Command Responsibility and Superior Orders in the Twentieth Century - A Century of Evolution
Contents:Command Responsibility
The author wishes to thank Dr. Malle Ryan and Major-General Brian Vernon (ret) for their patience, and encouragement. The author
also wishes to thank Niamh Gallagher and Anthony Nelson for their technical assistance.
"The honor of a general consists . . .
in keeping subalterns under his orders on the honest path, in maintaining good discipline...".[1]
- The one constant of the evolution of civilization, as history records it, is conflict. As communities and civilizations developed,
so did conflict. It can be legitimately said that the one constant of man's evolution in various societies has been, as well, the
evolution of conflict.
- The search for long lasting peace has been much like the quest the long sought Holy Grail. As societies became more complex so did
the nature of conflict. As conflicts became more complex, so did the organizations of those that engaged in them. As the organizations
engaging in the conflicts became more complex, attempts were made to try and codify the rules to be adhered to by those who followed
the profession of arms.
- This paper will not attempt to discuss the history of armed conflict, but, rather, will attempt to chronicle of the history of the
concept of what is described as the doctrine of command responsibility, as part of the law of armed conflict, particularly, during
the last century. It will follow a chronological pattern and will focus on both treaty as well as judicial developments. The paper,
as well, will not limit itself to the strictly military cases, but, will as well follow the interweaving of the conduct of both military
as well as non-military individuals and to revue how the conduct of each has been viewed or treated by different bodies.
- As noted by Green:
The concept of command responsibility embraces two branches. In the first place it concerns the responsibility of a commander who
has given an order to an inferior to commit an act which is in breach of the law of armed conflict or whose conduct implies that
he is not adverse to such in breach being committed. It also covers the plea of the inferior that he is not responsible for breach
because he was acting in accordance with orders or what he presumed to be the wishes of his commander, a plea that is more commonly
described as that of "compliance with Superior orders". The inferior putting forward such a plea contends that the Superior alone
is responsible.[2]
It might be suitable to broadly define command responsibility as the "responsibility of military commanders for war crimes committed
by subordinate members of their armed forces or other persons subject to their control".[3] Accepting this definition, then superior orders is by necessity simply one of the defenses available to an individual accused of
a war crime. An individual soldier accused of a war crime may rely on the defense of superior orders to avoid liability on the basis
that 'they acted on an obligation and were merely "following orders" from their military superiors'.[4]
- While, as will be seen, the actual development of laws regarding armed conflict is in the overall scope of history a recent development,
nevertheless, attempts to develop guidelines as to how those engaged in combat trace back over two thousand years. Roberts, in his
text, identified a Chinese manual that described strategies for the conduct of military affairs. He notes: "So, chariot battles
with chariots are captured, the ten-chariot commander will reward the first to capture them and will switch their battle standards
and flags; their chariots are mixed with ours and driven; their soldiers are treated kindly when given care".[5]
- 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 escapes 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."[6]
- The Swedish King, Gustavus Adolphus approximately two hundred years later ordered that: "No Colonell or Capitaine shall command his
soldiers to doe any unlawful thing: which who so does, shall be punished according to the discretion of the Judges."[7]
- In 1775 the Massachusetts Provisional Congress adopted:
Every Officer commanding, in quarters , or on the march, shall keep good order, and to the utmost of his power, redress all such
abuses or disorder which may be committed by any Officer or a Soldier under his command; if upon complaint made to him of Officer
or Soldiers beating or otherwise ill-treating any persons, or committing any kind of riots to the disquieting of the inhabitants
of this Continent, he, the said commander, who shall refuse or admit to see Justice done this offender, or offenders, and reparations
made to the party or parties injured, as soon as the offender's wages shall enable him or them, upon due proof thereof, be punished,
as ordered by General Court-Martial, in such manner as if he himself had committed the crimes or disorders complained of.[8]
- The 1827 American decision in the Martin v Mott.[9]
matter set forth succinctly the legal theory of command responsibility that was to be, in due course overturned and radically changed.
The Court in Mott suggested that anything that would cause hesitation or otherwise would adversely affect military efficiency would
not be tolerated.[10]
The Court further said, in obiter, that any concern that the following of orders would incur any form of legal consequence: "..would
be subversive of all discipline, and expose the best-disposed officers to the chances of litigation".[11]
However, less than twenty five years later, in the decision of Mitchell v Harmony[12]
a case dealing with the seizure of property owned by an American businessman by members of the United States military during the
Mexican-American war, the Court clearly held: "It can never be maintained that a military officer can justify himself for doing an
unlawful act, by producing the order of his superior. The order may palliate, but it cannot justify."[13]
- It was in the midst of the American Civil War, at the behest of President Lincoln that Francis Lieber prepared what was, for its day.
one of the most comprehensive manuals dealing with the conduct of military forces in the field.[14]
However, as comprehensive as the 'Lieber Code' was, and in particular, while it enumerated the duties of a commander it did not contain
any sections that dealt with the penalties to be imposed in the event that the articles were not followed or, in the event of illegal
conduct on the part of superior officers.
- Subsequent to the promulgation of the 'Lieber Code' was the trial of Captain Henry Wirz, the Commandant of the Andersonville prisoner
of war facility. While it could be legitimately argued that the trial and subsequent conviction on charges of conspiracy as well
as direct acts of cruelty and murder was a form of 'victors justice,' nevertheless the comments of the court that the situation at
this camp came about from the "intrinsic wickedness" of a few desperate leaders who were assisted by heartless monsters".[15]
The court went on to say that "no sympathy, no code of morals" that could in any way offer explanation for the actions of Wirz.[16]
- The court did not accept, for example, the evidence of Wirz that the successes of the Union Army were such then he could not receive
full medical supplies.[17]
Further, the court seemed to reject evidence that he offered to the effect that he both needed and requested additional supplies
and resources to provide even minimum standards for the prisoners in the camp he commanded.[18]
The judgment suggests that Wirz had been measured against a standard of absolute or strict liability.[19]
One has to question whether or not the judgment in Wirz differs (as will be discussed) with the decision in the World War II trial
of General Yamashita.
- The first modern attempt to codify what could be described as the laws of war came as a result of conference called by the Russian
Czar, Nicholas II at the Hague which in due course led to the 1907 Hague Convention.[20]
While the original intention of the Czar, when the conferences were called, was to establish a mechanism to find some form of disarmament,
nevertheless as Roberts notes, particularly, as it pertained to the conduct of land war the basic skeleton of international humanitarian
law became engrossed in a form of international treaty[21]
Of particular note is Article 3 of this Convention (IV) which provided that if there was a violation of the articles or regulations
that the belligerent State so violating them would be responsible for the acts committed by its military and would be liable to pay
compensation for the same.[22]
- Very early in the last century, as a result of orders[23]
that he gave in the Samur campaign in the Philippines, Brigadier-General Jacob Smith was put on trial, and a court martial court
found him guilty of prejudicing the 'good order and discipline.' In confirming Smith's conviction, President Theodore Roosevelt
said:
...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.[24]
- In an interesting footnote to the Jacob Smith matter, one Major Littleton Waller was charged with murder as a result of carrying out
the orders of Smith, but he (Waller) was acquitted based in the defense argument that he was only following the orders of Smith.
A century ago, the difference between the concepts of 'command responsibility' and 'superior orders' was already rearing its head.
- At approximately the same time, a similar issue was dealt with during the Boer was in South Africa involving the Australian, Lieutenant
Harry 'Breaker' Morant. By 1901, conventional fighting had wound down, however the Boers had resorted to guerrilla type tactics,
and the British under Lord Kitchener were having little success dealing with the same. One of the units formed to attempt to deal
with the continuing Boer resistance was the 'Bushvelt Carbineers' of which Morant was an officer. Central to the issue in the Morant
matter was an order given by Kitchener to the effect that any Boer found wearing a British uniform, or with British kit (military
equipment), was to be shot, and then a further order came out to the effect that no quarter was to be shown to any captured Boer.[25]
It is well settled that Morant was involved in what may be called either executions or murders of a number of Boers, and in addition
(possibly) the killing of a German missionary who may have witnessed some of the incidents in which he was involved.
- At trial, the Morant defense was founded on the principal that he (Morant) was following orders that he had been directly given to
the effect that no prisoners were to be brought in alive[26]
and further that when he had filed, as required, his after action reports had noted the killings of the Boers. It was further pleaded
that no repercussions had come down from his chain of command. The prosecution founded its case, in large part, on the basis that
the order was both illegal and improper and, therefore it ought not have been carried out. The Court apparently, in convicting Morant
accepted the same.
- Lippman notes and comments that the killing of Boers, captured by members of the British forces was not uncommon, and at the same
time that no British soldiers were put on trial for the same type of action.[27]
Not dissimilar to events that transpired subsequent to the end of the First Great War, it is suggested that the execution of Morant,
and one of his colleagues was an attempt to appease public as well as political pressure from Germany as a result of the killing
of the German missionary. As a footnote to the matter, Morant was found not guilty of the killing of the missionary in question.
- Further, the actual trial transcripts were lost or otherwise destroyed. It also came about later that Lord Kitchener in a confidential
communication admitted had given the orders in question, and this being the case the question begs to be asked as to whether or not
Kitchener himself ought not to have been the subject of both a military board of inquiry and a subsequent court martial.
- Subsequent to the termination of hostilities the Commission on the Responsibility of the Authors of the War and on the Enforcement
of Penalties[28]
was established in 1919. One of the first recommendations of this Commission was that individuals, irregardless of rank or position,
could be held criminally culpable for certain acts that contravened the (then) laws and customs of war.[29]
Further, it was recommended by the Commission that an international court or tribunal ought to be created to deal with the alleged
criminal acts or orders of individuals that may be deemed to offend the laws of nations.[30]
- It is worthwhile to note that there was considerable debate within the Commission on the issue of command responsibility. The report
is significant because of the discussion contained in it to the effect that both military as well as civilians ought not to be relieved
of culpability for either orders or acts simply because a superior had been held accountable for the same acts or orders.[31]
The converse was recognized in the Commission's report when it noted that if a defense of superior orders was put forward, and if
in point of fact, no prosecution of the superior had taken place, the trial of the individual perpetrator might be put at risk.[32]
- The actual peace treaty, the Treaty of Versailles[33]
contained provision for the establishment of an ad hoc international tribunal to prosecute the German Kaiser.[34]
Further there was provision in the treaty for the trial of German military personnel for violations of the laws and customs of war
before either allied military tribunals or in the alternative, before individual military courts.[35]
While the Commission had recommended that both military as well as non-military personnel be put on trial, the Treaty referred only
to military personnel.
- It should also be remembered that Turkey was at war, allied with Germany, and the conclusion of hostilities also brought attempts
to seek trial of a number of Turkish officials and others for what were called violations or crimes offending the laws of humanity.[36]
In due course, and for the expediency of political stability of the day, no trails were ever undertaken as against any of the Turkish
officials identified in the document. The subsequent Treaty of Lausanne[37]
not only contained no provision for what could be called war crimes prosecutions, but it had an annex that granted amnesty to Turkish
officials for acts including the 1915 large scale murder of Armenians.[38]
- The trials of alleged German war criminals, in the overall scope tended not to fare that much better. A list of some 895 alleged
war criminals had been prepared by the Commission,[39]
and for political rather than judicial reasons the Allies had reached agreement that the German government would try the various
accused before the German Supreme Court in Leipzig rather than have a series of war crimes trials before various Allied tribunals.[40]
There were at the end of the day only twelve officers brought to trial before the German Supreme Court[41]
in spite of the request that the Germans bring to trial some forty-five individuals for war crimes.[42]
The longest sentence meted out by the Leipzig court was four years in length. The German Court gave acceptance to the defense of
superior orders, which is the logical adjunct to the concept of command responsibility. It is useful to see how the German Supreme
Court, the Reichsgericht dealt with four of them, two involving naval officers, the third and fourth involving the actions of an
army officers.
Karl Neumann
- Karl Neumann was the commander of a German submarine that sank the British hospital ship, the Dover Castle, in late May of 1917.
The hospital ship had been transporting, at all material times, sick and wounded from Malta to Gibraltar. At the time of the sinking,
Neumann was under orders from his superiors that British hospital ships were being used for military purposes, and consequently not
only could they be attacked, but further they should be attacked.[43]
The Court found that the officer had relied on this information and order, and further, the Court found that the officer believed
he was acting in performing a legitimate act of reprisal as against the enemy. The judgment noted that as a military principal one
who receives an order is bound to obey the same. Further, the Court in Neumann, noted that if the order involved a criminal act
that the superior officer who issued the order would be solely criminally liable.[44]
- A reading of the judgment in Neumann makes it clear that the Court was of the view that as an officer the accused had no alternative
but to obey orders that he had received from his higher command and so long as he was acting pursuant to, and within the confines
of his orders, he was free from criminal liability. Perhaps, however, the judgment in Neumann is tempered somewhat by the obiter
of the Court to the effect that a subordinate officer would attract culpability in a situation where he had gone beyond, in his actions,
the requirements of the orders given, or where he had participated in an act that he knew was a crime.[45]
Dithmar and Boldt
- The second case that involved a naval officer came about subsequent to the sinking of the English hospital ship, the Llandovery Castle
in late June of 1918. This vessel was attacked off the coast of Ireland, and as a result of this attack there were only twenty-four
survivors. There were two serious issues attendant to this attack. The first problem was that the vessel was outside of the designated
area of combat, and the officer in command of the submarine was aware of the same. Secondly, subsequent to the actual sinking of
the hospital ship, the submarine surfaced and the commander of the submarine (one Patzig) gave orders that the survivors in lifeboats
were to be fired upon with machine guns sinking two or three lifeboats with attendant loss of life. The commander the submarine
was never brought trial, however, two of his officers, one Dithmar, and one Boldt were brought trial because during the attack they
had been stationed on the deck of the submarine and had assisted by passing on information related to the attack itself.[46]
- The Court found firstly that it was contrary in law for an attack to have been made on an enemy who is unarmed or upon individuals
who are shipwrecked at sea.[47]
The Court then found that the two junior officers, who were on the deck of the submarine and who were relaying information did not
have the specific and necessary intent to commit murder, however, the two were convicted of the lesser offence of being accessories
to the crime.[48]
- There are portions of the Llandovery judgment that do merit some attention because a review of the same will demonstrate the change
in international judicial attitudes regarding the concept of command responsibility between the time of the two wars. The Court
in this case held that if a superior officer, in this case, the commander of the submarine, issues and order that, on its face, violates
international law, that he, the commander is solely responsible for the carrying out of the same.[49]
The Court, in finding these two defendants liable for the lesser offences found that as officers, subordinate, they knew that the
order given was manifestly illegal and should have refused to comply with the same.[50] There was one final footnote that is perhaps reflective of the sentiments of the day. In 1928, the Court quashed the connections
of the two junior officers in the Llandovery case.[51]
Stenger and Crusis
- The third case to be considered involved orders allegedly given by General Stenger, and followed by one Major Crusius to kill wounded
French war prisoners.[52]
In his defense at trial the General said that firstly he had heard shooting apparently emanating form the ranks of French wounded,
and that he may have advised his subordinates, that in his view, the French could fake wounds and then take up arms again, attacking
German formations from the (unprotected) rear.[53] While the General admitted, at trial, that he made the comment to the effect that wounded were to be considered as still being armed
combatants and could be killed, that nevertheless this was only an admonishment of some sort, denying that he ever gave an order
to shoot wounded enemy soldiers.[54]
The German Supreme Court accepted Stenger's evidence and acquitted him of the charges of issuing order to kill wounded French prisoners,
which would have been a criminal act.
- The matter as it pertained to Stenger's subordinate, Crusis, was more difficult. Not only had this officer received and passed on
what may have been the order of General Stenger, but, further, he (Crusius) had participated in the actual killing of a number of
French wounded war prisoners on more than one occasion.[55]
- The German Supreme Court treated the two incidents involving Crusis independently. As it pertained to the first incident, that is,
the time when the officer first received what he believed to be a legitimate order and then not only passed it on, but, further participated
in the killing, the Court found that he (Crusis) was, at all material times, acting under the mistaken belief that the General had
actually issued this order and that he was obliged to carry out. The Court, however, found that because of the officer's state of
mind at the time he was unable to appreciate that the killing of wounded prisoners was an unjustifiable act[56]
While the officer was convicted of negligent homicide, he was, nevertheless, sentenced to a prison term of only two years.[57]
- As it pertained to the second incident in which this officer, Crusis, was involved, the Court was more generous. While the Court
accepted, as a matter of fact, that the officer was involved in the killing of wounded French war prisoners, nevertheless, the Court
also found that an all material times his mental state was such that he was incapable of committing the act on a voluntary basis,
and for that reason he was acquitted.[58]
Muller
- The final World War I case involving the issue of command responsibility was the trial of a German officer, Captain Muller. The Muller
case is, on reflection, perhaps not that dissimilar from the American Civil War prosecution of Henry Wirz. Muller was the officer
commanding a prisoner of war camp, in France, that housed English prisoners of war. He was in command of this facility during the
first half of 1918 for perhaps two or three months.[59]
The prison camp in question was located in a dirty swamp setting, and at the trial Court found, as a matter of fact, that disease,
inadequate food and water and improper sanitation existed at the relevant time. The Court further accepted evidence that on a number
of occasions Muller had sent, via his chain of command, requests for supplies to improve conditions.[60]
- Muller was charged with two main offences; (1) willful neglect and (2) improper punishment of prisoners. As it pertained to the first
allegation, that is, the charge of willful neglect, the trial Court found that the officer had done everything within his power to
properly treat his prisoners and that the ongoing conditions continued as a result of circumstances which were beyond his control.[61]
The trial of Henry Wirz reached an entirely different judgment.
- Muller also faced charges of mistreating prisoners. On one occasion it was alleged that he allowed them to have been tied or otherwise
bound in such a way that they were being mistreated. The Court found that these acts had been perpetrated by others, and that they
were done without the knowledge of the defendant, Muller, and, therefore, he was acquitted.[62]
However, Muller was also alleged to have witnessed a prisoner being abused by a German non-commissioned officer and, in registering
a conviction on a charge of ill-treatment of prisoners, the Court found, as a matter of fact, that Muller, even though he did not
give the order to have this particular prisoner beaten, nevertheless he either tolerated or condoned the same. He was convicted
and sentenced to six months imprisonment.[63]
- Lippman characterizes the various judgments of the German Supreme Court by observing:
..that a defendant might rely on the superior orders defence in those instances in which he harbored a good faith belief in the legality
of an otherwise illicit command. Such a claim was morally in those instances in which the order contravened a "simple" and "universally-known"
rule of international law. Combatants carrying and such a command was presumed to possess criminal intent. A soldier's subjective
and false belief in the existence of an illegal order also was not adjudged exculpatory. The superior orders defence was likewise
inapplicable in those instances in which a subordinate independently and intentionally exceeded the scope of a criminal command.
The fact that combatants had acted in response to an illegal order, or believed in good faith that such an order had been issued,
was considered in mitigation of punishment. Combatants were not charged with the duty to investigate were questioning order and
were able to rely on the factual validity of a command.[64]
- Early in 1942, the Declaration of St James was signed by the Allied powers in London[65]
which led to the establishment of the United Nations War Crimes Commission. This Commission comprised of members who were representatives
of seventeen nations, however, a substantial number of the same were really governments in exile. The purpose of this body was to
conduct investigations and to obtain evidence of war crimes, as distinct from what became later known as crimes against humanity.
Notwithstanding the limitations of this Commission, it was, nevertheless, the first step, albeit a preliminary one, to the establishment
of the International Military Tribunal at Nuremberg.
- The Commission, while it did attempt to come to some consensus on the issue of command responsibility was unable to adopt a common
principle regarding the same. However, it should be clearly recognized that this Commission still reached unanimous accord on the
fact that a subordinate would not be able to escape liability for the commission of war crimes simply because it was in pursuance
of a superior order.[66]
- During its existence, this Commission compiled over eight thousand files representing information on more than twenty-four thousand
actual accused persons.[67]
While information compiled by this Commission was used by a number of governments in subsequent prosecutions of war criminals, there
was no formal relationship between the United Nations War Crimes Commission and the International Military Tribunal at Nuremberg,
or the International Military Tribunal for the Far East.
- While the Nuremberg Tribunal was established as a result of the signing of the London Declaration[68]
nevertheless it is certainly common ground that well before the execution of this document there was every clear intent to bring
alleged war criminals to trial in one form or another.[69]
- It is perhaps worthwhile to note that the Nuremberg Tribunal was the product of a particular treaty. During the lead-up negotiations
and discussions to the execution of this treaty, discussions and deliberations took place on the issue of command responsibility
and how the same was to be applied. Article 8 of the Nuremberg Charter dealt specifically with the defense of superior orders and
the non-applicability of the same.[70]
It is of note that while superior orders is not a defense, that nevertheless it 'may' be considered after a finding of culpability
when considering the imposition of sanction.[71]
- It should come as no surprise that there was, before the enactment of the Nuremberg Charter, considerable discussion regarding command
responsibility. For example, Herschel Lauterpacht advocated that in certain circumstances in individual who had acted in good faith
and followed the orders of a superior ought to be relieved of liability, or to be exposed to "diminished liability".[72]
However, Lauterpacht was also of the view that if the orders that were issued and followed were, on their face, obviously illegal
or criminal to an ordinary individual having some basic understanding of the rule of law that this defence would not be available.
The opinion seems to be qualified with the postulation that if the illegal order (in question) did not appear to be patently illegal,
then an individual obliged to follow a military chain of command ought not to be convicted, but, rather, ought to be able to rely
upon the defence of superior orders.[73]
- There were twenty-four individuals indicted at the Nuremberg Tribunal. Of that number, twenty-two were brought to trial. Of the
group of defendants who were tried, three were acquitted, twelve were sentenced to death, three were sentenced to life imprisonment
and the rest received terms of imprisonment that ranged from ten years to twenty years in length.
- It was the primary contention of the various defendants that they were entitled to rely upon the defence of superior orders, particularly,
where the individual lacked the specific knowledge that the order in question was illegal.[74]
However the judgment was clear that an individual was obliged to possess certain universal obligations that took clear precedence
over a specific set of domestic orders.[75]
A reading of the judgments suggests that superior orders has never been considered as the defence to criminal acts contravening the
law of war, however, and at the same time, the judgment also reminds that superior orders was still available in mitigation of penalty.
The matter of command responsibility was canvassed in some detail when the Tribunal dealt with Generals Keitel and Jodl.
- It must be remembered that one of the 'offences' that was to be prosecuted by the Nuremberg Tribunal was the offence of 'Crimes Against
Peace'[76]
in addition to the offences of 'War Crimes' and 'Crimes Against Humanity.' General Keitel was, and all material times, the Chief
of the High Command of the (German) Armed Forces. The Tribunal found that he had developed orders to organize the military campaigns
against, inter alia, Austria, Czechoslovakia, Russia, Greece and Yugoslavia and Norway.[77]
The Tribunal further found that General Keitel had promulgated or directed orders that clearly contravened laws of war. In particular,
the Tribunal noted that General Keitel was involved either in the promulgation or distribution of the 'Commando Order',[78]
which amounted to an order for the execution of any commando who may be taken prisoner.
- The Tribunal found that there were very strict controls regarding the copying of this order and further it was understood that under
no circumstances were copies of this document (Commando Order) to fall into Allied hands. Further, the 'Commando Order', which was
signed by Adolf Hitler, also provided for sanction if it was neither disseminated nor followed.[79]
Further, and again, in his role as Chief of the High Command he (Keitel) was also charged with the implementation of orders concerning
the handling of Russian prisoners of war as well as the killing of political officers attached to the Russian army.
- As part of his defence General Keitel tried to rely on the doctrine of superior orders,[80]
however the Tribunal refused to accept that, not only as a defence, but also, in mitigation of punishment where "crimes so shocking
and extensive had been committed consciously, ruthlessly and without military excuse or justification".[81]
- General Keitel's subordinate, General Jodl, while being junior in position, nevertheless as the Tribunal found, reported to Hitler
for purposes of certain aspects of military planning and operations.[82]
The Tribunal found that General Jodl had both initialed as well as issued certain military orders that dealt with the attacks upon
Russia and Albania,[83]
The Tribunal further found that he had distributed (in a function other than as a staff officer) the orders for the destruction upon
evacuation of German forces from Norway, of the country.[84]
Further, of importance, was the finding that General Jodl had circulated the 'Commando Order'.[85]
- As part of his defence he pleaded that he was obliged to follow the orders of his superior, in this case, Adolf Hitler.[86]
However the Nuremberg Tribunal rejected that defence and noted that the defence of following orders which this case included the
giving orders to commit criminal acts would not only be no defence, but further, in this case, would not be considered in mitigation
of penalty.[87]
- The Nuremberg Tribunal not only did not accept superior orders as a defence, but also was clear in its judgments that the same would
only be considered once culpability was found in dealing with disposition of penalty or sentence.[88]
However, and at the same time, the Tribunal was careful not to create a standard of strict liability, but, rather, noted that a defence
of superior orders might be available in the case where an individual was allowed no choice or option, and further, that the act
in question was committed while the defendant was under threat.[89]
- Subsequent to the unconditional surrender in the spring of 1945, Germany was occupied by the four main Allied Powers; the United States,
Great Britain, France and Russia. In late 1945, and subsequent to the London Charter, Allied Control Council Law No 10 was promulgated.[90]
Control Council Law No 10 (hereinafter referred to as CCL) was enacted to try and provide a degree of uniformity or consistency in
the prosecution of war criminals in the four occupied areas.[91]
CCL contained a section that referred to the potential defence of superior orders (and by analogy, therefore, command responsibility)
by using language that was a mirror of the Nuremberg statute. Further, and of note is the fact that it referred to superior orders
using the term 'a person' implying that charges could be brought against both military as well as civilian individuals. It is proposed
to examine a number of the proceedings brought under this enactment and by so doing canvas the development and refinement of the
principal of command responsibility subsequent to the surrender of Germany.
The Hostage Case
- In the Hostage case some twelve military officers were charged with murdering civilians in Albania, Greece and Yugoslavia, and as
well with committing acts of devastation in Norway as well as other countries. They were, further, charged with the ordering of
the killing of surrendered combatants and, were also charged with the denial of basic rights to prisoners of war. Of the twelve
officers charged, eight were convicted, two were acquitted, and two committed suicide prior to the judgment being delivered.[92]
- In September 1941, Field Marshal Keitel issued an order[93]
dealing with the suppression of insurgent activities in the German occupied territories. In due course, Field Marshal List distributed
this order to his subordinate commanders.
- The Tribunal, firstly, held that General who was in command of an occupied territory was accountable for the conduct of all of the
units within the scope of the territory in question irregardless of the chain of command.[94]
This meant that the territorial commander had not only military command authority, but as well, was deemed to have 'executive' authority
over the territory in question.[95]
As a matter of fundamental principle the (American) Tribunal held the territorial commander was charged with the prevention of war
crimes (or any other offences within the ambit of CCL No 10) within his jurisdiction and he could not in due course plead as a defence
that he had no knowledge that the crimes had taken place.[96]
- The Tribunal went further and held that the commending generals were deemed to have 'constructive' knowledge of reports forwarded
to their headquarters that were intended for their review.[97]
Further, the Tribunal also held that if material by way of reports intended for the commending general's review was either incomplete
or inadequate, then he (the commanding general) was under a duty to obtain further information. The failure to obtain such further
information could constitute a dereliction of military duty.[98]
Wilhelm List
- Field Marshal List was the commander-in-chief of the German Twelfth Army during the invasion of Greece and Yugoslavia. Further, in
June 1941 he was also the Wehrmacht Commander Southeast, a position that he retained until he took a temporary retirement from active
service in mid October of that year. Evidence tendered at the Tribunal showed that subsequent to the German occupation of both Greece
and Yugoslavia guerrilla resistance began. By early September, the resistance movement was at such a level that Field Marshal List
had personally issued orders in an attempt to force suppression of this resistance.[99]
There was further evidence that Adolf Hitler, around the middle of September 1941, had personally signed an order mandating Field
Marshal List to undertake the suppression of resistance activity in the Southeast (Greece and Yugoslavia)
- The Tribunal found that the order given by Field Marshal Keitel, and passed on by Field Marshal List was nothing more than a seeking
of revenge and was not intended to be a deterrent.[100]
Further, the Tribunal found that by passing on the order, Field Marshal List was participating in an order of simple murder.[101]
- Part of the defence of Field Marshal List was based on the fact that he was away from his headquarters at the time the killings had
taken place. The Tribunal, however, held that his exposure in culpability was based on the fact that the killings had been committed
as a result of orders that had come from his headquarters[102]
and further that reports of the killings were contained in materials received either by, or in the alternative, available for him.[103]
- The Tribunal held that Field Marshal List had a positive obligation or duty to maintain the protection all persons within his territorial
jurisdiction whether or not he had tactical command over all of the forces in that geographical area. Further, in attaching culpability
to the Field Marshal the Tribunal found that he was responsible for the military as well as the actions of other 'armed units' within
his territorial responsibility.[104]
Herman Foertsch
- At all material times General Foertsch was Field Marshal List's Chief of Staff. As such he was in charge of the various departments
of the military staff and had been found by the Tribunal to be Field Marshal List's first advisor. It was the duty of this officer
to provide all the basic information to allow the commander to make his decision, and further, it was his responsibility to direct
the flow of all reports and orders to and from the commander. In considering the nature of the orders in question, it was of significance
that the Tribunal found that his function as chief of staff entitled him to no formal or de jure control, nor did he exercise any
de facto control, over the legal department, that reported to the overall commander. Further, the Tribunal found that this defendant
had no command or tactical authority over forces. His function permitted him to sign orders on behalf of the commander only when
they did not require a decision to be taken, or where no discretion was to be exercised as to who would receive the orders in question.
- However, the Tribunal found that a number of reprisals had been undertaken even before the order was given by Field Marshal Keitel
and, in particular, the Tribunal noted that this defendant's signature appeared on reports of reprisals (which included killings)
prior to the Keitel order. However, the tribunal found that while General Foertsch had knowledge, nevertheless, he did not participate
in issuing orders, and in particular, he had given no orders himself as he lacked the authority to do so. The Tribunal found that
knowledge only of a criminal act was not sufficient to attract a finding of culpability.[105]
Superior Orders
- The Tribunal's judgment made specific reference to, and considered the various defenses of superior orders as tendered. Of note the
judgment contained:
The defendants invoke the defensive plea that the acts charged as crimes were carried out pursuant to orders of superior officers
whom they were obliged to obey. That brings into operation the rule just announced. The rule that superior order is not a defence
to a criminal act is a rule of fundamental criminal justice that has been adopted by civilized nations extensively. It is not disputed
that the municipal law of civilized nations generally sustained principle at the time the alleged criminal acts were committed.
This being true, it properly may be declared as an applicable rule of international law.
It cannot be questioned that acts done in time of war cannot involve any criminal liability on the part of officers or soldiers if
the acts are prohibited by the conventional or customary rules of war. Implicit obedience to orders of superior officers is almost
indispensable to every military system. But this implies obedience to lawful orders only. If the act pursuant to a superior's order
be murder, the production of the order will not make it any less so. It may mitigate but it cannot justify the crime. We are the
view, however, that if the illegality of the order was not known to the inferior, and he could not reasonably have been expected
to know of its illegality, no wrongful intent necessary to the commission of the crime exists, and the inferior will be protected.
But the general rule is that members of the Armed Forces are bound to obey only the lawful orders of commanding officers and they
cannot escape criminal liability by obeying a command, which violates international law and outrages international law...
It is true that the foregoing rule compels a commander to make a choice between possible punishment by his government for the disobedience
of the legal order of his superior officer, or that of lawful punishment for the crime under the law of nations. To choose the former
in the hope that victory will cleanse the act of its criminal characteristics manifests only weakness of character and had nothing
to the defence...
The defence relies heavily upon the writings of Professor L. Oppenheim to sustain their position. It is true that he advocated this
principle throughout his writings...The (Oppenheim) statement completely overlooks the fact that any illegal order is no sense of
the word a valid law, which one is obliged to obey...
International Law has never approved the defensive plea of superior order as a mandatory bar to the prosecution of war criminals.
This defensive plea is not available to the defendants in the present case, although if the circumstances warrant, it might be considered
in mitigation of punishment under the express provisions of Control Council Law No.10.[106]
The Einsatzgruppen Case[107]
- The Einsatzgruppen was perhaps the most important of the large-scale trials of alleged German war criminals. The twenty-four accused
were alleged to have been involved in the supervision and implementation of mass murder. The Einsatzgruppen were four special units
of the SS (as distinct from the army) whose functions included the murder of individuals of specific groups during the German military
campaign in Russia. Those to be killed included political commissars, Gypsies, Jews, partisans, certain prisoners of war and others.
While the Einsatzgruppen units in question were under the operational control of the military, nevertheless they received and carried
out orders directly from the SS hierarchy (including Himmler and Heydrich).
- The prosecution case was, in terms of time, fairly short, lasting only a few days and comprising, primarily, documentary evidence.
The defence lasted much longer and was in large part based on the principle of superior orders. A large part of a defence theory
was premised on the position that if the orders were not followed, and implemented (which included the passing on to subordinates)
that the result would have been discipline or punishment rather than a withdrawal or change of orders.[108]
- The Tribunal accepted the principle that a subordinate is bound to carry out the orders of superior so long as those orders are within
the scope of the superior's authority[109]
Intrinsic in this comment was the principle that the order given must relate to a military duty. The superior cannot order a military
subordinate to commit what would amount to a civilian crime.[110]
It is further of note that the Tribunal described 'superior' as encompassing dominance in capacity as well as the power to compel
a particular act. The Tribunal noted that it was possible for a lower ranking individual to have actually directed a superior in
rank to commit an (illegal) act.[111]
The Tribunal found that if individual had demonstrated an agreement with the (illegal) order in question that he could not later
raise a defence of superior orders.[112]
The Tribunal judgment was clear in it's reasoning that a soldier is a "reasoning agent" and not an automaton that did nothing more
than follow orders given.[113]
- The Tribunal held that while a soldier is obliged to follow the orders of a superior, which includes the passing on of orders to subordinates,
that nevertheless obedience is requisite only when the orders received (and perhaps passed on) were lawful. The defence of superior
orders was not available where the order given, and subsequently passed on was so done knowing that the same was criminal.[114]
In the case where a subordinate was able to demonstrate, by way of credible evidence, that he had 'excusable ignorance' or similar
lack of knowledge of the criminal nature of the order that the same might be accepted as a defence.[115]
- The Tribunal was also very clear in its holding that a subordinate (at any level) who shared the same intentions and goals of his
superior could not, then, plead and rely upon superior orders as a defence.[116]
In conceding, however, that superior orders, as a concept, was available in mitigation of penalty the Tribunal noted that the criminal
act in question must have been done in an 'involuntary' state. The rationale for the same being that the soldier who participated
with a group of criminals in undertaking a criminal act could not a later stage, and in his defence, plead that he was compelled
to do the same.[117]
Erich Naumann
- This defendant was a Brigadier General in the SS and was the commander of one of the Einsatzgruppen units. It was his defence, in
part, that when he assumed command of his unit the orders at issue were already in effect.[118]
However, in rejecting this proposition as a legitimate defence the Tribunal held that Naumann was, and all material times, aware
of the orders in question, and he could have rejected the same. The Court further noted that it would have been incumbent upon the
defendant to demonstrate that while he was aware of the orders in question, he was not in agreement with the same but that he was
compelled to follow the orders out of fear of severe consequences for not so doing.[119]
In putting the evidence of this defendant in proper perspective, and in support of its judgment of guilt, the Tribunal found that
Naumann had seen nothing wrong with the orders in question even though the same involved the murder of 'defenseless' people.[120]
Erwin Schultz
- Like Naumann, Schultz was a Brigadier General in command of an Einsatzkommando unit and, as such, had participated in the killing
of a number of innocent Jews.[121]
As part of his defence, Schultz claimed that he disagreed with the order and that he had taken steps to have himself removed from
his position of command.[122]
However, the Tribunal found that during one particular time frame, of less than a week, while he claimed he was away from his command
trying to have himself removed, a substantial number of innocent Jews were murdered. The Tribunal noted that the planning for these
killings had been undertaken prior to the defendant's leaving, and that he could not then plead his absence as a defence.[123]
High Command Case[124]
- The case as against von Leeb and the other thirteen defendants, all whom were senior officers in the German army, navy or in the German
High Command took place after the trial in the Hostage case.[125]
Amongst others, the defendants were charged with war crimes and crimes against humanity in connection with the 'Commissar Order',
the 'Barbarossa Order', the 'Jurisdiction Order', the "Night and Fog Degree', the 'Hostages Order,' and the 'Reprisals Order'. As
well, they were charged with the murder and\or ill treatment of prisoners of war and of civilians in the occupied territories. They
were, further, charged with the use of civilians and prisoners of war as slave labourers. Lastly, for purposes of this discussion
they were also charged with instituting co-operation between the military and the SS in connection with the persecution, plunder
and execution of Jews and others.
- The Tribunal noted that command liability was premised on the personal action, or lack thereof, on the part of the individual. In
so doing this Tribunal followed the earlier 'Hostage' decision.[126]
Further this decision was very clear in reminding that a territorial commander had both military as well as executive authority and,
as it pertained to executive authority, unless there were specific limitations on these executive powers, he had the duty not only
to maintain order, but, further, to protect the civilian population in the geographical area.[127]
- Further the Tribunal held that, in considering the criminal conduct of subordinates, the actions in question had to be traceable to
a superior order and have resulted from the disregard of legality or acquiescence to the act or conduct in question.[128]
However, and at the same time, the Tribunal also held that senior officers were entitled to assume that subordinates were carrying
out orders properly unless information had been given to the superior indicating the contrary. Put another way, the Tribunal held
that there was no positive ongoing obligation on the part of the superior to monitor the conduct of a subordinate without some cause
or reason.[129]
- While this Tribunal (High Command) accepted in principle the obligation of a territorial commander as enunciated in the 'Hostage'
case, nevertheless, this Tribunal applied supplementation or parameters to the same. This Tribunal declined to find a presumption
of knowledge on the part of the territorial commander based only on the criminal acts themselves. In holding that each fact situation
must be decided on its merits the Tribunal noted in some situations the criminal acts in question had taken place a substantial distance
from the territorial commander's headquarters, and, as well, there were instances where the reports (of the criminal activities)
where not routed to the headquarters in question.[130]
However, the Tribunal was very clear in its principle that once the territorial commander had knowledge of criminal conduct on the
part of a subordinate, even if that subordinate was outside of his chain of commander, there was a positive duty to intervene.
- This Tribunal, as well, noted at the while staff officers, as a generality, incurred little criminal liability in the exercise of
their functions, there were exceptions to the same. For example, the Tribunal noted that if a staff officer put into the form of
a military order what was a criminal idea, either himself, or by members of his staff that this could attract the finding of criminal
culpability. Further, if the staff officer in question took personal action (as distinct from his role of a staff officer) to pass
on a criminal order that this, as well, could attract the finding of criminal conduct.[131]
The Tribunal further attached criminal responsibility to staff officers who participated in the preparation, or even in the assisting
in the preparation of criminal orders.[132]
Wilhelm von Leeb
- Field Marshal von Leeb was, and all material times a commander of an army group. The Tribunal found that he had given, in a number
of areas, executive responsibility to subordinate commanders. The Tribunal further found that while he maintained the inherent authority
to intervene in situations, nevertheless, he relied on his subordinate commanders and officers.[133]
The Tribunal, when reviewing the implementation of the 'Commissar Order'[134]
found, as a matter of fact, that the same had not been promulgated or issued from von Leeb's headquarters, but rather, had been issued
directly to subordinate units bypassing von Leeb's headquarters[135]
Further the Tribunal accepted evidence that von Leeb not only refused to pass this order on, but also, was opposed to it vocally.[136]
- A substantial portion of von Leeb's defence was based on his position that he had no knowledge of certain events that had transpired
within his territorial command. When presented with evidence of the abuse of prisoners of war von Leeb argued (and the Tribunal
accepted) that these prisoners were under the command responsibility of the quartermaster general's office that was outside of his
chain of command. Further the Tribunal accepted that the quartermaster general's office had direct command over von Leeb's subordinates
as it pertained to prisoners of war. The Tribunal further found, again, as a matter of fact, that von Leeb had never been made aware
of the illegal use of prisoners of war.[137]
Karl Friedrich-Wilhelm von Kuechler
- Field Marshal von Kuechler, like Field Marshal von Leeb was an army group commander. It was his defence that he was opposed to the
'Commissar Order,' however notwithstanding this defense theory the Tribunal found, as a matter of fact, that he had caused the same
to be distributed to his subordinate commanders.[138]
Further, as part of his defence, this defendant argued that he had no knowledge of any of the criminal acts having taken place, notwithstanding
the fact that his subordinate commanders had, as part of usual process delivered reports of the killings to his headquarters.[139]
The Tribunal, in this case, also held that there was a positive duty on the part of the commander to be aware of the activities
of subordinates.[140]
In convicting von Kuechler, and, in attacking both his credibility as well as his competence, the judgment noted that the members
of the Tribunal did not believe that members of this defendant's staff would not have made him aware of the various reports of which
he denied knowledge.[141]
Hans Reinhardt
- General Reinhardt commanded a panzer corps. The Tribunal found, as a matter of fact, that he had received, and then passed on the
'Commissar Order.' It was his evidence that he had expressed concerns about this order upwards in his chain of command, and further,
expressed the same concerns to his subordinates.[142]
However, the Tribunal also found that in due course he had received reports as to the implementation of this order.[143]
The Tribunal, in convicting General Reinhardt, was clear that the superior, in the face of a criminal order, must act in such fashion
that his repudiation of the same is without equivocation.[144]
Further, the Tribunal also rejected the General Reinhardt's defence that knowledge of the criminal order in question was so widespread
that whether he did anything or not, the criminal acts were already going to be carried out.[145]
In rejecting this portion of the defence the Tribunal accepted the concept of a positive duty to act on the part of the superior
in the face of a criminal order.
Hermann Reinecke
- General Reinecke was, and all material times, the chief of staff at the General Wehrmacht Office, and, was found to have had authority
over matters including prisoners of war. The Tribunal found, as a matter of fact, that he had formulated, drafted and as well had
prepared certain orders under the authority of his superior, Field Marshal Keitel.[146]
The Tribunal noted, with particularity, in convicting General Reinecke, that the orders in question were issued under his signature
and the Tribunal rejected the defence that the same head been issued under some form of residual authority of Keitel.
Medical Trial[147]
- As Reich Commissioner for Medical and Health Services, Karl Brandt along with others who were members of the military, the SS, and
civilians were charged and (all but two) were convicted for organizing or allowing medical experiments that were conducted on concentration
camp prisoners and others. Brandt was charged with failing to monitor the experiments in question, and, as well, he was charged
with failing to investigate or take necessary steps when information was brought to his attention concerning these experiments that
were patently criminal.
- The Tribunal found that this defendant had not only received reports concerning experiments, but, as well, attended meetings where
the results of the same were reviewed.[148]
The Tribunal found, as a matter of fact, that those who participated in these experiments were nothing more than human guinea pigs
who incapable of offering any consent to be part of these experiments. In convicting Brandt, the Tribunal found that he was under
an obligation to conduct investigations as to the propriety of the experiments and that he failed in that duty.[149]
Further, the Tribunal found that once this defendant, in his official capacity, was made aware of the experiments he was under an
absolute duty to order his subordinates to immediately terminate the same, and by doing nothing he attracted criminal culpability.[150]
The Farben Case[151]
- As part of the horrific 'final solution' prisoners in concentration camps such as Auschwitz were put to death systematically in gas
chambers using a chemical, Cyclon-B gas that was manufactured and delivered by the Degesch company. The Tribunal found, as a matter
of fact that Degesch was in large part controlled by the I.G. Farben Industrial complex.[152]
Compounding the matter was the fact that the Tribunal had found that the manager of the Degesch plant had clear knowlege of the fact
that the Cyclon-B chemical was being used to kill concentration camp victims.[153]
- While the Tribunal accepted that the members of the Farben board of directors, who were on the board of directors of Degesch, had
approved of the sale of the chemical and that, notwithstanding the size of the order or its destination, this was insufficient to
put them on notice of the intended purpose of the chemical.[154]
Further the Tribunal took note of fact that meetings of the Board of Directors of Degesch were held infrequently, and when they were
undertaken materials given to the members of the board were incomplete at best.[155]
In discharging the 'Farben' directors Tribunal accepted evidence that it was possible that the accused believed that the chemical
was being used for disinfectant purposes.[156]
This judgment, like others reflected the fact that the criminal burden of proof had not been met by the prosecution.
Bruno Tesch
- While the American Tribunal acquitted the 'Farben' directors, nevertheless, the British Military Tribunal convicted the suppliers
other chemicals.[157]
The (British) Tribunal was satisfied, in convicting this accused that he knew that the chemical supplied by his firm was being used
for killing people.[158]
In an interesting footnote to the case, the attorney representing this defendant, in mitigation of sentence, argued that even if
Tesch had known the purpose to which the chemical was being put, and even if the had consented to it, that this consent was obtained
as a result of extreme pressure being applied by the SS. Further, the lawyer for Tesch also argued that if his firm had not supplied
the chemical another firm would have. The Tribunal rejected these arguments in mitigation of sentence subsequent to conviction.[159]
Roechling
- A French military Tribunal in the Roechling[160]
matter carried the doctrine of command responsibility further by imposing upon civilians with either formal authority or informal
influence and power, a positive obligation to remain informed and to intervene.[161]
Hermann Roechling was, and all material times, the general director of the Stahlwerke Voelkingen steel plant. The Tribunal found
that he played a key role in obtaining, involuntarily, foreign workers for not only his plant, but as well, in his role as chairman
of the Reich Association, Iron, for other plants as well.[162]
- The Tribunal found that the workers in question, in various factories, were subject to 'discipline' by the Gestapo, and, further,
that these workers were often beaten and starved.[163]
Further the Tribunal found that Roechling had, in his official capacity, inspected a number of the plants in question, and either
saw, or must have seen the conditions then existent for the labourers under Gestapo control.[164]
While the Tribunal acceded to the argument that Roechling lacked any formal authority to intervene in Gestapo affairs, nevertheless,
the Tribunal found that he had acquiesced to the criminal treatment of the individuals in question by doing nothing.[165]
- A similar American Tribunal adapted the same principle in convicting civilians for, with knowledge, approving the acquisition of prisoners
of war for use in other factories.[166]
- In December 1945, in Moscow, an agreement was reached to establish the Far Eastern Commission, with control of the Commission left
with United States. The headquarters of this Commission was in Washington while an advisory group (comprised of Great Britain, Russia,
the United States and China) known as the Allied Council for Japan had its headquarters in Tokyo.
- The Commission was primarily a political body was little or no investigative authority. As observed by Bassiouni:
Control over occupational matters rested with General Douglas MacArthur as the Supreme Commander for the Allied Powers (SCAP). Virtually
every aspect of justice in the Far East was guided by Macarthur's views and his political perspectives of the region. General MacArthur
opposed the Commission's establishment because allowed the USSR a role and a veto.[167]
- In April 1946, the Commission announced a policy allowing General MacArthur to establish a body, under his command, to; (a) investigate
reports of war crimes, (b) to collect and analyze evidence and (c) to arrange for the apprehension of suspects alleged to have committed
war crimes. Further, and demonstrative of the discretion given to General MacArthur, was the fact that he also had the residual
authority to determine who would be tried and which Tribunals would undertake such proceedings.[168]
- An order dated January 19, 1946 led to the creation of the Far East Tribunal.[169]
The Military Tribunal for the Far East was originally comprised of nine members:[170]
Australia, Canada, China, France, Great Britain, Netherlands, New Zealand, Russia and the United States. Subsequently, by further
instrument India and the Philippines were added as members.
- It is of note that this Tribunal only undertook trials for ' war crimes' and 'crimes against peace' but did not undertake prosecutions
(as was done in Europe) for 'crimes against humanity'.[171]
Tomoyuki Yamashita
- The Yamashita decision[172]
is arguably the most well known of the Far Eastern Military Tribunal's decisions dealing with the issue of command responsibility.
General Yamashita had taken up the post as the overall Japanese commander for the Philippines on or about October 9, 1994. Inter
alia, his responsibilities included all prison camps, both military and civilian. He undertook his command some nine days prior to
the American invasion of Philippines. He was subsequently tried and convicted of failing to discharge his military duty to control
subordinate troops under his command.[173]
Both his conviction and sentence to execution were unsuccessfully appealed to the United States Supreme Court.[174]
- There is little issue that during the retreat of the Japanese forces, in the Philippines serious war crimes were committed. The charges
heard by the Tribunal alleged, inter alia, the killing of twenty-five thousand innocent civilians on the island of Luzon.[175]
It was further shown that prisoners of war were ill treated and starved[176]
and it was specifically shown that in one instance some fifteen hundred Americans were held prisoner in the cargo hold of a Japanese
non-military vessel in starvation conditions.[177]
- The actual charges against Yamashita were to the effect that forces under his command had committed a substantial number of war crimes
including the wanton killing of civilians.[178]
It was further alleged that troops under his command demolished homes, churches, hospitals and schools without any military necessity.[179]
The substance of the charge was that he had:
...lawfully disregarded and failed to discharge his duty as commander to control the operations of members of his command, permitting
them to commit brutal atrocities and other high crimes against the people of United States and its allies and dependencies, and in
particular show a series of acts which indicate a plan to massacre and exterminate a large part of unarmed noncombatant civilian
population of the occupied territory, coupled with other acts of violence, cruelty and homicide inflicted upon civilian population
and prisoners of war contrary to principles of international law.[180]
- The thrust of General Yamashita's defence was that a substantial number of the troops initially under his command had been routed
and had lost contact with his headquarters.[181]
He further pleaded that part of his command composed of naval forces that disregarded his orders[182]
to abandon Manila, but, rather, killed over eight thousand civilians and wounded or otherwise mistreated another seven thousand.[183]
- Fundamental to the Yamashita defence was the premise that he had in no way, either ordered or authorized, nor had he in any way tolerated
such acts by forces under his command. He further was adamant, in his defence, that he had no knowledge of the fact that the war
crimes in question were taking place.[184]
He also argued that all of his time was committed to the preparation of the battle tasks at hand, that he was unfamiliar with the
quality and abilities of the troops under his command, and as well that his communication infrastructure had been substantially compromised
by the attacking enemy forces.[185]
- The case against General Yamashita was premised on the theory that the acts in question had been so widespread that he must have known
of them, and that if he did not, that this lack of knowledge was deliberate in that he must have taken some (positive) step to avoid
acquiring knowledge.[186]
- In its judgment the Tribunal held that General Yamashita, at the very least must have tacitly condoned the actions of the Japanese
forces in question, and more likely he had both known as well as ordered the crimes. Further, and of significance, in finding knowledge
of the acts on his part he was also condemned for failing to punish the perpetrators of these acts who were under his command.[187]
- A board of review convened by General MacArthur reviewed the conviction, and death sentence[188]
This board held the crimes committed by the Japanese forces were so widespread, so obvious or well known, and so ongoing that it
was impossible that General Yamashita had not known of them.[189]
Further, and specifically, the judgment of the board of review cited that:
..(The) conclusion is inevitable that the accused knew
about them and either gave his tacit approval to them or at least failed to do anything to prevent them or to punish their perpetrators.[190]
- The Yamashita case was subsequently appealed to the United States Supreme Court by way of an application for habeas corpus. The majority
decision, delivered by Justice Stone[191]
in large part makes little mention of the facts attendant to the conviction of General Yamashita by the original Tribunal. Rather,
the majority judgment, in large part, attended to the technical aspects of the appeal. The majority decision, examined the actual
allegation or charge made against Yamashita and noted that the substance of the allegation was that he (Yamashita) as commander had
failed to control the actions of his forces by "permitting them to commit the extensive and widespread atrocities during the specified
period".[192]
However, in the same portion of the majority opinion, the following question is posed and answered:
The question is then whether the law of war imposes on an army commander a duty to take such appropriate measures as are within his
power to control the troops under his command for the prevention of specified acts which are violations of a lot of war and which
are likely to attend the occupation of hostile territory by an uncontrolled soldiery, and whether he may be charged with personal
responsibility for his failure to take such measures when violations result.
It is evident from the conduct of military operations by troops whose excesses are unrestrained by the orders of their commander would
almost certainly result in violations which it is the purpose of the law of war to prevent. Its purpose to protect civilian populations
and prisoners of war from brutality would largely be defeated if the commander of an invading army could with impunity neglect to
take reasonable measures for their protection. Hence, the law of war presupposes that its violation is to be avoided through the
control of the operations of war by commanders who are to some extent (emphasis) responsible for their subordinates.[193]
- In the first paragraph of the above Justice Stone used the phrase, 'as are within his power,' however, and notwithstanding the question
posed the Supreme Court in its majority judgment, it does not deal specifically with that issue. However, by virtue of the fact
that that particular phrase was used it appears as though the Supreme Court gave credence to the limiting of the ability of a commander
to control forces either under his executive or tactical command. Further, the words 'to some extent' suggests that the Court felt
that strict liability was not in order, and, further, that each case must be decided on its own merits. It therefore appears as
though, in Yamashita United States Supreme Court was, in theory, applying the same principles as were used in the European theatre
trials while, at the same time, overlooking the facts attendant to the particular case before them.
- It is, however, the dissenting decision of Justice Murphy[194]
that has attracted greatest attention. For example, Justice Murphy observed:
Nothing in all history or in international law, at least as far as I am aware, justifies such a charge against a fallen commander
of a defeated force. To use the very inefficiency and disorganization created by the victorious forces as the primary basis for
condemning officers of the defeated armies bears no resemblance to justice or to military reality.
International law makes no attempt to define the duties of a commander of an army under constant and overwhelming assault; nor does
impose liability under such circumstances for failure to meet the ordinary responsibilities of command. The omission is understandable.
Duties, as well as the ability to control troops, vary according to the nature in intensity of the particular battle. To find an
unlawful deviation from duty under battle conditions requires difficult and speculative calculations. Such calculations become highly
untrustworthy when they are made by the victor in relation to the actions of vanquished commander. Objective and realistic norms
of conduct by then extremely unlikely to be used in forming a judgment as to deviations from duty. The probability that vengeance
will form the major part of the victor's judgment is an unfortunate but inescapable fact. So great is that probability that international
law refuses to recognize such a judgment is a basis for war crime, however fear the judgment may be in a particular instance. It
is this consideration that undermines the charge against the petition in this case. The indictment permits, indeed compels, the
military commission of a victorious nation to sit in judgment on the military strategy and actions of the defeated enemy into use
its conclusions to determine the criminal liability of an enemy commander.[195]
Justice Murphy further opined:
No one denies that inaction or negligence may give rise to liability, civil or criminal. But it is quite another thing to say that
the inability to control troops under highly competitive and disastrous battle conditions renders one guilty of a war crime in the
absence of personal culpability. Had there been some elements of knowledge or direct connection with the atrocities the problem
would be entirely different (emphasis).[196]
- The dissenting opinion of Justice Murphy gives credence or support to the Yamashita defence before the Tribunal that his inability
to control troops under his command was caused in large part by the successful American battle. Justice Murphy further appeared
to give credence to the fact that the Japanese forces were organizationally deficient, lacked sufficient supplies and training.
Further the dissent also noted that the fact that certain naval components involved in the atrocities while under the theoretical
command of General Yamashita were receiving their orders through the naval chain of command.
- It is arguable that United States Supreme Court in the Yamashita decision accepted that there is a positive obligation upon a commander
to take steps to prevent acts of criminal behaviour, and when the same have taken place, to appropriately deal with them. However
in rejecting the appeal, and notwithstanding the fact that the appeal was based upon a jurisdictional argument, it is arguable that
the Supreme Court in the obiter in this case imposed a level of strict liability on a commander or superior for the conduct or criminal
behavior of subordinates.
Tokyo Tribunal[197]
- In 1946, General Douglas MacArthur established the International Military Tribunal for the Far East. This tribunal was mandated to
try senior Japanese officials (both military as well as civilian) accused of having committed war crimes in what was described as
the Far Eastern Theatre of the War.[198]
- In addressing the defence of superior orders Article 6 of the statute of this tribunal bears a remarkable similarity to the Nuremberg
Charter. In this statute Article 6 recited:
Neither the official position, and any time, of an accused, nor the fact that an accused acted pursuant to order of his government
or of a superior shall, of itself, be sufficient to free such accused for responsibility for any crime with which he is charged,
but such circumstances may be considered in mitigation or punishment if the Tribunal determines the justice or requires.[199]
- The principles that the Tribunal applied in the case of General Yamashita were further considered in the trial, in Tokyo, of twenty-two
former Japanese officials who were charged with, inter alia, war crimes. Amongst those put on trial were former members of the Japanese
Cabinet, former high-ranking military officers and, as well, senior officials who had responsibility for the custody care and control
of prisoners of war.[200]
This Tribunal chose to define command responsibility as:
if this accused knew, or should by the exercise of ordinary diligence have learned, of the commission by his subordinates... of the
atrocities... or of the existence of routine which would countenance such, and, by his failure to take any action to punish the perpetrators,
permitted the atrocities to continue, he has failed in his performance of his duty as a commander, and must be punished.[201]
- This Tribunal ruled that, firstly both military personnel as well as civilian officials could be found culpable for war crimes. The
Tribunal in refining the same noted that such culpability would attach where either the individual was aware, or in the alternative,
should have been aware and failed to take any action of crimes by subordinates. As a corollary, however, the Tribunal also found
that if an individual did not have direct responsibility (for those upon whom the crimes were committed) that no such duty attached.[202]
In point of fact the Tribunal attached a positive obligation to both military as well as civilians who either had custody of individuals,
or, in the alternative, were concerned with their well-being.
- The Yamashita reasoning was, in this case, modified by the imposition of either actual, or in the alternative, constructive knowledge
attaching to be accused for the criminal acts of subordinates.[203]
The Tribunal further held that 'constructive' knowledge would be either inferred, or found where information of criminal acts were
contained in reports either given to, or in the alternative, intended to be read by the commander.[204]
Hideki Tojo
- In refining or elaborating on the decision in the case of General Yamashita, the Tokyo Tribunal in its trial of former Minister of
War as well as former Prime Minister Tojo held that once a superior (either military or civilian) has knowledge of war crimes he
is under a positive obligation to deal with the same aggressively. The Tribunal considered Tojo's actions subsequent to his being
told of the 'Bataan Death March'.[205]
The Tribunal found, as a matter of fact, that Tojo was aware of not only the march, but, of the substantial number of casualties
and deaths that resulted from it. The Tribunal noted that while he may have made certain preliminary inquiries or observations concerning
this matter that he (Tojo) did not demand a detailed investigation nor did he order criminal proceedings against those involved.
The Tribunal found, further, that Tojo was aware of either situations or instances where prisoners of war had been mistreated, and
again, the Tribunal found him culpable for not instituting any punitive action.[206]
Koki Hirota
- The Tribunal, as well, set a standard by which a superior may be deemed to have knowledge of criminal acts committed by his subordinates,
and the obligations that arise from the same. At all material times Hirota (1933-1938) was the Japanese Foreign Minister. The Tribunal
found that he would have had notice of the war crimes committed by Japanese forces when they captured Nanking[207]
as a result receiving diplomatic memoranda or through the international media. The Tribunal accepted that Hirota had made initial
inquiries, and the Tribunal further found that he had received assurances from the Ministry of War that the ongoing acts would be
halted. The Tribunal found, however, that subsequent to the receipt of advises to the effect that the criminal conduct would be
terminated, the same continued for approximately another four weeks. The Tribunal held that Hirota had a positive obligation to
take necessary steps to ensure that this conduct was terminated and that he failed by not so-doing. The Tribunal further found Hirota
criminally culpable in not demanding from his Cabinet colleagues that immediate action be taken.[208]
Iwane Matsui
- General Matsui was the commander of the Japanese China Expeditionary Forces (1937-1938. The Tribunal found that forces under his
overall command responsible for the atrocities that took place in Nanking. The Tribunal while accepting evidence that General Matsui
had issued orders to the effect that war crimes were not to be committed, noted that given the amount of time during which these
atrocities took place that General Matsui had to have had knowledge that his orders were not being followed, and in point of fact,
were being ignored. The Tribunal further found that General Matsui had both the responsibility as well as the authority to prevent
the (ongoing) atrocities and added that in taking no action to control his subordinates he attracted criminal culpability.[209]
- As a corollary, the Tribunal also noted that a staff officer (of subordinate rank) while he may have known of the criminal conduct
would nevertheless attract no criminal culpability if he had no direct authority to halt the same.[210]
Kafr Qassem
- An Israeli military court considered the issue of both command responsibility as well as superior orders and applied the same to lower
ranking superior-subordinate situations. As a result of the 1956 Suez Canal crisis Israel occupied, through force of arms the Sinai
Peninsula. During the early stages of this occupation a general curfew was imposed on a number of the local communities.[211]
At or near the village of Kafr Qassem, in breach of a curfew order, a number of civilians were in the process of returning to the
village when members of the Israeli army killed them.
- For purposes of this case, the Court noted that the victims of this incident had no knowledge of the outstanding curfew order. The
soldiers involved in the actual shooting were not members of the Israeli army regular forces, but were police border guards who had
been called up from reserve to active status. This group of soldiers were under the command of a junior ranking officer who was,
and the time of shooting, not specifically with the unit in question. The Court found that he had been in the area at all material
times and had the ability to be in contact with his troops. The Court further found that the soldiers in question had been given
a direct order by the junior officer (a lieutenant) that violators of the curfew order were to be shot irregardless of who they were.
There was a finding of fact that the order had been given, originally by a brigadier and the same had been passed down the chain
of command.
- The junior officer was charged. While the military Court noted that even though he was not with his men when shooting took place that
nevertheless he was in the general area, and not only did he know that the incident was taking place he took no steps to intervene
or stop it. The Court found that the failure of the junior officer in this case was equivalent to him acting as an accomplice.[212]
- The Court accepted evidence that the order in question had come down through the chain of command, and, in particular, it attached
culpability to the officer of field grade. The Court specifically found, in attaching culpability for murder that this officer either
new, or had to have known that the people out and about this village would likely be civilians, and in all probability would be Arab
and not Israeli.
- The Court specifically commented that, "a reasonable soldier can distinguish a manifestly illegal order on the face of it, without
requiring legal counsel and without using the law books" and of further significance is the notation that, "a commander of any rank
must consider the order he issues and also its legality".[213]
- Two private soldiers were acquitted of charges of murder noting that the orders that they received to fire on the civilians had been
without advance warning and that they had not had the opportunity or time to consider whether the order was criminal in its nature.[214]
The Court, however, did convict one corporal and three other privates holding that they had sufficient time to consider the killing
of seventeen civilians, particularly, after having heard and seen women begging for their lives.[215]
My Lai
- Perhaps the most well known military trial during the second half of the twentieth-century surrounds the incident that took place
in the Vietnamese hamlet of My Lai on or about March 16, 1968. Amongst others, William Calley was charged and appeared before military
courts. While this incident focused in part on the issues of both command responsibility as well as superior orders, it, as well,
also demonstrated that subordinates can legitimately refuse to undertake criminal actions notwithstanding direct orders from a superior.
- In this fact situation, an infantry platoon led by Lieutenant Calley entered the village of My Lai anticipating substantial resistance.
This resistance did not occur, but rather the soldiers met only civilians, mostly women and children. The facts demonstrated that
Calley, himself opened fire on groups of unarmed civilians, and, as well, ordered one of his subordinate soldiers (Meadlo), to do
the same. The material further indicated that Calley had also ordered two other subordinate soldiers to open fire on civilians but
they refused to obey that order.[216]
William Calley
- Lieutenant Calley was convicted of murder of a number of innocents in the village of My Lai. The thrust of his defence was that the
evening before this mission, while being briefed by his superior (Medina), he had given orders that "they were to kill every living
things--- and under no circumstances were made to leave any Vietnamese behind them".[217]
Medina denied giving that order, although, at trial evidence was tendered both supporting as well as refuting the position of Calley
in this regard.
- The Court then, in its majority decision, considered Calley's defence, and noted:
A determination an order is illegal does not, of itself, assign criminal responsibility to the person following the order for acts
only in compliance with it. Soldiers are trained to follow orders, and special attention is given to obedience of orders on the
battlefield. Military effectiveness depends upon obedience to orders. On the other hand, the obedience of the soldier is not the
obedience of an automaton. A soldier is a reasoning agent, not a machine, but a person. The law takes these factors into account
in assessing criminal responsibility for acts only in compliance with illegal orders.
The acts of a subordinate done in compliance with a lawful order given him by his superior are excused and impose no criminal liability
unless the superior's order is one which a man of ordinary sense and understanding would, under the circumstances, known to be unlawful,
or if order in question is actually known to the accused to be unlawful.[218]
- The Court was clear in its judgment that even if the order, as alleged by Calley had been given to him, so long as he actually knew
the same to be illegal that the defence of superior order would be of no avail[219]
and by extrapolation any subsequent continuing orders given by Calley would also be illegal.
- The Court then canvassed the issue of what standard were to be applied if no actual knowledge of illegal order was found as a matter
of fact, and the judgment notes:
Unless you find beyond reasonable doubt that the accused acted with actual knowledge that the order was unlawful, you must proceed
to determine whether, under the circumstances, a man of ordinary sense and understanding would have known the order to be unlawful.......(T)he
standard is that of a man of ordinary sense and understanding under the circumstances.[220]
- In a separate, although concurring judgment the case report notes:
An act performed manifestly beyond the scope of authority, or pursuant to an order then a man of ordinary sense and understanding
would know to be illegal, or are in a wanton manner in the discharge of lawful duty, is not excusable.[221]
- In an interesting footnote to the Calley decision is the dissent of the Chief Judge of the Court who noted that standard to be applied
is not 'the man of ordinary sense' but rather:
I am also convinced that the defence of superior orders should have as its principal
objective fairness to the unsophisticated soldier and those of somewhat limited intellect who nonetheless are doing their best to
perform their duty.[222]
- This dissent also makes reference to evidence given by Calley to the effect that even though he knew that prisoners were to have been
treated with respect, nevertheless, he also believed that where villagers had been left behind that soldiers received sniper fire
from the rear. While this dissent goes no further than this comment, as part of an opinion that a new hearing ought to be given,
nevertheless, consideration has to be given as to whether or not this part of the judgment referred by implication to the World War
I Crusis case.[223]
Ernest Medina
- Ernest Medina (the only other officer brought to trial as a result of the My Lai incident) was charged with the killing of over one
hundred Vietnamese civilians. One of the fundamentals of the case against Captain Median was the issue of command responsibility.
It was the thrust of the case against him that as the officer in command of the infantry company, he was responsible, and therefore,
accountable for the actions of his subordinates, particularly, if he knew that the killings were either taking place or were about
to take place. The thrust of this is encompassed by the summation of the case made by the prosecution as noted by the summary of
Judge Howard:
...The prosecution also alleges that captain Medina was in radio contact through the operation with his platoons. It is contended
that the accused was aware of almost from the beginning of the operation that units of his company were receiving or hostile fire
and in fact early in the morning ordered his men to conserve ammunition. The prosecution also contends that sometime during the
morning hours of 16 March 1968, the accused became aware that his men were probably killing noncombatants. It is contended that
this awareness arose because of the accused's observations, both by sight and because of the conversation between.... and the accused.
The contention is further made that the accused, as company commander, had a continuing duty to control the activities of his subordinates
which activities were being carried out as part of assigned military mission, and this became particularly true when he became aware
that the military duties were being carried out by his men in an unlawful manner. The prosecution contends that captain Medina,
after becoming aware of the killing of noncombatants by his troops, declined to exercise his command responsibility by not taking
necessary and reasonable steps because his troops to cease the killing of noncombatants. It is further contended by the prosecution
that the accused became aware of these acts of his subordinates, and before he issued an order to cease fire, the number of unidentified
Vietnamese civilians were killed by his troops.... It is the prosecution's contention that the accused was capable of controlling
his troops .... but once learning he had lost control of his unit, he declined to regain control for a substantial period of time
during which the deaths of unidentified Vietnamese civilians occurred. It is finally the prosecution's contention that as a commander
the accused, had a duty to interfere (and) he may be held personally responsible because his unlawful inaction was the proximate
cause of unlawful homicides by his men.[224]
- The brief of law filed by the prosecution in the case against Medina contained the following:
...The military commander has complete and overall responsibility for all the activities within his unit. He alone is responsible
for everything his unit does or does not do. This command responsibility does not, of course, extend to criminal responsibility
unless the commander knowingly participated in the criminal acts of his men or knowingly fails to intervene and prevent the criminal
acts of his men when he had the ability to do so.
Military commanders may also be responsible for war crimes committed by their subordinates, 'When troops commit massacres and atrocities
against the civilian population in occupied territory or against prisoners of war, but responsibility the rests not only with the
actual perpetrators and also with the commander... The commander is also responsible if he had actual knowledge, or should have
knowledge through reports received by him or other means, that troops or other persons subject to his control are about to commit
or have committed a war crime and he fails to take the necessary and reasonable steps to insure compliance with the law or to punish
violators thereof'.[225]
- Of particular note however are the instructions on the law given to the jury panel by Judge Howard. In particular is the portion
of the charge to the jury:
In relation to the question pretending to the supervisory responsibility of a Company Commander, I can advise you that as a general
principle of military law and custom a military superior in command is responsible for, and in the performance of his command duties,
to make certain the proper performance by his subordinates on their duties as assigned by him. In other words, after taking action
or issuing an order, a commander must remain alert and make timely adjustments as required by a changing situation.
Furthermore, a commander is also responsible if he has actual knowledge that troops or other persons subject to his control or in
the process of committing or about to commit or war crime and he wrongfully fails to take the necessary and reasonable steps to insure
compliance with law of war. You will observe that these legal requirements placed upon a commander require actual knowledge plus
or wrongful failure to act. Thus mere presence at the scene will not suffice. That is, the commander-subordinate relationship alone
will not allow inference of knowledge. While it is not necessary that a commander actually see an atrocity being committed, it is
essential that he knows that his subordinates are in the process of committing atrocities or are about to commit atrocities (emphasis).[226]
- Professor Green correctly observes:
It is somewhat difficult to appreciate Colonel Howard's remark the mere presence at casino in an atrocity is insufficient. Surely
a commander so present must have knowledge of what his troops are doing. Lack of such knowledge suggests an indifference amounting
to a failure to command. In Medina's case there was a further complication. He confessed that he subsequently knew of the massacre,
but decided to hush up instead of taking steps to punish or report its perpetration or those responsible therefore.[227]
In a final reference to the military judge's instruction Professor Green notes:
That their deaths resulted from the omission of the accused in failing to exercise control or subordinates subject to his command
after having gained knowledge that his subordinates were killing noncombatants, in or are at the village of My Lai ....;[228]
- It is more than arguable that, firstly the military judge misapprehended in the standard to be imposed upon a military commander,
and, secondly, that this jury instruction represented a retrograde step in the development of the law of commander responsibility.
- The issue of command responsibility was addressed, and to a degree clarified by the 1977 Protocols to the Geneva Conventions.[229] Article 86(2) of the Protocol I notes:
The fact the 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 would 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 repressed such a breach.[230]
- While Article 86(2) deals with the 'Failure to Act' the same must be read in conjunction with the subsequent article that specifically
addresses the issue of the responsibility or 'Duty of the Commanders'. Specifically Article 87(1) and (3) note:
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. 3. The High Contracting Parties, and Parties to the conflict shall
require any commander who was aware that his subordinates or other persons under it 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 of this Protocol, and where appropriate, to initiate disciplinary or penal action against violators thereof.[231]
- This Protocol attaches responsibility to superiors in those particular situations where they had knowledge, either actual or constructive,
that would have given them reason to believe that a prohibited act had either occurred, or in the alternative was about to occur.
Liability would attach to the superior where information had been given and was then either disregarded or ignored by the superior.
Further liability could also attach to the superior in a situation where the information given had acted upon, but, the action(s)
taken may have been totally inadequate in the circumstances then and there are prevailing.
- While Article 86 addresses the issue of 'Failure to Act' it specifically uses the term 'superior' suggesting that so long as the relationship
between subordinate and superior is in existence the obligation attaches. Article 87, is more specific in attaching liability to
military commanders for actions of their military subordinates, but also, for the actions of 'other persons under their control'.
This phrase carries foreword the judgments of the World War II trials, but, in addition, also now clearly makes military commanders
being responsible for the actions of 'non-military' (civilian) personnel under their control (as distinct from command).
- It is further clear that this Article also requires that a proactive posture be maintained on an ongoing basis by the superior to
keep control of the activities of their subordinates. However, the Article does not impose an absolute or totally inflexible standard
of conduct on the superior, but, rather, obliges the superior to undertake steps or measures that are, firstly, practicable, and,
secondly, 'within their power'. This article modifies, by codification the liability standard that was imposed upon commanders by
the Tribunal in Yamashita.
- Lastly, Article 91 makes the 'Party to the conflict' as distinct from a 'High Contracting Party' responsible "for all acts committed
by persons forming part of its armed forces'.[232]
- In September 1982 the President-elect of Lebanon, a Christian Phalangist, was assassinated. As a result of this incident the Israeli
government ordered the Israeli army into portions of west Beirut ostensibly to prevent further hostilities between the Christian
and Muslim armed groups.
Sabra and Shatilla
- Subsequent to the Israeli army occupation of west Beirut the Israelis, themselves, did not attack or enter the two (Sabra and Shatilla)
refugee camps, but, rather, directed that the Phalangists do the same. Over a two-day period whilst the Phalangists were in the
two refugee camps, more than seven hundred civilians were killed.[233]
- Subsequent investigations did not indicate that the Israeli army had participated in this mass murder, nor was there any indication
that the actual killings were visible from the Israeli observation posts outside of the camp.[234]
However subsequent inquiries indicated that within the senior responsible ranks of the Israeli army it was understood that there
was a very high degree of hatred towards the Palestinians on the part of the Phalangists, and that they (the Phalangists) would probably
have little respect for any rule of law towards innocent (Muslim) civilians. There was, as well, some indication that certain Israeli
army officers had cautioned the Phalangists about engaging in revenge killings.[235]
- Subsequent to this event, and notwithstanding international outrage, no charges (either military or civilian) were brought as against
any member of the Israeli army or any member of the Israeli government. However the Israeli government did strike a formal commission
of inquiry[236]
and while the findings of the same were to the effect that the actual killings had been done by the Phalangists that, nevertheless,
a high degree of responsibility lay with members of both the Israeli government as well as the Israeli military.[237]
The Kahan Report
- While the purpose of the Kahan Commission was to inquire into the killings in the refugee camps.[238]
The Commission itself did not consider itself limited by either (then) existing domestic or international legal limitations in its
attempt to attach liability to both civilian as well as military personnel. It can be strongly argued that this Commission extended,
by the scope of its inquiry, the doctrine of command responsibility. Little attention was given to the actual decision to allow
the Phalangists to enter the camps, but, rather, the focus was the accountability at various levels for failing to consider the possible
effects of the Phalangist actions and failure on the part of Israeli officials to take necessary precautions considering the same.[239]
- Further, this Commission extended the doctrine of command responsibility by attaching culpability to both senior civilian as well
as senior military personnel who had simple 'notice'.[240]
The result was to the effect that not only were those, of rank, who were aware of potential criminal conduct, were exposed to liability
for failing to take positive action, but, as well, senior officials also attracted culpability for having simple notice and doing
nothing.
- The Kahan Commission also attached liability to commanders who failed to pass on information of relevance up the appropriate chain
of command or to the appropriate senior civilian officials.[241]
The Commission further expanded the concept of command responsibility by holding that once the decision had been made to allow the
Phalangists to enter the camps that an obligation arose to both monitor the actions of the Phalangists, and, at the same time, to
take whatever steps necessary to protect the civilian occupants of these camps.[242]
- The Kahan Commission further imposed a continuing command responsibility obligation by holding that as soon as information is received
as to criminal conduct that immediate action, on the part of those in authority, must be taken.[243]
The net effect of the findings of the Kahan Commission was that the criminal actions of those outside of a formal chain of command
are still the responsibility of those in authority even if the control (as distinct from command) is of an informal as distinct from
formal structure.[244]
Menachem Begin
- The Commission found, as a matter of fact, that the Prime Minister had not participated in the decision to allow the Phalangists into
the refugee camps. Further, the Commission found no fault with the fact that the Prime Minister had relied upon reports from the
Defence Minister that the military operations in west Beirut were preceding 'without any hitches and in the most satisfactory manner'.
It was further found, again, as a matter of fact, that even though he had been party to a cabinet meeting during which the Deputy
Prime Minister had warned of possible 'danger to be expected from the Phalangist's entry into the camps' the Prime Minister may not
have been paying attention to the same.
- Of particular note is the comment contained in the report:
We have already said above, when we discussed the question of indirect responsibility, in review, because of things that were well
known to all, it should have been foreseen that the danger of the massacre existed if the Phalangists were to enter the camps without
measures being taken to prevent them from committing acts such as these. We are unable to accept the Prime Minister's remarks that
he was absolutely unaware of such a danger.... The Prime Minister was aware of the mutual massacres committed in Lebanon during
the civil war, and of the Phalangist's feelings of hatred for the Palestinians, whom the Phalangist held responsible for all the
calamities that befell their land.... However, in light of what has already been noted above regarding foresight and probability
of acts of slaughter, we are unable to accept the position of the Prime Minister that no one imagined then what happened was liable
to happen, or what follows from his remarks that this possibility did not have to be foreseen when the decision was taken to have
the Phalangist smuggled into the camps.
As noted, the Prime Minister first heard about the Phalangist entry into the camps about 36 hours after the decision to that effect
was taken... For two days after the Prime Minister heard about the Phalangist entry, he showed absolutely no interest in actions
in the camps. This indifference would have been justifiable if we were to accept the Prime Minister's position than it was impossible
and unnecessary to foreseen the possibility that the Phalangist would committing acts of revenge however we have already explained
above that according to the Prime Minister ... such a possibility was not unknown to him...... The Prime Minister's lack of involvement
in the entire matter casts upon him a certain degree of responsibility.[245]
- The concept of command responsibility was expanded to include failing to pay attention or take cognizance of warnings given. It is
noteworthy that the Kahan Commission attached 'a certain degree of responsibility' for demonstrating indifference and lack of attention.
The finding that the Prime Minister had not asked his subordinates to keep him informed further compounded this.
Ariel Sharon
- The Commission was extraordinarily critical of the (then) Defence Minister, Ariel Sharon. It was held that by virtue of his Cabinet
position he was charged with the positive obligation to protect the civilians in the refugee camps[246]
and that the failed in that obligation.
- The Commission noted that while no 'clear warning' had been given to Sharon, that nevertheless, given the 'widespread knowledge regarding
the Phalangist's contact ethics' that it was impossible for him not to have known of the danger of a massacre.[247]
In particular the Commission report noted:
The sense of such a danger should have been in the consciousness of every knowledgeable person who was close to the subject, and certainly
in the consciousness of the Defence Minister, who took an active part in everything relating to the war. His involvement in the
war was deep, and the connection with the Phalangists was under his constant care.
As a politician responsible for Israel's security affairs, and as a Minister who took an active part in directing the political and
military moves in the war in Lebanon, it was the duty of the Defence Minister to take into account all the reasonable considerations
for and against having the Phalangists in the camps, and not to disregard entirely the serious consideration mitigating against such
action, namely that the Phalangists were liable to commit atrocities and it was necessary to forestall this possibility as a humanitarian
obligation....
It is our view that responsibility is to be imputed to the Minister of Defence for having disregarded the danger of acts of vengeance
and bloodshed by the Phalangists against the population of the refugee camps, and having failed to take this danger into account
when he decided to have the Phalangists enter into the camps. In addition, responsibility is to be imputed to the Minister of defence
for not ordering appropriate measures for preventing or reducing the danger of massacre as a condition for the Phalangist's entry
into the camps. These blunders constitute the non-fulfillment of the duty with which the Defence Minister was charged.[248]
- The reading of the criticism, indeed, condemnation of the conduct of the Minister of Defence attached responsibility for failing to
consider the likely consequences of the Phalangist incursion into the camps. Further, the Commission made findings of fact that
Sharon had either issued instructions that the Phalangists were to enter the camps, or in the alternative, he had knowledge of the
same and acquiesced. In so doing he breached a duty to have effective controls in place, and when the same where lacking he failed
in his duty to cancel the Phalangist incursion.[249]
- The Kahan Commission in its review of the conduct of the Ministry of Defence clearly imposed not strict, but vicarious liability upon
civilian officials. The Commission further attached a clear positive obligation to anticipate danger and to immediately investigate
when reports of criminal behaviour become known.
Yitzhak Shamir
- The (then) Foreign Minister, while not subject to the same degree of castigation as the Minister of Defence was, nevertheless, criticized
by the Commission for errors of judgment and for not demonstrating the requisite concern once he knew of possible criminal behaviour.[250]
While the report noted the difference in the evidence given before it by two witnesses, both of Cabinet rank, nevertheless, the Commission
held:
In this state of affairs, it might have been expected that the Foreign Minister, by virtue of his position, would display sensitivity
and alertness to what he had heard from another Minister -- even if we were to accept unconditionally his statement that the point
under discussion was only the 'unruliness' of the Phalangists. The Foreign Minister should least have called to the Defence Minister's
attention the information he had received and had not contented himself with asking someone in his office whether any new information
that had come in from Beirut and with the expectation that those people coming to his office would know what was going on and would
tell him if anything out of the ordinary had happened.[251]
Lieutenant-General Eitan
- The Commission found that in his capacity as Chief of Staff Lieutenant-General Eitan (along with the Defence Minister) had approved
the operation permitting the Phalangists to enter the camps. The Kahan Commission found liability on the part of the Chief of Staff
for, firstly not taking steps to ensure the safety of the civilians within the camps and, secondly, for not putting in place procedures
to allow him to receive ongoing and adequate information regarding the operation.[252]
Further, the Commission found, as a matter of fact, that an officer, junior in rank to the Chief of Staff had ordered a halt to the
Phalangist operation in the camps, however, this order was in effect countermanded notwithstanding information given advising of
allegations murders.[253]
Specifically, the Commission in its report noted:
The Chief of Staff was well aware that the Phalangists were full of feelings of hatred towards the Palestinians... On a number of
occasions, the Chief of Staff had harsh and clear-cut things to say about the matter of fighting between the factions and communities
in Lebanon, and about the concept of vengeance rooted in them:...
The absence of a warning from experts cannot serve as an explanation for ignoring the danger of a massacre. The Chief of Staff should
have known and foreseen -- by virtue of common knowledge, as well as the special information at his disposal -- there was the possibility
of harm to the population in the camps at the hands of the Phalangists...
If the Chief of Staff did not imagine at all that the entry of the Phalangists into the camps posed a danger to the civilian population,
his thinking on this matter constitutes a disregard of important considerations that he should have taken into account.[254]
- The clear judgment of the Commission was that the Chief of Staff had both breached his duty as well as had been derelict in the same.
This was based, in large part, on the finding that he had a positive obligation to inquire as to whether or not criminal acts were
taking place within the camps, and that if he was not satisfied that they were not taking place, or had not been taking place, that
he was under a positive obligation or duty to prevent any possible continuation of the same. The Commission noted in this particular
area that not only had the Chief of Staff disregarded information of atrocities, he had provided additional logistical support to
the Phalangists in the camps.[255]
Amir Drori
- The Commission ruled that in his capacity of the commander of the forces in the area, General Drori had contemplated potential criminal
acts being perpetrated by the Phalangists. He further had received reports from subordinates in his overall command that the civilians
in the refugee camps would be at risk. It was General Drori who, at first instance, had ordered the Phalangists to cease their operations
in the camps. The Commission further accepted evidence that the General had not been specifically informed that civilians were being
killed by the Phalangist in the camps.[256]
- However, fault was found with his conduct in that he failed to pursue information he had received with reference to the Phalangists
with whom he was dealing, and, that he further did not pursue the issue forcefully enough with the Chief of Staff. Rather, after
being rebuffed by the Chief of Staff, General Drori left the issue, and in so doing, the Commission found that the same amounted
to 'disengagement', and in turn this constituted a breach of duty.[257]
Yehoshua Saguy
- It is generally accepted that within the military, intelligence is a staff function. While intelligence officers are structured within
their own chain of command, they usually provide information, assessments, and from time to time recommendations to field or other
commanders. In his capacity as the Israeli Director of Military Intelligence, General Saguy provided the series of assessments regarding
the overall Israeli military operation in west Beirut. The Commission found that General Saguy had a duty to warn both military
as well as civilian officials of the potential danger of Phalangist activity, particularly with reference to retribution or revenge
and that he failed to do so.[258]
- The Commission found that General Saguy had breached his duty, not by action, but by 'inaction.' The General had a duty to issue detailed
assessments of the risks involved in the Phalangist undertaking and to identify the potential outcome of such an action. The Commission
was further, in this particular case, critical of the credibility of the General. It was recommended that General Saguy be fired
for having breached his clear duty in preparing and the delivery of a clear assessment of Phalangist actions. While the Commission's
report does not detail the specific duties incumbent upon the Director of Military Intelligence, nevertheless, in this case of significance
is the comment:
...In our opinion it was a duty of the Director of military intelligence, as long as he occupies his post, to demonstrate alertness...
to demand an appropriate clarification, and to explicitly and expressly warn all those concerned of the expected danger even prior
to the receipt of a report on Friday, and certainly after receipt of that report. The feeling his words would not receive sufficient
attention and be rejected does not justify total inaction. This inaction constitutes a breach of duty incumbent on the Director
Of Military Intelligence in this capacity.[259]
Yehuda Meir
- As a footnote to the Kahan Commission, and perhaps reflective of the impact that the same had, the case of Colonel Yehuda Meir merits
attention. In January of 1988, and subsequent to a public statement made by the (then) Israeli Prime Minister, Yitzhak Rabin, to
the effect that there was a need to 'break the bones of Intifada rioters' Colonel Meir gave orders to his subordinates that Arab
males from two West Bank villages were to be taken and beaten. One of Meir's subordinates passed on this order to his men, but at
the same time that he (the subordinate) did not require compliance with the order. Some of the men did not carry out the order,
while others did.[260]
Colonel Meir was not present when the beatings took place, although, there was no issue that he was the superior officer, with command
authority, in this area
- Initially, after an investigation prompted by the international Red Cross, the Colonel was subject to initial internal discipline,
however, no criminal sanction was applied. Subsequent public pressure caused the case to be reopened and the Israeli High Court
ordered that in military tribunal be struck to deal with this matter. The Court, in particular, ordered that the charges include,
"torture, intentionally causing bodily harm, grievous assault -- all, incidentally, grave breaches of the Geneva Conventions".[261]
Part of the order directing the special military tribunal contains the comment:
These actions offend every civilized person, and
no lack of clarity can cover it up. Certainly, if such an order is given by a senior officer, that officer must be aware that the
morality of the Israeli Defence Forces forbids such behaviour.[262]
- In his defence, he pleaded that he was acting in accordance with his understanding (emphasis) of orders given by his superiors. This
argument was rejected by the Tribunal on the basis that neither militarily nor civilian officials had given orders to 'break bones'.[263]
Not only was Colonel Meir convicted by this special military tribunal, but, as well, a number of officers and soldiers who had carried
out this order were convicted of crimes notwithstanding their defenses of 'superior orders'.[264]
- Canadian judges, in one forum or another, have, since 1990, considered the doctrines of command responsibility, and superior orders
on at least three locations. One of these was a determination in the Supreme Court of Canada.[265]
the second a decision by the Canadian Court Martial Appeal Court[266]
and the third, a Commission of Inquiry subsequent to the 1992 deployment of Canadian Forces into Somalia.[267]
Imre Finta
- The facts in this case date back to a series of incidents that took place in Hungary in 1944. At all material times Finta was an
officer in a paramilitary police force and participated in the forced removal of several thousand Jews to concentration camps, and
subsequently to their deaths. The evidence, at trial, was to the effect that that while they were certain anti-Jewish measures in
place before the Nazi occupation of Hungary the same were greatly accelerated after the German occupation. The evidence showed there
should be removal of the Jews came about as a result of, and direction from the Ministry of the Interior (the Baky order) however
there was never, in Hungary, a specific statute or decree promulgated authorizing this action.
- Finta was convicted in absentia by a Hungarian Court in 1947-1948. Subsequent to the same, Finta was one of the beneficiaries of
the general amnesty given in Hungary. Finta emigrated to Canada in 1951 and in 1956 became a Canadian citizen. He was subsequently
charged in Canada with the commission of 'crimes against humanity" and was tried before, initially, a court composed of judge and
jury. He was acquitted at trial. The Crown (prosecution) subsequently appealed that acquittal to the Ontario Court of Appeal, which
upheld that acquittal, and the matter was then brought before the Supreme Court of Canada.[268]
- While the Supreme Court of Canada dealt with a number of technical issues surrounding the charges against the accused, and the subsequent
trial, attention was also given to one of the defences raised at trial, 'superior orders'. In its summary regarding the availability
of the defence of superior orders the judgment notes:
The defence of obedience to superior orders and the peace officer defence are available for members of military or police forces
in prosecution for war crimes and crimes against humanity. The defences are subject to the manifest illegality test. That is to
say, the defences will not be available when the orders in question were manifestly unlawful. Even where the orders were manifestly
unlawful, the defence of obedience to superior orders and the peace officer defence will be available in those circumstances were
the accused had no moral choice as to whether to follow the orders. That is to say, there was such an air of compulsion and threat
to the accused that the accused had no alternative but to obey the orders. As an example, the accused could be found to have been
compelled to carry out the manifestly unlawful order in circumstances were the accused would be shot he or she failed to carry out
the orders.[269]
Another portion of the decision is helpful and germane when it comments:
The manifest illegality test has received a wide measure of international acceptance. Military orders can and must be obeyed unless
they are manifestly unlawful. When is an order from superior manifestly unlawful? It must be one that offends the conscience of
every reasonable, right thinking person; it must be an order which is obviously and flagrantly wrong. The order cannot be in a gray
area or be merely questionable; rather, it must be blatantly and obviously wrong.[270]
- This Court, however, at the same time, took a somewhat unusual position by noting that where the situation is so outrageous that it
would not be reasonable to permit the defence of superior orders to be used at all. In this regard the Supreme Court of Canada accepted
the rationale of the Israeli court and noted:
That there is nothing unfair in not permitting superior orders as a defence where the act is 'manifestly unlawful' is evident when
one considers the nature of the manifestly unlawful order as it appears in Ofer v Chief Military Prosecutor ( the Kafr Qassem case
[Appeal 279-283/58, Psakim Judgments of the District Courts of Israel), vol. 44 at p 362] cited in appeal before the A Military
Court of Appeal, Pal. Y. B. Int'l L. (1985) vol. 2 p.69 at 108 where the Military Court of Appeal approved the following judgment:
The identifying mark of a 'manifestly unlawful' order must waver like a black flag above the order given, as a way of saying, ' forbidden'.
It is not unlawfulness, hidden or half-hidden, not unlawfulness that is detectable only by legal experts, that is important issue
here, but an overt and salient violation of the law, a certain and obvious unlawfulness that stems from the order itself, the criminal
character of the order itself or the act it demands to be committed, and unlawfulness that pierces the eye and agitates the heart,
if the eye be not blind or the heart corrupt. That is the degree of 'manifest' illegality required in order to annul the soldier's
duty to obey and render him criminally responsible for his actions.[271]
- In this case, because the defendant pleaded he was responding to an order, albeit one that was without legislative promulgation, the
Supreme Court of Canada observed:
The defence of obedience to de facto law is not the same as obedience to superior orders. Although at times, the superior orders
which a soldier receives becomes part of the domestic legal system, this would not change the nature of the order as far as a soldier
was concerned. He or she would be obliged to follow the order unless it was manifestly unlawful. Thus, the removal of the other
basic right to claim obedience to de facto law does not affect the defence to superior orders.[272]
- A reading of the case seems to suggest, as well, that the lower the individual accused is in the overall chain of command, a higher
the degree of pressure he is under, and, therefore, the greater likelihood to succumb to superior orders.
Anthony Seward
- Anthony Seward a former Major in the Canadian Forces was the 'Officer Commanding' the 2 Commando[273]
a constituent unit of the (now disbanded) Canadian Airborne Regiment during its deployment to Somalia as part of a peacekeeping mission
in 1992.
- During the deployment of this unit, looting and pilfering of Canadian kit was an ongoing problem. Seward allegedly had given an order
that Somalis caught in the Canadian camp were to be abused. A Somali unarmed captured infiltrator had been taken to a bunker where
two enlisted soldiers beat him to death.
- Seward was originally charged with unlawfully causing bodily harm and with the negligent performance of a military duty. At court
martial, he was acquitted of the first charge, but was convicted on the second, the substance of which dealt with orders given to
the effect that it was permissible to abuse prisoners captured while looting within the Canadian camp. While there was substantial
discussion as to what was entailed in the term 'abuse' the judgment is clear that Major Seward had used that word.[274]
The appeal case report dealt not so much with the conviction on the failure to perform the military duty, but rather on prosecution's
argument that the original sentence (reprimand) was totally inadequate.
- This judgment is critical of the instruction given to the panel at the court martial. In particular is the comment by Justice Strayer:
In my view this was a serious defect in the instruction by the Judge Advocate to the panel. In this respect, he did not, I believe
have adequate regard to the stated particulars of the offence upon which the respondent had just been convicted: namely that he had
negligently performed a military duty in that he ... by issuing an instruction to his subordinates that prisoners could be abused,
he failed to properly exercise command over his subordinates, as it was his duty to do so.
This count addressed a failure in command.
The evidence when interpreted reasonably gained in a way most favorable to the respondent amply demonstrates that this failure resulting
in, at best, confusion... and must be taken to have ultimately lead to excesses by some of the respondent's subordinates. This not
only contributed to the death,... but also contributed to several members of the Canadian Armed Forces committing serious lapses
of discipline...[275]
- The judgment reflects that even though Seward did not participate in the actual physical incident, the fact that he nevertheless gave
a dangerously ambiguous order and then repeated the same when he was queried about it. The judgment reflects that commanding officers
have greater responsibility and are expected to meet higher standards of care than their subordinates.[276]
The judgment further noted that where difficulties in morale and discipline are to be considered, that the giving of orders (by a
superior) must be done with particular care.[277]
The judgment also refers to the fact that any penalty imposed on a (commanding or superior) officer must also act as a deterrent
to prevent others from meeting their (command) responsibilities.[278]
Commission of Inquiry
- In 1995 the Government of Canada established what was to have been an independent commission of inquiry to undertake a full investigation
into the deployment of Canadian Forces in Somalia in 1992. During its proceedings the Inquiry Commissioners, in addition to their
own independent research and inquiries heard evidence from a number of witnesses regarding the state of command structure within
the Canadian army, and, in particular with the issues of discipline within the units that constituted the overall Canadian force
deployed to Somalia. This inquiry body never completed its mandate, but rather was abruptly terminated during the course of its hearings
into incidents that took place in Somalia. However, and notwithstanding the many criticisms leveled against both the Commission
of Inquiry (for the manner in which its hearings were undertaken) and the Government of Canada (for unilaterally and without precedent)
terminating this independent investigation certain fundamentals regarding the nature of command and responsibilities attendant thereto
were made.
- In describing chain of command, and responsibilities as to the same, the Commission's report noted:
The chain of command is an authority
and accountability system linking the office of the Chief of the Defence Staff to the lowest level.... and back again. It is also
the hierarchy of individual commanders who make decisions within their connected functional formations and units. The chain of command
is intended to be a pre-emptive instrument of command leaving the commander to actively seek information, give direction, and oversee
operations. It is a fundamental aspect of the structure and operation...and ensuring it soundness is therefore a proper and responsibility of command.[279]
- Striking in its criticism was the conclusion that many senior officers including the general commanding[280]
the LFCA[281]
were 'ignorant of the state of fitness and discipline' in the main army unit that was deployed to Somalia.[282]
The trend in many of the decisions of various courts and tribunals is the positive obligation on the part of commanders at all levels
to be aware of either existing or potential problems with their subordinates. The Somalia Inquiry was critical of the fact that
commanders at senior levels reflected a systemic lack of knowledge of serious defects that affected the overall discipline of units
under their command.[283]
- Pursuant to Security Council Resolution[284]
No.780 a Commission of the Experts was established to investigate "grave breaches of the Geneva Conventions and other violations
of international humanitarian law' in the Balkans.[285]
This Commission made approximately thirty-five field trips to the area and discovered a number of mass graves and as well conducted
an intensive series of investigations concerning allegations of rape and other offences. Notwithstanding the fact that the Commission
of Experts did not fully complete its work, as a consequence of the delivery of it's first interim report, the Security Council passed
Resolution 808 which provided for the establishment of an international criminal tribunal to deal with the prosecution of persons
who may have committed 'serious violations of international humanitarian law' in what was now the former Yugoslavia.[286] The Tribunal was empowered to deal with any individual, including heads of state, who were alleged to have committed violations of
international humanitarian law[287]
- In July 1994 pursuant to Security Council Resolution No 935,[288]
a commission of experts was created and mandated to undertake investigations regarding allegations of activities including genocide
and violations of international humanitarian law in Rwanda. The work of this committee was only a fraction of the work done by the
commission of experts established to look at alleged violations of international humanitarian law in the former Yugoslavia, but nevertheless,
it's report was the foundation that permitted the establishment of the Rwanda Tribunal pursuant to United Nations Security Council
Resolution No 955.[289]
While the Rwanda Tribunal statute was in large part in a mirror image of the statute of the Yugoslav Tribunal, nevertheless, the
prosecutions that were undertaken by the Rwanda Tribunal were based on violations of 'Common Article 3' of the 1949 Geneva Conventions
and, as well, of violations of Additional Protocol 2.[290]
- On May 25th, 1993, and subsequent to Resolution 808, the Security Council adopted Resolution 827 that enacted the statute of the Tribunal
(ICTY).[291]
Article 7 of the Statute addresses the issue of individual criminal responsibility as follows:
- 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.
- 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.
- 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 such necessary and reasonable measures to prevent such acts or to punish the perpetrators
thereof.
- The fact that an accused person acted pursuant to a 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 the justice so requires.[292]
Pilica Farm
- One of the earliest discussions of command responsibility, and its corollary, superior orders took place in 1996 when the ICTY considered
the case of one Drazen Erdemovic.[293]
a Croat, who initially entered a plea of guilty to the murder of a number of civilians.[294]
During the month of July, 1995 Erdemovic had participated in the mass murder of a number of Muslims taken prisoner as a result of
the Serb attack at Srebrenica. At the original sentencing hearing he pleaded that he was told to either participate in the killings,
or, he could get in line with the victims.[295]
As well as saying that he believed this threat to be real he was also in fear for his family if he did not participate.[296]
- At first instance the Tribunal considered whether or not his claim of duress would in any way impact on the plea of guilty that he
entered.[297]
The conclusion of the Trial Chamber, at first instance, was to the effect that the order that Erdemovic had received was absolutely
illegal and that he was duty-bound to refuse to follow the same.[298]
However, in noting that Erdemovic did not occupy any position of authority that 'superior orders' could be considered in mitigation.[299]
- The matter was then brought to the Appeal Chamber to consider, primarily, the issue of the voluntariness of the original guilty plea.[300]
Two of the members of the Appeal Chamber commented that there was a clear difference between 'superior orders' and the claim of 'duress'.[301]
The Appeal Chamber, in its judgment made two important findings; firstly, that in a case such as this 'superior orders' would not
be a defence[302]
but also that a claim of 'duress' could be advanced independent of any claim of superior orders being given and\or followed.[303]
The case was referred back to the Trial Chamber for a re-hearing on sentence only.
- At the subsequent sentencing hearing[304]
the Tribunal found, as a matter of fact, that at the time Erdemovic committed the murders he had been, himself, threatened with death.[305]
However, the Trial Chamber held that it was bound by the findings of the Appeal Chamber and ruled that in a case where an accused
was charged with offences such as the killing of innocents, that duress was not a defence, but, rather was one of the considerations
to be taken into account when sentence was passed.[306]
Celebici Camp
- The issue of command responsibility was dealt with, in detail, by the ICTY in the case surrounding incidents that took place at the
Celebici prison camp that was located in central Bosnia. This was a camp used for the confinement of Serbian prisoners. During
1992, subsequent to the attacks by both Bosnian Croat and Muslim forces trial evidence[307]
demonstrated that Serb prisoners at this camp were subject to physical and mental abuses and numerous prisoners had been killed.
- It was alleged that one Zejnil Delalic, as the military commander in this area had authority over the camp. He, along with two (of
the three remaining) defendants faced charges under the doctrine of command responsibility. This case was the first opportunity
for any international tribunal or court to address the issue of command responsibility since World War II. The Tribunal held that
fundamental to any allegation of command responsibility was the requirement of proof that a superior-subordinate relationship existed.
This relationship must clearly exhibit the capacity of the superior to effectively exert control over the subordinate.[308]
- The Tribunal had identified what was described as 'direct' command responsibility and 'indirect' command responsibility. In the former,
the Tribunal found that the same could come about as a result of a positive act, while the latter could come about as a result of
a failure or omission to undertake a necessary act.[309]
- The Tribunal took specific note of the fact that command responsibility may attach to the actions of individuals where formal organisation
structures, including military chains of command, have broken down or are 'ambiguous and ill-defined'.[310]
The Tribunal observed:
... that persons effectively in command of such more informal structures, with power to prevent and punish crimes of persons who
are in fact under their control, may under certain circumstances be held responsible for their failure to do so. Thus the Trial
Chamber accepts the Prosecution's proposition that individuals in position of authority, whether civilian or within military structures,
may incur criminal responsibility under the doctrine of command responsibility on the basis of their de facto as well as de jure
position as superiors. The mere absence of formal legal authority to control the actions of subordinates should therefore not be
understood to preclude the imposition of such responsibility.[311]
- The Tribunal particularly addressed the issue of potential culpability attaching to non-military (civilian) superiors[312]
and relied upon World War II decision in the Roechling[313]
to include the doctrine of superior responsibility, in Article 7(3) of the ICTY Statute as it applied to civilian or a non-military
personnel in positions of superior authority.[314]
- The Tribunal elaborated in commenting that a superior may be exposed to culpability on the basis of de facto authority so long as
the individual has the fundamental power to control the acts of subordinates.[315]
The Tribunal judgment then notes:
...A duty is placed on the superior to exercise this power so as to prevent and repress the crimes committed by his subordinates,
and a failure by him to do so in a diligent manner is sanctioned by the imposition of individual criminal responsibility in accordance
with this doctrine.[316]
- The Tribunal, in the Celebici case, unlike the Tribunal in Yamashita held that the standard of liability (for failing to prevent or
punish criminal acts committed by subordinates) is based on whether the superior either knew, or in the alternative, had reason to
know of the criminal acts. The tribunal specifically acknowledged the standard from Yamashita as holding that the law imposed upon
an army commander the duty to take the appropriate measures within his power to control the troops under his command for the prevention
of acts in violation of the laws of war, and whether he may be charged with personal responsibility for the failure to take such
measures when violations result.[317]
- Further, the Tribunal referred approvingly to the case of Toyoda" and accepted from it:
In the simplest language it may be said that
this Tribunal believes that the principle of command responsibility to be that, if this accused knew, or should by the exercise of
ordinary diligence have learned, of the commission by his subordinates, immediate or otherwise, of the atrocities proved beyond the
shadow of the doubt before this Tribunal or of the existence of routine which would countenance such, and by his failure to take
any action to punish the perpetrators, to read the atrocities to continue, he has failed in his performance of his duty as a commander
and must be punished.[318]
- This knowledge was relevant to acts of subordinates that were about to be committed or that had been committed.[319]
The Tribunal, in addressing from Article 7(3), the standard of 'had reason to know' was very clear that a superior would not be permitted
to remain 'willfully blind' to the (criminal) acts of subordinates.[320]
The judgment of the Trial Chamber said:
There can be no doubt that the superior who simply ignores information within his actual possession compelling the conclusion that
criminal offences are being committed, or are about to be committed, by his subordinates commits a most serious dereliction of duty
for which he may be held criminally responsible under the doctrine of superior responsibility.[321]
- In clarifying the concept of liability attaching to superior for the (criminal) acts of subordinates the Trial Chamber noted that
those in a position of superior authority were obliged (only) to take "all necessary and reasonable measures to prevent the commission
of offences by their subordinates or, if such crimes had been committed, to punish the perpetrators thereof".[322]
The judgment reflects, in this regard, what may be considered a form of 'reasonable man' or 'reasonable commander' standard in the
observation that international law "cannot oblige the superior to perform the impossible".[323]
In particular the judgment observes:
... a superior may only be held criminally responsible for failing to take such measures that are within his powers. The question
then arises of what actions are to be considered within the superior's powers in this sense. As the corollary to the standard adopted
by the Trial Chamber with respect to the concept of superior, we conclude that the superior should be held responsible for failing
to take such measures that are within his material possibility.[324]
- The judgment reflects that the Trial Chamber considered, albeit briefly, the issue of possible connection between the failure of the
commander to punish past criminal acts of subordinates and the fact that future crimes of the same nature were either possible or
likely. The Trial Chamber succinctly noted: "...The very existence of the principle of superior responsibility for failure to punish,
is therefore, recognized under Article 7(3) and customary law, demonstrates the absence of requirement of causality as a separate
element of the doctrine of superior responsibility."[325]
- The Tribunal acquitted Delalic, but convicted Mucic. The Trial Chamber reviewed the evidence and found that Delalic had no real authority
over the camp, its commander, or any of its personnel, and consequently he could attract no culpability.[326]
The judgment reflects an examination of the rules and responsibilities of Delalic and concluded that he exercised neither command
nor informal authority over the camp.[327]
Where evidence had been tendered that Delalic had issued certain orders to the commander of the Celebici camp, the Trial Chamber
found that this was done as an intermediary for others and that he had no authority, of his own accord, to issue such orders.[328]
- The Trial Chamber, in convicting Mucic, directed attention to the actual exercise of authority, irrespective of whether or are not
a formal appointment had been made. It held:
It will observed that whereas formal appointment is an important aspect of the exercise of command authority or superior authority,
the actual exercise of already in the absence of formal appointment is sufficient for the purpose of incurring criminal responsibility.
Accordingly, the factor critical to the exercise of command responsibility is the actual possession, or non-possession of powers
of control over the actions of subordinates. Hence, where there is de facto control and actual exercise of command, the absence
of de jure authority is irrelevant to the question of the superior's criminal responsibility for the criminal acts of his subordinates.[329]
- As a matter of general principle, and specifically germane to the finding of fact regarding Mucic, is the statement in the judgment:
It seems inescapable, from the testimonial of all the detainees, that they acknowledged...Mucic as the prison-camp commander. The
detainees came to this conclusion because Hazim Delic called him commander, or because Mr. Mucic introduced himself as commander
or because his behaviour towards the guards was that of a commander. The Trial Chamber considered the last of these factors most
significant for the purposes of ascribing superior authority. Concisely stated, everything about Mr. Mucic contained the indicia
and hallmark of a de facto exercise of authority. Even in the absence of explicit de jure authority, a superior's exercise of de
facto control may subject him to criminal liability for the acts of his subordinates. Where the position.... manifests all the
powers and functions of that formal appointment, it is idle to pretend otherwise.[330]
- The Trial Chamber accepted evidence of prisoners, and others, as to how Mucic had conducted himself. It took particular cognizance
of the fact that Mucic had authority to determine which prisoners would be released or transferred to other prisons.[331]
Further, the Tribunal found, as a matter of fact, that he had authority over the guards at the camp.[332]
The judgment is clear in its findings that Mucic, in his role as commander of the Celebici prison had knowledge of the various criminal
acts committed by his subordinates[333]
and that he did nothing to halt the same[334]
- In addition, the Trial Chamber observed that this defendant "by means of deliberate neglect to his duty to supervise his subordinates,
thereby enabling them to mistreat the detainees in the Celebici prison-camp, had been imputed with the knowledge of their crimes".[335]
Music appealed his conviction and, in affirming the decision below, the Appeal Chamber commented:
As long as a superior has effective
control over his subordinates, to the extent that he can prevent them from committing crimes or punish them when they have committed
crimes, he will be held responsible for the commission of the crimes if he fails to exercise such abilities of control.[336]
- In summary, the Trial Chamber in this case stated the three basic elements required to establish individual criminal responsibility
in the concept of command responsibility. They are; the existence of a superior-subordinate relationship; that the superior either
knew or had reason to know that the criminal act was about to be committed or had been committed, and; the superior failed to take
the necessary and reasonable measures to either prevent the criminal act from taking place or to punish the perpetrators.
Lasva Valley:
Zlatko Aleksovski
- In July 1999 Trial Chamber I issued its decision in one of the 'Lasva Valley' trials, in this matter, particularly, the Kaonik prison[337]
In canvassing the issue of command and the responsibility attached thereto, the Trial Chamber observed that authority did not necessarily
require an official or de jure appointment. In this case evidence was accepted that the accused had referred to himself as the 'warden'
of the camp and, further, that others in political authority held the belief that he held that office[338]
that is he was the warden.
- For purposes of this decision it did not appear to be of great relevance or difference whether Aleksovski was a member of the military
or whether he was a civilian. Rather, what the Trial Chamber examined was the manner in which the accused had conducted himself.
In this case, it was found, as a matter of fact, that he was carrying on as the de facto commander of the prison camp.[339]
Further, the judgment reflects the finding that members of the military police that were as well, functioning as guards at this facility
were under the 'effective' control of the accused.[340]
This line of reasoning clearly followed the line of reasoning as demonstrated in the Delalic trial. Aleksovski was convicted.
Tihomir Blaskic
- The decision of the ICTY in the Blaskic case[341]
is of import in that it both elaborates as well as clarifies some of the issues surrounding command responsibility. It is of note
that this judgment makes specific reference to the earlier Delalic and Aleksovski cases.
- At all material times this defendant was an officer holding the rank of general and was the commander of the Croatian military headquarters
in central Bosnia. Commencing in 1992 the Croatian Armed Forces had undertaken a deliberate campaign of harassment of the Muslim
civilians in the Lasva Valley. This escalated and by mid April of the following year General Blaskic had issued orders that forces
under his command were to enter, amongst other places, the village of Ahmici in anticipation of an attack by Muslim forces. During
the attack\occupation of the villages large numbers of unarmed civilians were killed and property, including schools and places of
worship were destroyed.
- The Tribunal accepted as a matter of principle the earlier statement from the Celebici decision that
In order for the principle of
superior responsibility to be applicable, it is necessary that the superior have effective (emphasis) control over the persons committing
the underlying violations of international humanitarian law in the sense of having the material ability to prevent and punish the
commission of these offences.[342]
- In addition, the Blaskic judgment clarifies the above by noting that insofar as a commander has effective control of subordinates
not formally under his control or in his chain of command he may still be found culpable criminally for crimes committed by them.[343]
Further, and in addition, the Tribunal held that the test of effective control of a commander over subordinates is such that more
than one person could be held culpable for the offences committed by a subordinate.[344]
- While this Trial Chamber acknowledged that knowledge (of criminal conduct by subordinates) may not be presumed upon the commander/superior[345]
nevertheless such knowledge may be proved through direct evidence, circumstantial evidence, or presumably a combination of either.[346]
The judgment, in this regard, reflects the type of evidence that the court would deem of significance[347]
Of further note is the statement almost amounting to a presumption: "... an individual's command position per se is a significant
indicium that he knew about the crimes committed by his subordinates."[348]
- The Tribunal then considered the requisite standard to be met in establishing the 'duty to know' on the part of the commander or superior[349]
The judgment notes that since World War II a commander could be found liable for the criminal acts of subordinates if he failed to
exercise the means available to him to learn of the offence that under the circumstances he should have known, and such failure to
know constitutes criminal dereliction.[350]
This is a clear statement of the positive obligation on the part of a commander. In accepting the principle addressed on this subject
in the Commentary on Additional Protocol I, the judgement recites:
- Given the essential responsibilities of military commanders under international humanitarian law, the Trial Chamber holds, again in
the words of the Commentary, that "[t]heir role obliges them to be constantly informed of the way in which their subordinates carry
out the tasks entrusted to them, and to take necessary measures for this purpose.[351]
- The judgment clarifies by setting a standard of 'due diligence' on the part of the commander. So long as he has exercised that standard
(due diligence) no criminal culpability would attach for the lack of knowledge of acts either committed or to be committed by subordinates.[352]
In holding, in effect, that each case must be decided on its own merits the Tribunal said:
However, taking into account his particular
position of command and the circumstances prevailing at the time, such injuries cannot be a defence with the absence of knowledge
is the result of negligence in the discharge of his duties: this commander had reason to know within the meaning of the Statute.[353]
Dario Kordic and Mario Cerkez
- This is the last of the Lasva valley cases to be commented upon. It is to be noted that at all material times Kordic was a civilian,
while Cerkez commanded a brigade in the Croatian armed forces. By way of brief background Kordic was a member of the Croat community
within Bosnia, and rose through the ranks of that community's political party eventually becoming a village president and then
a national vice-president of the Croat political party. It was the goal of that political movement to establish a separate Croat
community within Bosnia. Cerkez was a founder of one of the Croat military units and rose to the rank of Brigade Commander.
- In large part this case is intertwined with the Blaskic case as it pertains to the planning and implementation of the Croat takeover
of the Lasva Valley. The Tribunal after reviewing the history found that in1992 as the Croat forces took over villages in the valley
that Kordic demonstrated both military as well as political authority, and that by the end of the year, 1992, that Kordic had acquired
substantial military as well as civilian authority. It is of note that while the Trial Camber could not determine the precise position
that he held in the overall structure, nevertheless, based on a number of factors he did have a position of authority.[354]
The judgment notes:
These were not normal times and the fact that the accused assumed a uniform (as many others did) does not mean that he had a military
role. Nor, by itself, does the fact that he was called "Colonel". However, these facts, together with his involvement with the
issue of orders, the presence of security guards around him ant the facts already found by the Trial Camber, allow it to draw the
inference that Dario Kordic by this time combined political authority in Central Bosnia (as leader of the Bosnian Croats in the Lasva
Valley) with military authority. This latter authority did not involve a formal rank, but a position which he had won for himself
by his energy, character and commitment to the Croatian cause. Accordingly, a precise position in the chain of command cannot be
ascribed to him, For instance, it is not suggested that he had power to punish or discipline troops. However, the Trial Chamber
is satisfies that by this time Dario Kordic had a role which was at least consultative in relation to the Commander of the CBOZ,
Colonel Blaskic.[355]
- This Trial Chamber then focused on the application of both Article 7(1) and Article 7(3) and reminded, referring to earlier decisions
that they create two separate offences.[356]
The judgment reminds that Article 7(1) directs attention to those directly responsible for planning, ordering committing, or aiding
and abetting in the planning, preparation of a crime.[357]
Culpability would attach under Article 7(1) in the case where a political leader creates a plan and passes it on personally[358]
and it is of no difference if the individual who creates this plan is a civilian or in the military.[359]
Either positive and/or negative acts may constitute the act of instigation[360]
and although it is necessary to show that, for example the contribution of the accused had an effect on the commission of the offense.[361]
it does not have to be demonstrated (to the criminal standard) that but for the accused's involvement the act would not have been
committed.[362]
- The judgment is clear that there does not have to a formal superior-subordinate relationship for a finding of fact that an accused
had 'ordered' that a crime (or course of conduct amounting to a crime) be undertaken.[363]
Further, agreeing again with the earlier decision in Blaskic the judgment holds that the order does not have to be a 'formal' order
as such, or be in a particular form[364]
and that proof of the order being made or given can be established by circumstantial evidence.[365]
The judgment also reflects the opinion that the order in question need not be given to the individual (presumably a subordinate)
to constitute the offence under Article 7(1) being committed.[366]
Of importance to a finding of culpability or guilt, for an offence contra Article 7(1) is whether or not the superior individual
had the requisite mens rea (intent) and not the intent of the (subordinate) individual(s) committing the act.[367]
- However the Trial Chamber then went on to consider, for purposes of a possible finding of culpability under Article 7(1) the distinction
between the mens and the actus. Referring back to Tadic, the Trial Chamber in Kordic, noted that for a finding of an actus, there
must be firstly a 'plurality of persons'.[368]
Secondly, that there must be in existence a common plan, design or purpose which amounts to or involves the commission of a crime
provided for in the (ICTY) Statute[369]
and thirdly that there is (actual) participation on the part of the accused in that common design.[370]
- The trial Chamber took particular cognizance that the essential element was the intent to participate.[371]
In addition if an accused was to be found culpable for a crime other than the crime that he may have specifically agreed to, it must
be demonstrated that, firstly it was foreseeable that such a crime would take place, and secondly that the accused willingly took
the risk that such a crime would take place.[372]
Further the Trial Chamber reviewed the forms of responsibility based on participation in a common purpose with 'aiding and abetting'
and enumerated:
(i) The aider and abettor is always an accessory to a crime perpetrated by another person, the principal.
(ii) In the case of aiding and abetting no proof is required of the existence of a common concerted plan, let alone the pre-existence
of such a plan. No plan is required: indeed, the principal may not even know about the accomplice's contribution.
(iii) The aider and abettor carries out acts specifically directed to assist, encourage or lend moral support to the perpetration
of a certain crime (murder, extermination, rape, torture, wanton destruction of civilian property, etc.), and this support has a
substantial effect upon the perpetration of the crime. By contrast, in the case of acting in pursuance to a common purpose or design,
it is sufficient for the participant to perform acts that in some way are directed to the furthering of the common plan or purpose.
(iv) In the case of aiding and abetting, the requisite mental element is knowledge that the acts performed by the aider and abettor
assist the commission of a specific crime by the principal. By contrast, in the case of common purpose or design more is required
(i.e., either intent to perpetrate the crime or intent to pursue the common criminal design plus foresight that those crimes outside
the criminal common purpose were likely to be committed) as stated above.[373]
- In contrast to Article 7(1), and in directing attention to the issue of individual criminal responsibility for a superior to be held
culpable for the criminal acts of a subordinate, the Trial Chamber in Kordic again noted there must be; (i) a superior-subordinate
relationship between the accused superior, and the subordinate who actually commits the criminal act, (ii) that there is some mental
element or knowledge on the part of the superior that the subordinate either is about to or has already committed the criminal act
in issue, and (iii) that there was a failure on the part of the superior in halting the commission of the act by the subordinate,
or that the superior failed to punish the subordinate who had committed the act.[374]
- This Trial Chamber then offered further examples of indicia of the various elements of superior authority. While actual or formal
appointment is instructive, nevertheless the position of authority is dependant on the 'reality of the authority' of the individual
in question.[375]
It is of significance whether the individual in question had the 'capacity' to issue or sign orders. There is a difference between
the issuance and/or the signing of orders and the actual capacity regarding the same. It is to be noted that the Trial Chamber considered
that an individual's signature on a document such as a release order was demonstrative of authority, but at the same time it was
also possible that the signature may have lacked the actual authority to order, but rather be a formality or an implementation of
a decision made by another.[376]
- The Tribunal noted that the authority or power must be 'real' for criminal culpability to attach.[377]
The Trial Chamber noted that in the Bosnian conflict de facto authority existed alongside de jure authority, and in some situations
the de facto authority carried greater weight than did the de jure authority.[378]
While a position of superiority by appointment may be of import, nevertheless the Trial Chamber noted that there must also be an
examination of the ability or capacity to effectively exercise' the powers under scrutiny.[379]
The Trial Chamber noted that the 'actual' tasks performed by an individual must be subject to careful scrutiny.[380]
The Trial Chamber commented that, particularly in the case of civilian leaders, the existence of perceived authority or capacity
might not be sufficient to constitute an offence under Article 7(3), as the individual could have only a power to influence without
any subordinate structure.[381]
- It was settled that actual knowledge could be demonstrated by either direct or circumstantial evidence[382]
however the standard of proof may vary according to the situation. The Trial Chamber, by example suggested that the standard of
proof required to prove actual knowledge on the part of a superior in a formal (such as military) chain of command might be lower
than the standard required to attach actual knowledge on the part of a de facto commander.[383]
In considering imputed knowledge however the matter is more complex. The imputed knowledge or concept of 'had reason to know' on
the part of the superior may be determined by whether or not the superior was in possession of sufficient information to allow him
to be put on notice of the 'likelihood' of criminal acts being committed by subordinates.[384]
- Lastly, in the Kordic case, the Trial Chamber considered, as had other Chambers, the failure on the part of a superior to take the
necessary and reasonable steps to punish a subordinate. This Trial Camber did not attach a duty of strict liability, but rather
held that this duty would be satisfied so long as the superior had used 'every means at his disposal' to either prevent or punish
criminal acts of subordinates.[385]
The judgment reflects an acceptance of the concept that every fact situation must be decided on its own merits.[386]
The judgment reflects that in some instances the superior may not be vested with the actual authority to punish, but that would not
obviate the duty to investigate and then to report (a crime) to the competent authorities.[387]
Further, this obligation (to investigate and report) would apply to civilians as well as to members of the military, but in the case
of civilians, it would also depend upon the effective powers of the civilian and whether or not there was the concomitant ability
to require the competent authority to take action (to investigate and punish).[388]
Miroslav Kvocka, Milojica Kos, Mlado Radic, Zoran Zigic and Dragoljub Prcac
- The trial of these accused[389]
arose out of events that took place, primarily, at the Omarska prison camp subsequent to the attack of Serb forces on the town of
Prijiedor after April 1992. It was the allegation against these accused that they were not only responsible for crimes that they
individually committed, but, also, for crimes of common purpose.
- Trial Chamber I in this judgment considered the applicability of the doctrine of superior responsibility as enunciated in Article
7(3) of the (ICTY) Statute. This judgment expands the doctrine or qualification of superior by noting the superior does not have
to be the actual individual who dispenses punishment on a subordinate, but only that he must occupy or take an important step in
the disciplinary process.[390]
Further this judgment is clear that action is required by the part of the superior from the point in time at which he either knew
or had reason to know that that crimes either were about to be committed, or had been committed by subordinates.[391]
As well, aside from actual information either available or given to the superior, this judgment also notes that in certain cases
a lack of information may be sufficient to require the superior to make further inquiries.[392]
- The judgment notes that the information available to the superior may be in written or oral form[393]
and may be either general or specific.[394]
This judgment describes such information as:
... Information that would make a superior suspicious that crimes might be committed includes plans, behaviour of subordinates or
history of mistreatment. "For instance a military commander who has received information that some of the soldiers under his command
have a violent or unstable character, or had been drinking prior to being sent on a mission, may be considered as having the required
knowledge." Similarly, if the superior has prior knowledge that females detained by male guards in detention facilities are likely
to be subjected to sexual violence that would put him on sufficient notice that extra measures are demanded in order to prevent such
crimes.[395]
Milorad Krnojelac
- The case as against Krnojelac[396]
decided in March 2002 gave the Tribunal the opportunity to again reflect on the issue of command responsibility and the overlaps
between Article 7(1) and Article 7(3) of the (ICTY) Statute. The Trial Chamber found, as a matter of fact, that in his role as either
the warden or acting warden at the prison in the town of Foca, he knew of the various attacks and other abuses by Serbs against non-Serbs.
Further the Trial Chamber found that as the warden of the facility that he knew of the conditions of non-Serbs in the prison, and
the fact that many of them had been subjected to (criminal) abuse.[397]
The Trial Chamber considered both the issues of individual criminal responsibility and superior responsibility as it pertained to
the actions of Krnojelac.
- The judgment first reflects the consideration of the applicability of Article 7(1) of the (ICTY) Statute.[398]
At the outset the Trial Chamber held that an individual has 'committed' a crime when he physically perpetrated the relevant criminal
act or engenders a culpable omission in violation of a rule of the criminal law.[399]
Further there can be more than one perpetrator of the same crime so long as the conduct of each of the perpetrators meets the requirements
of the particular offence.[400]
However the Trial Chamber noted the distinction between the acts of committing a crime and aiding and abetting which is a form of
'accessory liability' to the crime.[401]
One who aids and abets may attract culpability by the acts of giving practical assistance, encouragement, or even moral support,
so long as it is found that there has been a 'substantial' effect on the crime.[402]
- Further, the act(s) in issue could consist of a positive act, or on the other hand, a negative act (omission) done before, during
or even after the principal has committed the criminal act itself.[403]
In describing the necessary intent (mens) required by Article 7(1) of the ICTY Statute[404]
the judgment holds that the 'aider and abettor' need not have the same intent or mens of the actor who commits the crime, but the
'aider and abettor' must have the requisite knowledge that his acts assist in the commission of that (specific) crime by the actor.[405]
The judgment notes that the 'aider and abettor' must have known that the perpetrator of the main crime had the requisite intent.[406]
However, of particular note is the fact that the Trial Chamber opined that the mere presence of the alleged 'aider and abettor' at
the scene of a crime is not conclusive (as distinct from instructive) of an act contra Article 7(1) of the Statute, unless it is
also demonstrated (presumably to the criminal burden of proof), that such presence had the effect of either encouraging or legitimizing
the criminal act being perpetrated.[407]
- The judgment in Krnojelac in canvassing Article 7(3) addressed primarily the first of the three factors in the establishment of criminal
responsibility, as addressed in the other cases, 'the existence of a superior relationship'.[408]
The Trial Chamber addressed the issue that the superior must have 'effective control' over the subordinate[409]
noting that the superior must have the 'material' ability to prevent and (or) punish the commission of (criminal) acts of the subordinate.[410]
The scope of the definition of superior or command responsibility is further characterized by the Trial Chambers dicta:
Depending
on the circumstances, a commander with superior responsibility under Article 7(3) may be a colonel commanding a brigade, a corporal
commanding a platoon, or even a rankless individual commanding a small group of men...[411]
- The authority of the superior may be either permanent or temporary[412]
or may even be on an ad hoc basis[413]
so long as effective control over the subordinate is established[414]
In considering the terms of temporary or ad hoc, the Trial Chamber noted:
...To be held liable for the acts of men who operated under him on an ad hoc or temporary basis, it must be shown that, at the time
when the acts charged in the Indictment were committed, those persons were under the effective control of the particular individual.[415]
- In this case, the Trial Chamber did not accept the defence that his powers as warden of the prison were limited to the handling of
Serb prisoners only. Rather, it found that his position of warden gave him the power over all of the facility, that is the portions
of the prison that housed both Serbs as well as non-Serbs, and further not only did he have the powers of a warden, but as well,
this exercise included his authority over all subordinate personnel and prisoners in the entire facility.[416]
While the Trial Chamber accepted that he did not, for example have the authority to unilaterally order the release of detainees,
he did know that the detention of certain (non-Serbs) was unlawful. The Trial Chamber, while it found the evidence of his participation
in the actual imprisonment did not reach the criminal standard of proof required for a conviction, it nevertheless found that he
'aided and abetted', in the unlawful imprisonment.[417]
- Again, while the Trial Chamber found that Krnojelac knew of the conditions under which a number of the non-Serbs were being imprisoned,
and in addition, while he further knew that his inaction continued these conditions, that nevertheless the evidence tendered did
not meet the criminal standard required for a conviction either as a direct participant, or under the doctrine of superior responsibility.
He was nevertheless convicted of 'aiding and abetting' those involved in the creation or maintenance of those conditions.[418]
- While the Trial Chamber was not prepared to apply the doctrine of superior responsibility to the general concept of imprisonment or
even the living conditions of the non-Serbs, it took a different view when considering allegations of cruel treatment. In this area,
notwithstanding the fact that it did not find that he had not entered into a joint plan to beat or torture non-Serb prisoners, nevertheless
he was culpable under the doctrine of superior responsibility. The chamber found that as warden, he knew of the beatings, and again
as warden of the prison, he did nothing to stop them notwithstanding his positive obligation to do so.[419]
- The Chamber noted that, again, the evidence pertaining to the murders at the prison was not of the level required to allow it to find
that the accused had known, or should have known, that his subordinates were involved in these acts.[420]
Summary
- It is suggested that no judicial body has done as much to clarify and expand the doctrine of command responsibility as the International
Tribunal for the Former Yugoslavia. Its decisions now extend this doctrine from military to civilian officials as well. Culpability
is attachable to those who wield not just de jure control but to those who effect de facto control as well.
- The wielding of influence, as distinct from control, is not sufficient for a finding of criminal culpability alone either as an aider
and abettor or as a superior.
- Fundamental is the factor that there must be a superior-subordinate relationship even if it is not a formal or rigid one, and even
though it may only be of a transient nature. A number of factors may influence the determination of whether control existed, however,
primary to the establishment of control (either de jure or de facto) is the ability on the part of the superior to be able to impose
punishment on the subordinate, or to prevent the criminal act from occurring in the first place.
- Pursuant to Security Council Resolution 955,[421]
the Statute creating in the International Criminal Tribunal for Rwanda (ICTR) was enacted. While the Rwanda Tribunal dealt with
crimes arising out of the conflict of a non-international nature, nevertheless, the operative portion of the Statute dealing with,
superior or command responsibility, Article 6 reflects an uncanny resemblance to Article 7 of the Yugoslavia Tribunal Statute. Particularly,
the article recites:
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 of the 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.
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.[422]
Jean-Paul Akayesu
- While the Akayesu judgment[423]
is most noteworthy for the fact that it was the first of the Rwanda cases that found an accused the guilty of the crime of genocide
(and in this case guilty of crimes against humanity as well) it is nevertheless also significant in its discussion of the concept
of superior responsibility.
- By way of background the accused, Akayesu, was a schoolteacher and not a politician by profession. He was elected in April of 1993,
to the position of 'bourgmestre' for the village of Taba.[424]
The judgment reflects a discussion of both the de jure and de facto powers of the 'bourgmestre'.[425]
- Amongst the formal powers vested in his office was the ultimate authority over, and responsibility for the organisation, function
and control of the local police.[426]
The 'bourgmestre' had only disciplinary jurisdiction over the local police.[427]
His relationship with the local police was akin to that of a Minister of Defence and the High Command of the armed forces.[428]
However, the Trial Chamber also noted an ordinance that dated back to 1959, provided that in the case of a declared state of emergency
the 'bourgmestre' had authority to order evacuation, removal and internment of persons.[429]
- It is, however, the discussion of the de facto power of "bourgmestre' that is of importance. The Trial Chamber accepted evidence that
his office was the most important authority for the ordinary citizens of the village describing it as being akin to the position
of chief in pre-colonial times.[430]
The Trial Chamber found, as a matter of fact, that subject to the residual authority of the prefect, the 'bourgmestre' had responsibility
for both executive functions as well as the maintenance of order in the community.[431]
In addition, Akayesu, was found to have had exclusive control over the local police, and was responsible for the execution of laws
and regulations as well as the administration of justice. The judgment sums up this discussion by observing that the 'bourgmestre'
is the most powerful person in the village and that his de facto authority was of greater significance than his de jure authority.[432]
- It was against this background that the Trial Chamber considered the doctrine of superior responsibility. The judgment reflects a
rejection of the notion of strict liability attaching to a superior for the criminal conduct of subordinates.[433]
Further, while noting that each case must be decided on its own merits, the Trial Chamber also noted a requirement for mens rea,
or at the very least negligence amounting to acquiescence or malicious intent on the part of the superior.[434]
Particularly the judgment notes:
The Chamber therefore finds that in the case of civilians, the application of the principle of individual criminal responsibility,
enshrined in Article 6(3), to civilians remains contentious. Against this background, the Chamber holds that it is appropriate to
assess on a case-by-case basis that power of authority, actually devolved upon the Accused in order to determine whether or not he
had the power to take all necessary and reasonable measures to prevent the commission of the alleged crimes or to punish the perpetrators
thereof.[435]
- The Trial Chamber: in due course found that Akayesu was responsible for the maintenance of law and order in the village. The Tribunal
further found, that he either knew, or in the alternative, had reason to have known of the criminal acts taking place, particularly,
near his own office and he did nothing to either prevent the same or to punish the perpetrators.
- Of significance, however, is the fact that the judgment did not attach criminal culpability to Akayesu based on the doctrine of superior
responsibility, but rather for his role in the aiding and abetting of both the preparation as well as the carrying out of the offences
thereby applying Article 6(1) of the (ICTR) Statute.
Clement Kayishema
- The Trial Chamber II decision in the Kayishema decision[436]
examined, in some detail, the principles of command responsibility as it pertained firstly to the applicability of Article 6(3) of
the Statute, and, then, secondly, to the facts peculiar to this case.
- In July 1992 Kayishema was appointed the 'prefect' of the Kibuye area[437]
and it was as a result of, inter alia, his actions in that capacity that charges were brought as against him. He was found guilty
of charges of genocide.
- This Trial Chamber in addressing the issue of command responsibility took as a starting point Article 6(3) of the Statute that there
is a clear duty upon those in authority, with the requisite means at their disposal, to prevent or punish the commission of a crime.[438]
- The Trial Chamber accepted as a starting point that civilians who exert 'requisite' authority are subject to criminal responsibility.[439]
The rationale of the judgment is that Article 6, when read in its entirety must have intended to extend the doctrine of command or
superior responsibility beyond military commanders to include political leaders and other civilians superiors in positions of authority.[440]
The Trial chamber attached importance to the degree of authority that any individual had over his subordinates.[441]
- The judgment avoids approving, at least in this instance, the concept that responsibility should only attach to an individual for
those crimes that were within his legitimate legal powers to prevent[442]
preferring instead to look at all the factors attendant at the time to determine whether or not the individual had a sufficient degree
of control so as to attract criminal culpability.[443]
Of importance to this Trial Chamber was the concept that an individual with sufficient powers of importance, even without formal
powers of command would still have sufficient authority to attract the obligation of command responsibility.[444]
- This judgment, further, refers to Article 28(2) of the Rome Statute for the International Criminal Court and observes that is contemplated
that all other (non-military) superiors are criminally responsible for acts committed by subordinates under effective control of
the individual.[445]
The judgment further notes that this Trial Chamber put itself under a positive obligation to consider the responsibility of control,
whether the same was de jure or de facto.[446]
- So long as it is demonstrated, by evidence, to the criminal burden of proof, that the superior knew that crimes were being committed
by subordinates (or by those over whom effective control was exercised) then the requisite intent or mens rea is established.[447]
However, if the trier of fact is obliged to determine whether or not the superior had 'reason to know' (that criminal acts were being
committed by subordinates) then, the establishment of the necessary mens rea on the part of the commander or superior is more complex.
- The Kayishema judgment notes that there is a greater duty on a military commander or superior to inform himself of the activities
of his subordinates when he knew, or owing to the circumstances at the time, should have known that the forces were committing or
about to commit crimes. The standard, therefore, that this Trial Chamber felt appropriate for other non-military superiors must
be lower, that is, that they (the non-military superiors) must have known, or consciously disregarded information which clearly indicated
that the subordinates were committing or about to commit such crimes.[448]
The judgment further elaborates that there is not a prima facie obligation or duty cast upon non-military commanders to be 'seized
of every activity of all persons' under his or her command.[449]
- This Trial Chamber took the common sense approach in considering the conduct of non-military superiors and said that it is incumbent
upon a trier of fact to avoid 'legalistic formalism' and to focus, instead, on the facts peculiar to each situation in determining
whether or not culpability attaches for the acts of a subordinate.[450]
Ignace Bagilishema
- While the Trial Chamber acquitted Bagilishema[451]
nevertheless the judgment affords a discussion on the doctrine of command or superior responsibility as it applies to civilians.
In this case the accused, Bagilishema, was also a 'bourgmestre', but of the town of Mabanza. The allegations against Bagilishema
came about as a result of a series of events that took place between April and July of 1994.
- While the Trial Chamber conceded that the doctrine of command responsibility had expanded to incorporate actions of non-military personnel,
nevertheless, that expansion had to be treated with caution acceding that the law as stated in Akayesu was contentious.[452]
However, and notwithstanding this statement, the judgment accepts the rationale of the Yugoslav Tribunal, in the Celebici decision.[453]
- This Tribunal interpreted the Celebici decision to hold that a civilian, to be found culpable under the doctrine of command responsibility,
must exercise 'similar' control as would a military commander.[454]
Further the civilian must also have; (a) 'effective' control and (b) the 'material ability' to prevent and punish criminal acts
of subordinate.[455]
However, perhaps in an attempt to put the sequences of political events that took place in Rwanda in some context, the judgment notes:
...Furthermore, the exercise of de facto authority must be accompanied by "the trappings of the exercise of de jure authority".
The present Chamber concurs. The Chamber is of the view that these trappings of authority include, for example, awareness of a chain
of command, the practice of issuing and obeying orders, and the expectation that insubordination may lead to disciplinary action.
It is by these trappings that the law distinguishes civilian superiors from near rabble-rousers or other persons of influence.[456]
- In considering the responsibility to punish a subordinate who has committed a criminal act, or to prevent a subordinate from committing
a criminal act the Trial Chamber interpreted Article 6(3) of the Statute to mean that the superior is only obliged to take measures
required to discharge the obligation to prevent or punish, in the circumstances prevailing at the time and further that he(the superior)
is only obliged to undertake measures that were reasonable in the circumstances then and there prevailing.[457]
At the same time, the Trial Chamber repeated what had been ruled in other cases, namely:
A superior may be held responsible for failing to take only such measures that were within his or her powers. Indeed, it is the
degree of the commander's degree of effective control - his or her material ability to control subordinate -- which will guide to
the Chamber in determining whether he or she took reasonable measures to prevent, stop or punish the subordinate's crimes. Such
a material ability must not be considered abstractly, but must be evaluated on each case-be-case basis, considering all the circumstances.[458]
...It follows that command responsibility for failure to punish may be triggered by abruptly based pattern of conduct by a superior,
which in effect encourages the commission of atrocities by his or her subordinates.[459]
Summary
- While it has been opined that the Rwanda Tribunal has failed to develop or apply the doctrine of command responsibility as had the
Yugoslav Tribunal[460]
nevertheless given the logic expressed by the Rwanda Trial Chamber, it is maintainable that the doctrine of command responsibility
has been at least, thoughtfully considered.
- The General Assembly of the United Nations, in December 1989 mandated the International Law Commission to undertake further studies
with a view to creating an international criminal court. This incentive was driven, at that point in time, in part by concerns raised
surrounding uncontrollable international drug trafficking. Events overtook, particularly, the conflicts in the former Yugoslavia
and Rwanda. While tribunals were established on an 'ad hoc' basis, by resolutions of the Security Council there was nevertheless
a recognized obvious void or lack of mechanisms to deal with the most serious of international offences (and offenders) that transcend
borders in effect the international community at large.
- The United Nation's Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court was held in
Rome during June and July 1998. The purpose of the same was to adopt a convention for the establishment of an international criminal
court. The Statute of Rome establishing the International Criminal Court[461]
was enacted in July 1998 and then received sufficient votes of ratification in April 2002.
- The Rome Statute and more particularly Articles 25, 27 and 28 reflect the attempts to codify conduct that can be easily traced back
to the statements made during the Nuremberg war trials and subsequent.[462]
It is of particular note that Article 28 addresses the 'responsibility of commanders and other superiors'. The Article specifically
recites:
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.[463]
- This Article reflects an attempt to codify a number of conceptual issues addressed particularly by the Yugoslavia Tribunal. The Article
attempts to delineate between those persons who may have functioned in the role of a military commander and those who may have acted
in a position of command authority in other than a military capacity.
- This Article refers to either a 'military commander' or to and 'person effectively acting as a military commander'. This wording may
be interpreted in more then one way. The term 'military commander' is obvious on its face and would be referable to a superior within
a military chain of command. The term 'person effectively acting as a military commander' may be applicable to a member of the military
outside of the chain of command, and not necessarily superior in rank. Further, the wording may also allow a finding of culpability
on the part of a civilian who has assumed de jure command or control of some military force, regardless of the size of the force.
- The term 'command and control', upon examination appears to be an attempt to remedy whatever confusion may have arisen from the Yamashita
case. The alternative term 'authority and control' is referable to executive authority, particularly, where the superior is militarily
responsible for a geographical area although not necessarily part of a formal chain of command of the forces in an area. Again,
the word 'control' is to be noted.
- The words 'failure to exercise control properly over such forces' may be interpreted to imply that the determination of what will
amount to 'proper control' is open to interpretation., suggesting that each fact situation must be decided on its own merit. Subsection
(i) is open to substantial interpretation but it is arguable that it is to be interpreted as being fact situation dependent. It
is, however, apparent that this wording is clearly an attempt to further reject the concept of strict liability
- Subsection (ii) is, as well, open to substantial judicial interpretation. The words 'all necessary and reasonable measures within
his or her power' will have to be in due course judicially determined. It is suggested that the words 'all necessary and reasonable'
are again reflective of an understanding that each fact situation must be determined on its own merits and there will be instances
where an act by a superior would be 'necessary' but under circumstances then and there prevailing not 'reasonable'.
- The words 'prevent or repress' denote an ongoing obligation to ensure discipline. The requirement, in an alternative, in the subsection,
that there is a duty 'to submit the matter to the competent authorities for investigation and prosecution' is a clear attempt by
the drafters to place a positive obligation on military commanders to undertake some form of positive action where the ability to
undertake direct disciplinary action is unavailable. It is arguable, although the subsection is not clear that superiors or others
not in a chain of command, such as staff officers may have the same positive obligation.
- It is therefore suggested that subsections (i) and (ii) are applicable to non-military individuals who may have had the necessary
control over the forces for even a transient period of time.
- Article 28(b) appears to be a direct attempt to encompass acts or situations not captured by Article 28(a), and is referable to acts
committed in non-militarily capacities.[464]
It is arguable that Article 28(b) requires only the establishment of a superior-subordinate relationship. Article 28(a) contemplates
a non-military individual assuming the necessary characteristics of effective command or control (with the abilities and authorities
attendant to the same). Conversely, Article 28(b) may be interpreted to cover the situation where a military individual will be responsible
for the actions of non-military individuals or groups.
- It is arguable that the drafters of the Rome Statute intended a lesser standard to be applied to non-militarily (de jure or de facto)
superior-subordinate relationships. It is of note that only the term, 'effective authority and control' is used reflecting an understanding
that there may be no formal chain of command existent. The term 'effective authority and control' may have the effect of relieving
from culpability those who may exert some form of influence but no control.
- While Article 28(a)(i) uses the term 'should have known' those words are absent from Article 28(b)(ii), which uses only the term 'either
knew or consciously disregarded information which clearly indicated' suggesting a completely different and lower standard. It is
of note that the trier of fact would have to find that the disregarding of information was a 'conscious' act suggesting a deliberate
choice to disregard. Further, the trier of fact would also have to find that the information that was disregarded 'clearly', again
indicating a higher standard of conduct. It is suggested that the word 'clearly' is going to be the subject of judicial clarification.
It is further arguable that there is the requirement for judicial determination of the word 'indicated'.
- Article 28(b)(ii) uses the term 'effective responsibility and control' suggesting that if subordinates were acting in a capacity over
which the individual had no 'effective responsibility and control' no culpability would attach. This would for example, potentially
relieve either a bureaucrat, or even a cabinet minister from liability for the actions of non-military personnel committing criminal
acts of those in another department, or from even having a duty to report such crimes. It is, however, arguable that decisions made
or confirmed by a committee might be sufficient to attach culpability to an individual who had the ability to use a veto or vote
against a particular action and did not. One would have to seriously question how the Court would differentiate the exposure of
an individual who failed to exercise a veto as distinct form an individual who simply voted against a course of conduct but the course
was in any event adopted.
- It is arguable that the standard to be applied already acts of non-military forces is reflective of an inherent appreciation that
within militarily structures discipline is always a primary consideration.
- It is also to be noted that the defence of 'superior orders' and duress was recognized, at least, in part by Articles 31(1)(d) and
31(2).[465]
- This discussion has provided a broad discussion of the development of the concept of command responsibility, and of the defense of
superior orders during the last century.
- Command responsibility has evolved to include both military and non-military personnel. The development of the law is not based on
strict liability, but rather reflects the clear understanding that every case is to be decided on its own particular set of facts.
The concept of command responsibility is now based on the clear inference that those who occupy the position of superior, in a superior-subordinate
relationship, are, or may be deemed to have; (a) the knowledge of the criminal actions of the subordinates, (b) the authority to
deal with the criminal actions of the subordinates; and (c) the power to deal, by with punishment or prevention with the criminal
acts of subordinates.
- Particularly since the end of the World War II different bodies, have grappled with the concept. At one end of the spectrum was the
strict liability attaching to a superior for the criminal acts of subordinates it regardless of any factors attaching to the ability
to command and effectively control.[466]
- At the Nuremberg Trials, the standard was not one of strict liability, but rather a determination of what the superior actually knew.[467]
The trials of war criminals pursuant to Control Council Law No.10 further expanded the notion of command responsibility to include
not only those in a chain of command, but also those in a specified territory who exercised a form of executive command.[468]
- The Tokyo Tribunals added the concept of constructive knowledge and the concept of negligent disregard of information to allow the
standard to be further clarified.[469]
- The Geneva Protocol of 1977 attempted to clarify the standard by identifying standards including; (a) actual knowledge that the superior
had, (b) knowledge that the superior should have had and (c) standards of negligence for not knowing.[470]
- The ongoing conflict in the Middle East, in its own way added to development and refinement of the concept with the Kahan Commission's
attachment of liability to high-ranking politicians who may have had only minimal notice and to military officers outside the chain
of command.[471]
- The two functioning ad hoc tribunals, through their Statutes as well as decisions have continued this refinement. It remains yet
to be seen as to whether or not to the community of nations will ascribe and follow the ambitious course as charted by the original
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[1]
Napoleon to Marshal Berthier, June 8, 1811, CORRESPONDENCE DE NAPOLEON, Corres. No. 17782, vol. XXII, 215 (32 Vols. Paris 1858-70)).
[2]
Leslie Greene, Command Responsibility in International Humanitarian Law (1995) 5 Transnational Law & Contemporary Problems 319 at 320
[3]
X I Trials of war Criminals Before the Nuremberg Military Tribunals Under Control Council Law No. 10 at 1259 (1948)
[4]
Andrew D. Mitchell, Failure to Halt, Prevent or Punish: The Doctrine of Command Responsibility for War Crimes, 22 Sydney L. Rev.
(September, 2000) 381 at 387, (citing H. Victor Conde, A Handbook of International Human Rights Terminology (1999) at 146
[5]
Roberts, Land Warfare, From Hague to Nuremberg, in The Laws of the War: Constraints Warfare in the Western World 116, 119 (Michael
Howard et al. eds. 1994)
[6]
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
[7]
William Winthrop, Military Law and Precedents (2nd ed. 1920) at 910
[8]
William H. Parks, Command Responsibility for War Crimes, 62 Mil. L. Rev. 1 at 5 (quoting from Articles of War, Provisional Congress of Massachusetts Bay, April 5,1775)
[9]
Martin v Mott, 25 U.S. [1827] USSC 4; (12 Wheat.) 1
[9]
(1827)
[10]
Ibid, 30
[11]
Ibid
[12]
Mitchell v Harmony, 54 U.S. (13 How.) 115
[13]
Ibid at 137
[14]
Instructions for the Government of Armies of the United States in the Field, General Orders 100, 24 Apr 1863
[15]
The Trial of Captain Henry Wirz for Conspiracy and Murder, Washington DC, 1865 in American State Trials, Vol. VIII, 657 at 808
[16]
Ibid 832
[17]
Ibid, 662
[18]
Ibid, 832
[19]
Ibid, 667
[20]
Hague Convention (IV) Respecting the Laws and Customs of War on Land, Annex (Regulations), October 18, 1907, 36 Stat. 2277, 1 Beavens
631
[21]
See infra note 1 at 122
[22]
Hague Convention, (IV) (1907) Supra, note 10, Article 3
[23]
www.geocities.com/Athens/Crete/9782/people.htm, " I want no prisoners, I want you to kill and burn, the more you kill and burn the
better it will please me.... Kill everyone over the age of ten."
[24]
Andrew D, Mitchell, Failure to Halt, Prevent or Punish: The Doctrine of Command Responsibility for War Crimes, (2000) Sydney L. Rev. 381, 383
[25]
Mathew R. Lippman, Humanitarian Law: The Development and the Scope of the Superior Orders events, (2001) 20 Penn St. Int'l, L. Rev. 153 154.
[26]
Ibid
[27]
Ibid
[28]
Commission on the Responsibility of the Authors of the War and on the Enforcement of Penalties, (1919) 14 Am. J. Int'l L. 95, (1920)
[29]
Ibid, 116
[30]
Ibid 121-123
[31]
Ibid 122
[32]
Ibid, 117
[33]
Treaty of Peace Between the Allied and Associated Powers and Germany, June 28, 1919, 2 Beavens 43
[34]
Treaty of Versailles, Ibid, Article 227.
[35]
Ibid Articles 228 and 229
[36]
M. Cherif Bassiouni, From Versailles to Rwanda in Seventy-Five Years: The Need to Establish a Permanent International Court. 10
Harv. Hum. Rts. J. (1997), 11 at 17. Note Bassiouni suggests that the Commission relied on the Martens Clause form the preamble
to the Hague Convention of 1907 which stated, " Until a more complete code of the law of wars has been issued, the High Contracting
Parties deem it expedient to declare that in cases not included in the Regulations adopted by them, the inhabitants and the belligerents
remain under the protection of the principles of the law of nations, as they result from the usages established among civilized people,
from the laws of humanity, and the dictates of public conscience.. See. Convention Respecting the Laws and Customs of war on Land,
October 18, 1907, preamble,
[36]
Stat. 2277, 2279-2280, 1 Beavens 631, 632
[37]
3 of the Peace Between the Allied Powers and Turkey, August 10 1923, reprinted in 15 Am. J. Int'l L. 179 (Supp.1921)
[38]
Ibid
[39]
M. Cherif Bassiouni, Supra note 31 at 16
[40]
James F. Willis, Prologue to Nuremberg: The Politics and Diplomacy of Punishing War Criminals of the First World War, (1982) 142
[41]
Claude Mullins, The Leipzig Trials: An Account of the War Criminals' Trials and a Study of German Mentality 36-37 (1921)
[42]
Ibid 36
[43]
Judgment in the case of Commander Karl Neumann, Hospital, Ship "Dover Castle" (1921), 16 Am. J. Int'l. L. 704 at 705 -- 706
[44]
Ibid
[45]
Ibid at 707
[46]
Judgment in Case of Lieutenants Dithmar and Boldt (July 16, 1921), 16 Am. J. Int'l. L. 708 ET sub.
[47]
Ibid at 721
[48]
Ibid at 721
[49]
Ibid
[50]
Ibid at 722
[51]
James F. Willis, Prologue to Nuremberg, The Politics and the Diplomacy of Punishing War Criminals of the First World War, 146 (1982).
At a closed session of the Penal Senate these particular convictions were annulled.
[52]
Claud Mullins, The Leipzig Trials: An account of the War Criminals' Trials and a Study of German Mentality 151, 164
[53]
Ibid at 162
[54]
Ibid
[55]
Ibid at 157-160, 163-164
[56]
Ibid 161-165
[57]
Ibid
[58]
Ibid at 166
[59]
Judgment in the Case of M. Emil Muller (May 30, 1921), 16 Am. J. Int'l. L. (1922) 684 at 685-686
[60]
Ibid at 686
[61]
Ibid at 687
[62]
Ibid at 689
[63]
Ibid at 691
[64]
Matthew Lippman, Conundrums of Armed Conflict: Criminal Offences to Violations of the Humanitarian Law of War, 15 Dick. J. Int'l.
L. (1996) 1 at 12
[65]
The Inter-Allied Declaration, January 13, 1942
[66]
United Nations War Crimes Commission; History of the United Nations War Crimes Commission and the Development of the Laws of War
(1948) 280
[67]
Ibid at 508-509
[68]
Agreement for the Prosecution and the Punishment of the Major War Criminals of the European Axis, August 8, 1945,n59 Stat. 1544, 82 U.N.T.S. 279,
[69]
Note: " at the time upgrading of any armistice to any government which may be set up in Germany, those German officers and men
and members of the Nazi party who had been responsible or who have taken a consenting part in the above atrocities, massacres and
executions will be sent back to the countries in which their abominable deeds were done in order that they may be judged and punished
according to the laws of these liberated countries and free governments which will be erected therein." Joint Four-Nation Declaration,
The Moscow Conference; October 1943, see The Avalon Project at Yale Law school
[70]
Note: "Article 8. The fact that the Defendant acted pursuant to order of his government or of the superior shall not free him from
responsibility, but shall be considered in mitigation of punishment if the Tribunal so requires." Charter of the International Military
Tribunal October 6, 1945 Supra 63
[71]
Implying permissive rather than compulsory
[72]
United Nations War Crimes Commission, supra, 275-277
[73]
Ibid.
[74]
XIX Trial of the Major War Criminals Before and Nuremberg Military Tribunal 424 (1948)
[75]
XXII Trial of Major War Criminals Purport the International Military Tribunal 466 (1948)
[76]
Charter of the International Military Tribunal, supra 63 "Crimes against Peace: namely, planning, preparation, initiation or waging
wars of aggression, or 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.
[77]
XXII Trials of the Major War Criminals, supra 69 at 533-535
[78]
Order No 003830/42g.KdosOKW/WST found at http://www.combinedops.com/Hitlers_Commando_Order.htm Note: "from now on all men operating against German troops in so-called Commando raids in Europe or Africa, are to be annihilated
to the last man. This is to be carried out whether they are soldiers in uniform, or saboteurs, with or without arms; and whether
fighting were seeking to escape; and is equally immaterial whether they come into action from Ships and Aircraft or whether they
land by parachute. Even if these individuals on discovery make obvious their intention of giving themselves up as prisoners, no
part in years on any account to be given"
[79]
Ibid "I will hold all Commanders and Officers responsible under Military Law for any omission to carry out this order, whether
by failure in their duty to instruct the unit accordingly, or it if they themselves act contrary to it."
[80]
XXII Trials of the Major War Criminals, supra 69 at 536
[81]
Ibid
[82]
Ibid at 568
[83]
Ibid at 569-670
[84]
Ibid at 571
[85]
Ibid at 570 See note 72f
[86]
Ibid at 568
[87]
Ibid at 571
[88]
Ibid at 5
[88]
[89]
Ibid
[90]
Allied Control Council Law No 10, Punishment of Persons Guilty of War Crimes, Crimes Against Peace, and Against Humanity, 20 December
1945, Official The Gazette of the Control Council for Germany No 3, Berlin, January 31, 1946
[91]
Ibid, article 4
[92]
Trials of War in Criminals Before the Nuremberg Militarily Tribunals Under Control Council Law No 10, XI, 1230 (1950)
[93]
Note: the order stated "Measures taken up to now to counteract this general Communist insurrection movement have proven themselves
to be inadequate. The Fuhrer now has ordered the severest means are to be employed in order to break down this movement in the shortest
time ... The following directives are to be applied here: (a) each incident against the German Wehrmacht, regardless of individual
circumstances, must be assumed to be of communist origin. (b) In order to stop these intrigues at their inception, severest measures
must be applied immediately at the first appearance, in order to demonstrate the authority of the occupying power, in order to prevent
further progress. One must keep in mind their human life frequently counts for naught in the effective countries and a deterring
effect can only be achieved by unusual severity. In such a case the death penalty for 50 to 100 communists must in general be deemed
appropriate as retaliation for the life of a German soldier. The manner of execution must increase the deterring effect. The reverse
procedure-to proceed at first with relatively easy punishment and to be satisfied with the threat of increased severity as a deterrent
does not correspond with his principles and is not to be applied."
[94]
Supra 86. at 1256
[95]
Ibid
[96]
Ibid
[97]
Ibid at 1260
[98]
Ibid at 1271
[99]
Note: "Ruthless any immediate measures against the insurgents, against their accomplices and their families. (Hanging, burning
down the villages involved, seizure of more hostages, and deportation of relatives, etc, into concentration camps)"
[100]
Supra 86 at 1270
[101]
Ibid
[102]
Ibid at 1271
[103]
Ibid
[104]
Ibid at 1272
[105]
Ibid at 1286
[106]
United Nations War Crimes Commission. Law Reports of Trials Of War Criminals, Volume V11I, 1949, case No 47, Trial of Wilhelm List
and Others, United States Military Tribunal, Nuremberg, Part I . P. 45 et sub
[107]
United States v Otto Ohlendorf, IV Trials of War Criminals Before the Nuremberg Military Tribunals Under Control Council Law No
10 (1950)
[108]
Ibid. At 336-3 37
[109]
Ibid at 470
[110]
Ibid
[111]
Ibid at 471
[112]
Ibid at 517-518
[113]
Ibid at 470
[114]
Ibid at 470-471
[115]
Ibid at 473
[116]
Ibid at 481
[117]
Ibid at 339-340, 342-343
[118]
Ibid at 517
[119]
Ibid at 309
[120]
Ibid at 518
[121]
Ibid at 519
[122]
Ibid
[123]
Ibid
[124]
United States v Wilhelm von Leeb, XI Trials of War Criminals Before the Nuremberg Military Tribunal Under Control Council Law No.
10, (1950) 462h
[125]
See Note 84 et sub.
[126]
Supra, note 118 at 543
[127]
Ibid
[128]
Ibid
[129]
Ibid.
[130]
Ibid at 547. Note: The Tribunal found, as a matter of fact, that in a number of instances\, Einsatzgruppen atrocities had taken
place a substantial distance from a headquarters and that reports had been forwarded via the SS chain of command with no copies being
sent to the territorial commander.
[131]
Ibid. at 512
[132]
Ibid. at 662-693
[133]
Ibid. at 557
[134]
Ibid at 517
[135]
Ibid. at 557-558
[136]
Ibid.
[137]
Ibid. 558-560
[138]
Ibid. at 566
[139]
Ibid. at 567
[140]
Ibid.
[141]
Ibid.
[142]
Ibid. at 597
[143]
Ibid.
[144]
Ibid.
[145]
Ibid. at 598
[146]
Ibid. at 650-651
[147]
Trials of War Criminals Before the Nuremberg Military Tribunals Under Control Council Law No 10, II 171 (United Stares v Brandt)
[148]
Ibid. at 193-194
[149]
Ibid. at 193
[150]
Ibid.
[151]
Trials of War Criminals Before the Nuremberg Military Tribunal's Under Control Council Law No 10, VIII 1081
[152]
Ibid 1169-1170
[153]
Ibid
[154]
Ibid.
[155]
Ibid.
[156]
Ibid. Note "The growth is quite convincing that large quantities of Cyclon-B recent flies of the SS by Degesch (which was control
by Farben) and only was used in mass extermination of inmates of concentration camps, including Auschwitz. But neither volume of
production nor the fact that large shipments were destined to concentration camps would alone be sufficient to lead us to conclude
that those who knew of such facts must also have had knowledge of criminal purpose to which the substance was being put. Any such
conclusion is refuted by the well-known need for insecticides were ever large numbers of displaced persons, brought in from widely
scattered regions, are confined in congested quarters lacking adequate secretary facilities."
[157]
United Kingdom v Tesch, Vol I L.R.T.W.C. (1947) 93
[158]
Ibid at 125
[159]
Note: Tesch along with his deputy was sentenced to death.
[160]
France v Roechling et al, Trials of War Criminals Before the Nuremberg Military Tribunals Under Control Council Law No 10,XIV (1952)
1097
[161]
Ibid.
[162]
Ibid.
[163]
Ibid. at 1135
[164]
Ibid. at 1136
[165]
Ibid
[166]
Sea United States V Flick
[167]
See note 31, Supra at 31
[168]
Activities of the Far Eastern Commission, Report by the Secretary General, separate 26-Jul 10, 1947, 16DEP't St. Bull. 804-806 (1947)
Article 6 (a)
[169]
Special Proclamation: Establishment of an International Military Tribunal for the Far East, Jan. 19,1946 T.I.A.S. No. 1589 at 3,
4 Bevans 20
[170]
Instrument of Surrender by Japan, Sept. 2, 1945,9 Stat. 1733, 1735, 3 Bevans 1251, 1252
[171]
See note 31, Supra at 36e
[172]
Trial of General Tomoyuki Yamashita (United States Military Commission, Manila, October 8-December 7, 1945) IV Law Rep. Trials War
Crim. 1 (UN War Crimes Comm'n, 1948)
[173]
Ibid. at 35-37
[174]
Re Yamashita, [1946] USSC 27; 327 U.S. 1 (1945)
[175]
See note 168, supra at 5
[176]
Ibid. at 68
[177]
Ibid. at 69
[178]
Ibid. at 5
[179]
Ibid.
[180]
See note 168, supra, at 340
[181]
Ibid at 89
[182]
Ibid at 72
[183]
Ibid. at 72-74
[184]
Ibid. at 18
[185]
Ibid. at 73
[186]
Ibid. at 17
[187]
Ibid at 81-82
[188]
General Headquarters United States Army Forces, Pacific Office of the Theatre Judge Advocate, Review of the Record of Trial by a
Military Commission of Tomoyuki Yamashita, General Japanese Army (December 26, 1945), reprinted in Courtney Whitney, The Case of
General Yamashita: A Memorandum 60 (1950)
[189]
Ibid. at 60
[190]
Ibid.
[191]
Chief Justice of United States Supreme Court
[192]
See note 168, supra, at 347
[193]
Ibid at 347-348
[194]
Ibid at 353-359
[195]
Ibid. at 358
[196]
Ibid at 359
[197]
International Military Tribunal for the Far East, The Tokyo War Crimes Trial (November, 1948), reprinted in The Law of War: A Documentary
History II 1029
[198]
Charter of the International Military Tribunal for the Far East, T.I.A.S No. 1589.
[199]
Ibid
[200]
International Military Tribunal for the Far East, The Tokyo War Crimes Trial (November, 1948) at 1039
[201]
Francisco Martin & Richard Wilson, The Rights International Companion to Criminal Law & Procedure, An International Human
Rights and Humanitarian Law Supplement, 74, citing William H. Parks, Command Responsibility, 62 Mil. L. Rev. 1, 72 (1973)
[202]
See note 192 at 1038
[203]
Ibid at 1038-1039
[204]
Ibid at 1038-1040
[205]
Note: The Bataan Death March was a forced march of approximately seventy thousand American and Filipino prisoners of war captured
by the Japanese. Starting out from Mariveles on the southern end of the Bataan Peninsula, on April 9, 1942, they were forced-marched
fifty-five miles to San Fernando, and then taken by rail to Capas, from where they were again force-marched the last eight miles
to Camp O'Donnell. They were starved and mistreated, and many of those who collapsed were bayoneted. Only fifty-four thousand prisoners
reached the end destination. It was estimated that between seven to ten thousand perished en route, with a substantial number escaping
into the jungle.
[206]
See note 198, supra, at 1154-1155 The Tribunal in convicting Tojo seemed to use as a touchstone the fact that since so many prisoners
of war had perished that the same constituted notice to this accused and that he did not take the necessary or 'proper steps to care
for them.'
[207]
Note: often referred to as the 1937 'Rape of Nanking,' it is estimated that approximately three hundred thousand Chinese men and
women and children were indiscriminately tortured rate and killed during a six-week timeframe as the Japanese forces occupied the
then capital city of China
[208]
Ibid at 1134, 1061-1063
[209]
See note 198, supra, at 1142
[210]
Ibid at 1144
[211]
Melinski v Chief Military Prosecutor, see Kafr Qassem: A Civilian Massacre, Palestine Yearbook of International Law, Vol 2, 1985
at p. 69
[212]
Ibid. But see U s V Kinder, 14 C.M.R. 742 (1954), USAF Board of Review and U.S. V Schreiber, 16 C.M.R. 639 (1954), USAF Board of Review.
[213]
Ibid.
[214]
See note 204 at 112
[215]
Ibid
[216]
Ibid
[217]
Ibid
[218]
Ibid. at 542
[219]
Ibid
[220]
Ibid
[221]
Ibid. at 544
[222]
Ibid at 547
[223]
See Note 47 Supra
[224]
Judge Howard's Summary Of Evidence found at http://www.law.umkc.edu/faculty/projects/ftrials/mylai/MYL_MEDT.HTM
[225]
See Prosecution Brief on the Law of Principles in United States v Captain Ernest L. Medina detailing the duties of a combat commander
found at http://www.law.umkc.edu/faculty/projects/ftrials/mylai/MYL_LAW3.HTM
[226]
L.C. Green, Command Responsibility in International Humanitarian Law, (1995) Transnat'l L. & Contemp. Probs. 319 at 353 citing Joseph Goldstein et al. The My Lai Massacre and Its Cover-Up: Beyond the Reach of Law? 467 (1976)
[227]
Ibid at 353
[228]
Ibid and 353,354
[229]
Protocol Additional to the Geneva Convention's That of 12 Aug 1949, and Relating to the Protection of Victims of International Armed
Conflicts (Protocol 1), June 8, 1977, Article 86, 1125 U.N.T.S. 3, 16 I.L.M. 1391 (1977)
[230]
Ibid. Article 86(2)
[231]
Ibid. Article 86 (2) and (3)
[232]
Ibid Article 91
[233]
Final Report of the Commission of Inquiry Into the Events at the Refugee Camps in Beirut, Final Report, 22 I. L. M. 473 (1983) See also http://www.mfa.gov.il/mfa/go.asp?MFAH0ign0 . The figure of seven hundred killed was an Israeli estimate. The Red Cross estimated as many as three thousand were killed.
[234]
Ibid at 495
[235]
Ibid at 481
[236]
See note 220, supra (The Kahan Commission)
[237]
Ibid
[238]
Ibid at 442
[239]
Ibid at 498 and 502
[240]
Ibid at 463-464. See also Mathew Lippman, Humanitarian Law: The Uncertain Contours of Command Responsibility, (Fall, 2001) 9 Tulsa J. Comp. & Int'l L. 1 at 50
[241]
Ibid at 509 et sub.
[242]
Ibid
[243]
Ibid at 511-512
[244]
Ibid
[245]
Ibid at 501 (Personal Responsibility-The Prime Minister, Mr. Menachem Begin)
[246]
Ibid at 501-502 (Personal Responsibility, The Minister of Defence Mr. Ariel Sharon)
[247]
Ibid
[248]
Ibid
[249]
Ibid
[250]
Ibid at 504 (see Personal Responsibility, The Foreign Minister, Mr. Yitzhak Shamir)
[251]
Ibid.
[252]
Ibid. at 505-506 (see Personal Responsibility, The Chief of Staff, Lieutenant-General Rafael Eitan)
[253]
Ibid.
[254]
Ibid.
[255]
Ibid.
[256]
Ibid at 511 (see Personal Responsibility G.O.C. Northern Command, Major-General Amir Drori)
[257]
Ibid at 511-512
[258]
Ibid at 509 (see Personal Responsibility, Director of Military Intelligence, Major-General Yehoshua Saguy
[259]
Ibid at 511
[260]
Nomi Bar-Yaacov, Command Responsibility in Crimes of War -- The Book, found at http://www.crimesofwar.org/thebook/command-respon.html
[261]
Ibid
[262]
Ibid
[263]
Ibid
[264]
Ibid
[265]
R v Finta, (1994) 112 D.L.R. (4th) 513
[266]
R v Seward (1996) 36 C.R.R. (2d) 294 (the Court panel was made up of three Justices of the Federal Court of Appeal)
[267]
Report of the Somalia Commission of Inquiry, found at http://www.dnd.ca/somalia/vol0/indexe.htm
[268]
see note 265, supra, at 514-515
[269]
Ibid at 617-618
[270]
Ibid at 609-610
[271]
R v Finta (1994) 1 SCR 701 at 779
[272]
R v Finta, (1994) 112 D.L.R. (4th) 513 at 614
[273]
The equivalent of an army company. In this case members of 2 Commando were made up entirely from the ranks of the Princess Patricia's
Canadian Light Infantry. It is arguable as to whether or not the deployment of Canadian forces was as part of a peacekeeping mission
in the traditional sense of the word. At the Commission of Inquiry hearings there was evidence lead to the effect that this mission
was more akin to peacemaking rather than peacekeeping
[274]
R v Seward (1966) 36 C.R.R. 294 at 296 et sub.
[275]
Ibid, Paras. 68-69
[276]
Ibid at Para 78
[277]
Ibid at Para. 80
[278]
Ibid
[279]
Executive Summary, Chain of Command, Report of the Somalia Commission of Inquiry, found at http://www.dnd.ca/somalia/vol0/indexe.htm
[280]
Major-General Lewis McKenzie
[281]
The acronym given to Land Forces Central Area. The Canadian Airborne Regiment was one of the units comprising the Special Service
Force.
[282]
Ibid
[283]
Ibid
[284]
Security Council Resolution 780 U.N. SCOR, 47th Session, U.N. Doc. S/Res/780 (1992)
[285]
Ibid
[286]
Security Council Resolution 808, U.N. SCOR, 48 Session U.N. Doc., S/Res/808 (1983)
[287]
Ibid. Article 1
[288]
Security Council Resolution 935, U.N.SCOR, 49th Session U.N. DOC. S/Res/935 (1994)
[289]
Security Council Resolution 955, U.N. SCOR, 49th Session, U.N. Doc. S/Res/955 (1994)
[290]
Ibid, Article 4
[291]
Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian
Law Committed in the Territory of the Former Yugoslavia Since 1991, found athttp://www.un.org/icty/basic/statut/statute.htm#6
[292]
Ibid, Article 7
[293]
Prosecutor v Erdemovic, IT-96-22-T (sentencing) (Int'l. Crim. Trib. Yug., Trial Chamber 1, (1996) I.L.R. found at http://www.un.org/icty/erdemovic/trialc/judgement/erd-tsj961129e.htm
[294]
Ibid at Para. 79
[295]
Ibid at Para 80
[296]
Ibid
[297]
Ibid at Para. 14
[298]
Ibid at Pera 18
[299]
Ibid at Para 95
[300]
Prosecutor v Erdemovic. IT-96-22-T (sentencing appeal) (Int'l Crim. Trib. Yug., App. Chamber 1997) 111 I.L R. 298 found also at http://www.un.org/icty/erdemovic/appeal/judgement/erd-aj971007e.htm
[301]
Ibid at Para.34
[302]
Ibid at Para 34 - 35
[303]
Ibid
[304]
Prosecutor v Erdemovic, IT-96-22-T, (sentencing judgment) (Int'l. Crim. Trib. Yug.,) Trial Chamber II, (1988) 37 I.L.M. 1182 (1998) found at http://www.un.org/icty/erdemovic/trialc/judgement/erd-tsj980305e.htm
[305]
Ibid at Para. 14
[306]
Ibid at Para. 15
[307]
Prosecutor v Delalic et al, IT 96-21-T (1998) found at http://www.un.org/icty/celebici/trialc2/judgement/index.htm
[308]
Ibid at Para 354
[309]
Ibid at Paras. 333-334
[310]
Ibid at Para 354
[311]
Ibid
[312]
Ibid at Paras. 355-363
[313]
see note 155, supra
[314]
Ibid at Para 363
[315]
Ibid at Para.377
[316]
Ibid
[317]
In Re Yamashita, [1946] USSC 27; 327 US 1, 14-16 (1945). This case was brought before the Supreme Court on petition for writ of habeas corpus, and presented the Court with
the limited issue of whether the Military Commission in Manila possessed lawful jurisdiction to try Yamashita. It was alleged that
such jurisdiction was lacking, inter alia, on the ground that the charges preferred against Yamashita failed to allege a violation
of the laws of war. In rejecting this contention the Court described "the gist of the charge" against Yamashita as one of an unlawful
breach of duty as an army commander to control the operations of his command by permitting them to commit a number of atrocities.
[318]
United States v Soemu Toyada, Official Transcript Record of Trial, P 5006. In greater detail, the Tribunal declared the essential
elements of command responsibility to be: 1. [...] that atrocities were actually committed; 2. Notice of the commission thereof.
This notice me be either: (a) Actual, as in the case of an accused who sees that their commission or was informed thereof shortly
thereafter; or (b) Constructive. That is, the commission of such a great number of offences within his command that a reasonable
man could come to no other conclusion then and that the accused must have known of the offences or of the existence of an understood
and acknowledged routine for their commission; 3. Power of command. That is, the accused must be proved to have the actual authority
over the offenders to issue orders to them not to commit illegal acts, and to punish offenders; 4. Failure to take such appropriate
measures as are within his power to control the troops under his command and to prevent acts which are violations to the laws of
war; 5. Failure to punish offenders. (See United States v Wilhelm von Leeb et al., Vol. XI, TWC, 5005-5006
[319]
Prosecutor v Delalic et al, supra at Para. 383
[320]
Ibid at Para 387.
[321]
Ibid.
[322]
Ibid at 394
[323]
Ibid at Para. 395
[324]
Ibid at Para. 395
[325]
Ibid at Para 400
[326]
Ibid at Para 657
[327]
Ibid at Pera 669
[328]
Ibid at Paras 692-700
[329]
Ibid at Para 736
[330]
Ibid at Para 750
[331]
Ibid at Para 764
[332]
Ibid at Para. 765
[333]
Ibid at Paras. 768-770
[334]
Ibid at Paras. 771-774
[335]
Ibid at Para 1250
[336]
Prosecutor v Delalic et al, IT 96-21-T (2001) Para 198, found at http://www.un.org/icty/celebici/appeal/judgement/index.htm
[337]
Prosecutor v Aleksovski, IT-95-14/1-T Int'l. Crim. Yug., (1999) found at http://www.un.org/icty/aleksovski/trialc/judgement/index.htm
[338]
Ibid at Para 93
[339]
Ibid at Paras 100-101
[340]
Ibid at Paras 103-105
[341]
Prosecutor v Blaskic Judgment, IT-95-14 (2000) found at http://www.un.org/icty/blaskic/trialc1/judgement/index.htm
[342]
Ibid at Para. 300
[343]
Ibid at Para 302
[344]
Ibid at Para 303
[345]
Ibid at Para 307
[346]
Ibid
[347]
Ibid
[348]
Ibid at Para 308
[349]
As envisioned in Article 7(3)
[350]
Ibid at Para 322
[351]
Ibid at Para 329
[352]
Ibid at Para 332
[353]
Ibid (the 'commander' referred to in the latter part of the above was the defendant, General Blaskic)
[354]
Prosecutor v Kordic and Cerkez, IT-Ibid95-14-2 (2001) Int'l Crim. Trib. Yug., Paras. 454-556 found athttp://www.un.org/icty/kordic/trialc/judgement/index.htm
[355]
Ibid at Para. 556
[356]
Ibid at Paras. 364-365
[357]
Ibid at Para 367
[358]
Ibid
[359]
Ibid
[360]
Ibid at Para 387
[361]
Ibid
[362]
Ibid
[363]
Ibid at Para. 388
[364]
Ibid
[365]
Ibid (However in certain common law jurisdictions, in a criminal matter circumstantial evidence to be accepted must not only be
consistent with the act to be proved, but must be inconsistent with any other.)
[366]
Ibid
[367]
Ibid
[368]
Ibid at Para. 397 (although this plurality of persons need not be organized into a particular military, political or administrative
structure)
[369]
Ibid (There is no necessity for this plan, design or purpose to have been either arranged or formulated before. The common plan,
design or purpose may come about in a spontaneous fashion. Its formulation may be inferred from that fact that a plurality of persons
act in unison to put into effect a joint criminal enterprise.)
[370]
Ibid (This participation refers to the common design of one of the enumerated offences in the ICTY Statute. The participation need
not be to a specific crime. It is sufficient that the participation be in some form of either assistance or contribution to the
carrying out of the common plan or purpose of the group
[371]
Ibid at 398
[372]
Ibid (creating a two stage process)
[373]
Ibid at Para 390
[374]
Ibid at Para 401
[375]
Ibid at Para 418
[376]
Ibid at Para 421 (such as a chief of staff in a military organization routinely signing orders on behalf of the commander)
[377]
Ibid at Para 422.
[378]
Ibid
[379]
Ibid at Para, 423
[380]
Ibid at Para 424
[381]
Ibid
[382]
Ibid at Para 426
[383]
Ibid at Para 427
[384]
Ibid at Para. 437
[385]
Ibid at Para 445.
[386]
Ibid
[387]
Ibid at Para 446
[388]
Ibid
[389]
Prosecutor v Avoca et al, IT can he98-30/1 Int'l Crim. Trib. Yug. (2001) found at http://www.un.org/icty/kvocka/trialc/judgement/index.htm
[390]
Ibid at Para. 316
[391]
Ibid at Para. 317.
[392]
Ibid
[393]
Ibid at Para. 318
[394]
Ibid.
[395]
Ibid. that it has to
[396]
Prosecutor v Krnojelac, IT-97-25 Int'l. Crim. Trib. Yug., (2001) found at http://www.un.org/icty/krnojelac/trialc2/judgement/index.htm
[397]
Ibid at Para 62
[398]
Ibid Paras 387-393
[399]
Ibid at Para 390
[400]
Ibid.
[401]
Ibid at Para 391
[402]
Ibid (Note that this judgment does not qualify the term 'substantial')
[403]
Ibid
[404]
Ibid at Para 387, " 7(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."
[405]
Ibid at Para 392
[406]
Ibid
[407]
Ibid at Para 393
[408]
Ibid Paras. 394-399
[409]
Ibid at Para. 396
[410]
Ibid (Note that the judgment does not define the term 'material'}
[411]
Ibid at Para 398
[412]
Ibid at Para. 398
[413]
Ibid
[414]
Ibid
[415]
Ibid at Para. 399
[416]
Ibid at Paras. 96-107
[417]
Ibid at Paras 108-127
[418]
Ibid at Paras 128-173
[419]
Ibid at Paras. 147-320
[420]
Ibid at Paras. 321-348
[421]
See note 79 supra
[422]
Ibid, Article 6
[423]
Prosecutor v Jean-Paul Akayesu, ICTR-96-4-T (1998) Int'l Crim. Trib Rwanda, found at http://www.ictr.org/
[424]
Ibid at Paras. 51-54
[425]
Ibid at Paras. 61-77 (note: the Trial Chamber noted that this role was similar to a 'maire' in France)
[426]
Ibid at Para. 63
[427]
Ibid at Para 64
[428]
Ibid at Para. 65
[429]
Ibid at Para. 71
[430]
Ibid at Para.73
[431]
Ibid at Para. 77
[432]
Ibid
[433]
Ibid at Paras. 488-489
[434]
Ibid at Para 489
[435]
Ibid at Para 491
[436]
Prosecutor v Clement Kayishema et al, ICTR 951-T Int'l. Crim. Trib. Rwanda (1999) found at http://www.ictr.org/
[437]
Ibid at Para 29
[438]
Ibid at Para 202
[439]
Ibid at Para. 213
[440]
Ibid at Para. 214
[441]
Ibid at Para 216
[442]
Ibid at Para. 218
[443]
Ibid
[444]
Ibid at Para. 220
[445]
Ibid at Para. 220
[446]
Ibid at Para. 222
[447]
Ibid at Para. 225
[448]
Ibid at Para 227
[449]
Ibid at Para 228
[450]
Ibid at Paras. 230-231
[451]
Prosecutor v Ignace Bagilishema ICTR-95-1A-T Int'L. Crim. Trib. Rwanda (2001) found at http://www.ictr.org/
[452]
Ibid at Para 40
[453]
See Section 8.1.2
[454]
See not427 supra at Para 43.
[455]
Ibid
[456]
Ibid
[457]
Ibid at Para 47
[458]
Ibid at Para. 49
[459]
Ibid at Para 50
[460]
Matthew Lippman, Humanitarian Law: The Uncertain Contours Of Command Responsibility, 9 Tulsa J. Comp. & Int'l. L. 1 (2001) 85
[461]
Rome Statute of the International Criminal Court, Doc No. A/Conf U.N. Doc. No. 183/10 (July 17, 1998) found at found athttp://www.un.org/law/icc/statute/romefra.htm
[462]
Ibid
[463]
Ibid
[464]
Note: Article 28(a) creates the responsibility for the actions of 'forces' while Article 28(b) uses the word 'subordinate'.
[465]
Ibid
[466]
The Yamashita case. See Trial of General Tomoyuki Yamashita, (1948)L. Rep. War Crim. 1 and In Re Yamashita, [1946] USSC 27; 327 U.S. 1 (1945) But there
[467]
United States v Hermann Goering Trial of the Major War Criminal's Before the International Military Tribunal, XXII (1948)
[468]
Trials of War Criminals Before the Nuremberg Militarily Tribunal's Under Control Council Law Number 10, XI
[469]
International Military Tribunal for the Far East, The Tokyo War The Crimes Trial
[470]
Protocol Additional to the Geneva Convention's That of 12 Aug 1949, and Relating to the Protection of Victims of International Armed
Conflicts (Protocol 1), June 8, 1977, Article 86, 1125 U.N.T.S. 3, 16 I.L.M. 1391 (1977)
[471]
Final Report of the Commission of Inquiry Into the Events at the Refugee Camps in Beirut, Final Report, 22 I. L. M. 473 (1983) See also inhttp://www.mfa.gov.il/mfa/go.asp?MFAH0ign0
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