Command responsibility

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.

The changing nature of warfare complicates the matter, with the involvement of non-national actors that may not have a clear chain of command.

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. 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.

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 Phillipines 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.

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.

| publisher = The Berkeley Electronic Press (bepress)
| year = 2003
| url = http://law.bepress.com/cgi/viewcontent.cgi?article=1101&context=expresso}}</ref>

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.