectations for the Advancement of Superior

Responsibility Cases
Insofar as the Agreement, Legislative Act 01/2017 and the SJP Law
provide for the application of the notion of superior responsibility to
Colombian Security Forces superiors and FARC superiors, they
constitute a positive step towards addressing the existing gaps in the
treatment of the notion of superior responsibility in Colombian law
prior to the Agreement. Nevertheless, they address these gaps in a
very limited manner due to several factors. First, the notion of
superior responsibility is not applicable to: (i) other persons effec-
tively acting as military superiors,189 such as paramilitary comman-
ders; and (ii) international crimes committed by subordinates of
187
Halilovic Trial Judgment (n. 4) para 75–78.
188
Hadzihasanovic Trial Judgment (n. 4) para 38–42.
189
Under article 28 (1) of the ICC Statute, the notion of superior responsibility is
applicable to military superiors and persons acting as military superiors.
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Colombian Security Forces and FARC, which are unrelated to the

Colombian armed conflict. Second, all references to international law
have been eliminated from the definition of superior responsibility for
Colombian Security Forces superiors. Third, transitory article 24 of
Legislative Act 01/2017 adds several additional requirements to the
definition of superior responsibility for Colombian Security Forces
superiors that, as the ICC Prosecutor highlighted in her December
2017 Report, restrict very significantly its scope of application.190
Finally, no explicit reference to superior responsibility for civilian
superiors can be found in the Agreement, Legislative 01/2017191 or
the SJP Law,192 and thus, according to the CCC’s Ôdistinctive ap-
proach’ doctrine, civilian superiors are left out of the personal scope
of application of superior responsibility in Colombian law.
V CONCLUSION
The CCC’s and PCCSC’s interpretations of the notion of superior

responsibility as cases of commission by omission and indirect per-
petration under article 25 of the Colombian Penal Code exclude from
their scope of application most military superiors’ omissions of their
duties to prevent, repress and submit subordinates’ international
crimes to the competent authorities that, according to ICL, gives rise
to criminal liability. Nevertheless, the notion of complicity by omis-
sion, as a form of accessorial liability, and the crime of abetting,
provided for in articles 30 and 446 of the Colombian Penal Code,
could cover this gap with regard to military superiors’ omissions
carried out with dolus.
Articles 7 (3) of the ICTY Statute and 6 (3) of the ICTR Statute
also attach criminal liability to military superiors’ omissions carried
out with gross negligence, while article 28 (1) of the ICC Statute
attaches criminal liability to all negligent military superiors’ omis-
sions. Under Colombian law, although no liability is provided for
negligent military superiors’ omissions, the 2016 MFE 6-27 Land
Operations Manual attaches disciplinary responsibility to military
superiors’ omissions carried out with gross negligence. Moreover, the
Agreement, Legislative Act 01/2017 and the SJP Law explicitly pro-
190
International Criminal Court. Office of the Prosecutor. Report (n. 173) para
145.
191
Legislative Act 01/2017 (n. 16), transitory article 24.
192
The SJP Law (n. 17), articles 67 and 68.
vide for criminal liability for gross negligent omissions of Colombian

Security Forces superiors and FARC superiors with regard to sub-
ordinates’ international crimes related to the armed conflict.
The explicit provision of the notion of superior responsibility for
Colombian Security Forces superiors and FARC superiors in the
Agreement, transitory article 24 of Legislative Act 01/2017 and
articles 67 and 68 of the SJP Law constitutes, in principle, a positive
step in the treatment of superior responsibility in Colombian law.
Nevertheless, it has come at a prize, because not only have all ref-
erences to international law been eliminated from the definition of
superior responsibility for Colombian Security Forces superiors, but
several additional requirement have also been added to the definition,
which significantly restricts its scope of application.
Although the judgment C-634/2017 of the CCC on the constitu-
tionality of Legislative Act 01/2017, issued on 14 November 2017,
amended seven of its articles, transitory article 24 was not among
them.193 For the CCC, this provision, despite not reproducing article
28 of the ICC Statute, contains the basic structure of the notion of
superior responsibility.194 As a result, none of the concerns expressed
by the ICC Prosecutor, the Inter-American Commission on Human
Rights or Human Rights Watch have been addressed. Consequently,
as the ICC Prosecutor highlighted in her December 2017 Report,
Ô[t]he definition of command responsibility included in transitory
article 24 of the Legislative Act 01 departs from customary interna-
tional law and may therefore frustrate Colombia’s efforts to meet its
obligations to investigate and prosecute international crimes.’195
This is especially relevant for the ICC Prosecutor’s preliminary
examination of the situation in Colombia, as it is mainly focused on
193
CCC, Constitutional Judgment, C-674/2017 (n. 18).
194
Idem.
195
International Criminal Court. Office of the Prosecutor. Report (n. 173) para
145. For the ICC Prosecutor, Ô[u]nder customary international law, the superior’s
duty and responsibility to prevent or punish the crimes of their subordinates does not
arise from his or her de jure authority, but instead from his or her material abilities.
By contrast, a tribunal applying transitory article 24, as formulated, could find itself
powerless to enforce customary international law against superiors with de facto but
not de jure powers, if it could only accept as proof of the requisite degree of com-
mand a formal appointment. This would mean that persons with the material ability
to prevent or punish the crimes of subordinates, and who knowingly failed to do so,
could escape liability. This would significantly undermine application of the principle
of responsible command and could bring into question whether those proceedings
were vitiated by an inability or unwillingness to carry them out genuinely.’.
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the most responsible persons for international crimes committed by

paramilitary groups, guerrilla groups and Colombian Security For-
ces. This includes the systematic extrajudicial killings (known as Ôfalse
positives’) of thousands of civilians belonging to vulnerable popula-
tions (i.e., street inhabitants, drug addicts, LGBTI population, or
persons with limited economic resources and the like) who were
subsequently presented as members of guerrilla groups, by the
Colombia Security Forces, to meet performance requirements for the
purpose of ascension through the ranks of the Colombian Security
Forces. As part of her preliminary examination, the ICC Prosecutor
sent a communication to the Colombian government on 9 July 2017,
in which she explicitly mentioned the names of 23 generals and 6
colonels who are allegedly responsible for having commanded units
involved in, at least, 1,228 cases of false positives.196 In subsequent
visits to Colombia by the ICC Prosecutor (10–13 September 2017)197
and by personnel from her Office (mid-March 2018)198 Ôconcrete and
specific information’ on investigative steps taken in relation to the
investigation against the above-mentioned generals and coronels has
been requested.
ICL also provide for the application of the notion of superior
responsibility to civilian superiors. Nevertheless, this has not yet been
implemented in Colombian law, because in the absence of an explicit
legal reference to civilian superiors’ omissions, the CCC’s Ôdistinctive
approach’ doctrine prevails. According to this doctrine, although
Colombian case law has applied superior responsibility to military
superiors’ omissions through domestic notions of criminal liability (in
particular, commission by omission and indirect perpetration), this is
not possible with regard to civilian superiors’ omissions because
superior responsibility for civilian superiors is a ‘‘distinctive treat-
196
See El Espectador, 29 generales y coroneles, en la mira de la CPI por ejecu-
ciones extrajudiciales, 9 July 2017, available at https://colombia2020.elespectador.
com/jep/29-generales-y-coroneles-en-la-mira-de-la-cpi-por-ejecuciones-extrajudiciales,
accessed on 4 September 2018.
197
International Criminal Court. Office of the Prosecutor. Statement of the
Prosecutor of the International Criminal Court, Fatou Bensouda, on the conclusion of
her visit to Colombia (10–13 September 2017, 13 September 2017, available at https://
www.icc-cpi.int/Pages/item.aspx?name=170913-otp-stat-colombia, accessed on 4
September 2018.
198
A. Alsema, ICC Intends to File Criminal Charges against Colombian Military
Chiefs, 15 March 2018, available at https://colombiareports.com/icc-intends-to-file-
criminal-charges-against-colombia-military-chiefs/, accessed on 4 September 2018.
ment’’ under the ICC Statute, which is not applicable by Colombian

judges in national proceedings.
The Agreement, Legislative Act 01/2017 and the SJP Law have
not addressed this issue because they contain no explicit reference to
superior responsibility for civilian superiors’ omissions of their duties
to prevent, repress and submit subordinates’ international crimes to
the competent authorities. As a result, there is a risk of generating
another impunity gap with respect to thousands of civilian authorities
that – as shown by the sixteen thousand requests for investigation
made in the last decade by the Justice and Peace Chambers to the
Colombian Attorney General – omitted for decades to fulfil their
duties to prevent, repress and submit subordinates’ international
crimes to the competent authorities.
ACKNOWLEDGEMENTS
Funding was provided by Universidad del Rosario (Research pro-

jects: (i) ‘‘The Role of International Judicial and Arbitration Bodies
in the execution of an Eventual Peace Agreement in Colombia as a
result of the Renegotiation brought forward by the Result of the
Referendum of October 2, 2016’’; and (ii) ‘‘Principles of Harmo-
nization between the Function and Scope of Justice and the Demands
Arising in Transitional Processes’’).

The Treatment of Superior Responsibility

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The Treatment of Superior Responsibility

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Criminal Law Forum (2019) 30:61–107 Springer Nature B.V.

THE TREATMENT OF SUPERIOR RESPONSIBILITY

ABSTRACT. The Colombian Constitutional and Supreme Court’s interpretation of

Superior responsibility is based on the principle of criminal liability

Despite the treaty5 and customary6 regulation of superior

Stable and Lasting Peace (Ôthe Agreement’) by the Colombian

armed conﬂict. Moreover, the Agreement makes explicit reference to

In this context, this article analyses the treatment of superior

II THE TREATMENT OF SUPERIOR RESPONSIBILITY

lation.21 Among the most relevant elements of the 2007 Integral

egy’).27 It provided for the training of military superiors in the

[4-2] On the other hand, military commanders are responsible as superiors

The question thus arises as to the level of consistency of the deﬁni-

2.2 Are the Deﬁnitions of Superior Responsibility in the 2009 Road

2.2.1 The Elements of Superior Responsibility in ICL

all superiors in the chain of command, including the highest leaders.40

hoc tribunals list: the existence of a superior-subordinate relationship

measures within their material (de facto) ability to prevent,49

measures that are within their material reach,52 regardless of their

their duty to inform themselves about subordinates’ activities.58 As a

several authors67 have considered that the expression Ôshould have

responsibility.74 This element requires the existence of a nexus of

military superiors always has an impact on their level of actual

In light of the above-mentioned, it can be concluded that, al-

III THE TREATMENT OF SUPERIOR RESPONSIBILITY

3.1 The Treatment of Superior Responsibility by the Colombian

rilla or paramilitary groups) operating in their area of responsibil-

3.2 The Treatment of Superior Responsibility by the Penal Chamber

In the case against paramilitary commander, José Antonio Mangones

latter were mere interchangeable tools. As a result, Mangones Lugo’s

3.3 Are the Interpretations of Superior Responsibility by the CCC

superior responsibility as an independent crime of omission is to

Nevertheless, some authors consider that superior responsibility is

3.3.2 The Legal Nature of Superior Responsibility in the ICC

Footnote 106 continued

result of his or her failure to exercise control properly over such

and Hofmanski122 in their Dissenting Opinion to the Bemba Appeals

With regard to superiors’ duty to take all necessary and reasonable

crimes133 is just one of the two alternative subjective elements of the

3.3.3 The Restrictive Scope of Superior Responsibility

CCC’s Ôdistinctive treatment’ doctrine impedes the application in

to prevent subordinates’ crimes with any additional ulterior intent

3.4 Can the CCC’s and PCCSC’s Restrictive Interpretations

of a crime by the perpetrator.150 As a result, any contribution to a

to article 446 of the Colombian Penal Code, attaches criminal liability

IV THE TREATMENT OF SUPERIOR RESPONSIBILITY

4.1 First Approach: The Diﬀerent Deﬁnitions of Superior Responsi-

Footnote 157 continued

Agreement made unilaterally by Colombian President Juan Manuel

Footnote 163 continued

As a result, questions arise as to whether (i) the actual implications

4.2 The Sources of Interpretation of the Deﬁnition of Superior

is an armed conﬂict, IHL and IHRL are complementary bodies that

4.3 The Existence of a Superior-Subordinate Relationship: From

Thus, ICL does not require eﬀective control over subordinates’

military superiors has necessarily an impact on their level of eﬀective

in the Bemba case), as well as by the Bemba trial and pre-trial

4.4 Superiors’ Failure to Take Available Measures to Prevent Subor-

4.5 The Subjective Element: The Exclusion of Negligence

press or actual knowledge of Colombian Security Forces superiors, in

4.6 The Absence of a Nexus of Causality between Superiors’ Omissions

Transitory article 24 of Legislative Act 01/2017 does not include in its