On
this date, December 7, 1945, the military commission found
General Yamashita guilty as charged, and sentenced him to death. General
Tomoyuki 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."
I
will post the article on Command Responsibility from Wikipedia. I chose this as
the death penalty article of the week to remember the Pearl Harbor Attack on
December 7, 1941 and also the sentencing of General Yamashita, coincidentally
on December 7, 1945, four years after the attack.
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PHOTO SOURCE: http://www.rarenewspapers.com/view/584964
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Command responsibility, sometimes referred to as the Yamashita standard
or the Medina standard, and also known as superior responsibility,
is the doctrine of hierarchical accountability in cases of war crimes.
The
term may also be used more broadly to refer to the duty to supervise
subordinates, and liability for the failure to do so, both in government,
military law and with regard to corporations and trusts.
The
doctrine of "command responsibility" was established by the Hague
Conventions (IV) and (X) of 1907 and was applied for the first time by the
German Supreme Court at the Leipzig War Crimes Trials after World War I, in the
1921 trial of Emil Müller.
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 1945, in a still controversial trial, for atrocities committed by
troops under his command in the Philippines during World War II. 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
"Medina standard" is based upon the 1971 prosecution of U.S. Army
Captain Ernest Medina in connection with the My Lai Massacre during the Vietnam
War. 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. However, Medina was acquitted of all charges.
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Elijah and Ahab in Naboth’s vineyard. (PHOTO
SOURCE: http://eteacherbiblical.com/articles/have-you-killed-and-also-taken-possessions)
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Origin
Developing
accountability
In
The Art of War, written during the 6th
century BC, Sun Tzu argued that it was a commander's
duty to ensure that his subordinates conducted themselves in a civilised manner
during an armed conflict. Similarly, in the Bible (Kings 1: Chapter 21), within
the story of Ahab and the killing of Naboth, King Ahab was blamed for the
killing of Naboth on orders from Queen
Jezebel, because Ahab (as king) is responsible for everyone in his
kingdom.
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. Hagenbach was put on trial for atrocities committed during the
occupation of Breisach, found guilty of war crimes and
beheaded. Since he was convicted for crimes "he as a knight was deemed to
have a duty to prevent" Hagenbach defended himself by arguing that he was
only following orders from the Duke of Burgundy, Charles the Bold, to whom the Holy Roman
Empire had given Breisach. Despite the fact there was no explicit use of a
doctrine of "command responsibility" it is seen as the first trial
based on this principle.
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.
Article 71 of the Lieber Code provided that:
Whoever intentionally inflicts additional wounds on an enemy already wholly disabled, or kills such an enemy, or who orders or encourages soldiers to do so, shall suffer death, if duly convicted, whether he belongs to the Army of the United States, or is an enemy captured after having committed his misdeed.
The
Hague Convention of 1907 was the first attempt at codifying the principle of
command responsibility on a multinational level, specifically within "Laws
and Customs of War on Land" (Hague IV); October 18, 1907: "Section I
on Belligerents: Chapter I The Qualifications of Belligerents",
"Section III Military Authority over the territory of the hostile
State", and "Adaptation to Maritime War of the Principles of the
Geneva Convention" (Hague X); October 18, 1907. Article 1 of Section I of
the 1907 Hague IV states that:
The
laws, rights, and duties of war apply not only to armies, but also to militia
and volunteer corps fulfilling the following conditions:
- To be commanded by a person responsible for his subordinates;
- To have a fixed distinctive emblem recognizable at a distance;
- To carry arms openly; and
- To conduct their operations in accordance with the laws and customs of war.
Another
example of command responsibility is shown in Article 43 of Section III of the
same convention which stipulates that:
The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.
In
"Adaptation to Maritime War of the Principles of the Geneva
Convention" (Hague X), Article 19 states that:
The commanders-in-chief of the belligerent fleets must see that the above articles are properly carried out; they will have also to see to cases not covered thereby, in accordance with the instructions of their respective Governments and in conformity with the general principles of the present Convention.
While
the Hague Convention of 1907 does not explicitly create a doctrine of command
responsibility, it does uphold a notion that a superior must account for their
actions of his subordinates. It also suggests that military superiors have a
duty to ensure that their troops act in accordance with international law and
if they fail to command them lawfully, their respective states may be held
criminally liable. In turn, those states may choose to punish their commanders.
At such, this convention has been viewed as a foundational root of modern
doctrine of command responsibility. After World War I, 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[ing], 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."
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| Hagenbach on trial, from Berner Chronik des Diebold Schilling dem Älteren |
Introducing
responsibility for an omission
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 a United States Military Commission in 1945, General
Yamashita became the first to be charged solely on the basis of responsibility
for an omission. He was commanding the 14th Area Army of Japan in the
Philippines during World War II when some of the Japanese troops engaged in
atrocities against thousands 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."
By
finding Yamashita guilty, the Commission adopted a new standard, 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 amount of
knowledge required to establish command responsibility. The matter was
appealed, and was affirmed by the United States Supreme Court in 1946. After
sentencing, Yamashita was executed.
Following
In 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 (1947–8), the U.S. 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 (1947–8), the U.S. Military Tribunal seemed to limit
the situations where a commander has a duty to know to instances where he has
already had some information regarding subordinates' unlawful actions.
After
World War II, the parameters of command responsibility were thus increased,
imposing liability on commanders for their failure to prevent the commission of
crimes by their subordinates. These cases – the latter two part of the Nürnberg
tribunals – discussed explicitly the requisite standard of mens rea, and
were unanimous in finding that a lesser level of knowledge than actual
knowledge may be sufficient.
Codification
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".
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Photo of Yamashita Tomoyuki,
Lieutenant-General, Commander of the Japanese 25th Army
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Definitions
A. De jure (legal) command, which can be both military and civilian. The determining factor here is not rank but subordination. Four structures are identified:
- Policy command: heads of state, high-ranking government officials, monarchs
- Strategic command: War Cabinet, Joint Chiefs of Staff
- 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 does not exonerate the commander.
- Tactical command: direct command over troops on the ground
- Prisoners-of-war (POW) camp commanders: the ICTY established in Aleksovski that POW camp commanders are entrusted with the welfare of all prisoners, and subordination in this case is irrelevant.
- 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.
- Capacity to issue orders.
- Power of influence: influence is recognized as a source of authority in the Ministries case before the US military Tribunal after World War II.
- Evidence stemming from distribution of tasks: the ICTY has established the Nikolic test – superior status is deduced from analyzing distribution of tasks within the unit, and the test applies both to operational and POW camp commanders.
Application
of command responsibility
Nuremberg
Tribunal
Main
articles: Nuremberg Trials,
Subsequent
Nuremberg Trials, and Nuremberg Defense
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, contemporary
jurists such as Harlan Fiske Stone
criticized the Nuremberg Trials
as victor's justice.
The Nuremberg Charter
determined the basis to prosecute people for:
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Crime
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Description
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the planning, preparation, initiation or waging of a
war of aggression, or a war in violation of international treaties,
agreements or assurances, or participation in a common plan or conspiracy for
the accomplishment of any of the foregoing.
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violations of the laws and customs of war. A list
follows with, inter alia, murder, ill-treatment or deportation into
slave labour or for any other purpose of the civilian population of or in
occupied territory, murder or ill-treatment of prisoners of war or persons on
the seas, the killing of hostages, the plunder of public or private property,
the wanton destruction of cities, towns or villages, or devastation not
justified by military necessity.
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murder, extermination, enslavement, deportation, and
other inhuman acts committed against any civilian population, before or
during the war, or persecutions on political, racial or religious grounds in
execution of or in connection with any crime within the jurisdiction of the
Tribunal, whether or not in violation of the domestic law of the country
where perpetrated.
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The
jurisdiction ratione personae is considered to apply to "leaders,
organisers, instigators and accomplices" involved in planning and
committing those crimes.
International
Criminal Tribunal for the former Yugoslavia
The
ICTY statute article 7 (3) establishes that the fact that crimes "were
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."
In
The Prosecutor v. Delalić et al. ("the Čelebići case") first
considered the scope of command responsibility by concluding that "had
reason to know" (article 7(3)) means that a commander must have "had
in his possession information of a nature, which at the least, would put him on
notice of the risk of ... offences by indicating the need for additional
investigation in order to ascertain whether ... crimes were committed or
were about to be committed by his subordinates."
In
The Prosecutor v. Blaškić ("the Blaškić case") this view was
corroborated. However, it differed regarding mens rea required by AP I.
The Blaškić Trial Chamber concluded that "had reason to know", as
defined by the ICTY Statute, also imposes a stricter "should have
known" standard of mens rea.
The
conflicting views of both cases were addressed by the Appeals Chambers in
Čelebići and in a separate decision in Blaškić. Both rulings hold that some
information of unlawfal acts by subordinates must be available to the commander
following which he did not, or inadequately, discipline the perpetrator.
The
concept of command responsibility has developed significantly in the
jurisprudence of the ICTY. One of the most recent judgements that extensively
deals with the subject is the Halilović judgement of 16 November 2005 (para.
22-100).
International
Criminal Tribunal for Rwanda
Main article: International Criminal
Tribunal for Rwanda
The
United Nations Security Council Resolution 955 (1994) set up an international
criminal tribunal to judge people responsible for the Rwandan
Genocide and other serious violations of international law in Rwanda, or by
Rwandan citizens in nearby states, between 1 January and 31 December 1994;
additional later resolutions expanded the scope and timeline of the tribunal.
The tribunal has jurisdiction over genocide, crimes against humanity, and war
crimes.
The
judgement against Jean-Paul Akayesu established rape as a war crime. Rape was
placed in line with "other acts of serious bodily and mental harm"
rather than the historical view of rape as "a trophy of war." Akayesu
was held responsible for his actions and non-actions as mayor and police
commander of a commune in which many Tutsis were killed, raped, tortured, and
otherwise persecuted.
Another
case prosecuted persons in charge of a radio station and a newspaper that
incited and then encouraged the Rwandan genocide. The defendants were charged
with genocide, incitement to genocide, and crimes against humanity for their
positions of control and command in the "hate media," although they
physically had not committed the acts.
International
Criminal Court
Main
article: International Criminal Court
Following
several ad hoc tribunals, the international community decided on a
comprehensive court of justice for future crimes against humanity. This
resulted in the International Criminal Court, which identified four categories
.
1. Genocide
2. Crimes against humanity
3. War crimes
4. Crimes of aggression
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.
It
uses the stricter "should have known" standard of mens rea, instead
of "had reason to know," as defined by the ICTY Statute.
The
Bush administration has adopted the American Servicemembers' Protection Act and
entered in Article 98 agreements in an attempt to protect any US citizen from
appearing before this court. As such it interferes with implementing the
command responsibility principle when applicable to US citizens.
War
on terror
Further
information: War on terror
A
number of commentators have advanced the argument that the principle of
"command responsibility" could make high-ranking officials within the
Bush administration guilty of war crimes committed either with their knowledge
or by persons under their control.
As
a reaction to the September 11, 2001 attacks, the U.S. government adopted
several controversial measures (e.g., invading Iraq, asserting
"unlawful combatant" status, and "enhanced interrogation
methods").
Alberto
Gonzales and others argued that detainees should be considered "unlawful
combatants" and as such not be protected by the Geneva Conventions in
multiple memoranda regarding these perceived legal gray areas.
Gonzales'
statement that denying coverage under the Geneva Conventions
"substantially reduces the threat of domestic criminal prosecution under
the War Crimes Act" suggests, at the least, an awareness by those involved
in crafting policies in this area that US officials are involved in acts that
could be seen to be war crimes. The U.S. Supreme Court overruled the premise on
which this argument is based in Hamdan v. Rumsfeld, in which it ruled that
Common Article Three of the Geneva Conventions applies to detainees in
Guantanamo Bay, and that the Guantanamo military commission used to try these
suspects were in violation of US and international law because it was not
created by Congress.
On
April 14, 2006, Human Rights Watch said that Secretary Donald Rumsfeld could be
criminally liable for his alleged involvement in the abuse of Mohammad
al-Qahtani. Dave Lindorff contends that by ignoring the Geneva Conventions the
US administration, including President Bush, as Commander-in-Chief, is culpable
for war crimes. In addition, former chief prosecutor of the Nuremberg Trials
Benjamin Ferencz has called the invasion of Iraq a "clear breach of
law", and as such it constitutes a crime against peace. On November 14,
2006, invoking universal jurisdiction, legal proceedings were started in
Germany - for their alleged involvement of prisoner abuse - against Donald
Rumsfeld, Alberto Gonzales, John Yoo, George Tenet and others. This allegedly
prompted recently retired Donald Rumsfeld to cancel a planned visit to Germany.
Former
Army Lt. Ehren Watada refused to be deployed to Iraq based on
his claims of command responsibility. Although his own deployment was not
ordered until after Security Council Resolution 1511 authorized a multinational
force in Iraq, Watada argued that the invasion of Iraq was illegal, and as such
he claimed he was bound by command responsibility to refuse to take part in an
illegal war. He was discharged from the Army in 2009.
The
Military Commissions Act of 2006 is seen as an amnesty law for crimes committed
in the War on Terror by retroactively rewriting the War Crimes Act and by
abolishing habeas corpus, effectively making it impossible for detainees to
challenge crimes committed against them.
Luis
Moreno-Ocampo told The Sunday Telegraph that he is willing to start an
inquiry by the International Criminal Court (ICC), and possibly a trial, for
war crimes committed in Iraq involving British Prime Minister Tony Blair and
American President George W. Bush, even though under the Rome Statute the ICC
has no jurisdiction over Bush, since the United States is not a State Party to
the relevant treaty—unless Bush were accused of crimes inside a State Party, or
the UN Security Council (where the United States has a veto) requested an
investigation. However, Blair does fall under ICC jurisdiction as Britain is a
State Party.
Nat
Hentoff wrote on August 28, 2007, that a leaked report by the International
Committee of the Red Cross and the July 2007 report by Human Rights First and
Physicians for Social Responsibility, titled Leave No Marks: Enhanced
Interrogation Techniques and the Risk of Criminality, might be used as evidence
of American war crimes if there was a Nuremberg-like trial regarding the War on
Terror.
Shortly
before the end of President Bush's second term, newsmedia in other countries
started opining that under the United Nations Convention Against Torture, the
United States is obligated to hold those responsible for prisoner abuse to
account under criminal law. One proponent of this view was the United Nations
Special Rapporteur on torture and other cruel, inhuman or degrading treatment
or punishment (Professor Manfred Nowak) who, on January 20, 2009, remarked on
German television that former president George W. Bush had lost his head of
state immunity and under international law the United States would now be
mandated to start criminal proceedings against all those involved in these
violations of the UN Convention Against Torture. Law professor Dietmar Herz
explained Nowak's comments by saying that under U.S. and international law
former President Bush is criminally responsible for adopting torture as interrogation
tool.
War
in Darfur
Further
information: Darfur conflict, International response to
the Darfur conflict, War in
Darfur, Timeline of the War in Darfur, and Janjaweed
Human
Rights Watch commented on this conflict by stating that:
... individual commanders and civilian officials could be liable for failing to take any action to end abuses by their troops or staff ... The principle of command responsibility is applicable in internal armed conflicts as well as international armed conflicts.
The
Sunday Times in March 2006, and the Sudan Tribune in March 2008, reported that
the UN Panel of Experts determined that Salah Gosh and Abdel Rahim Mohammed
Hussein
had "command responsibility" for the atrocities committed by the multiple Sudanese security services.
Following
an inquiry by the United Nations, regarding allegations of involvement of the
Government in genocide, the dossier was referred to the International Criminal
Court. On May 2, 2007, the ICC issued arrest warrants for militia leader Ali
Muhammad al-Abd al-Rahman, of the Janjaweed, a.k.a. Ali Kushayb, and Ahmad
Muhammad Haroun for crimes against humanity and war crimes. To this day Sudan
has refused to comply with the arrest warrants and has not turned them over to
the ICC.
The
International Criminal Court's chief prosecutor, Luis Moreno-Ocampo, announced
on July 14, 2008, ten criminal charges against President Omar
al-Bashir, accusing him of sponsoring war crimes, genocide, and crimes
against humanity. The ICC's prosecutors have charged al-Bashir with genocide
because he "masterminded and implemented a plan to destroy in substantial
part" three tribal groups in Darfur because of their ethnicity. The ICC's
prosecutor for Darfur, Luis Moreno-Ocampo, is expected within months to ask a
panel of ICC judges to issue an arrest warrant for Bashir.
Zimbabwe
Further
information: Human rights in Zimbabwe, Joshua
Nkomo, Zimbabwean Fifth Brigade, and Zimbabwean presidential
election, 2008
For
his conduct as President of Zimbabwe, including allegations of torture and
murder of political opponents, it is suggested Robert Mugabe may be prosecuted
using this doctrine. Because Zimbabwe has not subscribed to the International
Criminal Court's jurisdiction it may be authorised by the United Nations Security
Council. The precedent for this was set by its referral to bring indictments
relating to the crimes committed in Darfur. Otherwise, a Zimbabwean regime
following Mugabe's would have jurisdiction over his alleged crimes (in the
absence of any amnesty law) as would the numerous countries with universal
jurisdiction over torture, including the UK.
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