COMMAND RESPONSIBILITY AND THE DEFENCE OF SUPERIOR ORDERS Lecture April 20, 2015 by Arne Willy Dahl Introduction It has been told that the French emperor Napoleon Bonaparte once summoned one of his generals to answer for a lost battle. The general pointed out that the cause of the defeat was some more or less random events completely beyond the control of the general. The defeat was therefore to be considered as the result of bad luck, not to be attributed to any fault by the general. The emperor answered: I cannot afford to have generals with bad luck. You are relieved from your command. Napoleons reaction may not have been an example of good legal reasoning, but it illustrates the fact that from a military commander results are demanded, and that excuses for failure are not easily accepted. - If the commander tells his superiors that his mission failed because of insufficient training of his troops, he will be asked why he did not provide sufficient training for them. - If the cause was insufficient supplies of ammunition or other essential supplies, he will have to explain what he did in order to provide the supplies to the troops at the frontline. - And if he says that the soldiers were not prepared when the enemy attacked, because they had been drinking beer and amusing themselves with the village girls instead of fortifying their positions and watching the movements of the enemy, he will have to answer to why he permitted such behaviour. If he then answers that he did not know what the soldiers were doing, he will be asked why didn’t he inspect them. In other words, 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. Criminal responsibility Such responsibility may also be criminal. In this country we have peacetime examples of accidents caused by junior officers, the commanding officer having to answer in court for his passivity. - Commanders have been asked whether they have entrusted vital tasks to persons with sufficient qualifications. - They have been asked whether operations have been properly organised, ensuring that each man knows his tasks. - Has there been sufficient control of what the subordinates were doing? - Has the commander inspired the subordinates by his presence, showing that he is interested in what is going on? - Has he reacted on information, which should have raised his suspicion that some problem might be developing? I think that every developed army has to demand from its officers that they 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. Responsibility for criminal actions commited by the subordinates. If a commander is to be held responsible for losing battles by not controlling his men, it is obvious that he should also be held responsible for spoiling the good reputation of his army or even his country, by his omission to control his men. And when one is speaking of grave crimes against innocent people, it is not only a matter of spoiling a good reputation, but a concern for all men of good will: How could this commander permit such things to happen? Thus, command responsibility is not a recent development, but is flows from the nature of a military organisation. It is a general principle of military organization that military commanders are responsible for their subordinates (Hague IV art. 1, Protocol I art. 43). This principle of responsibility, taken together with the authority to give orders and to punish disobedience or other undisciplined behavior, makes the difference between a military unit of lawful combatants and a collection of individual franc-tireurs. Without going into details, it can generally be said that it is this principle of organization and responsibility which absolves the individual soldier from criminal responsibility for the use of deadly force against other human beings, when he acts according to his orders and within the rules for armed conflict. Command responsibility has been practised in well-known criminal cases after the World War II. One is the case against the Japanese general Yamashita, who was held responsible for the conduct of his troops towards the civilian population in the Philippines. The charge was that he 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. Another was Hirota, former Foreign Minister of Japan, who was convicted of atrocities - including mass rape - committed in the "rape of Nanking", under a count which charged that he had " recklessly disregarded their legal duty by virtue of their offices to take adequate steps to secure the observance and prevent breaches of the law and customs of war". The Tokyo Tribunal held that: "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". Codification Codification in international treaties of the responsibility of commanders, is however comparatively recent. The Protocol 1 of 1977 to the Geneva conventions lays down in article 86 that 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. It furthermore lays down in article 87, that 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. The Geneva Conventions and Additional Protocols are, however, neither written nor negotiated as criminal law texts. They give substantial guidance, but the final assessment of the guilt of an accused, should preferably be made with reference to a national or an international criminal legal text, and in the absence of applicable texts, with reference to international customary law according to the best assessment of the court or tribunal having jurisdiction, for instance the Yugoslavia and Rwanda tribunals. Command responsibility was included in the ICTY Statute ICTY 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. A similar provision is included in the 1994 ICTR Statute. In the negotiation of the 1998 ICC Statute, the provision was refined somewhat. To put it short, the article 28 makes a distinction between military commanders on the one hand, and civilian administrative or political leaders on the other. The article, however, equates a person effectively acting as a military commander, with military commanders. The reason is that in some cases a person can have the same functions and command authority as a military commander, without having a military rank, and should therefore have the same responsibility. From these persons – military commanders and civilians effectively acting as military commanders, the statute expects that they keep themselves informed of what is going on in the field. A military commander will have resources to obtain such information, and good military reasons to do so. He can therefore not be heard with that he did not know. From superiors “not described in paragraph 1” – which means ordinary civilian leaders, the statute expects that they act on the knowledge that they actually possess, equating positive knowledge with the conscious disregarding of information that is at hand. The Law expects from both the military commanders and ordinary civilian leaders that they “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”. One may ask how action after the event can absolve the commander from responsibility for a crime that has taken place. - One answer may be that crimes that are likely to invoke command responsibility will be of some duration, and that early punitive action will be the best way to stop actual and potential future perpetrators. - Another answer may be that punishing crimes or submitting the matter to competent authorities will be the only possible alternative to inaction, if the crime has already taken place.