The use of command/superior responsibility was an innovation of international criminal law. Indeed for international criminal law to meaningfully function, it was necessary to develop a framework for holding superiors responsible, even when the crimes were committed by their subordinates. It triggers accountability not only for the active commission of crime but more importantly, for omission to prevent and punish. The Prosecution does not need to prove active commission of a crime for superior accountability; that a superior omitted to prevent and punish his subordinates is satisfactory for a finding. Additionally, ignorance was no excuse if a superior could have and should have known about the crimes. This was an important achievement in the development of individual criminal accountability. Indeed it acknowledged that in war, crimes are committed through collective action and often, with a degree of acquiescence by those in charge.
Superiors often escape liability for sexual assaults by subordinates because they are argued to have been committed in ‘private time’. With the exception of unequivocal orders, courts have traditionally conceded to the defence that what a soldier does in his private time and capacity, falls outside the remit of superior responsibility. Sex is recreation; it is inevitable; soldiers need sex for war; it is a private action.
This doctrine is still relatively new. Although it has subverted traditional constructions of military sovereignty and impunity, the privileging of war and it’s ‘inevitabilities’ will still dictate how far superior accountability stretches. As such, advocates must exercise constant vigilance over how such defences or traditional constructions are played out and received by the court. Gender-sensitivity is not yet a luxury, even in high-profile international courts. How far accountability stretches into women’s lived realities in war depends on the Prosecution’s gender strategy.
Due to the historical marginalisation of gender-based crimes and entrenched benevolence towards the concerns of superiors that in chaos, not all can be controlled, the court itself may buy into a line of thinking that what soldiers do outside their official duties should not be imputed to superiors. Coupled with the importance of the rights of accused on trial, sex crimes may slip through the cracks of law. This is certainly generous (though not always malicious) entitlement accorded to superiors.
It is in the nature of warfare and the relative vulnerability of civilians vis a vis soldiers, that sex crimes are most probable. Thus superiors are mandated to assess these risks when deploying soldiers, running detention camps, and occupying territories. Superiors are mandated to educate his soldiers and set up disciplinary systems and supervisory checks to ensure that such crimes are prevented and punished.
The table below charts the framework by which superiors can be held accountable under the framework of the Rome Statute of the International Criminal Court (ICC).
Please note that the ICC takes a slightly different approach from the ICTY/R. The mens rea is stricter on military commanders than non-military commanders.
Article 28, Rome Statute
Responsibility of commanders and other superiors
(a) A military commander or person effectively acting as a military commander shall be criminally responsible for crimes within the jurisdiction of the Court committed by forces under his or her effective command and control, or effective authority and control as the case may be, as a result of his or her failure to exercise control properly over such forces, where:
(i) That military commander or person either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes; and
(ii) That military commander or person failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.
(b) With respect to superior and subordinate relationships not described in paragraph (a), a superior shall be criminally responsible for crimes within the jurisdiction of the Court committed by subordinates under his or her effective authority and control, as a result of his or her failure to exercise control properly over such subordinates, where:
(i) The superior either knew, or consciously disregarded information which clearly indicated, that the subordinates were committing or about to commit such crimes;
(ii) The crimes concerned activities that were within the effective responsibility and control of the superior; and
(iii) 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.
 Kelly D. Askin, ‘Holding Leaders Accountable in the International Criminal Court (ICC) for Gender Crimes Committed in Darfur’  1(1) Genocide Studies and Prevention 288, 325
 See Patricia V. Sellers ‘Gender Strategy is Not Luxury for International Courts Symposium: Prosecuting Sexual and Gender-Based Crimes before International/ized Criminal Courts.’  17(2) American University Journal of Gender, Social Policy and the Law 301 <http://www.wcl.american.edu/journal/genderlaw/17/2sellers.pdf> accessed on April 7, 2013
 Kelly D. Askin (n 1) 344