Command Responsibility

Command responsibility, sometimes referred to as the '''Yamashita standard''', or the '''Medina standard''' is the doctrine of hierarchical accountability in cases of War Crimes .

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 , February 23 2004

The Yamashita standard is based upon the precedent set by the United States Supreme Court in the case of Japanese General Tomoyuki Yamashita . He was prosecuted, in a still controversial trial, for atrocities committed by troops under his command in the Philippines . Yamashita was charged with "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."The Yamashita standard

Sugamo and the River Kwai By Robin Rowland, Paper presented to Encounters at Sugamo Prison, Tokyo 1945-52, The American Occupation of Japan and Memories of the Asia-Pacific War, Princeton University , May 9 2003

The Yamashita Standard by Anne E. Mahle, PBS

The Medina standard is based upon the massacre at My Lai which US captain Ernest Medina failed to prevent. It holds that a commanding officer, being aware of a human rights violation or a war crime, will be held criminally liable when he does not take action.The Medina standard

Human Rights and the Commander By Barry McCaffrey, autumn 1995

The My Lai Massacre: A Case Study By MAJ. Tony Raimondo, Human Rights Program, School Of The Americas , Fort Benning , Georgia

ORIGIN OF COMMAND RESPONSIBILITY

Developing accountability

In Ping Fa - “the '' Art Of War '',” around 500 B.C., Sun Tzu advocated that it was a commanders duty to make sure his subordinates, during an armed conflict, conducted themselves in a civilised manner. The trial of Peter von Hagenbach by an ad hoc tribunal in the Holy Roman Empire, 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.

During the US 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.

The Hague Convention (IV) of 1907 was the first attempt at codifying the principle of command responsibility on a multinational level. It was not until after WWI that the Allied Powers’ Commission on the Responsibility of the Authors of the War and on the Enforcement of Penalties recommended the establishment of an international tribunal, which would try individuals for "order or, with knowledge thereof and with power to intervene, abstain[ing from preventing or taking measures to prevent, putting an end to or repressing, violations of the laws or customs of war." Command Responsibility The Mens Rea Requirement, By Eugenia Levine, Global Policy Forum , February 2005

Introducing responsibility for an omission

, 1945]]

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). ''In Re Yamashita'' before the United States Military Commission , General Yamashita became the first to be charged on the basis of responsibility for an omission. He was leading the 14th Area Army of Japan in the Philippines, when they engaged in atrocities against hundreds of civilians. As commanding officer he was charged with "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."

With finding Yamashita guilty, the Commission adopted a new standard to judge a commander, stating that where "vengeful actions are widespread offences 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." However, the ambiguous wording resulted in a long-standing debate about the standard of knowledge required to establish command responsibility. After sentencing he was executed.

Following ''Re Yamashita'' courts clearly accepted that a commander’s actual knowledge of unlawful actions is sufficient to impose individual criminal responsibility.

In the '' High Command Case '', the United States Military Tribunal argued that in order for a commander to be criminally liable for the actions 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," based upon "a wanton, immoral disregard of the action of his subordinates amounting to acquiescence."

In the '' Hostage Case '', the US Military Tribunal seems to reduce the duty to know of a commander to instances where he has already had some information regarding subordinates’ unlawful actions.

So, following World War II, the parameters of command responsibility were increased, imposing liability on commanders for their failure to prevent the commission of crimes by their subordinates. These cases, the latter two were part of the Nürenberg Tribunals , discussed explicitly the requisite standard of Mens Rea , and were unanimous in the finding that a lesser level of knowledge than actual knowledge may be sufficient.

Codification: Additional Protocol I

]]

The first international treaty to comprehensively codify the doctrine of command responsibility was the Additional Protocol I (“AP I”) of 1977 to the Geneva Conventions of 1949. Article 86(2) states that:

the fact that a breach of the Conventions or of this Protocol was committed by a subordinate does not absolve his superiors from …responsibility…if they knew, or had information which should have enabled them to conclude in the circumstances at the time, that he was committing or 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 obliges a commander to "prevent and, where necessary, to suppress and report to competent authorities" any violation of the Conventions and of AP I.

In Article 86(2) for the first time a provision would "explicitly address the knowledge factor of command responsibility."

THE NUREMBERG TRIBUNAL

See Also: Nuremberg Trials

Following World War II, Communis Opinio was that the atrocities committed by the Nazis were so severe a special tribunal had to be held. However, critics have accused the prosecution of the Nazis as being Victor's Justice .

THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA

See Also: International Criminal Tribunal for the former Yugoslavia

In The Prosecutor v. Delalic et al (“the Celebici case”) first considered the scope of command responsibility.

THE INTERNATIONAL CRIMINAL TRIBUNAL FOR RWANDA

See Also: International Criminal Tribunal for Rwanda

THE INTERNATIONAL CRIMINAL COURT

See Also: International Criminal Court

Following several Ad Hoc tribunals, the international community decided on a comprehensive court of justice for all future crimes against humanity. This resulted in the International Criminal Court.

Article 28 of the Rome Statute of the International Criminal Court codified the doctrine of command responsibility. With Article 28(a) military commanders are imposed with individual responsibility for crimes committed by forces under their effective command and control if they:

"either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes."

APPLICATION IN THE WAR ON TERROR

As a reaction to the . This suggests the memos acknowledge U.S. officials are involved in acts that could be seen to be War Crimes .War Crimes warnings

[http://www.thenation.com/doc.mhtml?i=20050718&s=holtzman Torture and Accountability by Elizabeth Holtzman] article in The Nation posted June 28 2005 ( July 18 2005 issue) about The Geneva Convention

[http://www.democracynow.org/article.pl?sid=05/06/30/1333214 Former NY Congress member Holtzman Calls For President Bush and His Senior Staff To Be Held Accountable for Abu Ghraib Torture] Thursday, June 30 2005 on Democracy Now

Memos Reveal War Crimes Warnings By Michael Isikoff Newsweek May 19 2004

US Lawyers Warn Bush on War Crimes [http://www.globalpolicy.org/ Global Policy Forum] January 28 2003

Furthermore, aggressive interrogation techniques were adoptedPrisoner abuse

Command's Responsibility: Detainee Deaths in U.S. Custody in Iraq and Afghanistan by Human Rights First , March 2006

Who is accountable for Army's descent into torture? By David R. Irvine and Deborah Pearlstein, The Salt Lake Tribune, March 04, 2006

Death in US Custody By William Fisher, Truthout, February 26 2006

More documents prove that t ]op defense officials approved of abuse at Guantanamo detention center] by Diane E. Dees, Mother Jones, February 23 2006

Taking on Torture by Benedicta Cipolla, Religion & Ethics NewsWeekly, January 20 2006

The Torture Policy By Tom Regan, Christian Science Monitor , Posted January 19 2006 . which Human Rights organisations and the UN stated amounted to torture.UN report

UN calls for Guantanamo closure BBC News, 16 February 2006

Guantanamo report puts pressure on stubborn US By Bronwen Maddox, The Times , February 15 2006

A U.N. inquiry says the treatment of detainees at Guantanamo Bay at times amounts to torture and violates international law By Maggie Farley, Chicago Tribune , February 13 2006 As pictures emerged showing abuse in Abu Ghraib Prison , Iraq, several low level military personnel were prosecuted. Subsequently Similar Transgressions In Afghanistan were uncovered. Concommitant with the prisoner abuse there was the scandal of the practise of Extraordinary Rendition in which suspects are apprehended and extradicted to other countries. According to Human Rights organisations these prisoners are sent to less democratic parts of the world where they supposedly are tortured.

Legal analysts advance the theory that the "Command responsibility" could result in legal challenges involving war crimes, for high-ranking officials within the Bush administration.The Bush administration and command responsibility

Accountability Absent in Prisoner Torture by John D. Hutson, Pioneer Press , February 28 2006

THE MEMO How an internal effort to ban the abuse and torture of detainees was thwarted, by JANE MAYER, The New Yorker , Issue of February 27 2006

War Crimes and Commanders-in-Chief George Bush and Tomoyuki Yamashita, By DAVE LINDORFF, CounterPunch , February 9 2006

[http://www.truthout.org/docs_05/011905A.shtml The Gonzales Indictment] by Marjorie Cohn in truthout Wednesday January 19 2005

The Quaint Mr. Gonzales by Marjorie Cohn in La Prensa San Diego , November 19 2004

Rumsfeld, Bush, and 'command responsibility'

[http://www.salon.com/opinion/conason/2004/05/22/yoo/index.html From John Ashcroft's Justice Department to Abu Ghraib by Joe Conason] article in Salon May 22 2004

On April 14, 2006, Human Rights Watch said that Secretary Rumsfeld could be criminally liable for his alleged involvement in the abuse of Mohammad Al-Qahtani . U.S.: Rumsfeld Potentially Liable for Torture Defense Secretary Allegedly Involved in Abusive Interrogation Human Rights Watch, April 14, 2006

SEE ALSO

Carl Schmitt

Crime Against Humanity

Geneva Conventions

International Humanitarian Law

International Law

Jus Ad Bellum

Jus In Bello

Nuremberg Principles

Peace Palace

War Crimes

NOTES

REFERENCES

YAMASHITA v. STYER, Commanding General, U.S. Army Forces, Western Pacific , Findlaw

Yamashita v. Styer, 327 U.S. 1 (1946) or [http://www.ess.uwe.ac.uk/WCC/Yamashita1.htm]

The Yamashita Standard by Anne E. Mahle, PBS

Command Responsibility in the United States by Anne E. Mahle, PBS

FROM THE TOP ON DOWN BY JOHN D. HUTSON AND JAMES CULLEN

Guilty Associations: Joint Criminal Enterprise, Command Responsibility, and the Development of International Criminal Law by Allison Marston Danner† and Jenny S. Martinez, CALIFORNIA LAW REVIEW

YAMASHITA, MEDINA, AND BEYOND: COMMAND RESPONSIBILITY IN CONTEMPORARY MILITARY OPERATIONS by MAJOR MICHAEL L. SMIDT

Command Responsibility and Superior Orders in the Twentieth Century - A Century of Evolution by Stuart E Hendin BA, MA, LLB, LLM, QC, Murdoch University Electronic Journal of Law, Volume 10, Number 1 (March 2003)

The Last Line of Defense: The Doctrine of Command Responsibility

SUPERIOR OR COMMAND RESPONSIBILITY

THE YAMASHITA WAR CRIMES TRIAL: COMMAND RESPONSIBILITY THEN AND NOW by Major Bruce D. Landrum

Sugamo and the River Kwai By Robin Rowland, Paper presented to Encounters at Sugamo Prison, Tokyo 1945-52, The American Occupation of Japan and Memories of the Asia-Pacific War, Princeton University , May 9 2003

ROLE OF THE ARMED FORCES IN THE PROTECTION AND PROMOTION OF HUMAN RIGHTS General McCaffrey presented the following on 18 November 1995 during "Nuremberg and the Rule of Law: A Fifty-Year Verdict."

THE CONTEMPORARY LAW OF SUPERIOR RESPONSIBILITY By Ilias Bantekas, the American Journal of International Law v.93, no. 3, July 1999

Information About

Command Responsibility