What is Command Responsibility?

Introduction

Command responsibility (superior responsibility, the Yamashita standard, and the Medina standard) is the legal doctrine of hierarchical accountability for war crimes. 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).

The Yamashita standard derived from the incorporation to the US Code of the legal doctrine of command responsibility, as codified in the two Hague Conventions. That legal precedent, decided by the US 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.”

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 General Yamashita in 1945. The Medina standard originated from the charging, prosecution, and court-martial of US 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 (6th c. BC), Sun Tzu said that a commander’s duty was to ensure that subordinates act in a civilised manner in war. In the Bible (1 Kings 21), within the story of Ahab’s killing of Naboth, King Ahab is blamed for the killing of Naboth, on orders from Queen Jezebel, because, as king, he 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. Hagenbach was put on trial for atrocities committed during the occupation of Breisach, found guilty of war crimes and beheaded. 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 orders 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.

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); 18 October 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); 18 October 1907. Article 1 of Section I of the 1907 Hague IV stated:

The laws, rights, and duties of war apply not only to armies, but also to militia and volunteer corps fulfilling these conditions:

  • To be commanded by a person responsible for his subordinates.
  • To have a fixed distinctive emblem recognisable at a distance.
  • To carry arms openly.
  • To conduct their operations in accordance with the laws and customs of war.

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

The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.

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

The commanders in chief of the belligerent fleets must arrange for the details of carrying out the preceding articles, as well as for cases not covered thereby, in accordance with the instructions of their respective Governments and in conformity with the general principles of the present Convention.

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[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.”

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 US 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 Theatre 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 US 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 US 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:

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”.

Definitions

In the discussion regarding “command responsibility” the term “command” can be defined as

De jure (legal) command, which can be both military and civilian. The determining factor here is not rank but subordination. Four structures are identified:

  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 does not 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 Aleksovski 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.
  3. De facto (factual) command, which specifies effective control, as opposed to formal rank. This needs a superior-subordinate relationship. Indicia (discriminating marks) are:
    • Capacity to issue orders.
    • Power of influence: influence is recognised as a source of authority in the Ministries case before the US military Tribunal after World War II.
    • Evidence stemming from distribution of tasks: the ICTY has established the Nikolic test – superior status is deduced from analysing distribution of tasks within the unit, and the test 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.

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 criticised the Nuremberg Trials as victor’s justice. The Nuremberg Charter determined the basis to prosecute people for:

CrimeDescription
Crimes Against PeaceThe 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.
War CrimesViolations 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.
Crimes Against HumanityMurder, 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.

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:

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

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.

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 11 September 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 US officials are involved in acts that could be seen to be war crimes. The US 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 US and international law because it was not created by Congress.

On 14 April 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 US 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 14 November 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 authorised 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 US 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 US has a veto) requested an investigation. However, Blair does fall under ICC jurisdiction as the UK is a state party.

Nat Hentoff wrote on 28 August 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 US is obligated to hold those responsible for prisoner abuse to account under criminal law. 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 20 January 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. Law professor Dietmar Herz explained Nowak’s comments by saying that under US 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:

individual commanders and civilian officials could be liable for failing to take any action to end abuses by their troops or staff … The principle of command responsibility is applicable in internal armed conflicts as well as international armed conflicts.

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:

had “command responsibility” for the atrocities committed by the multiple Sudanese security services.

Following an inquiry by the United Nations, regarding allegations of involvement of the Government in genocide, the dossier was referred to the ICC. On 02 May 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 14 July 2008, ten criminal charges against President Omar al-Bashir, accusing him of sponsoring war crimes, genocide, and crimes against humanity. 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, was 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. 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.

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