A Note on Command Responsibility

The first and most significant U.S. case involving “command responsibility” was that of General Tomoyuki Yamashita, commander of the Japanese forces in the Philippines in World War II, whose troops committed brutal atrocities against the civilian population and prisoners of war. Gen. Yamashita, who had lost almost all command, control, and communications over his troops, was nevertheless convicted by the International Military Tribunal in Tokyo based on the doctrine of command responsibility. The U.S. Supreme Court affirmed the decision, holding that General Yamashita was, by virtue of his position as commander of the Japanese forces in the Philippines, under an “affirmative duty to take such measures as were within his power and appropriate in the circumstances to protect prisoners of war and the civilian population.”³⁶¹

General Yamashita was executed by hanging.

International and U.S. authorities have since set forth three elements to establishing liability for criminal acts pursuant to the doctrine of command responsibility:

1. There must be a superior-subordinate relationship.

2. The superior must have known or had reason to know that the subordinate was about to commit a crime or had committed a crime.

3. The superior failed to take necessary and reasonable measures to prevent the crime or to punish the perpetrator.³⁶²

U.S Army Field Manual 27-10, Section 501 states:

 In some cases, military commanders may be responsible for war crimes committed by subordinate members of the armed forces, or other persons subject to their control. Thus, for instance, when troops commit massacres and atrocities against the civilian population of occupied territory or against prisoners of war, the responsibility may rest not only with the actual perpetrators but also with the commander. Such a responsibility arises directly when the acts in question have been committed in pursuance of an order of the commander concerned. The commander is also responsible if he has actual knowledge, or should have knowledge, through reports received by him or through 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 of war or to punish violators thereof .

Similarly, the U.S. Department of Defense draft instructions for guidance to military commissions states: “A person is criminally liable for a completed substantive offense if that person commits the offense, aids or abets the commission of the offense, solicits commission of the offense, or is otherwise responsible due to command responsibility,” and provides the following elements:

1. The accused had command and control, or effective authority and control, over one or

more subordinates;

2. One or more of the accused’s subordinates committed, attempted to commit, conspired to commit, solicited to commit, or aided or abetted the commission of one or more substantive offenses triable by military commission;

3. The accused either knew or should have known that the subordinate or subordinates were committing, attempting to commit, conspiring to commit, soliciting, or aiding and abetting such offense or offenses; [and]

4. The accused failed to take all necessary and reasonable measures within his or her power to prevent or repress the commission of the offense or offenses.³⁶³

The rule under customary international law is the same. According to an authoritative study by the ICRC, that rule is: Commanders and other superiors are criminally responsible for war crimes committed by their subordinates if they knew, or had reason to know, that the subordinates were about to commit or were committing such crimes and did not take all necessary and reasonable measures in their power to prevent their commission, or if such crimes had been committed, to punish the persons responsible.³⁶⁴

Superior-subordinate relationship

A superior-subordinate relationship is clearest when there are formal rules, for example when legislation or a military chain of command specify the existence of a relationship. However, even in the absence of formal rules, a superior can have actual and effective control.365 Thus, civilian and political superiors, as well as those in military command, may be held liable under this doctrine.366 In establishing whether a superior- subordinate relationship exists, case law has found the following questions useful: What are the powers of influence of the alleged superior?367 What capacity does the superior have to issue orders?368 Does analysis of the distribution of tasks within any  relationship demonstrate a superior-subordinate relationship?³⁶⁹

 The superior’s knowledge

A superior may be held liable under the command responsibility doctrine where he or she either knew, had reason to know, or should have known that crimes were being committed by his/her subordinates.³⁷⁰

According to A. P. V. Rogers, one of the foremost authorities on the laws of war, there are three ways of proving knowledge:

1. that he actually knew (admission or documentary or witness evidence), or

2. that he must have known (evidence of notoriety), or

3. that he ought to have known (serious nature of offence plus evidence of a dereliction of duty on the part of the commander or of his being put on notice).³⁷¹

Rogers thus notes that “If knowledge cannot be proved by direct evidence, it may be inferred from the surrounding circumstances, for example, the widespread nature, severity or notoriety of offences.” Similarly, if “he is told that a report deals with, say, the massacre of civilians by troops under his command, he is put under a duty to do something about it. He cannot simply turn a blind eye to it. He must give appropriate orders to his staff.”

Rogers concludes that:

Actual knowledge may be difficult to prove, but can be inferred from the surrounding circumstances, especially if war crimes by those under command are so widespread as to be notorious, for example, when soldiers under command carry out sustained and frequent unlawful attacks, …. Liability may also attach to a commander even if he did not actually know about the acts of subordinates but ought to have known about them and his failure in this respect constituted a dereliction of duty on his part, for example, if he is put on notice but fails to do anything about it.

Superior duty to take necessary and reasonable measures to prevent the crime or to punish the perpetrator

Superiors have both a duty to prevent and a duty to punish the crimes of subordinate persons. These constitute distinct and independent legal obligations.³⁷²

The duty to prevent renders superiors responsible where they failed to consider elements that point to the likelihood that such crimes would be committed.373 Superiors successfully discharge their duty to prevent subordinate crimes when they employ every means in their power to do so.³⁷⁴

“A superior’s ‘duty to punish’ arises after the commission of an offense. It is predicated upon offenses by others which have already occurred, not future offenses. Punishment is, therefore, intended to deter the commission of future offenses.”

 Acknowledgements

This report was written by Reed Brody, special counsel with Human Rights Watch. Research assistance was provided by: John Sifton, Afghanistan researcher; Katherine Kruk, intern; Joshua Franco, Warisha Farasat, and Kamran Serhat Choudhry, students at Columbia Law School; and Katherine Hawkins, student at Harvard Law School. Joe Saunders, deputy program director, edited the report; Wilder Tayler, legal and policy director, and James Ross, senior legal advisor; provided a legal review. Tom Malinowski, Washington advocacy director, added helpful comments. Rania Suidan, associate, prepared the report for publication, together with Katherine Kruk. Andrea Holley, publications director for Human Rights Watch, and Fitzroy Hepkins, mail manager, made possible the production of this report. Human Rights Watch is grateful to the Center for Constitutional Rights and to the Center for Human Rights and Global Justice of NYU School of Law for sharing their legal analyses with us.

Human Rights Watch would also like to thank the Atlantic Philanthropies and Franz Allina, who helped made this work possible.

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361 In Re Yamashita 327, U.S. 1, 16 (1946).

362 In Re Yamashita; The Prosecutor v. Delalic et al. (Celebici Case), Case No. IT-96-21-T, ICTY TC, November 16, 1998

[online], http://www.un.org/icty/celebici/trialc2/jugement/main.htm. More recently, several decisions under the Torture

Victim Protection Act of 1991 (28 U.S.C.S. § 1350) have applied the doctrine of command responsibility. See Hilao v.

Estate of Ferdinand Marcos, 103.F.3d 767, 777-78 (9th Cir.1996); Kadic v Karadzic, 70 F.3d 232, 239, 242 (2d Cir. 1995);

Paul v Avril, 901 F.Supp. 330,335 (S.D.Fla. 1994); Xuncax v. Gramajo, 886 F.Supp. 162, 171-172 (D.Mass. 1995). In

Ford v. Garcia, 289 F.3d 1283 (11th Cir. Fla. 2002), for example, family members of victims of atrocities committed by

members of the Salvadorian National Guard, filed a case in a Florida federal court against a general and the former

minister of defense. The judge directed that the two generals could be held responsible for the crimes of their

subordinates if the defendants were in “effective command” and if they “knew or should have known” that persons under

their effective command were committing such crimes.

363 Department of Defense, “Military Commission Instruction No. 2, Crimes and Elements for Trials by Military

Commission,” April 30, 2003 [online], http://www.defenselink.mil/news/May2003/d20030430milcominstno2.pdf.

364 Henckaerts and Doswald-Beck, Customary International Humanitarian Law, 2005.

365 Sadaiche case, cited in 15 Law Reports, at 175. Which held that “superior means superior in capacity and powers to

force a certain act. It does not mean superiority only in rank.”

366 The Prosecutor v. Delalic et al. (Celebici Case), Case No. IT-96-21-T, ICTY TC, November 16, 1998. See also Article

28 of Statute of the International Criminal Court:

With respect to superior and subordinate relationships not described in paragraph (a) [military chain of

command], 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.

367 United States v. von Weizsaecker, 14 Trials of War Criminals before the Nuremberg Military Tribunals under Control

Council Law No. 10 (1952).

368 Celebici judgment.

369 Prosecutor v. Nikolic, Case No. IT-94-2-R61, ICTY TC,Oct. 20, 1995.

370 In Re Yamashita 327 U.S. 1 .See also Article 86 of Geneva Conventions Protocol I.

371 A.P.V. Rogers, “Command Responsibility under the Law of War,” [online],

http://lcil.law.cam.ac.uk/lectures/lecture_papers.php. The UN Commission of Experts in the former Yugoslavia established

in 1992, pursuant to Security Council Resolution 780, also recognized three forms of knowledge:

(a) actual knowledge, (b) such serious personal dereliction on the part of the commander as to constitute wilful

and wanton disregard of the possible consequences, or (c) an imputation of constructive knowledge, that is,

despite pleas to the contrary, the commander, under the facts and circumstances of the particular case, must

have known of the offences charged and acquiesced therein.

Final Report of the Commission of Experts, Established Pursuant to Security Council Resolution 780 (1992), UN SCOR,

Annex, UN Doc. S/1994/674, para. 58 (May 27, 1994).

372 Ilias Bantekas, “The Contemporary Law of Superior Responsibility,” 93 A.J.I.L. 573, 591 (1999).

373 Final Report of the Kahan Commission (authorized English translation), 22 ILM 473 (1983).

374 See United States v. von Weizsaecker, 14 Trials of War Criminals before the Nuremberg Military Tribunals Under

Control Council Law No. 10 (1952).