Command responsibility
In the practice of international law, command responsibility is the legal doctrine of hierarchical accountability for war crimes, whereby a commanding officer and a superior officer are legally responsible for the war crimes and the crimes against humanity committed by their subordinates; thus, a commanding officer always is accountable for the acts of commission and the acts of omission of their soldiers.
In the late 19th century, the legal doctrine of command responsibility was codified in the Hague Conventions of 1899 and 1907, which are partly based upon the Lieber Code, military law that legally allowed the Union Army to fight in the regular and the irregular modes of warfare deployed by the Confederacy during the American Civil War. As international law, the legal doctrine and the term command responsibility were applied and used in the Leipzig war crimes trials that included the trial of Captain Emil Müller for prisoner abuse committed by his soldiers during the First World War.
In the 20th century, in the late 1940s, the Yamashita standard derived from the incorporation into the U.S. Code of the developments of the legal doctrine of command responsibility presented in the Nuremberg trials. Abiding by that legal precedent, the U.S. Supreme Court allowed the U.S. 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 of the Second World War. The International Military Tribunal for the Far East charged, tried, and judged Gen. Yamashita for "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".
In the 20th century, in the early 1970s, the Medina standard expanded the U.S. Code to include the criminal liability of American military officers for the war crimes committed by their subordinates, as are the war-criminal military officers of an enemy power. The Medina standard was established in the court martial of U.S. Army Captain Ernest Medina in 1971 for not exercising his command authority as a company commander, by not acting to halt the My Lai massacre committed by his soldiers during the Vietnam War.
Historical development
9th-century BC to 5th-century BC Asia
In The Art of War, Sun Tzu said that the duties and responsibilities of a commanding officer were to ensure that in prosecuting a war, his soldiers act in accordance with the customary laws of war, by limiting their operational actions to the military aims of the war.15th-century Europe
In 1474, in the Holy Roman Empire, the trial of the Burgundian knight Peter von Hagenbach was the first international recognition of the legal doctrine of command responsibility, of a commander's legal obligation to ensure that his soldiers act in accordance with customary law in prosecuting their war. The tribunal tried Hagenbach for atrocities committed by his soldiers during their military occupation of Breisach, and was found guilty of their war crimes, condemned to death, and then was beheaded.The Knight Hagenbach was accused of, tried, and convicted for war crimes that "he, as a knight, was deemed to have a duty to prevent"; in self-defense, Hagenbach argued that he was only following the military orders of Charles the Bold, the Duke of Burgundy, to whom the Holy Roman Empire had bequeathed Breisach. Although the term command responsibility did not exist in the 15th century, the tribunal did presume he had a legal responsibility for war crimes of his soldiers, thus Hagenbach's trial was the first war crimes trial based upon the legal doctrine of command responsibility.
19th-century United States
During the American Civil War, the legal doctrine of command responsibility was codified in the Lieber Code – General Orders No. 100: Instructions for the Government of Armies of the United States in the Field – the contemporary updating of the 18th-century military law of the 1806 Articles of War that allowed the Union Army to lawfully combat the regular and irregular modes of warfare deployed by the Confederacy in the mid-19th century.As U.S. military law, the Lieber Code stipulated a commander's legal responsibility for the war crimes and crimes against humanity committed by his subordinate officers, sergeants, and soldiers; and further stipulated the duties and rights of the individual soldier of the Union Army to not commit war crimes – such as the summary execution of Confederate POWs, irregular combatants, and enemy civilians; thus Article 71, Section III of the Lieber Code stipulates that:
20th century
The Hague Conventions of 1899 and 1907 are the international legal foundations for the conduct of war among civilized nations, especially the legal doctrine of command responsibility for war crimes and crimes against humanity. The Hague Convention of 1907 updated the codifications of the Hague Convention of 1899, thus, in Convention IV, the Laws and Customs of War on Land emphasizes command responsibility in three places: Section I: On Belligerents: Chapter I: The Qualifications of Belligerents; Section III: Military Authority over the Territory of the Hostile State; and the Adaptation to Maritime War of the Principles of the Geneva Convention deal specifically with command responsibility.To wit, Article 1 of Section I of Convention IV stipulates that:
Moreover, command responsibility is stipulated in Article 43, Section III of Convention IV:
Furthermore, command responsibility is stipulated in Article 19 of Convention X, the Adaptation to Maritime War of the Principles of the Geneva Convention:
Militias and irregular formations
Since the 1990s, national governments have hired mercenary soldiers to replace regular army soldiers in fighting wars, which replacement of tactical combat personnel – by a private military company – raises the legal matter of command responsibility for the war crimes and crimes against humanity committed by mercenaries ostensibly not subject to the military law of any belligerent party.Political scientists and military jurists said that when the operational conduct of mercenary soldiers is indistinguishable from the operational conduct of the combatant soldiers that practical likeness renders the mercenary into a legitimate agent of the belligerent state, who thus is subject to the legal liabilities of command responsibility codified in the Hague and in the Geneva Conventions.
Yamashita standard
As a legal doctrine of military law, command responsibility stipulates that an act of omission is a mode of individual criminal liability, whereby the commanding officer is legally responsible for the war crimes committed by his subordinates, by failing to act and prevent such crimes; and for failing to punish war-criminal subordinates. In late 1945, the war-crimes trial of General Tomoyuki Yamashita, Japanese Fourteenth Area Army, was the first instance of a commanding officer formally charged with a criminal act of omission by “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” in the Philippine Islands, where his soldiers committed atrocities against Allied prisoners of war, Filipino guerrillas, and civilians during the Second World War.The International Military Tribunal for the Far East who charged, tried, and judged Gen. Yamashita guilty of war crimes established the Yamashita standard of criminal liability, whereby 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". In 1946, with the Application of Yamashita, the U.S. Supreme Court resolved the ambiguous wording of that legal definition of command responsibility, which did not establish the commander's required degree of knowledge of the war crimes committed by his subordinates.
At Nuremberg, in the High Command Trial, the U.S. military tribunal ruled that in order for a commanding officer to be criminally liable for the war crimes 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" by way of "a wanton, immoral disregard of the actions of his subordinates amounting to acquiescence" to the war crimes.
At Nuremberg, in the trial of the Hostages Case, the judgements of the U.S. military tribunal seemed to limit the circumstances wherein a commanding officer has a duty to investigate, document, and know in full of all instances of atrocity and war crime, especially if the commander already possessed information regarding the war crimes of his subordinate officers and soldiers.
After the war crimes trials of the Second World War, military law expanded the scope and deepened the definition of command responsibility, by imposing criminal liability upon commanding officers who fail to prevent their soldiers from committing war crimes against prisoners of war and atrocities against civilians. The last two war-crime trials of the subsequent Nuremberg trials, explicitly discussed the requisite standard of the mens rea for war crimes to occur, and determined that a lesser level of knowledge is sufficient for the commander to be complicit in the war crimes of his subordinates.
Superior responsibility
Legalized torture
Concerning the superior responsibility inherent to civilian control of the military, civil and military jurists said that prosecuting the war on terror would expose the officers of the George W. Bush administration to legal liability for the war crimes and for the crimes against humanity committed by their military subordinates in Iraq and Afghanistan.Consequent to the 11 September 2001 terrorist attacks, the U.S. government deployed legalistic arguments to justify torture by way of prisoner abuse, arguing that captured al Qaeda fighters are unlawful combatants – not soldiers – and thus could be subjected to enhanced interrogation methods, because under U.S. law they were classified as detainees and not as prisoners of war. To justify flouting the Geneva Conventions protecting prisoners of war, U.S. Attorney General Alberto Gonzáles said that classifying al Qaeda POWs as unlawful combatants "substantially reduces the threat of domestic criminal prosecution under the War Crimes Act of 1996".
In the case of Hamdan v. Rumsfeld, the U.S. Supreme Court overruled Attorney General Gonzáles' illegal reclassification of POWs as detainees; ruled that Common Article 3 of the Geneva Conventions applies to the Al Qaeda POWs at the Guantanamo Bay prison camp; and ruled that the Guantanamo military commission who tried, judged, and sentenced al Qaeda POWs was an illegitimate military tribunal, because the U.S. Congress did not establish it.
Moreover, the Human Rights Watch organization said that, given his superior responsibility of government office, U.S. Secretary of Defense Donald Rumsfeld would be criminally liable for the torturing of the prisoner Mohammed al-Qahtani. In "The Real Meaning of the Hamdan Ruling Supreme Court: Bush Administration Has Committed War Crimes", the writer Dave Lindorff said that in flouting the Geneva Conventions, the Bush administration were legally liable for war crimes in U.S.-occupied Iraq.