(Question XIII, Political Law, 2017 Bar Exam)
Command responsibility pertains to the responsibility of commanders for crimes committed by subordinate members of the armed forces or other persons subject to their control in international wars or domestic conflicts. The doctrine has now found application in civil actions for human rights abuses, and in proceedings seeking the privilege of the writ of amparo.
(a) What are the elements to be established in order to hold the superior or commander liable under the doctrine of command responsibility? (4%)
(b) May the doctrine of command responsibility apply to the President for the abuses of the armed forces (AFP and PNP) given his unique role as the commander-in-chief of all the armed forces? Explain your answer. (4%)
(a) The following are the elements:
1) The superior either knew, or consciously disregarded information which clearly indicated, that the subordinates were committing or about to commit such crimes;
2) The crimes concerned activities that were within the effective responsibility and control of the superior; and,
3) The superior failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution. (Article 28, Rome Statute of the International Criminal Court)
(b) Yes. Under jurisprudence, the commander-in-chief of the military may be held responsible or accountable for extrajudicial killings and enforced disappearances under the doctrine of command responsibility. The president, being the commander-in-chief of all armed forces, necessarily possesses control over the military that qualifies him as a superior within the purview of the command responsibility doctrine.
(Notice: The suggested answers simulate those that a bar examinee may provide, and thus specific citations are not provided. Notwithstanding, in the reviewers, the bar exam question is answered under the appropriate topic which discusses the concepts and principles, as well as provide for specific citations. Accordingly, please refer to it on the reviewer or in the Library.)
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