Command responsibility



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 1921 trial of Emil Muller.

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 1945, 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."

The "Medina standard" is based upon the 1971 prosecution of US Army Captain Ernest Medina in connection with the My Lai Massacre during the Vietnam War. 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. However, Medina was acquitted of all charges.

Developing accountability


In The Art of War, written during the 6th century BC, Sun Tzu argued that it was a commander's duty to ensure that his subordinates conducted themselves in a civilised manner during an armed conflict. 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 there was no explicit use of a doctrine of "command responsibility" it is seen as the first trial based on this principle.

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."

Similarly, in the Bible (Kings 1: Chapter 21), with the story of Ahab and the killing of Naboth, Ahab was blamed for killing Naboth even though he didn't literally kill him. Just like Hagenbach, Ahab was blamed for killing Naboth because Ahab (the king) is responsible for everyone in his kingdom, including Jezebel (the queen) who literally gave the orders to kill Naboth. Also, even though Ahab claimed that he didn't know anything about it, he really did know that it was his wife (Jezebel) who gave the orders to kill Naboth. He knew this because it says in the Bible (Kings 1: Chapter 21: Verse 7)"And Jezebel his wife said unto him: 'Dost thou now govern the kingdom of Israel? arise, and eat bread, and let thy heart be merry; I will give thee the vineyard of Naboth the Jezreelite." 

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, 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 when some of the Japanese troops 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."

By finding Yamashita guilty, the Commission adopted a new standard, 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 amount of knowledge required to establish command responsibility. The matter was appealed, and was affirmed by the United States Supreme Court In re Yamashita 327 U.S. 1 (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, 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 seemed to limit the situations where a commander has a duty to know to instances where he has already had some information regarding subordinates’ unlawful actions.

Following 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 latter two part of the Nürnberg tribunals, discussed explicitly the requisite standard of mens rea, 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

A De jure (legal) command, which can be both military and civilian. The determining factor here is not rank but subordination. Four structures are identified: International case law has developed two special types of "de jure commanders."
 * 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
 * 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) 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.

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:

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."

In The Prosecutor v. Delalić et al. (“the Čelebići 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."

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 unlawfal 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 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.
 * 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. 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.

The Bush administration has adopted the American Servicemembers' Protection Act and entered in 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 September 11, 2001 attacks the U.S. Government adopted several controversial measures (e.g., invading Iraq, introducing "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 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.

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. 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 war crime. 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.

There are also allegations by human rights groups and opponents of the Bush administration of deliberate or disproportionate targeting of civilians by US forces, mainly through aerial bombardment but also alleged shootings, during the conflicts in Afghanistan and Iraq by US forces and allied private security contractors, and controversy over depleted uranium munitions and cluster bombs.

Former Army Lt. 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 has told the Sunday Telegraph 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 American President George W. Bush. Though under the Rome Statute, the ICC has no jurisdiction over Bush, since the USA 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 USA has a veto) requested an investigation. However Blair does fall under ICC jurisdiction as Britain 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, newsmedia 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 (Professor Manfred Nowak) who, on January 20, 2008, remarked on German television that former president George W. Bush had lost his head of state immunity and under international law the U.S. 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 U.S. and international law former President Bush is criminally responsible for adopting torture as 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 International Criminal Court. On May 2, 2007, the ICC issued arrest warrants for militia leader Ali Muhammad al-Abd al-Rahman, of the Janjaweed, a.k.a. Ali Kushayb, 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. 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 is 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. Otherwise a Zimbabwean regime following Mugabe's would have jurisdiction over his alleged crimes (in the absence of any amnesty law) as would the numerous countries with universal jurisdiction over torture, including Britain.