DOCSLIB.ORG

Command Responsibility and Failure to Act

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Command Responsibility and Failure to Act ADVISORY SERVICE ON INTERNATIONAL HUMANITARIAN LAW ____________________________________ Command responsibility and failure to act International humanitarian law provides a system for repressing violations of its rules based on the individual criminal responsibility of those responsible. The violations can also result from a failure to act. In armed conflict situations, armed forces or groups are generally placed under a command that is responsible for the conduct of subordinates. Accordingly, in order to make the repression system effective, superiors should be held individually responsible when they fail to take proper measures to prevent their subordinates from committing serious violations of International humanitarian law. It is the duty of States to incorporate punishment for the commander’s failure to act into their domestic legislation. Introduction to command have allowed a grave breach to essence, the commander acquires responsibility happen can also be held criminally liability by default or omission. liable. Just as it is possible to kill The responsibility of commanders someone by withholding food or The trials held after the Second includes two concepts of criminal proper care, the grave breach of World War responsibility. depriving a prisoner of war of his right to a fair and regular trial can be and Command responsibility became an usually is committed simply by failing important issue during the Second First, the commander can be held to take action. World War. Although the Charter of directly responsible for ordering his the Nurnberg International Military subordinates to carry out unlawful Additional Protocol I of 1977 is more Tribunal contained no rules on this acts. In this context, subordinates who explicit. Article 86.1 specifies that: subject, the decisions in the various invoke the defence of superior orders trials held after the war laid down may avoid liability depending on “The High Contracting Parties and the broad outlines. whether, in the circumstances, they Parties to the conflict shall repress should have obeyed or disobeyed the grave breaches, and take measures The mechanism of command order of superiors. necessary to suppress all other responsibility, which imposes criminal breaches, of the Conventions or of responsibility for a superior’s failure to This is to be distinguished from the this Protocol which result from a act when under a duty to do so, may second concept, called command or failure to act when under a duty to do be summarized as follows: superior responsibility, where the so”. commander may be held liable for a · it involves a superior, i.e. a subordinate’s unlawful conduct. This The grave breaches referred to in person having authority over a concept of command responsibility is Article 85 of Additional Protocol I also subordinate; a form of indirect responsibility and is include those generally committed by · the superior knew or should have based on the commander’s failure to a failure to act, such as the unjustified known that the crime had been act. delay in repatriating prisoners of war committed or was about to be or civilians. committed; Perpetrator responsibility for failing · the superior had the ability to to act Command responsibility for failing prevent the criminal conduct; and to act · the superior failed to take all The system established in the necessary and reasonable Geneva Conventions of 1949 for At issue is the responsibility of a measures within his power to repressing grave breaches targets superior who fails in his duty by doing prevent or punish the criminal persons who have committed or nothing to prevent or punish conduct. ordered the commission of such a subordinates committing violations of breach. Persons who by failing to act international humanitarian law. In The Geneva Conventions of 1949 superior de jure of the direct Rule 153 of the ICRC Customary perpetrator of a crime to be held The Geneva Conventions are silent International Humanitarian Law criminally responsible for his actions; on this point and it is for national Study1 states that commanders and it is sufficient to exercise authority legislation to regulate the matter by other superiors are criminally over such a person de facto. What express provision or by application of responsible for war crimes committed really matters is to determine whether the general rules of criminal law. by their subordinates if they knew, or the superior has actual powers to had reason to know, that the control the actions of his Additional Protocol I of 1977 subordinates were about to commit or subordinates, and in this regard ad were committing such crimes and did hoc international tribunals apply an Principles that came out of the trials not take all necessary and reasonable “effective control” test based on the held after the Second World War were measures in their power to prevent specific evidence of each case, which incorporated in Article 86.2 of their commission, or if such crimes aims to identify if the superior has the Additional Protocol I: had been committed, to punish the material ability to prevent and punish persons responsible. State practice criminal conduct. “The fact that a breach of the establishes this rule as a norm of Conventions or of this Protocol was customary international law applicable The case law has also made it clear committed by a subordinate does not in both international and non- that belonging to the military is not a absolve his superiors from penal or international armed conflicts. necessary condition, as political disciplinary responsibility, as the case leaders or civilian, hierarchical may be, if they knew, or had A superior’s failure to act superiors can also be held information which should have considered as a grave breach responsible for war crimes committed enabled them to conclude in the by subordinates. Finally, the case law circumstances at the time, that he The limits to criminal responsibility for has confirmed that there need be no was committing or was going to failing to act are not clearly specified direct causal relationship between a commit such a breach and if they did in criminal law. In International superior failing to take action and a not take all feasible measures within humanitarian law, a further difficulty subordinate committing a crime for their power to prevent or repress the stems from the fact that failure to act the superior to be held responsible. breach.” on the part of a superior is not expressly qualified as a grave breach, Command responsibility according Article 87 of Additional Protocol I whereas the obligation of States to to the Statute of the International spells out the duties and obligations of repress offences or extradite persons Criminal Court (ICC) military commanders with respect to in the exercise of universal jurisdiction their subordinates. The superiors applies to grave breaches only. The Statute of the International must prevent and, where necessary, Criminal Court distinguishes two kinds suppress and report to competent In the system of repression of ‘superior’ responsibility. authorities grave breaches committed established by International by their subordinates. Only in the humanitarian law, the superior's Responsibility of military event that he failed in these duties criminal liability is considered as a commanders does a commander risk being held form of participation in the criminally responsible for taking no commission of the crime. Article 28 of the Statute lays down action. that a military commander or a person Case law of the Ad Hoc “effectively” acting as a military A ‘superior’ is understood as International Criminal Tribunals commander is criminally responsible someone personally responsible for for crimes within the jurisdiction of the the acts committed by subordinates Firstly, the case law of the ad hoc ICC committed by forces or persons placed under his control. international criminal tribunals has under his effective command and specified the degree of responsibility control, or effective authority and The issue of how much knowledge of a superior who has failed to act control, where: the superior should have of the acts over his subordinate, mentioning that or intentions of his subordinates is the imposition of responsibility upon a · he either knew, or owing to the difficult to resolve. The knowledge of commander for breach of his duty is circumstances, should have the superior cannot be presumed, but to be weighed against the crimes of known that the forces or persons only established through his subordinates; a commander is were committing or about to circumstantial evidence. Actual responsible not as though he had commit such crimes; and knowledge of the crimes by the committed the crime himself, but his · he failed to take all necessary superior is not necessarily required, responsibility is considered in and reasonable measures within constructive knowledge may be proportion to the gravity of the his power to prevent or repress sufficient. It should be borne in mind offences committed. their commission or to submit the that the superior who fails to keep matter to the competent himself informed can also be held The case law has also clarified the authorities for investigation and liable to be held responsible. conditions under international prosecution. Command responsibility is not a type humanitarian law for holding superiors of strict liability. The superior’s duty to responsible for offences committed by Responsibility of civilian superiors act consists in initiating such steps
Load more

Recommended publications
  • Erosion of the Rule of Law As a Basis for Command Responsibility Under International Humanitarian Law
    Chicago Journal of International Law Volume 18 Number 2 Article 4 1-1-2018 Erosion of the Rule of Law as a Basis for Command Responsibility under International Humanitarian Law Amy H. McCarthy Follow this and additional works at: https://chicagounbound.uchicago.edu/cjil Recommended Citation McCarthy, Amy H. (2018) "Erosion of the Rule of Law as a Basis for Command Responsibility under International Humanitarian Law," Chicago Journal of International Law: Vol. 18: No. 2, Article 4. Available at: https://chicagounbound.uchicago.edu/cjil/vol18/iss2/4 This Article is brought to you for free and open access by Chicago Unbound. It has been accepted for inclusion in Chicago Journal of International Law by an authorized editor of Chicago Unbound. For more information, please contact [email protected]. Erosion of the Rule of Law as a Basis for Command Responsibility under International Humanitarian Law Amy H. McCarthy Abstract Many examples of modern war crimes exhibit a strong link between the institutional breakdown of the rule of law and subsequent commission of humanitarian abuses by service members. Unchecked misconduct, specifically including dehumanizing acts, tends to foster a climate where war crimes are likely to occur. Does the law adequately account for this common thread? This article examines the doctrine of command responsibility in the context of a superior’s failure to maintain discipline among troops, and resulting criminal culpability for violations of the law of armed conflict. While customary international law, as applied by modern ad hoc tribunals, contemplates a wide range of misconduct that may trigger a commander’s affirmative duty to prevent future abuses by subordinates, U.S.
    [Show full text]
  • Defending the Emergence of the Superior Orders Defense in the Contemporary Context
    Goettingen Journal of International Law 2 (2010) 3, 871-892 Defending the Emergence of the Superior Orders Defense in the Contemporary Context Jessica Liang Table of Contents Abstract ............................................................................................................ 872 A. Introduction .......................................................................................... 872 B. Superior Orders and the Soldier‘s Dilemma ........................................ 872 C. A Brief History of the Superior Orders Defense under International Law ............................................................................................. 874 D. Alternative Degrees of Attributing Criminal Responsibility: Finding the Right Solution to the Soldier‘s Dilemma ..................................... 878 I. Absolute Defense ................................................................................. 878 II. Absolute Liability................................................................................. 880 III.Conditional Liability ............................................................................ 881 1. Manifest Illegality ..................................................................... 881 2. A Reasonableness Standard ...................................................... 885 E. Frontiers of the Defense: Obedience to Civilian Orders? .................... 889 I. Operation under the Rome Statute ....................................................... 889 II. How far should the Defense of Superior Orders
    [Show full text]
  • Command Responsibility After Bemba
    Command Responsibility after Bemba Ray Murphy* 1 Introduction Command responsibility is a subject that has generated significant controversy since its adoption in the post-World War ii trials. It took a long time for omis- sion liability to evolve under international criminal law.1 However, today it is a well established principal that superiors are criminally responsible for the ac- tions of subordinates under their effective command or authority.2 According to Schabas, the topic has generated “more heat than light”.3 This seems an apt description of how this doctrine is interpreted and applied by international tribunals and courts. Command responsibility is a complex form of criminal responsibility and its most recent iteration is Article 28 of the Rome Statute (“icc Statute”), governing responsibility of commanders and other superiors. This contains a lengthy and complex definition of what is a long established modality dealing with individual criminal responsibility under international law.4 For an act or omission to constitute the physical element of a crime, it is not sufficient that a commander be under a mere duty to act; he or she must * Professor, Irish Centre for Human Rights, School of Law, National University of Ireland Galway 1 Antonio Cassese and Paola Gaeta, Cassese’s International Criminal Law (Oxford University Press, 3rd ed, 2013) 180. 2 Otto Triffterer and Kai Ambos (eds), Rome Statute of the International Criminal Court – A Commentary (Beck Hart Nomos, 3rd ed, 2016) 1059; UK Ministry of Defence, The Manual of the Law of Armed Conflict (Oxford University Press, 2004) 436–8. 3 William Schabas, The International Criminal Court (Oxford University Press, 2010) 455.
    [Show full text]
  • Rome Statute of the International Criminal Court
    Rome Statute of the International Criminal Court The text of the Rome Statute reproduced herein was originally circulated as document A/CONF.183/9 of 17 July 1998 and corrected by procès-verbaux of 10 November 1998, 12 July 1999, 30 November 1999, 8 May 2000, 17 January 2001 and 16 January 2002. The amendments to article 8 reproduce the text contained in depositary notification C.N.651.2010 Treaties-6, while the amendments regarding articles 8 bis, 15 bis and 15 ter replicate the text contained in depositary notification C.N.651.2010 Treaties-8; both depositary communications are dated 29 November 2010. The table of contents is not part of the text of the Rome Statute adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court on 17 July 1998. It has been included in this publication for ease of reference. Done at Rome on 17 July 1998, in force on 1 July 2002, United Nations, Treaty Series, vol. 2187, No. 38544, Depositary: Secretary-General of the United Nations, http://treaties.un.org. Rome Statute of the International Criminal Court Published by the International Criminal Court ISBN No. 92-9227-232-2 ICC-PIOS-LT-03-002/15_Eng Copyright © International Criminal Court 2011 All rights reserved International Criminal Court | Po Box 19519 | 2500 CM | The Hague | The Netherlands | www.icc-cpi.int Rome Statute of the International Criminal Court Table of Contents PREAMBLE 1 PART 1. ESTABLISHMENT OF THE COURT 2 Article 1 The Court 2 Article 2 Relationship of the Court with the United Nations 2 Article 3 Seat of the Court 2 Article 4 Legal status and powers of the Court 2 PART 2.
    [Show full text]
  • Medical War Crimes
    Medical War Crimes Sigrid Mehring* A. von Bogdandy and R. Wolfrum, (eds.), Max Planck Yearbook of United Nations Law, Volume 15, 2011, p. 229-279. © 2011 Koninklijke Brill N.V. Printed in The Netherlands. 230 Max Planck UNYB 15 (2011) I. Introduction II. Medical War Crimes 1. Medical Grave Breaches and Medical War Crimes 2. Medical Aspects of the Classic Grave Breaches III. Medical War Crimes in International Criminal Law 1. The ICTY and ICTR Statutes 2. The Rome Statute IV. National Implementation: The German Example V. The Prosecution of Medical War Crimes 1. The Doctors’ Trial of 1947 2. The Ntakirutimana Trial of 2003 3. General Observations concerning Prosecution VI. Possible Defenses to Medical War Crimes 1. Superior Orders 2. Mistake of Fact 3. Necessity and Duress 4. Consent of the Patient VII. Conclusion Mehring, Medical War Crimes 231 I. Introduction Physicians have always played an important role in armed conflicts be- ing the first to treat wounded and sick combatants, prisoners of war, and civilians. This makes them an important, essential category of ac- tors in armed conflicts, a role which is reflected in the laws of war.1 In granting first aid and emergency care, physicians can fulfill a further role by reporting on human rights abuses or violations of international humanitarian law.2 They are thus in a privileged position to watch over the rights of the victims of armed conflicts. However, their position is also susceptible to abuse. Physicians have always used armed conflicts for their own gain, to further their medical skills or to use their skills to enhance military gains or further medical science.
    [Show full text]
  • The Rise and Fall of an Internationally Codified Denial of the Defense of Superior Orders
    xv The Rise and Fall of an Internationally Codified Denial of the Defense of Superior Orders 30 Revue De Droit Militaire Et De Droit De LA Guerre 183 (1991) Introduction s long as there have been trials for violations of the laws and customs of A war, more popularly known as "war crimes trials", the trial tribunals have been confronted with the defense of "superior orders"-the claim that the accused did what he did because he was ordered to do so by a superior officer (or by his Government) and that his refusal to obey the order would have brought dire consequences upon him. And as along as there have been trials for violations of the laws and customs ofwar the trial tribunals have almost uniformly rejected that defense. However, since the termination of the major programs of war crimes trials conducted after World War II there has been an ongoing dispute as to whether a plea of superior orders should be allowed, or disallowed, and, if allowed, the criteria to be used as the basis for its application. Does international action in this area constitute an invasion of the national jurisdiction? Should the doctrine apply to all war crimes or only to certain specifically named crimes? Should the illegality of the order received be such that any "reasonable" person would recognize its invalidity; or should it be such as to be recognized by a person of"ordinary sense and understanding"; or by a person ofthe "commonest understanding"? Should it be "illegal on its face"; or "manifesdy illegal"; or "palpably illegal"; or of "obvious criminality,,?1 An inability to reach a generally acceptable consensus on these problems has resulted in the repeated rejection of attempts to legislate internationally in this area.
    [Show full text]
  • 1 1 US Torture Policy and Command Responsibility James P. Pfiffner Abstract: Civilian Control of the Military and Political Cont
    A revised version of this paper was published in Examining Torture: Empirical Studies of State Repression, ed. Tracy Lightcap and James P. Pfiffner (NY: Palgrave Macmillan, 2014), pp. 103-126. US Torture Policy and Command Responsibility James P. Pfiffner Abstract: Civilian control of the military and political control of the executive branch are important constitutional principles upon which the United States government is based. After the 9/11 atrocities, President Bush used his power as president very effectively to pursue policies that would allow and encourage U.S. personnel to use harsh interrogation techniques to obtain intelligence in the war on terror. In implementing these interrogation policies, the Bush administration used legal arguments and the chain of command to ensure that the harsh interrogation policies would be carried out. In this process, the administration failed to heed the warnings of both civilian and military career professionals, and this led to the abuse and torture of detainees in the war on terror. This chapter will examine U.S. policy making on interrogation in the war on terror in light of several important principles of American government and international law: the politics-administration dichotomy, civilian control of the military, and command responsibility. President Bush used his power as president very effectively to pursue a policy direction that would allow and encourage U.S. personnel to use harsh interrogation methods to obtain intelligence in the war on terror. His aides marshaled legal arguments to support his position, despite serious objections from his Secretary of State, Colin Powell, and professional military lawyers in the Judge Advocate General Corps, among others.
    [Show full text]
  • Criminalization of Crimes Against Humanity Under National Law
    This is a repository copy of Criminalization of Crimes Against Humanity under National Law. White Rose Research Online URL for this paper: http://eprints.whiterose.ac.uk/143059/ Version: Accepted Version Article: van Sliedregt, E orcid.org/0000-0003-1146-0638 (2019) Criminalization of Crimes Against Humanity under National Law. Journal of International Criminal Justice, 16 (4). pp. 729- 749. ISSN 1478-1387 https://doi.org/10.1093/jicj/mqy027 © The Author(s) (2019). Published by Oxford University Press. All rights reserved. This is an author produced version of a paper published in Journal of International Criminal Justice. Uploaded in accordance with the publisher's self-archiving policy. Reuse Items deposited in White Rose Research Online are protected by copyright, with all rights reserved unless indicated otherwise. They may be downloaded and/or printed for private study, or other acts as permitted by national copyright laws. The publisher or other rights holders may allow further reproduction and re-use of the full text version. This is indicated by the licence information on the White Rose Research Online record for the item. Takedown If you consider content in White Rose Research Online to be in breach of UK law, please notify us by emailing [email protected] including the URL of the record and the reason for the withdrawal request. [email protected] https://eprints.whiterose.ac.uk/ To be published in the Journal of International Criminal Justice, Oxford Journals PLEASE DO NOT CITE The ILC Draft Convention on Crimes Against Humanity - Criminalization under National Law Elies van Sliedregt* Abstract This paper discusses Article 6 of the International Law Commission’s (ILC) draft articles on crimes against humanity, which deals with criminalization of crimes against humanity in national law.
    [Show full text]
  • The Superior Orders Defence: Embraced at Last?
    THE NEW ZEALAND POSTGRADUATE LAW E-JOURNAL ISSUE 2 / 2005 THE SUPERIOR ORDERS DEFENCE: EMBRACED AT LAST? by Silva Hinek THE NEW ZEALAND POSTGRADUATE LAW E-JOURNAL (NZPGLEJ) - ISSUE 2 / 2005 THE SUPERIOR ORDERS DEFENCE: EMBRACED AT LAST? SILVA HINEK * For I believe and avow that one's duty toward one's people and fatherland stands above every other. To carry out this duty was for me an honour and the highest law. May this duty be supplanted in some happier future by an even higher one, by the duty toward humanity.1 ABSTRACT: The superior orders defence is one of the most controversial defences in international criminal law. Under national law a soldier is bound to obey the orders of his military superiors promptly and without hesitation. Yet, some orders may be illegal, whether under national, international or martial law. What should happen then to a soldier who commits a crime whilst following an illegal order? Currently, the Statute of the International Criminal Court contains a provision recognising the defence of superior orders in such cases. The purpose of this article is to examine the rationale behind the defence of superior orders, viewed through its troubled history, and also to appraise this very important step of codification taken by the international community. I INTRODUCTION The doctrine of superior orders is undoubtedly one of the most controversial and widely debated defences in international criminal law. The question of whether a soldier should be punished for his crimes when he claims to have been only following orders is fraught with difficult legal and moral issues.
    [Show full text]
  • Command Responsibility in International and Domestic Criminal Law
    2/24 ZBORNIK ZNANSTVENIH RAZPRAV – LXVIII. LETNIK, 2008 Command Responsibility in International and Domestic Criminal Law Summary The principle of command responsibility establishes the responsibility of mili- tary commanders and non-military superiors for unlawful actions committed by their subordinates or other persons subject to their control. This legal institution was invented by the international criminal law, which initially developed it as an institution of customary international criminal law. Later it also found its way into positive law. The paper discusses command responsibility stricto sensu, also known as indi- rect command responsibility. This type of command responsibility is based on the culpable omission of adequate supervision over subordinate persons who commit international crimes. It should be distinguished from direct command responsibility, i.e. international crimes committed on superiors’ order. In the latter case, superiors are hold responsible according to general rules !as instigators or indirect perpetra- tors), in which case a specific institution of command responsibility is not required. International criminal court practice, International Criminal Tribunal for the former %ugoslavia (the ICTY) in particular, proves that it is much harder to obtain evidence of direct command responsibility (i.e. that a crime has been committed pursuant to an superior’s order), while it is less difficult to prove omission of adequate supervi- sion over subordinate persons. This is the reason why in practice command responsi- bility stricto sensu became an extremely frequently used »backup« or »safety device« to prevent superior persons from escaping unpunished. This solution raised numer- ous questions among interpreters whether international criminal law went too far in its endeavours to create an institution that would enable a more apt conviction of superiors, and that in doing so, it came too close to strict liability.
    [Show full text]
  • The Superior Orders Defense: a Principal-Agent Analysis
    GEORGIA JOURNAL OF INTERNATIONAL AND COMPARATIVE LAW VOLUME 41 2012 NUMBER 1 ARTICLES THE SUPERIOR ORDERS DEFENSE: A PRINCIPAL-AGENT ANALYSIS Ziv Bohrer* TABLE OF CONTENTS I. INTRODUCTION ................................................................................... 3 II. THE CORE PREMISE OF THE CURRENT SUPERIOR ORDERS DEFENSE DISCOURSE .......................................................................................... 7 A. The Balancing Test ....................................................................... 7 B. The State of Applied Law............................................................ 13 1. International Law ................................................................ 14 2. American Military Law ........................................................ 17 III. AGENCY ANALYSIS OF OBEDIENCE TO ORDERS ............................... 19 A. Use of Agency Models ................................................................ 19 B. Agency Model of Obedience to Orders ...................................... 20 C. Command Responsibility Rule .................................................... 23 * Research Fellow, Sacher Institute, Hebrew University Faculty of Law (2012–2013); Visiting Research Scholar, University of Michigan Law School (2011–2012). The ideas in this Article were developed as part of my doctoral thesis, see Ziv Bohrer, The Superior Orders Defense in Domestic and International Law—A Doctrinal and Theoretical Revision (June 21, 2012) (unpublished Ph.D. dissertation, Tel Aviv University) (on file
    [Show full text]
  • Command Responsibility: a Model for Defining Meaningful Human Control
    Cite as Miller, 11 J. NAT’L SECURITY L. & POL’Y __ (forthcoming 2021) Command Responsibility: A Model for Defining Meaningful Human Control By Matthew T. Miller* In the relatively near future, the United States and other countries are likely to develop varying levels of artificial intelligence (AI) and integrate it into autonomous weapons.1 There are significant voices, spearheaded by The Campaign to Ban Killer Robots, advocating for a preemptive ban on these weapons.2 The opponents of lethal autonomous weapon systems (LAWS) argue that it is unethical to allow a machine to decide when to kill and that AI will never be able to adhere to International Humanitarian Law (IHL) obligations.3 Although this opposition campaign has not yet achieved its goal of a ban, it has prompted considerable debate over the legality of developing and using LAWS. One of the concepts that has arisen in this debate is a legal requirement for meaningful human control (MHC) over LAWS.4 The idea of MHC has gained traction within discussions at the United Nations Convention on Certain Conventional Weapons (CCW), but the concept has its detractors.5 One of those detractors is the United States, whose delegation to the CCW Group of Governmental Experts continues to warn that MHC is an ambiguous term that “obscures rather than clarifies the genuine challenges” related to LAWS.6 Instead of human control, the U.S. argues that the key issue is ensuring “machines help effectuate the intention of commanders and the operators of weapon systems.”7 The U.S. Department of Defense showed its focus on intent, rather than control, by adopted the policy that “autonomous and semi-autonomous weapon systems shall * Major Matthew Miller is a Judge Advocate in the U.S.
    [Show full text]