Command responsibility: Difference between revisions

Command responsibility, sometimes referred to as the Yamashita standard or the Medina standard, is the doctrine of hierarchical accountability in cases of war crimes.

The doctrine of “command responsibility” was established by the Hague Conventions IV (1907) and X (1907) and applied for the first time by the German Supreme Court in Leipzig after World War I, in the trial of Emil Muller.^[1][2]

The Yamashita standard is based upon the precedent set by the United States Supreme Court in the case of Japanese General Tomoyuki Yamashita. He was prosecuted, in a still controversial trial, for atrocities committed by troops under his command in the Philippines. Yamashita 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." ^[3][4]

The Medina standard is based upon the massacre at My Lai which US Army Captain Ernest Medina failed to prevent. It holds that a commanding officer, being aware of a human rights violation or a war crime, will be held criminally liable when he does not take action.^[3][5]

Origin of command responsibility

Developing accountability

In Ping Fa - “the Art of War,” around 500 B.C., Sun Tzu advocated that it was a commander's duty to make sure his subordinates, during an armed conflict, conducted themselves in a civilised manner. 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.^[6][7] He was convicted of crimes "he as a knight was deemed to have a duty to prevent." He defended himself by arguing that he was only following orders.^[6][8] However, there was no explicit use of a doctrine of command responsibility.^[9]

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.^[6][9]

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."^[9]

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 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 thousands 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 In re Yamashita courts clearly accepted that a commander’s actual knowledge of unlawful actions is sufficient to impose individual criminal responsibility.^[9][3]

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."^[3][9][2]

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.^[3][9][2]

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 Nürnberg 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.^[9]

Codification: Additional Protocol I

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.^[1][3] 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.

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."^[3][9][2]

Definitions

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

A De jure (legal) command, which can be both military as civilian. The determining factor here is not rank but subordination. Four structures are identified:^[1][2]

1. Policy command: heads of state, high-ranking government officials, monarchs
2. Strategic command: War Cabinet, Joint Chiefs of Staff
3. Operational command: military leadership; in Yamashita it was established that operational command responsibility cannot be ceded for the purpose of the doctrine of command responsibility – operational commanders must exercise the full potential of their authority to prevent war crimes, failure to supervise subordinates or non-assertive orders don’t exonerate the commander
4. Tactical command: direct command over troops on the ground

International case law has developed two special types of "de jure commanders."

1. Prisoners-of-war (POW) camp commanders: the ICTY established in Aleskovski that POW camp commanders are entrusted with the welfare of all prisoners, and subordination in this case is irrelevant
2. Executive commanders: supreme governing authority in the occupied territory – subordination is again irrelevant, their responsibility is the welfare of the population in the territory under their control, as established in the High Command and Hostages cases after World War II.

B De facto (factual) command, which specifies effective control, as opposed to formal rank. This needs a superior-subordinate relationship. Indicia are:^[1][2]

1. Capacity to issue orders
2. Power of influence: influence is recognized as a source of authority in the Ministries case before the US military Tribunal after World War II
3. Evidence stemming from distribution of tasks: the ICTY has established the Nikolic test – superior status is deduced from analysis of distribution of tasks within the unit, it applies both to operational and POW camp commanders

Additional Protocol I and the Statutes of the ICTY, the ICTR, and the ICC makes prevention or prosecution of crimes mandatory.^[1]

Application 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 Nuremberg Charter determined the basis to prosecute people for:^[6]

1. Crimes against peace: the planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing.
2. War crimes: violations of the laws and customs of war. A list follows with, inter alia, murder, ill-treatment or deportation into slave labour or for any other purpose of the civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, the killing of hostages, the plunder of public or private property, the wanton destruction of cities, towns or villages, or devastation not justified by military necessity.
3. Crimes against humanity: murder, extermination, enslavement, deportation, and other inhuman acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.

The jurisdiction ratione personae is considered to apply to "leaders, organisers, instigators and accomplices" involved in planning and committing those crimes.^[6]

The 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."^[9]

In The Prosecutor v. Delalic et al (“the Celebici case”) first considered the scope of command responsibility by concluding that "had reason to know" (artivcle 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."^[3][9][2]

In The Prosecutor v. Blaskic ("the Blaskic case") this view was corroborated. However, it differed regarding mens rea required by AP I. The Blaskic 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.^[3][9]

The conflicting views of both cases were addressed by the Appeals Chambers in Celebici and in a separate decision in Blaskic. Both rulings hold that some information of unlawfal acts by subordinates must be available to the commander following which he did not, or inadequately, discipline the perpetrator.^[1][2][3][9]

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 [1] 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 future crimes against humanity. This resulted in the International Criminal Court, which identified four categories.^[6]

1. Genocide
2. Crimes against humanity
3. War crimes
4. Crimes of aggression

Article 28 of the Rome Statute of the International Criminal Court codified the doctrine of command responsibility.^[3] 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."^[3][9]

It uses the stricter "should have known" standard of mens rea, instead of "had reason to know," as defined by the ICTY Statute.^[9][2]

Application in the war on terror

A number of legal analysts 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.^[10]

As a reaction to the September 11, 2001 attacks the U.S. Government adopted several controversial measures (e.g., invading Iraq, introducing "unlawful combatant" status, conducting "extraordinary renditions", and allowing "enhanced interrogation methods", which has been described as torture). Alberto Gonzales and others argued that detainees should be considered "unlawful combatants" and as such not protected by the Geneva Conventions in multiple memoranda regarding these perceived legal gray areas.^[11]

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 US officials are involved in acts that could be seen to be war crimes.^[12] The US Supreme Court challenged 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 Military Tribunals used to try these suspects were in violation of US and international law.^[13]

On April 14, 2006, Human Rights Watch said that Secretary Rumsfeld could be criminally liable for his alleged involvement in the abuse of Mohammad al-Qahtani.^[14] Dave Lindorff contends that by ignoring the Geneva Conventions the US administration, including President Bush, as Commander-in-Chief, is culpable for war crimes.^[15] 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 war crime.^[16] 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.^[17]

Lieutenant Watada has refused to be deployed to Iraq charging that the invasion of iraq was illegal, and as such he is bound by the command responsibility to refuse to take part in an illegal war. Otherwise he himself could face legal challenges. For this he stands trial at this moment.

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^[18] and by abolishing habeas corpus, effectively making it impossible for detainees to challenge crimes committed against them.^[19]

Luis Moreno-Ocampo has told the Sunday Telegraph he is willing to start an inquiry by the International Criminal Court, and possibly a trial, for war crimes committed in Iraq involving British Prime Minister Tony Blair and American President George W Bush.^[20]

See also

• Cases before the International Criminal Court
• Carl Schmitt
• Crime against humanity
• Crime against peace
• Crimina juris gentium
• Geneva Conventions
• Genocide
• International humanitarian law
• International Law
• Jus ad bellum
• Jus in bello
• List of war crimes
• List of war criminals
• List of military scandals
• Nuremberg Charter
• Nuremberg Principles
• Peace Palace
• Universal jurisdiction
• War crimes
• War Crimes Act of 1996

Notes

References

• YAMASHITA v. STYER, Commanding General, U.S. Army Forces, Western Pacific, Findlaw
• Yamashita v. Styer, 327 U.S. 1 (1946) or [2]
• The Yamashita Standard by Anne E. Mahle, PBS
• Command Responsibility in the United States by Anne E. Mahle, PBS
• FROM THE TOP ON DOWN 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
• Command Responsibility and Superior Orders in the Twentieth Century - A Century of Evolution 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 Responsibility
• SUPERIOR OR COMMAND RESPONSIBILITY
• THE 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."
• THE CONTEMPORARY LAW OF SUPERIOR RESPONSIBILITY By Ilias Bantekas, the American Journal of International Law v.93, no. 3, July 1999