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Command Responsibility in the United States
by Anne E. Mahle

Photo of NY TIMES headline The underlying theory of the doctrine of command responsibility is simple: military commanders are responsible for the acts of their subordinates. If subordinates commit violations of the laws of war and their commanders fail to prevent or punish these crimes, then the commanders also can be held responsible. Command responsibility, though it gained notoriety after World War II, is not a new doctrine in military codes or national law.

As early as the 15th century, King Charles VII of Orleans decreed that his military commanders were to be held liable should those under their command commit crimes against the civilian population, irrespective of the commanders' participation in the crimes. In an effort to control the behavior of armies in the field, in the early 1860s the U.S. government worked with Alfred Lieber, a professor at Columbia University, to codify the rules governing warfare. The United States adopted the results, a document known as the Lieber Code, in 1863 at the outset of the Civil War. The Lieber Code represents the first attempt in the history of the modern nation state to codify the conduct of armies, and it was distributed to both the Confederate and Union armies. It was not, however, until the creation of the International Military Tribunal for the Prosecution and Punishment of the Major War Criminals of the European Axis and the International Military Tribunal for the Far East (the "Nuremberg" and "Tokyo" Tribunals), the criminal tribunals at the end of World War II, that the doctrine of command responsibility was refined into today's recognized standard.

In order to hold a military commander either criminally or civilly liable under the doctrine of command responsibility, the prosecution/plaintiff must prove three elements: 1) those committing the atrocities/war crimes were under the command of the defendant; 2) the commander knew or should have known, based on the surrounding circumstances at the time, that the subordinates were engaging in impermissible conduct; and 3) the commander failed to prevent or punish those responsible for the commission of such crimes. In the United States this legal standard was first articulated by the Supreme Court in the case In re Yamashita, 327 U.S. 1 (1946). In Yamashita, the court held that under the laws of war, a commander was responsible for the actions of his subordinates even if he did not directly order them to commit the crimes, provided that he knew or should have known that troops under his command were engaged in wrongful acts. As part of its holding, the court recognized that military commanders, by virtue of their position, were under an affirmative duty to act and that a failure to prevent or punish their subordinates could lead to personal criminal liability.

Under the first element listed above, the prosecutor or plaintiff must demonstrate that the individuals committing the violations of the laws of war were the subordinates of the commander. These individuals need not have been the direct subordinates of the commander charged. The commanders need only to have been in a position where they could legally or practically order the subordinates to engage or refrain from engaging in an action. In short, the commanders could be located anywhere along the chain of command, so long as they had the ability to issue an order to subordinates.

About the Author
Anne Mahle is an attorney at Faegre & Benson in Minneapolis, Minnesota. During law school she worked on Romagoza et. al. v. García et. al. under the supervision of Carolyn Patty Blum at the International Human Rights Law Clinic at the University of California Berkeley (Boalt Hall).

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Trial History: Romagoza et al. v. García et al.
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Civil trials have an important role to play as a means of enforcing human rights norms. Such cases do not require official approval. They can be brought by individuals who have control over the lawsuits and thus are less subject to political vagaries.

Command Responsibility 
Military commanders are responsible for the acts of their subordinates. If subordinates commit violations of the laws of war and their commanders fail to prevent or punish these crimes, then the commanders also can be held responsible.