III. ACCOUNTABILITY AND THE RIGHTS OF VICTIMS
Concerning the superior’s “duty to prevent” established in article 87.2
of Protocol I, the Appeals Chamber indicated that the general duty of
commanders to take the necessary and reasonable measures was well
rooted in customary international law and stemmed from their position
of authority. It stated that the “‘necessary’ measures are the measures
appropriate for the superior to discharge his obligation (showing that he
genuinely tried to prevent or punish) and ‘reasonable’ measures are those
reasonably falling within the material powers of the superior.” Thus, the
standard is whether the superior failed to take the necessary and reasonable
measures to prevent the criminal act or punish the perpetrator.118
2. The obligations of States regarding international crimes
Where violations of international human rights and humanitarian law
constitute international crimes, States have a series of legal obligations
and responsibilities that stem from international criminal law. States have
the duty to investigate violations and, if there is sufficient evidence, the
duty to submit to prosecution the person allegedly responsible for them
and to punish the perpetrator in accordance with the law, to exclude
the possibility of amnesty for certain perpetrators, and to offer remedy
and reparation to victims or their families. Their obligation to extend
jurisdiction for prosecution of such crimes beyond their territory will be
discussed in the next subsection. The obligation to seek accountability
includes a responsibility for States, in accordance with international law,
to cooperate with one another and assist international judicial organs
competent in the investigation and prosecution of these violations.
The obligation to seek accountability is explicitly referred to in some
instruments of international human rights and humanitarian law and has
been reinforced by interpretations of the law. The International Covenant
on Civil and Political Rights,119 the Convention against Torture, the
Prosecutor v. Sefer Halilovic´, case No. IT-01-48-A, Judgement of 16 October 2007,
paras. 63–64.
119
For example, article 2.3 states that “[e]ach State Party to the present Covenant undertakes:
(a) [t]o ensure that any person whose rights or freedoms as herein recognized are
118
81
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