Superior Responsibility

In the practice of international law, command responsibility (also superior responsibility) is the legal doctrine of hierarchical accountability for war crimes, whereby a commanding officer (military) and a superior officer (civil) are legally responsible for the war crimes and the crimes against humanity committed by his subordinates; thus, a commanding officer always is accountable for the acts of commission and the acts of omission of his soldiers.Guilty Associations: Joint Criminal Enterprise, Command Responsibility, and the Development of International Criminal Law
by Allison Marston Danner and Jenny S. Martinez, 15 September 2004.
by Robin Rowland, CBC News Online, 6 May 2004

In the late 19th century, the legal doctrine of command responsibility was codified in the Hague Conventions of 1899 and 1907, which are partly based upon the Lieber Code (General Orders No. 100, 24 April 1863), military law that legally allowed the Union Army to fight in the regular and the irregular modes of warfare deployed by the Confederacy during the American Civil War (1861–1865). As international law, the legal doctrine and the term ''command responsibility'' were applied and used in the Leipzig war crimes trials (1921) that included the trial of Captain Emil Müller for prisoner abuse committed by his soldiers during the First World War (1914–1918). by Iavor Rangelov and Jovan Nicic, Humanitarian Law Center, 23 February 2004.The Contemporary Law of Superior Responsibility
by Ilias Bantekas, American Journal of International Law, 3 July 1999Joint Criminal Enterprise and Command Responsibility
by Profr. Kai Ambos, University of Göttingen, 25 January 2007.

In the 20th century, in the late 1940s, the Yamashita standard derived from the incorporation into the U.S. Code of the developments of the legal doctrine of command responsibility presented in the Nuremberg trials (1945–1946). Abiding by that legal precedent, the U.S. Supreme Court allowed the U.S. prosecution of the war crimes case against Imperial Japanese Army General Tomoyuki Yamashita for the atrocities committed by his soldiers in the Philippine Islands, in the Pacific Theatre (1941–1945) of the Second World War. The International Military Tribunal for the Far East charged, tried, and judged Gen. Yamashita for "unlawfully disregarding, and failing to discharge, his duty as a commander to control the acts of members of his command, by permitting them to commit war crimes".Stuart E Hendin
"Command Responsibility and Superior Orders in the Twentieth Century – A Century of Evolution"
''Murdoch University Electronic Journal of Law''

In the 20th century, in the early 1970s, the Medina standard expanded the U.S. Code to include the criminal liability of American military officers for the war crimes committed by their subordinates, as are the war-criminal military officers of an enemy power. The Medina standard was established in the court martial of U.S. Army Captain Ernest Medina in 1971 for not exercising his command authority as a company commander, by not acting to halt the My Lai massacre (16 March 1968) committed by his soldiers during the Vietnam War (1955–1975).

Historical development

9th-century BC to 5th-century BC Asia

In ''The Art of War'' (5th century BC), Sun Tzu said that the duties and responsibilities of a commanding officer were to ensure that in prosecuting a war, his soldiers act in accordance with the customary laws of war, by limiting their operational actions to the military aims of the war.

15th-century Europe

In 1474, in the Holy Roman Empire (962–1806), the trial of the Burgundian knight Peter von Hagenbach was the first international recognition of the legal doctrine of command responsibility, of a commander's legal obligation to ensure that his soldiers act in accordance with customary law in prosecuting their war.Greppi, Eduardo
"The evolution of individual criminal responsibility under international law"
University of Turin, Italy, International Committee of the Red Cross No. 835, p. 531–553, October 30, 1999.Grant, Linda
"Exhibit highlights the first international war crimes tribunal"
'"Harvard Law Bulletin''. The tribunal tried Hagenbach for atrocities committed by his soldiers during their military occupation of Breisach, and was found guilty of their war crimes, condemned to death, and then was beheaded.Schabas, William A
''An Introduction to the International Criminal Court''
(3rd ed.). Cambridge University Press.

The Knight Hagenbach was accused of, tried, and convicted for war crimes that "he, as a knight, was deemed to have ada duty to prevent"; in self-defense, Hagenbach argued that he was only following the military orders of Charles the Bold,Murray, Don
"Judge and master"
''CBC News''. 8 July 2002. the Duke of Burgundy, to whom the Holy Roman Empire had bequeathed Breisach. Although the term ''command responsibility'' did not exist in the 15th century, the tribunal did presume he had a legal responsibility for war crimes of his soldiers, thus Hagenbach's trial was the first war crimes trial based upon the legal doctrine of command responsibility.Levine, Eugenia

Global Policy Forum. February 2005.

19th-century United States

During the American Civil War (1861–1865), the legal doctrine of command responsibility was codified in the Lieber Code – General Orders No. 100: ''Instructions for the Government of Armies of the United States in the Field'' (24 April 1863) – the contemporary updating of the 18th-century military law of the 1806 Articles of War that allowed the Union Army to lawfully combat the regular and irregular modes of warfare (partisans, guerrillas, spies) deployed by the Confederacy in the mid-19th century.

As U.S. military law, the Lieber Code stipulated a commander's legal responsibility for the war crimes and crimes against humanity committed by his subordinate officers, sergeants, and soldiers; and further stipulated the duties and rights of the individual soldier of the Union Army to not commit war crimes – such as the summary execution of Confederate POWs, irregular combatants, and enemy civilians; thus Article 71, Section III of the Lieber Code stipulates that:

20th century

The Hague Conventions of 1899 and 1907 are the international legal foundations for the conduct of war among civilized nations, especially the legal doctrine of command responsibility for war crimes and crimes against humanity. The Hague Convention of 1907 updated the codifications of the Hague Convention of 1899, thus, in Convention IV (18 October 1907), the ''Laws and Customs of War on Land'' emphasizes command responsibility in three places: (i) Section I: On Belligerents: Chapter I: The Qualifications of Belligerents; (ii) Section III: Military Authority over the Territory of the Hostile State; and (iii) the Adaptation to Maritime War of the Principles of the Geneva Convention deal specifically with command responsibility.

To wit, Article 1 of Section I of Convention IV (Hague 1907) stipulates that:

Moreover, command responsibility is stipulated in Article 43, Section III of Convention IV:

Furthermore, command responsibility is stipulated in Article 19 of Convention X, the Adaptation to Maritime War of the Principles of the Geneva Convention:

Militias and irregular formations

Since the 1990s, national governments have hired mercenary soldiers to replace regular army soldiers in fighting wars, which replacement of tactical combat personnel (infantry) – by a private military company – raises the legal matter of command responsibility for the war crimes and crimes against humanity committed by mercenaries ostensibly not subject to the military law of any belligerent party.

Political scientists and military jurists said that when the operational conduct of mercenary soldiers is indistinguishable from the operational conduct of the combatant soldiers (uniform, weapons, tactics, missions, etc.) that practical likeness renders the mercenary (militiaman or irregular combatant) into a legitimate agent of the belligerent state, who thus is subject to the legal liabilities of command responsibility codified in the Hague and in the Geneva Conventions.

Yamashita standard

As a legal doctrine of military law, command responsibility stipulates that an act of omission is a mode of individual criminal liability, whereby the commanding officer is legally responsible for the war crimes committed by his subordinates, by failing to act and prevent such crimes; and for failing to punish war-criminal subordinates. In late 1945, the war-crimes trial of General Tomoyuki Yamashita, Japanese Fourteenth Area Army, was the first instance of a commanding officer formally charged with a criminal act of omission by “unlawfully disregarding and failing to discharge his duty as a commander to control the acts of members of his command by permitting them to commit war crimes” in the Philippine Islands, where his soldiers committed atrocities against Allied prisoners of war, Filipino guerrillas, and civilians during the Second World War.

The International Military Tribunal for the Far East who charged, tried, and judged Gen. Yamashita guilty of war crimes established the ''Yamashita standard'' of criminal liability, whereby if "vengeful actions are widespread offenses, and there is no effective attempt by a commander to discover and control the criminal acts, hensuch a commander may be held responsible, even criminally liable". In 1946, with the ''Application of Yamashita'', the U.S. Supreme Court resolved the ambiguous wording of that legal definition of command responsibility, which did not establish the commander's required degree of knowledge of the war crimes committed by his subordinates.

At Nuremberg, in the ''High Command Trial'', the U.S. military tribunal ruled that in order for a commanding officer to be criminally liable for the war crimes of his subordinates "there must be a personal dereliction", which "can only occur where the act is directly traceable to him, or where his failure to properly supervise his subordinates constitutes criminal negligence on his part" by way of "a wanton, immoral disregard of the actions of his subordinates amounting to he commander'sacquiescence" to the war crimes.

At Nuremberg, in the trial of the ''Hostages Case'', the judgements of the U.S. military tribunal seemed to limit the circumstances wherein a commanding officer has a duty to investigate, document, and know in full of all instances of atrocity and war crime, especially if the commander already possessed information regarding the war crimes of his subordinate officers and soldiers.

After the war crimes trials of the Second World War, military law expanded the scope and deepened the definition of command responsibility, by imposing criminal liability upon commanding officers who fail to prevent their soldiers from committing war crimes against prisoners of war and atrocities against civilians. The last two war-crime trials of the subsequent Nuremberg trials (1946–1949), explicitly discussed the requisite standard of the ''mens rea'' (a guilty mind) for war crimes to occur, and determined that a lesser level of knowledge is sufficient for the commander to be complicit in the war crimes of his subordinates.

Superior responsibility

Legalized torture

Concerning the superior responsibility inherent to civilian control of the military, civil and military jurists said that prosecuting the War on Terror would expose the officers of the George W. Bush administration (2001–2008) to legal liability for the war crimes and for the crimes against humanity committed by their military subordinates in Iraq and Afghanistan.

Consequent to the 11 September 2001 terrorist attacks, the U.S. government deployed legalistic arguments to justify torture by way of prisoner abuse, arguing that captured al Qaeda fighters are unlawful combatants – not soldiers – and thus could be subjected to enhanced interrogation methods, because under U.S. law they were classified as ''detainees'' and not as ''prisoners of war'' (POWs). To justify flouting the Geneva Conventions (1949) protecting prisoners of war, U.S. Attorney General Alberto Gonzáles said that classifying al Qaeda POWs as ''unlawful combatants'' "substantially reduces the threat of domestic criminal prosecution under the War Crimes Act of 1996".

In the case of ''Hamdan v. Rumsfeld'', the U.S. Supreme Court overruled Attorney General Gonzáles' illegal reclassification of POWs as detainees; ruled that Common Article 3 of the Geneva Conventions applies to the Al Qaeda POWs at the Guantanamo Bay prison camp; and ruled that the Guantanamo military commission who tried, judged, and sentenced al Qaeda POWs was an illegitimate military tribunal, because the U.S. Congress did not establish it.

Moreover, the Human Rights Watch organization said that, given his superior responsibility of government office, U.S. Secretary of Defense Donald Rumsfeld would be criminally liable for the torturing of the prisoner Mohammed al-Qahtani. In "The Real Meaning of the Hamdan Ruling Supreme Court: Bush Administration Has Committed War Crimes" (2006), the writer Dave Lindorff said that in flouting the Geneva Conventions, the Bush administration were legally liable for war crimes in U.S.-occupied Iraq.

Universal jurisdiction

In 2006, a prosecutor of the Nuremberg trials (1945–1946), Benjamin Ferencz, said that the U.S. invasion of Iraq (2003) was a crime against peace that breached international law, and so exposed the superior responsibility of U.S. President George W. Bush for unilaterally launching an aggressive war. In November 2006, the Federal Republic of Germany invoked universal jurisdiction and began legal proceedings against U.S. defense secretary Rumsfeld, U.S. Attorney General Gonzáles, the jurist John Yoo, and CIA chief George Tenet, for their legal liability for U.S. war crimes.

Moreover, in legal practice, the Military Commissions Act of 2006 (MCA) functions as an amnesty law for the Bush administration to flout their superior responsibility and thus their legal liability for war crimes committed when prosecuting the War on Terror, because, by denying POWs the right of ''habeas corpus'', the MCA retroactively rewrote the War Crimes Act of 1996, which defined ''war crime'' as any serious violation of the Geneva Convention, which left the POW no means of legal defense. In "Court 'can envisage' Blair Prosecution" (2007), the jurist Luis Moreno-Ocampo (ICC, 2003–2012) offered to begin a war-crimes enquiry for a war-crimes trial of British Prime Minister Tony Blair and U.S. President George W. Bush, for the International Criminal Court to hear.

In "History Will Not Absolve Us: Leaked Red Cross Report Sets up Bush Team for International War-crimes Trial" (2007), Nat Hentoff said that the report ''Leave No Marks: Enhanced Interrogation Techniques and the Risk of Criminality'' (2007), by Human Rights First and Physicians for Social Responsibility, would be evidence of U.S. war crimes at a war-crimes trial of the War on Terror. Moreover, by the end of the Bush administration in 2008, the international community said that the United Nations Convention Against Torture (1985) obligated the U.S. government to prosecute the civilian and military officers who ordered and realized the torture of POWs captured during the War on Terror.Other countries might pursue war-crime prosecutions
* Horton, Scott
"Overseas, Expectations Build for Torture Prosecutions"
''Harper's''. 19 January 2009.
* Kaleck, Wolfgang. [The empty dock – sensitive legal legacy: US President-elect Barack Obama must decide whether to prosecute his predecessors. Possible defendants include George W. Bush and Donald Rumsfeld].
''Süddeutsche Zeitung''. 19 January 2009 (in German).

The United Nations special rapporteur on torture, Manfred Nowak (in office 2004–2010), said that, as a former president of the U.S., George W. Bush had lost his head-of-state immunity and that international law obligated the U.S. government to start criminal proceedings against the government officials and military officers who violated the U.N. Convention Against Torture.Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment calls for prosecution
* Marinero, Ximena
"UN torture investigator calls on Obama to charge Bush for Guantanamo abuses"
. ''Jurist''. January 21, 2009.
* Horton, Scott
"UN Rapporteur: Initiate criminal proceedings against Bush and Rumsfeld now"
''Harper's''. January 21, 2009. In support of Nowak's statement, the jurist Dietmar Herz explained that former president George W. Bush is criminally responsible for adopting torture-as-interrogation, per the legal doctrine of superior responsibility stipulated in the international laws of war and the U.S. Code.

Codification

The Additional Protocol I (AP I, 1977) to the Geneva Conventions of 1949 was the first comprehensive codification of the legal doctrine of command responsibility. In the Additional Protocol No. I, the terms of Article 86(2) "explicitly address the knowledge factor of command responsibility", and stipulate that:

Therefore, in the execution of military operations, Article 86(2) obligates a commanding officer to "prevent, and, where necessary, to suppress and report to competent authorities" any violation of the Geneva Conventions and of Additional Protocol I.

Definitions

In discussions of ''command responsibility'' the term ''command'' is defined as

Moreover, Additional Protocol I to the Geneva Convention and the statutes of the International Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), and the International Criminal Court (ICC) stipulate that the prevention and prosecution of war crimes and of crimes against humanity are legal responsibilities of a commanding officer.

Application

Nuremberg tribunal

In the aftermath of the Second World War, the Nuremberg trials (20 November 1945 – 1 October 1946) resulted from the common opinion among jurists that the severity of Nazi war crimes and crimes against humanity (e.g. the Holocaust) required prosecution, judgement, and resolution by an International Military Tribunal authorized by the Nuremberg Charter

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