Command Responsibility - An International Focus
by Anne E. Mahle
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, although 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. 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 commanders knew or should have known, based on the surrounding circumstances at the time, that their subordinates were engaging in impermissible conduct; and
3) the commanders did nothing to prevent or punish those responsible for the commission of such crimes.
In the realm of international law, the Geneva Conventions of 1949 and their Additional Protocols provide for criminal liability based on the accused's position as a commander. While the doctrine of command responsibility at the international level rests on the same principle as the doctrine in the United States, there are a number of important differences.
On the international level, the doctrine of command responsibility clearly has been extended to civilian authorities exercising control over military forces. In the post-World War II prosecutions in Nuremberg and Tokyo, a number of civilian authorities were convicted of war crimes. One of the most prominent examples is Koki Hirota, the Prime Minister and Foreign Minister of Japan during World War II. He was held criminally liable as a commander for the atrocities committed by Japanese military, despite his position as a civilian leader. More recently, the International Criminal Tribunal for the Former Yugoslavia ("ICTY") and the International Criminal Tribunal for Rwanda ("ICTR") have held civilians criminally liable for the actions of militarized forces under their control. In February 2001, the ICTY found Dario KordiÁ, a Bosnian Croat political leader, guilty under a theory of command responsibility for grave breaches of the Geneva Conventions, crimes against humanity, and violations of the laws and customs of war for the actions of Bosnian Croat militia forces operating in central Bosnia. He was sentenced to 25 years' imprisonment and is now appealing the conviction and sentence. In 1998, at the ICTR the former Prime Minister of Rwanda, Jean Kambanda, pled guilty to six criminal counts, including genocide and crimes against humanity. He is currently serving a life sentence for these crimes. The extension of command responsibility recognizes the important role civilian officials/political leaders can play in the commission of atrocities during an armed conflict.
In addition to criminal liability for civilian authorities exercising command over military forces, international law recognizes that military forces in an armed conflict may not be connected to a recognized nation- state. Additional Protocol II of the 1949 Geneva Conventions, promulgated in 1977, codified the application of international humanitarian law to "dissident armed forces or other organized armed groups, which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations." (Additional Protocol II to the Geneva Conventions of 12 August 1949, Article 1). This language broadened the scope of international humanitarian law by recognizing that armed groups operating under sophisticated command structures, need not be affiliated with recognized nation states, for them and their commanders, to be held to the same laws governing armed conflict as commanders in recognized nation- states.
By extending the doctrine of command responsibility to these individuals, international humanitarian law can address the conflicts existing in many states around the world, where militarized forces are either attacking the army of a recognized state or fighting between themselves. The ICTY faces this situation in nearly all of its cases. The majority of those indicted by the ICTY fought at the behest of either the Bosnian Serb or Bosnian Croat forces, neither of which were officially under the control of a recognized state. This argument of non affiliation was used by those indicted to challenge the jurisdiction of the tribunal and was fiercely litigated in the ICTY's first cases. In subsequent cases, however, the issue has played less of a role. In March 2000, for example, the ICTY convicted Tihomir Blazkic, a commander of Bosnian Croat military forces, of crimes against humanity, grave breaches of the Geneva Conventions, and violations of the laws and customs of war in a "pure" command responsibility case.
In addition to the extensive use of the command responsibility doctrine in the ad hoc criminal tribunals, the statute of the International Criminal Court codifies the doctrine under its applicable laws. As the ICTY continues to hear the cases of other Bosnian Serb and Croat commanders and important political leaders, including Slobodan Milosevic, this doctrine will continue play a central role in international humanitarian law.
About the Author
Anne Mahle is an attorney at Faegre & Benson in Minneapolis, Minnesota. During law school she worked on Romagoza et. al. v. Garcia et. al. under the supervision of Carolyn Patty Blum at the International Human Rights Law Clinic at the University of California Berkeley (Boalt Hall).