Command responsibility

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Variously called command responsibility or superior responsibility, it is a principle of international law that senior officers, who did not literally dirty their hands in atrocity, are as responsible for the ordinary soldier who executes the atrocity. There have been considerable arguments as to whether a senior officer who was unaware of atrocities, or actively took measures to prevent them, should bear criminal responsibility for the acts. Those arguing for the latter position claim that criminalizing even ignorance or active measures discourages commanders to try to prevent atrocities, but the other side claims that it will "for the encouragement of others" to know there can be criminality.

Closely linked to command responsibility is the defense that a subordinate committed a war crime in response to superior orders.

The topic falls under the just war theory area of jus in bello, or the legality of the way in which a war is fought.[1] Despite the Latin, these were articulated in the 20th century.

Complexity grew exponentially in the 20th and 21st century. With the involvement of non-national actors that may not have a clear chain of command, the situation grows more involved. . It would seem there is little question, for example, that a quasi-state, such as Hamas or Hezbollah, which fires mortars and unguided rockets into civilian areas, is committing war crimes by current standards. It is less clear, however, how much direct control the quasi-state leaders have over the actual firers, and, in turn, what responsibility exists for suppliers of the rockets, such as the State of Iran and the State of Syria.

The question is raised is whether civilian bombardment, as in the strategic bombing campaigns of the Second World War or the effects of nuclear war had mutual assured destruction been invoked during the Cold War, is licit for nations but not for non-national actors.

Background

Doctrines have evolved throughout history. [2] In 1439, Charles VII of France promulgated an order holding:
that each captain or lieutenant be held responsible for the abuses, ills and offences committed by members of his company, and as soon as he receives any complaint complaining any such misdeed or abuse, he bring the offender to justice so that the said offender be punished in a manner commensurate with his office, according to these Ordinances. If he fails to do so or covers up the misdeed or delays in taking action, or if, because of his negligence or otherwise, the offender escape investigation or punishment, the captain shall be responsible for the offence as if he had committed it himself and shall be punished in the same way as the offender would have been."[3]

Hague Convention

Spanish-American War

On the Philippine island of Samar, Brigadier general Jacob Smith, in 1901, "I want no prisoners. I wish you to kill and burn, the more you kill and burn the better it will please me. I want all persons killed who are capable of bearing arms in actual hostilities against the United States." Major Littleton Walker executed eleven guides, without trial, and claimed obedience to superior orders at his trial. Walker was acquitted, while Smith was involuntarily retired by Secretary of War Elihu Root with the consent of President Theodore Roosevelt, for "conduct to the prejudice of good order and military discipline."[4] Roosevelt wrote, in the confirmation, "the very fact that warfare is of such a character as to afford infinite provocation for the commission of acts of cruelty by junior officers and enlisted men, must make the officers in high and responsible positions peculiarly careful in their bearing and conduct so as to keep a moral check over the acts of an improper character by their subordinates." Roosevelt did not refer to the recent Hague Conventions.[5]

First World War

Second World War

Yamashita doctrine

One of the best-known cases, which has become called the Yamashita Doctrine, refers to the 1945 prosecution and eventual execution of Imperial Japanese Army GEN Tomoyuki Yamashita.[6] It is widely accepted that Yamashita ordered his troops not to participate in atrocities, but had poor communications with subordinate units. In at least one case, a senior subordinate commander, RADM Sanji Iwabuchi, "declined to obey" Yamashita's declaration of a Manila as an open city, refused to join Yamashita's main force in rural areas north of Manila, and massacred approximately 100,000 civilians.[7]

One author wrote
General Tomoyuki Yamashita was a man at the wrong place at the wrong time.
When the Japanese regional commander, Field Marshal Hisaichi Terauchi, lost confidence in the Philippines area commander. Expecting an invasion, he replaced him with Yamashita. There was little or no staff turnover, and the invasion began 11 days after he took command. "General Yamashita barely had time to put together a staff, learn the situation, and make basic defensive plans. He undoubtedly was not thinking about "law of war" training. [8]

Terauchi had a stroke on 10 April 1945, and surrendered to Lord Mountbatten on 12th September 1945, and died in November 1945; it is not known if he was to be charged as Yamashita's commander. Yamashita also had surrendered in September.

Hostages case

  • Hostages Case (NMT) [r]: A trial of senior Nazi Army officers for war crimes against civilians and prisoners of war in Yugoslavia and Greece [e]

High Command Case

  • High Command Case (NMT) [r]: A trial of senior professional military officers of Nazi Germany, for which some were convicted of war crimes, crimes against humanity, or both; none were judged at the policy-making level to have plotted aggressive war [e]

Korean War

  • No Gun Ri

Vietnam War

  • My Lai

1982 Israeli operations in Lebanon

Intervention in unstable states is always complex. Unquestionably, there were war crimes in the Palestinian camps at Sabra and Shatila. The actual killings, however, were done by Christian Phalangist groups, loosely allied with Israel but not under Israeli operational control.

[9] [10]

Gender crimes

It has been proposed that the International Criminal Court apply the doctrine of command responsibility for situations where rape and other gender crimes are a matter of policy.[11]

Former Yugoslavia

References

  1. Robert Kolb (31 October 1997), "Origin of the twin terms jus ad bellum/jus in bello", International Review of the Red Cross
  2. Stuart Hendin (March 2003), "Command Responsibility and Superior Orders in the Twentieth Century - A Century of Evolution", Murdoch University Electronic Journal of Law 10 (1)
  3. Louis Guillaume de Vilevault & Louis de Brequigny (eds.) Ordonances des Rois do France de la Troisieme Race (1782) cited in Leslie Greene, Command Responsibility in International Humanitarian Law (1995) 5 Transnational Law & Contemporary Problems 319 at 321, quoted by Hindin
  4. Jacob Hurd Smith, Brigadier General, United States Army, Arlington National Cemetery Website
  5. Peter Weiss (14 June 2001), Human Rights and Humanitarian Law in the Context of Plan Colombia, International Association of Lawyers Against Nuclear Arms and The Lawyers' Committee on Nuclear Policy
  6. Trial of General (United States Military Commission, Manila, Oct. 8-Dec. 7, 1945) IV Law Rep. Trials War Crim. 1 (UN War Crimes Comm'n, 1948); aff'd In re Yamashita 327 US 1 (1946).
  7. Laurie Barber (September 1998), "The Yamashita War Crimes Trial Revisited", WaiMilHist, Electronic Journal of Military History within the History Department at the University of Waikato, Hamilton NZ
  8. Bruce D. Landrum, The Yamashita War Crimes Trial: Command Responsibility Then and Now\, Judge Advocate General Graduate Course
  9. Lieutenant Commander Weston D. Burnett, Command Responsibility and a Case Study of the Criminal Responsibility of Israeli Military Commanders for the Pogram at Shatila and Sabra, 107 MIL. L. REV. 71, 88 (1985).
  10. Sherrie L. Russell-Brown (2003), The Last Line of Defense: The Doctrine of Command Responsibility, Gender Crimes in Armed Conflict, and the Kahan Report (Sabra & Shatilla), The Berkeley Electronic Press (bepress)
  11. Sherrie L. Russell-Brown, "The Last Line of Defense: The Doctrine of Command Responsibility and Gender Crimes in Armed Conflict", Wisconsin International Law Journal