Book One: 4 General Provisions
Part One: Felonies and Misdemeanours Title One: Scope of Application
Title Two: Criminal Liability
Art. 11
1 A felony or misdemeanour may also be committed by a failure to comply with a duty to act.
2 A person fails to comply with a duty to act if he does not prevent a legal interest protected under criminal law from being exposed todanger or from being harmed even though, due to his legal position, he has a duty to do so, in particular on the basis of :
a. the law ;
b. a contract ;
c. a risk-bearing community entered into voluntarily ; or
d. the creation of a risk.
3 Any person who fails to comply with a duty to act is liable to prose-cution only if, on the basis of the elements of the offence concerned, his conduct is, in the circumstances, as culpable as it would have been had he actively committed the offence.
4 The court may reduce the sentence.
In addition to other grounds of criminal responsibility under this Statute for crimes within the jurisdiction of the Court:
(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.