Command responsibility

Command responsibility (superior responsibility, the Yamashita standard, and the Medina standard) is the legal doctrine of hierarchical accountability for war crimes.Guilty Associations: Joint Criminal Enterprise, Command Responsibility, and the Development of International Criminal Law
by Allison Marston Danner and Jenny S. Martinez, September 15, 2004
by Robin Rowland, CBC News Online, 6 May 2004 The legal doctrine of command responsibility stipulates that a superior officer (military commander or civilian leader) can be held legally responsible for war crimes committed by subordinates.

The legal doctrine of command responsibility was codified in the 19th century, at the Hague Conventions of 1899 and 1907, and is partly based upon the Lieber Code (1863), a war manual for the United States Armed Forces, two years into the American Civil War (1861–1865). The legal doctrine of command responsibility was first applied, by the German Supreme Court, in the Leipzig war crimes trials (1921), which included the trial of Imperial German Army officer Emil Müller for the war crimes that he committed during the First World War (1914–1918). by Iavor Rangelov and Jovan Nicic, Humanitarian Law Center, February 23, 2004The Contemporary Law of Superior Responsibility
by Ilias Bantekas American Journal of International Law, No 3 July 1999Joint Criminal Enterprise and Command Responsibility
by Kai Ambos, Professor of Criminal Law, Criminal Procedure, Comparative Law and International Criminal Law at the University of Göttingen; Judge at the State Court (Landgericht) Göttingen, Journal of International Criminal Justice, originally published online on 25 January 2007.

The Yamashita standard derived from the incorporation to the U.S. Code of the legal doctrine of command responsibility, as codified in the two Hague Conventions. That legal precedent, decided by the U.S. Supreme Court, allowed the US prosecution of the war crimes case against Imperial Japanese Army General Tomoyuki Yamashita for the atrocities committed by his soldiers in the Philippine Islands, in the Pacific Theatre (1941–1945) of the Second World War. A US military tribunal charged Yamashita with "unlawfully disregarding, and failing to discharge, his duty as a commander to control the acts of members of his command, by permitting them to commit war crimes."Command Responsibility and Superior Orders in the Twentieth Century - A Century of Evolution
by, Stuart E Hendin, Murdoch University Electronic Journal of Law

The Medina standard expanded the US Code to include the criminal liability of US military officers for the war crimes committed by their subordinates, as are military officers of an enemy power, e.g. the war-crimes trial of Gen. Yamashita in 1945. The Medina standard originated from the charging, prosecution, and court-martial of U.S. Army Captain Ernest Medina in 1971, for not exercising his superior responsibility as company commander, by not acting to halt the commission of a war crime by his soldiers, the My Lai Massacre (16 March 1968), during the Vietnam War (1955–1975).

Origin

Developing accountability

In ''The Art of War'', written during the 6th century BC, Sun Tzu argued that a commander's duty was to ensure that his subordinates conducted themselves in a civilised manner during an armed conflict. Similarly, in the Bible (), within the story of Ahab and the killing of Naboth, King Ahab was blamed for the killing of Naboth on orders from Queen Jezebel, because Ahab (as king) was responsible for everyone in his kingdom.

The trial of Peter von Hagenbach by an ''ad hoc'' tribunal of the Holy Roman Empire in 1474, was the first "international" recognition of commanders' obligations to act lawfully.Exhibit highlights the first international war crimes tribunal
by Linda Grant, Harvard Law Bulletin. Hagenbach was put on trial for atrocities committed during the occupation of Breisach, found guilty of war crimes and beheaded.An Introduction to the International Criminal Court
William A. Schabas, Cambridge University Press, Third Edition Since he was convicted for crimes "he as a knight was deemed to have a duty to prevent", Hagenbach defended himself by arguing that he was only following ordersThe evolution of individual criminal responsibility under international law
By Edoardo Greppi, Associate Professor of International Law at the University of Turin, Italy, International Committee of the Red Cross No. 835, p. 531–553, October 30, 1999.Judge and master
By Don Murray, CBC News, July 18, 2002. from the Duke of Burgundy, Charles the Bold, to whom the Holy Roman Empire had given Breisach. Despite the fact no explicit use of a doctrine of "command responsibility" existed, it is seen as the first trial based on this principle.Command Responsibility
The Mens Rea Requirement, By Eugenia Levine, Global Policy Forum, February 2005

During the American Civil War, the concept developed further, as can be seen in the "Lieber Code". This regulated accountability by imposing criminal responsibility on commanders for ordering or encouraging soldiers to wound or kill already disabled enemies. Article 71 of the Lieber Code provided that:

Whoever intentionally inflicts additional wounds on an enemy already wholly disabled, or kills such an enemy, or ''who orders or encourages soldiers to do so'', shall suffer death, if duly convicted, whether he belongs to the Army of the United States, or is an enemy captured after having committed his misdeed.

The Hague Convention of 1899 was the first attempt at codifying the principle of command responsibility on a multinational level and was reaffirmed and updated entirely by the Hague Convention of 1907. The doctrine was specifically found within "Laws and Customs of War on Land" (Hague IV); October 18, 1907: "Section I on Belligerents: Chapter I The Qualifications of Belligerents", "Section III Military Authority over the territory of the hostile State", and "Adaptation to Maritime War of the Principles of the Geneva Convention" (Hague X); October 18, 1907. Article 1 of Section I of the 1907 Hague IV stated:

Another example of command responsibility is shown in Article 43 of Section III of the same convention, which stipulated:

In "Adaptation to Maritime War of the Principles of the Geneva Convention" (Hague X), Article 19 stated:

While the Hague Conventions of 1899 and 1907 do not explicitly create a doctrine of command responsibility, they do uphold a notion that a superior must account for the actions of his subordinates. It also suggests that military superiors have a duty to ensure that their troops act in accordance with international law and if they fail to command them lawfully, their respective states may be held criminally liable. In turn, those states may choose to punish their commanders. At such, the Hague Conventions of 1899 and 1907 have been viewed as foundational roots of the modern doctrine of command responsibility. After World War I, the Allied Powers' Commission on the Responsibility of the Authors of the War and on the Enforcement of Penalties recommended the establishment of an international tribunal, which would try individuals for "order ng or, with knowledge thereof and with power to intervene, abstain ngfrom preventing or taking measures to prevent, putting an end to or repressing, violations of the laws or customs of war."

Since the end of the Cold War, private contractors have become more prevalent in zones of conflict. Both political and legal scholars highlight the multiple challenges this has introduced when tracing the responsibility of crimes in the field. Some, such as Martha Lizabeth Phelps, go as far to claim that if hired contractors are indistinguishable from national troops, the contractors borrow the state's legitimacy. The command responsibility of actions in warfare become increasingly unclear when actors are viewed as being part of a state's force, but are, in truth, private actors.

Introducing responsibility for an omission

Command responsibility is an omission mode of individual criminal liability: the superior is responsible for crimes committed by his subordinates and for failing to prevent or punish (as opposed to crimes he ordered). ''In re Yamashita'' before a United States military commission in 1945, General Yamashita became the first to be charged solely on the basis of responsibility for an omission. He was commanding the 14th Area Army of Japan in the Philippines during the Pacific Theater of World War II when some of the Japanese troops engaged in atrocities against thousands of civilians and prisoners of war. As commanding officer, he was charged with "unlawfully disregarding and failing to discharge his duty as a commander to control the acts of members of his command by permitting them to commit war crimes."

By finding Yamashita guilty, the Commission adopted a new standard, stating that if "vengeful actions are widespread offenses and there is no effective attempt by a commander to discover and control the criminal acts, such a commander may be held responsible, even criminally liable." However, the ambiguous wording resulted in a long-standing debate about the amount of knowledge required to establish command responsibility. The matter was appealed, and was affirmed by the United States Supreme Court in 1946. After sentencing, Yamashita was executed.

Following ''In re Yamashita'', courts clearly accepted that a commander's actual knowledge of unlawful actions is sufficient to impose individual criminal responsibility.

In the '' High Command Case'' (1947–1948), the U.S. military tribunal argued that in order for a commander to be criminally liable for the actions of his subordinates "there must be a personal dereliction" which "can only occur where the act is directly traceable to him or where his failure to properly supervise his subordinates constitutes criminal negligence on his part" based upon "a wanton, immoral disregard of the action of his subordinates amounting to acquiescence."

In the '' Hostage Case'' (1947–1948), the U.S. military tribunal seemed to limit the situations in which a commander has a duty to know to instances if he already has some information regarding subordinates' unlawful actions.

After World War II, the parameters of command responsibility were thus increased, imposing liability on commanders for their failure to prevent the commission of crimes by their subordinates. These cases, the last two parts of the Subsequent Nuremberg Trials, discussed explicitly the requisite standard of ''mens rea'' (roughly, "guilty knowledge") and were unanimous in finding that a lesser level of knowledge than actual knowledge may be sufficient.

Codification

The first international treaty to comprehensively codify the doctrine of command responsibility was the Additional Protocol I ("AP I") of 1977 to the Geneva Conventions of 1949. Article 86(2) states that:

Article 87 obliges a commander to "prevent and, where necessary, to suppress and report to competent authorities" any violation of the Conventions and of AP I.

In Article 86(2) for the first time a provision would "explicitly address the knowledge factor of command responsibility".

Definitions

In the discussion regarding "command responsibility" the term "command" can be defined as

Additional Protocol I and the Statutes of the ICTY, the ICTR, and the ICC makes prevention or prosecution of crimes mandatory.

Application

Nuremberg Tribunal

Following World War II, communis opinio was that the atrocities committed by the Nazis were so severe a special tribunal had to be held. However, contemporary jurists such as Harlan Fiske Stone criticized the Nuremberg Trials as victor's justice. The Nuremberg Charter determined the basis to prosecute people for:

The jurisdiction ratione personae is considered to apply to "leaders, organisers, instigators and accomplices" involved in planning and committing those crimes.

International Criminal Tribunal for the former Yugoslavia

The ICTY statute article 7 (3) establishes that the fact that crimes "were committed by a subordinate does not relieve his superior of criminal responsibility if he knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators."

''The Prosecutor v. Delalić et al.'' ("the Čelebići case") first considered the scope of command responsibility by concluding that "had reason to know" (article 7(3)) means that a commander must have "had in his possession information of a nature, which at the least, would put him on notice of the risk of ... offences by indicating the need for additional investigation in order to ascertain whether ... crimes were committed or were about to be committed by his subordinates."

In ''The Prosecutor v. Blaškić'' ("the Blaškić case") this view was corroborated. However, it differed regarding ''mens rea'' required by AP I. The Blaškić Trial Chamber concluded that "had reason to know", as defined by the ICTY Statute, also imposes a stricter "should have known" standard of ''mens rea''.

The conflicting views of both cases were addressed by the Appeals Chambers in Čelebići and in a separate decision in Blaškić. Both rulings hold that some information of unlawful acts by subordinates must be available to the commander following which he did not, or inadequately, discipline the perpetrator.

The concept of command responsibility has developed significantly in the jurisprudence of the ICTY. One of the most recent judgements that extensively deals with the subject is the Halilović judgement of 16 November 2005 (para. 22-100).

International Criminal Tribunal for Rwanda

United Nations Security Council Resolution 955 (1994) set up an international criminal tribunal to judge people responsible for the Rwandan genocide and other serious violations of international law in Rwanda, or by Rwandan citizens in nearby states, between 1 January and 31 December 1994; additional later resolutions expanded the scope and timeline of the tribunal. The tribunal has jurisdiction over genocide, crimes against humanity, and war crimes.

The judgement against Jean-Paul Akayesu established rape as a war crime. Rape was placed in line with "other acts of serious bodily and mental harm" rather than the historical view of rape as "a trophy of war". Akayesu was held responsible for his actions and non-actions as mayor and police commander of a commune in which many Tutsis were killed, raped, tortured, and otherwise persecuted.

Another case prosecuted persons in charge of a radio station and a newspaper that incited and then encouraged the Rwandan genocide. The defendants were charged with genocide, incitement to genocide, and crimes against humanity for their positions of control and command in the "hate media", although they physically had not committed the acts.

International Criminal Court

Following several ad hoc tribunals, the international community decided on a comprehensive court of justice for future crimes against humanity. This resulted in the International Criminal Court, which identified four categories.
#Genocide
#Crimes against humanity
# War crimes
#Crimes of aggression

Article 28 of the Rome Statute of the International Criminal Court codified the doctrine of command responsibility. With Article 28(a) military commanders are imposed with individual responsibility for crimes committed by forces under their effective command and control if they

It uses the stricter "should have known" standard of mens rea, instead of "had reason to know", as defined by the ICTY Statute. Although the ICC Pre-Trial Chamber established a test for the "should have known" standard during the prosecution of Jean-Pierre Bemba, it has never been tested because Bemba had "actual knowledge" of crimes by his subordinates.

The Bush administration adopted the American Servicemembers' Protection Act and entered into Article 98 agreements in an attempt to protect any US citizen from appearing before this court. As such it interferes with implementing the command responsibility principle when applicable to US citizens.American Servicemembers' Protection Act
The Nuremberg Tribunal: Background Reading about the International Criminal Court
by Michael P. Scharf

by Emily Krasnor, The Online Journal of Peace and Conflict Resolution
The International Criminal Court: American Concerns About an International Prosecutor
by Benjamin R. Dolin, Law and Government Division, Library of The Parliament of Canada, 14 May 2002
Chapter 9: Individual Accountability for Violations of Human Dignity: International Criminal Law and Beyond
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War on terror

A number of commentators have advanced the argument that the principle of "command responsibility" could make high-ranking officials within the Bush administration guilty of war crimes committed either with their knowledge or by persons under their control.

As a reaction to the September 11, 2001 attacks, the US government adopted several controversial measures (e.g., asserting "unlawful combatant" status and "enhanced interrogation methods").

Alberto Gonzales and others argued that detainees should be considered "unlawful combatants" and as such not be protected by the Geneva Conventions in multiple memoranda regarding these perceived legal gray areas.

Gonzales' statement that denying coverage under the Geneva Conventions "substantially reduces the threat of domestic criminal prosecution under the War Crimes Act" suggests, at the least, an awareness by those involved in crafting policies in this area that U.S. officials are involved in acts that could be seen to be war crimes. The U.S. Supreme Court overruled the premise on which this argument is based in '' Hamdan v. Rumsfeld'', in which it ruled that Common Article Three of the Geneva Conventions applies to detainees in Guantanamo Bay, and that the Guantanamo military commission used to try these suspects were in violation of U.S. and international law because it was not created by Congress.

On April 14, 2006, Human Rights Watch said that Secretary Donald Rumsfeld could be criminally liable for his alleged involvement in the abuse of Mohammed al-Qahtani. Dave Lindorff contends that by ignoring the Geneva Conventions. the U.S. administration, including President Bush, as Commander-in-Chief, is culpable for war crimes. In addition, former chief prosecutor of the Nuremberg Trials Benjamin Ferencz has called the invasion of Iraq a "clear breach of law", and as such it constitutes a crime against peace. On November 14, 2006, invoking universal jurisdiction, legal proceedings were started in Germany – for their alleged involvement of prisoner abuse – against Donald Rumsfeld, Alberto Gonzales, John Yoo, George Tenet and others. This allegedly prompted recently retired Donald Rumsfeld to cancel a planned visit to Germany.

Former Army Lieutenant Ehren Watada refused to be deployed to Iraq based on his claims of command responsibility. Although his own deployment was not ordered until after Security Council Resolution 1511 authorized a multinational force in Iraq, Watada argued that the invasion of Iraq was illegal, and as such he claimed he was bound by command responsibility to refuse to take part in an illegal war. He was discharged from the Army in 2009.

The Military Commissions Act of 2006 is seen as an amnesty law for crimes committed in the War on Terror by retroactively rewriting the War Crimes Act and by abolishing habeas corpus, effectively making it impossible for detainees to challenge crimes committed against them.

Luis Moreno-Ocampo told ''The Sunday Telegraph'' that he is willing to start an inquiry by the International Criminal Court (ICC), and possibly a trial, for war crimes committed in Iraq involving British Prime Minister Tony Blair and U.S. President George W. Bush, even though under the Rome Statute the ICC has no jurisdiction over Bush, since the United States is not a state party to the relevant treaty—unless Bush were accused of crimes inside a state party, or the UN Security Council (where the United States has a veto) requested an investigation. However, Blair does fall under ICC jurisdiction as the United Kingdom is a state party.

Nat Hentoff wrote on August 28, 2007, that a leaked report by the International Committee of the Red Cross and the July 2007 report by Human Rights First and Physicians for Social Responsibility, titled "Leave No Marks: Enhanced Interrogation Techniques and the Risk of Criminality", might be used as evidence of American war crimes if there was a Nuremberg-like trial regarding the War on Terror.

Shortly before the end of President Bush's second term, news media in other countries started opining that under the United Nations Convention Against Torture, the United States is obligated to hold those responsible for prisoner abuse to account under criminal law.Other countries may start prosecution

"Overseas, Expectations Build for Torture Prosecutions"
by Scott Horton, ''No Comment'', January 19, 2009

"Die leere Anklagebank - Heikles juristisches Erbe: Der künftige US-Präsident Barack Obama muss über eine Strafverfolgung seiner Vorgänger entscheiden. Mögliche Angeklagte sind George W. Bush und Donald Rumsfeld"

by Wolfgang Kaleck, ''Süddeutsche Zeitung'', January 19, 2009 (in German) One proponent of this view was the United Nations special rapporteur on torture and other cruel, inhuman or degrading treatment or punishment (Manfred Nowak) who, on January 20, 2009, remarked on German television that former president George W. Bush had lost his head of state immunity and under international law, the United States would now be mandated to start criminal proceedings against all those involved in these violations of the UN Convention Against Torture.Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment calls for prosecution
"UN torture investigator calls on Obama to charge Bush for Guantanamo abuses"
Ximena Marinero, ''Jurist'', January 21, 2009
"UN Rapporteur: Initiate criminal proceedings against Bush and Rumsfeld now"
by Scott Horton, ''No Comment'', January 21, 2009 Law professor Dietmar Herz explained Nowak's comments by saying that under U.S. and international law former President Bush is criminally responsible for adopting torture as an interrogation tool.

War in Darfur

Human Rights Watch commented on this conflict by stating that:

The ''Sunday Times'' in March 2006 and the ''Sudan Tribune'' in March 2008 reported that the UN Panel of Experts determined that Salah Gosh and Abdel Rahim Mohammed Hussein

Following an inquiry by the United Nations, regarding allegations of involvement of the Government in genocide, the dossier was referred to the International Criminal Court.''Sunday Times'' and ''Sudan Tribune'' report on UN Panel
"Massacres suspect let into Britain"
Hala Jaber, ''The Sunday Times'', March 12, 2006
"Darfur, The $64 Question"
by Mahmoud A. Suleiman, ''Sudan Tribune'', March 3, 2008 On May 2, 2007, the ICC issued arrest warrants for militia leader Ali Muhammad al-Abd al-Rahman, also known as Ali Kushayb, of the Janjaweed, and Ahmad Muhammad Haroun for crimes against humanity and war crimes. To this day Sudan has refused to comply with the arrest warrants and has not turned them over to the ICC.

The International Criminal Court's chief prosecutor, Luis Moreno-Ocampo, announced on July 14, 2008, ten criminal charges against President Omar al-Bashir, accusing him of sponsoring war crimes, genocide, and crimes against humanity.Bashir indicted
"Darfur genocide charges for Sudanese president Omar al-Bashir"
Peter Walker, James Sturcke, ''The Guardian'', July 14, 2008
"ICC prosecutor seeking arrest warrant for the President of Sudan"
by Dominik Zimmermann, '' International Law Observer'', July 14, 2008 The ICC's prosecutors have charged al-Bashir with genocide because he "masterminded and implemented a plan to destroy in substantial part" three tribal groups in Darfur because of their ethnicity. The ICC's prosecutor for Darfur, Luis Moreno-Ocampo, is expected within months to ask a panel of ICC judges to issue an arrest warrant for Bashir.

Zimbabwe

For his conduct as President of Zimbabwe, including allegations of torture and murder of political opponents, it was suggested Robert Mugabe may be prosecuted using this doctrine."Mugabe unlikely to pay for his crimes"
''Brisbane Times'', April 4, 2008 Because Zimbabwe has not subscribed to the International Criminal Court's jurisdiction it may be authorised by the United Nations Security Council. The precedent for this was set by its referral to bring indictments relating to the crimes committed in Darfur.Robert Mugabe may be prosecuted
"We can do something about Mugabe: The International Criminal Court has every right to demand justice and accountability"
Mark S. Ellis, executive director of the International Bar Association, ''The Times'', April 30, 2008
"Robert Mugabe 'unlikely to flee Zimbabwe
''The Telegraph''

See also

* Joint criminal enterprise
*Cases before the International Criminal Court
* Rule of Law in Armed Conflicts Project
*Carl Schmitt
*Crime against humanity
*Crime against peace
*Geneva Conventions
*Genocide
* Impunity
*International humanitarian law
*International law
*'' Jus ad bellum''
*''Jus in bello''
* List of war crimes
* List of war criminals
* Nuremberg Charter
* Nuremberg Principles
* Parental responsibility
*Peace Palace
*Respondeat superior
*Superior orders
* The Buck Stops Here
* Universal jurisdiction
*Vicarious liability
* War crimes
*War Crimes Act of 1996

Notes

References

The interests of States versus the doctrine of superior responsibility
Ilias Bantekas, International Review of the Red Cross No. 838, p. 391–402
YAMASHITA, MEDINA, AND BEYOND: COMMAND RESPONSIBILITY IN CONTEMPORARY MILITARY OPERATIONS
MILITARY LAW REVIEW
THE TRIBUNAL'S FIRST TRIAL TO CONSIDER COMMAND RESPONSIBILITY...
by the ICTY
The Haditha Double Standard
by Victor Hansen, JURIST
The Last Line of Defense: The Doctrine of Command Responsibility, Gender Crimes in Armed Conflict, and the Kahan Report (Sabra & Shatilla)The Berkeley Electronic PressYAMASHITA v. STYER, Commanding General, U.S. Army Forces, Western Pacific
Findlaw
Yamashita v. Styer, 327 U.S. 1 (1946)
o

by Anne E. Mahle, PBS
Command Responsibility in the United States
by Anne E. Mahle, PBS
* BY JOHN D. HUTSON AND JAMES CULLEN
Guilty Associations: Joint Criminal Enterprise, Command Responsibility, and the Development of International Criminal Law
by Allison Marston Danner† and Jenny S. Martinez, CALIFORNIA LAW REVIEW
YAMASHITA, MEDINA, AND BEYOND: COMMAND RESPONSIBILITY IN CONTEMPORARY MILITARY OPERATIONS
by MAJOR MICHAEL L. SMIDT

by Stuart E Hendin BA, MA, LLB, LLM, QC, Murdoch University Electronic Journal of Law, Volume 10, Number 1 (March 2003)
The Last Line of Defense: The Doctrine of Command ResponsibilitySUPERIOR OR COMMAND RESPONSIBILITYTHE YAMASHITA WAR CRIMES TRIAL: COMMAND RESPONSIBILITY THEN AND NOW
by Major Bruce D. Landrum
Sugamo and the River Kwai
By Robin Rowland, Paper presented to Encounters at Sugamo Prison, Tokyo 1945–52, The American Occupation of Japan and Memories of the Asia-Pacific War, Princeton University, May 9, 2003
ROLE OF THE ARMED FORCES IN THE PROTECTION AND PROMOTION OF HUMAN RIGHTS
General McCaffrey presented the following on 18 November 1995 during "Nuremberg and the Rule of Law: A Fifty-Year Verdict."

By Ilias Bantekas, the American Journal of International Law v.93, no. 3, July 1999

{{DEFAULTSORT:Command Responsibility
International criminal law
Law of war
Legal doctrines and principles