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Command Responsibility and the Defence of Superior Orders

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Command Responsibility and the Defence of Superior Orders Command responsibility and the defence of superior orders Lecture April 10, 2012 by Arne Willy Dahl The unlucky general The unlucky general • A commander must generally be prepared to be held responsible for acts or omissions by his subordinates, if he could have corrected matters by his own activity. • Officers must keep themselves informed, stay active and ahead of events, and take corrective action if something seems to be developing in an undesirable direction. • The passive commander may lose his command, or in the more serious cases, face a trial. Yamashita between October 9, 1944 and September 2, 1945, in the Philippine islands, “while commander of armed forces of Japan at war with the United States of America and its allies, unlawfully disregarded and failed to discharge his duty as commander to control the operations of the members of his command, permitting them to commit brutal atrocities and other high crimes against people of the United States and its dependencies, particularly the Philippines; and he … thereby violated the laws of war.” The number of victims ran up into tens of thousands. Hirota "Hirota was derelict in his duty in not insisting before the Cabinet that immediate action be taken to put an end to the atrocities, failing any other action open to him to bring about the same result. He was content to rely on assurances which he knew were not being implemented while hundreds of murders, violations of women, and other atrocities were being committed daily. His inaction amounted to criminal negligence". AP I Article 86 – failure to act 1. The High Contracting Parties and the Parties to the conflict shall repress grave breaches, and take measures necessary to suppress all other breaches, of the Conventions or of this Protocol which result from a failure to act when under a duty to do so. 2. The fact that a 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 should have enabled them to conclude in the circumstances at the time, that he was committing or was going to commit such a breach and if they did not take all feasible measures within their power to prevent or repress the breach. AP I Article 87 – Duty of commanders 1. 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 report to competent authorities breaches of the Conventions and of this Protocol. 2. In order to prevent and suppress breaches, High Contracting Parties and Parties to the conflict shall require that, commensurate with their level of responsibility, commanders ensure that members of the armed forces under their command are aware of their obligations under the Conventions and this Protocol. Art. 87 – cont. 3. The High Contracting Parties and Parties to the conflict shall require any commander who is aware that subordinates or other persons under 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 this Protocol, and, where appropriate, to initiate disciplinary or penal action against violators thereof. ICTY Statute art. 7 3. 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 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. ICC statute art 28 Responsibility of commanders and other superiors In addition to other grounds for 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: ICC statute art 28 - 2 • (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. ICC statute art 28 - 3 (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: ICC statute art 28 - 4 • (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. How can action after the event absolve from responsibility? • Early punitive action will be the best way to stop further crimes. • Inaction can easily be interpreted as condoning crimes. • Command responsibility is a crime of omission. Pictet’s commentary [...] the negligence must be so serious that it is tantamount to malicious intent, apart from any link between the conduct in question and the damage that took place. This element in criminal law is far from being clarified, but it is essential, since it is precisely on the question of intent that the system of penal sanctions in the Conventions is based. ICTR Akayesu paragraph 488 • According to one view it derives from a legal rule of strict liability, that is, the superior is criminally responsible for acts committed by his subordinate, without it being necessary to prove the criminal intent of the superior. • Another view holds that negligence which is so serious as to be tantamount to consent or criminal intent, is a lesser requirement. ICTR Akayesu Paragraph 489 • The Chamber holds that it is necessary to recall that criminal intent is the moral element required for any crime and that, where the objective is to ascertain the individual criminal responsibility of a person Accused of crimes falling within the jurisdiction of the Chamber, such as genocide, crimes against humanity and violations of Article 3 Common to the Geneva Conventions and of Additional Protocol II thereto, it is certainly proper to ensure that there has been malicious intent, or, at least, ensure that negligence was so serious as to be tantamount to acquiescence or even malicious intent. ICTR cites Judge Röling (minority in Tokyo) • "Generally speaking, a Tribunal should be very careful in holding civil government officials responsible for the behaviour of the army in the field. Moreover, the Tribunal is here to apply the general principles of law as they exist with relation to the responsibility for omissions'. Considerations of both law and policy, of both justice and expediency, indicate that this responsibility should only be recognized in a very restricted sense". ICTR Akayesu Paragraph 491 491. 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 the 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. ICTR more conservative than ICC • The responsibility of civilian leaders is no more contentious, • Re military commanders, ICTR’s words saying that it is proper to ensure that there has been malicious intent or the equivalent, will probably not be the last. Some particular questions • Commanders and superiors • Where in the chain of command? • Deputy commanders • Chiefs of staff • Multinational units Military organisation Outline of the organisation of a brigade Commanding Officer Colonel Battalion 1 Battalion 2 Battalion 3 CO CO CO LtCol LtCol LtCol Company A Company B Company C CO CO CO Captain Captain Captain 1st Platoon 2nd Platoon 3rd Platoon Platoon leader Platoon leader Platoon leader Lieutenant Lieutenant Lieutenant Military organisation including DC/XO Outline of the organisation of a brigade Commanding Officer Colonel Second in command/ Deputy Commander/ Executive Officer Battalion 1 Battalion 2 Battalion 3 CO CO CO LtCol LtCol LtCol Company A Companyi B Company C CO CO CO Captain Captain Captain 1st Platoon 2nd Platoon 3rd Platoon Platoon leader Platoon leader Platoon leader Lieutenant Lieutenant Lieutenant Staff organisation Brigade CO Colonel COS Lt col G-1 G-2 G-3 G-4 Personnel Intelligence Operations Logistics Major Major Major Major Battalion 1 Battalion 2 Battalion 3 CO CO CO Lt Col Lt Col Lt Col Multi-national organisation Brigade CO NORBATT FINBATT SWEBATT CO CO CO Superior orders • Admitted as defence? • Or only in mitigation? 1945 Nuremberg statute Art.
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