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COMMAND RESPONSIBILITY

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COMMAND RESPONSIBILITY

• The concept is not new.

“Now when the troops flee, are insubordinate, distressed, collapse in disorder or are routed, it is the fault of the general.” Sun Tzu (500 B.C.)

“In the soldier, the natural tendency for unbridled action and outbursts of violence must be subordinated to demands of a higher kind: obedience, order, rule, and method.”

Clausewitz, early 1800s

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COMMAND RESPONSIBILITY

Historical Reference Points

Ordinance at Orleans -- Charles VII (1439)

Trial of Peter von Hagenbach (1474)

King Adolphus of Sweden (Laws of War, 1621)

Lieber Code (1863)

Trial of Captain Wirz (US Civil War, 1865)

Trial of Captain Muller (WW I,1921)

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COMMAND RESPONSIBILITY

• Customary Law Doctrine

• Commander criminally liable for war crimes committed by subordinates

• Commander need not personally participate

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COMMAND RESPONSIBILITY

• Rationale– Power

– Organized forces and commission of crime

– Helplessness of victims

– Faith and confidence in the commander

– Last line of defense

– Soldier victims

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Nonetheless, where murder and rape and vicious, revengeful acts 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 for the lawless acts of his troops . . . .

Opinion of the CommissionDecember 7, 1945

MILITARY COMMISSION (Yamashita Trial)

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The common sense of mankind demands that law shall not stop with the punishment of petty crimes by little people. It must also reach men who possess themselves of great power and make deliberate and concerted use of it to set in motion evils which leave no home in the world untouched.

Justice Robert JacksonNuremberg

INTERNATIONAL MILITARY TRIBUNALS (1945)

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COMMAND RESPONSIBILITY

• Not strictly liable• Knowledge is the issue• Yamashita, “Knew or should have

known”– Protocol I (Not in Protocol II)– Current Tribunal Statutes – ICC Statute

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GENEVA CONVENTIONS

Additional Protocol I, Article 86Superiors are not shielded from “penal disciplinary responsibility” for acts of a subordinate, if the superiors “knew, or had information which should have enabled them to conclude in the circumstances at the time, that he was committing or was going to commit such a breach and if they did not take all feasible measures within their power to prevent or repress the breach.”

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International Criminal Tribunals Yugoslavia (ICTY) & Rwanda (ICTR)

• Command responsibility derives from Nuremberg and Tokyo individual responsibility principles and AP I

• “Knew or had reason to know” standard

• Criminal intent required; simple negligence insufficient

• Rule applies to both military and civilians

• Having “effective control” of subordinates

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INTERNATIONAL CRIMINAL COURT Rome Statute

• Article 28(a) – Commanders or de facto commanders• Duty to control• “Knew or should have known” standard• Necessary and reasonable measures

• Article 28(b) – Applies to non-military superiors• Duty to control• Knew or “consciously disregarded information which clearly

indicated”• Necessary and reasonable measures

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Command Responsibility

• De jure command– Policy command– Strategic command– Operational command– Tactical command

• De facto command

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COMMAND RESPONSIBILITY

• Knew or should have known– Reports received or generated by commander’s

headquarters– Locality in relation to the offenses– Widespread in terms of numbers and time

suggests a plan– All command responsibility convictions following

World War II involved either occupation or POW’s– Experience of commander

• Actual knowledge, circumstantial evidence

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U.S. “Doctrine”

• A commander is responsible for war crimes of subordinates if he ordered the crimes.

• He is also culpable if he has “actual knowledge, or should have knowledge, thru reports received by him or other means, that troops . . . subject to his control are about to commit or have committed a war crime and he fails to take the necessary and reasonable steps to insure compliance with the law of war or to punish violators thereof.”

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DEFENSES TO WAR CRIMES

• Superior Orders– As a defense– As mitigation

• Duress– Traditional view– Prosecutor v. Erdemovic

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DEFENSES TO WAR CRIMES

• Military Necessity

• Mistake of Fact

• Mistake of Law

• Child Soldier Offenses

• PRESUMPTION OF INNOCENCE!

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COMMAND RESPONSIBILITY

• “Responsibility” has professional and legal contexts.

• Professionally, commanders are responsible for everything their units do or fail to do.

• Legally, commanders may be criminally responsible for the acts of their troops.

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