Command Responsibility
Command Responsibility
I.
Historical Development
A.
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 civilized manner.
B.
Hugo Grotius, considered the father of international law, recognized the
principle in his De Jure Belli Ac Pacis Libri Tres (1625).
C.
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. He was convicted of crimes "he as a knight
was deemed to have a duty to prevent." However, there was no explicit
use of a doctrine of command responsibility.
D. 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.
II.
Command Responsibility: The Contemporary Law
A.
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, on the Trial of Emil
Muller. Muller was sentenced by the Court for “failing to prevent the
commission of crimes and to punish the perpetrators thereof.”
B.
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). The doctrine was invoked by the International Military Tribunals
after World War II and developed further through international and
domestic jurisprudence: inter alia, the In Re Yamashita, Hostages and
Abbaye Ardenne cases after World War II, and the Medina case dealing
with war crimes in Vietnam. Some jurists consider that by the Second
World War, the doctrine had become part of customary international law.
C.
In 1977 the doctrine of command responsibility was codified in the
Additional Protocol I to the Geneva Conventions, relating to the
International Armed Conflicts. The relevant text is included in the
appendices section of this module. Its status as customary law was
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reinforced with the explicit inclusion of command responsibility in article
7(3) of the Statute of the International Criminal Tribunal for the former
Yugoslavia (ICTY) (text is also found in the appendices) and article 6(3)
of the Statute of the International Criminal Tribunal for Rwanda (ICTR),
as well as article 28 of the Rome Statute for an International Criminal
Court (ICC) (included in the appendix).
1.
It should be noted that international law recognizes the principle of
command responsibility both in international and in internal
armed conflict. Thus, the ICTR Statute (see text in appendix
below) explicitly provides for command responsibility, including
for grave breaches of common article 3 of the Geneva
Conventions, in the context of the conflict in Rwanda, which is by
definition application of superior liability in a non-international
conflict.
2.
In The Prosecutor v. Delalic et al Case No. IT-96-21-T (“the
Celebici case”) the ICTY elaborated a threefold requirement for
the existence of command responsibility, which has been
confirmed by subsequent jurisprudence:
3.
III.
a.
The existence of a superior-subordinate relationship;
b.
That the superior knew or had reason to know that the
criminal act was about to be or had been committed; and
c.
That the superior failed to take the reasonable measures to
prevent the criminal act or to punish the perpetrator thereof.
In this sense, command responsibility is a form of complicity
under international law, with imputed knowledge of the criminal
act on the part of the commander.
Establishing the superior-subordinate relationship
A.
Depending on the origin of the command structure (or, the source of
authority), the requirement of a superior-subordinate relationship may be
established in two independent ways: de jure if the source of authority is
the state; and de facto if the source of authority is a paramilitary structure.
1.
De jure command – may be both military and civilian state
organization, as established by the ICTR in the The Prosecutor v.
Akayesu, Case No. ICTR-96-4-A, (Akayesu case). It has been
accepted that what matters in this context is not rank as such, but
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Command Responsibility
subordination. There are four structures of hierarchy for the
purpose of de jure command responsibility:
2.
3.
a.
Policy command: heads of state, high-ranking government
officials, monarchs
b.
Strategic command: War Cabinet, Joint Chiefs of Staff
c.
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
d.
Tactical command: direct command over troops on the
ground
There are two special cases of de jure commanders that have been
developed in international case law:
a.
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
b.
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.
De facto command – international law is interested in effective
control as opposed to formal rank or status; evidence of de facto
control requires proof of superior-subordinate relationship, i.e. a
chain of command (exceptions: executive and POW camp
commanders) There are three indicia of de facto command:
a
Capacity to issue orders
b.
Power of influence: influence is recognized as a source of
authority in the Ministries case before the US military
Tribunal after World War II
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c.
IV.
V.
Evidence stemming from distribution of tasks: the ICTY
has established the) Nikolic test (Prosecutor v. Nikolic (IT94-2)) – superior status is deduced from analysis of
distribution of tasks within the unit, it applies both to
operational and POW camp commanders
Applicable standards of knowledge
A.
Actual knowledge –Frequently actual knowledge is difficult to prove; in
Celebici the ICTY ruled that actual knowledge may be established by
either direct or indirect evidence.
B.
“Had reason to know” requirement – article 7(3) of the ICTY statute
states that absence of knowledge is not a defense where the accused didn’t
take reasonable steps to acquire such knowledge.
C.
The jurisprudence of the ICTY and the ICC Statute have developed the
“had reason to know” standard:
1.
Celebici case: in order to satisfy the “had reason to know”
standard, the commander should have had at least information to
put him on alert
2.
Blaskic case (Prosecutor v. Blaskic Case No.:IT-95-14-A):
ignorance can’t be a defense where the absence of knowledge is
the result of negligence in the discharge of duties.
3.
ICC Statute. Article 28(1) provides that for military commanders
the “had reason to know” standard is preserved, but Article 28(2)
provides that for civilian superiors the court must prove they
“knew or consciously disregarded information which clearly
indicated” that crimes are or are about to be committed. This
provision is contra Celebici and has been criticized by legal
scholars as regressive development in international criminal law.
The duty to prevent or punish
A.
The duty to prevent the commission of criminal acts or to punish the
perpetrator after their commission is established by all authoritative
sources of international criminal law: Additional Protocol I and the
Statutes of the ICTY, the ICTR, and the ICC.
1.
The duty to prevent – in the Akayesu case the ICTR stated that it is
irrelevant if the commander could prevent the crimes or not, where
he didn’t attempt to do so.
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Command Responsibility
2.
B.
The duty to punish – after the criminal act is committed,
commander has obligation to punish the perpetrator(s).
In Blaskic the ICTY defined the obligation to prevent or punish, stating
that this standard doesn’t provide the commander with two alternative
paths to pursue: where the superior knew or had reasons to know the
criminal acts were to be committed and failed to prevent their commission,
he cannot merely punish the perpetrators and escape from criminal
responsibility.
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APPENDICES
PROTOCOL I OF 1977 PROTOCOLS ADDITIONAL
TO THE GENEVA CONVENTIONS
Article 86
(Failure to act)
1. The High Contracting Parties and the Parties to the conflict shall repress grave
breaches and shall take measures necessary to suppress all other breaches, of the
Convention or of this Protocol which result from a failure to act when under a duty to do
so.
2. The fact that a breach of the Conventions or of this Protocol was committed by a
subordinate does not absolve his superiors from penal or disciplinary responsibility, as
the case may be, if they knew, or had information which should have enabled them to
conclude in the circumstances at the time, that he was committing or was 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
(Duty of Commanders)
1. The High Contracting Parties and the Parties to the conflict shall require military
commanders, with respect to members of the armed forces under their command and
other persons under their control, to prevent and, where necessary, to suppress and to
report to competent authorities breaches of the Conventions and of this Protocol.
2. In order to prevent and suppress breaches, High Contracting Parties and Parties to the
conflict shall require that, commensurate with their level of responsibility, commanders
ensure that members of the armed forces under their command are aware of their
obligations under the Conventions and this Protocol.
3. The High Contracting Parties and Parties to the conflict shall require any commander
who is aware that subordinates or other persons under his control are going to commit or
have committed a breach of the Conventions or of this Protocol, to initiate such steps as
are necessary to prevent such violations of the Conventions or this Protocol, and, where
appropriate, to initiate disciplinary or penal actions against violators thereof.
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Command Responsibility
RELEVANT PROVISIONS UNDER THE ICTY STATUTE
Article 7 of the Statute
(Individual Criminal Responsibility)
1. A person who planned, instigated, ordered, committed or otherwise aided and abetted
in the planning, preparation or execution of a crime referred to in articles 2 to 5 of the
present Statute, shall be individually responsible for the crime.
2. The official position of any accused person, whether as Head of State or Government
or as a responsible Government official, shall not relieve such person of criminal
responsibility nor mitigate punishment.
3. The fact that any of the acts referred to in articles 2 to 5 of the present Statute was
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 thereof.
4. The fact that an accused person acted pursuant to an order of a Government or of a
superior shall not relieve him of criminal responsibility, but may be considered in
mitigation of punishment if the International Tribunal determines that justice so requires.
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ICC Statute Article 28
Responsibility of commanders and other superiors
In addition to other grounds of criminal responsibility under this Statute for crimes within the
jurisdiction of the Court:
(a) A military commander or person effectively acting as a military commander shall be
criminally responsible for crimes within the jurisdiction of the Court committed by forces under
his or her effective command and control, or effective authority and control as the case may be, as
a result of his or her failure to exercise control properly over such forces, where:
(i) That military commander or person either knew or, owing to the circumstances
at the time, should have known that the forces were committing or about to commit such
crimes; and
(ii) That military commander or person failed to take all necessary and reasonable
measures within his or her power to prevent or repress their commission or to submit the
matter to the competent authorities for investigation and prosecution.
(b) With respect to superior and subordinate relationships not described in paragraph (a),
a superior shall be criminally responsible for crimes within the jurisdiction of the Court
committed by subordinates under his or her effective authority and control, as a result of his or
her failure to exercise control properly over such subordinates, where:
(i) The superior either knew, or consciously disregarded information which clearly
indicated, that the subordinates were committing or about to commit such crimes;
(ii) The crimes concerned activities that were within the effective responsibility
and control of the superior; and
(iii) The superior failed to take all necessary and reasonable measures within his or
her power to prevent or repress their commission or to submit the matter to the
competent authorities for investigation and prosecution
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Command Responsibility
ICTR Statute Article 4: Violations of Article 3 common to the Geneva Conventions
and of Additional Protocol II
The International Tribunal for Rwanda shall have the power to prosecute persons
committing or ordering to be committed serious violations of Article 3 common to the
Geneva Conventions of 12 August 1949 for the Protection of War Victims, and of
Additional Protocol II thereto of 8 June 1977. These violations shall include, but shall not
be limited to:
a) Violence to life, health and physical or mental wellbeing of persons, in particular murder as well as cruel
treatment such as torture, mutilation or any form of
corporal punishment;
b) Collective punishments;
c) Taking of hostages;
d) Acts of terrorism;
e) Outrages upon personal dignity, in particular humiliating
and degrading treatment, rape, enforced prostitution and
any form of indecent assault;
f) Pillage;
g) The passing of sentences and the carrying out of
executions without previous judgement pronounced by a
regularly constituted court, affording all the judicial
guarantees which are recognised as indispensable by
civilised peoples;
h) Threats to commit any of the foregoing acts.
Article 6: Individual Criminal Responsibility
1.A person who planned, instigated, ordered, committed or otherwise aided and abetted in
the planning, preparation or execution of a crime referred to in articles 2 to 4 of the
present Statute, shall be individually responsible for the crime.
2. The official position of any accused person, whether as Head of State or Government
or as a responsible Government official, shall not relieve such person of criminal
responsibility nor mitigate punishment.
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3.The fact that any of the acts referred to in articles 2 to 4 of the present Statute was
committed by a subordinate does not relieve his or her superior of criminal responsibility
if he or she 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 thereof.
4.The fact that an accused person acted pursuant to an order of a Government or of a
superior shall not relieve him or her of criminal responsibility, but may be considered in
mitigation of punishment if the International Tribunal for Rwanda determines that justice
so requires.
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