Violations of international criminal law can also result from a failure to act. Armed forces or groups are generally under a command that is responsible for the conduct of its subordinates.
In order to make the system effective, superiors in the chain of command should be held to account when they fail to take proper measures to prevent their subordinates from committing serious international crimes.
Therefore, they may be held criminally responsible for criminal activities they did not directly do or order, but that they did not prevent or stop.
Article 28. Responsibility of commanders and other superiors.
Under this provision, military commanders are held criminally responsible for crimes committed by armed forces under their effective command and control, such as rape and any sexual violence used in war. This applies to instances where the superior knew or should have known about such crimes, or failed to take all necessary and reasonable measures to prevent their commission.
The crimes committed by the armed forces must have been a result of the failure of the commander to properly exercise control over them.
In addition, there must be evidence beyond any reasonable doubt that the commander is responsible and the crimes were sufficiently widespread so that it is evident that they occurred during the ordinary implementation of the military action for which the commander is responsible. The goal of this provision is to encourage commanders and superiors to prevent effectively the perpetration of crimes by their forces.