Command responsibility

• [Human Rights and the Commander] By Barry McCaffrey, autumn 1995
• [The My Lai Massacre: A Case Study] By MAJ. Tony Raimondo, Human Rights Program, School of the Americas, Fort Benning, Georgia

Origin of command responsibility

Developing accountability

During the American Civil War, the concept developed further, as is 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.

The Hague Convention (IV) of 1907 was the first attempt at codifying the principle of command responsibility on a multinational level. It was not until after WWI that 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[ing], or, with knowledge thereof and with power to intervene, abstain[ing] from preventing or taking measures to prevent, putting an end to or repressing, violations of the laws or customs of war."[Command Responsibility] The Mens Rea Requirement, By Eugenia Levine, Global Policy Forum, February 2005

Introducing responsibility for an omission

Tomoyuki Yamashita, 1945

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 the United States Military Commission, General Yamashita became the first to be charged on the basis of responsibility for an omission. He was leading the 14th Area Army of Japan in the Philippines, when they engaged in atrocities against hundreds of civilians. 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."

With finding Yamashita guilty, the Commission adopted a new standard to judge a commander, stating that where "vengeful actions are widespread offences 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 standard of knowledge required to establish command responsibility. After sentencing he was executed.

Following 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, the United States 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, the US Military Tribunal seems to reduce the duty to know of a commander to instances where he has already had some information regarding subordinates’ unlawful actions.

So, following World War II, the parameters of command responsibility were increased, imposing liability on commanders for their failure to prevent the commission of crimes by their subordinates. These cases, the latter two of which were part of the Nüremberg tribunals, discussed explicitly the requisite standard of mens rea, and were unanimous in the finding that a lesser level of knowledge than actual knowledge may be sufficient.

Codification: Additional Protocol I

Captain Ernest Medina

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:

the fact that a breach of the Conventions or of this Protocol was committed by a subordinate does not absolve his superiors from …responsibility…if they knew, or had information which should have enabled them to conclude in the circumstances at the time, that he was committing or about to commit such a breach and if they did not take all feasible measures within their power to prevent or repress the breach.

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

The 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, critics have accused the prosecution of the Nazis as being victor's justice.

The International Criminal Tribunal for the former Yugoslavia

In The Prosecutor v. Delalic et al (“the Celebici case”) first considered the scope of command responsibility.

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 [link] of 16 November 2005 (para. 22-100).

The International Criminal Tribunal for Rwanda

The International Criminal Court

Following several ad hoc tribunals, the international community decided on a comprehensive court of justice for all future crimes against humanity. This resulted in the International Criminal Court.

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:

"either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes."

Application in the war on terror

As a reaction to the September 11, 2001 attacks the Bush administration adopted several controversial measures (i.e. invading Iraq, introducing "illegal combatant" status, "extraordinary rendition", allowing torture as "enhanced interrogation method"). These followed several memos in which Gonzales et al, advocated that detainees should be considered unlawful combatants and as such the Geneva Conventions could be refuted.[Parsing pain] By Walter Shapiro, Salon He stated that by doing so it "substantially reduces the threat of domestic criminal prosecution under the War Crimes Act." Critics note that in his advice to President Bush, Gonzales explicitly mentions the US War Crimes Act. This suggests the memos acknowledge U.S. officials are involved in acts that could be seen to be war crimes.War Crimes warnings

• [Torture and Accountability by Elizabeth Holtzman] article in The Nation posted June 28 2005 (July 18 2005 issue) about The Geneva Convention
• [Former NY Congress member Holtzman Calls For President Bush and His Senior Staff To Be Held Accountable for Abu Ghraib Torture] Thursday, June 30 2005 on Democracy Now
• [Memos Reveal War Crimes Warnings] By Michael Isikoff Newsweek May 19 2004
• [US Lawyers Warn Bush on War Crimes] [Global Policy Forum] January 28 2003