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Encyclopedia > Command responsibility

Command responsibility, sometimes referred to as the Yamashita standard, or the Medina standard is the doctrine of hierarchical accountability in cases of war crimes. Image File history File linksMetadata Download high resolution version (2592x1944, 1157 KB) Summary Taken by Kent Wang: http://flickr. ... Image File history File linksMetadata Download high resolution version (2592x1944, 1157 KB) Summary Taken by Kent Wang: http://flickr. ... The Peace Palace is located in the Hague, the Netherlands. ... Arms of The Hague Flag of The city of The Hague. ... A war crime is a punishable offense, under international law, for violations of the law of war by any person or persons, military or civilian. ...


The doctrine of “command responsibility” was established by the Hague Conventions IV (1907) and X (1907) and applied for the first time by the German Supreme Court in Leipzig after World War I, on the Trial of Emil Muller.[1] Combatants Allies: Serbia, Russia, France, Romania, Belgium, British Empire, United States, Italy, and others Central Powers: Germany, Austria-Hungary, Bulgaria, Ottoman Empire Casualties Military dead: 5 million Civilian deaths: 3 million Total of dead: 8 million Military dead: 4 million Civilian deaths: 3 million Total dead: 7 million The First...


The Yamashita standard is based upon the precedent set by the United States Supreme Court in the case of Japanese General Tomoyuki Yamashita. He was prosecuted, in a still controversial trial, for atrocities committed by troops under his command in the Philippines. Yamashita was charged with "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."[2] Tomoyuki Yamashita, 1945 General Tomoyuki Yamashita (山下 奉文 Yamashita Tomoyuki) (November 8, 1885 – February 23, 1946) was a general of the Japanese Army during the World War II era. ...


The Medina standard is based upon the massacre at My Lai which US captain Ernest Medina failed to prevent. It holds that a commanding officer, being aware of a human rights violation or a war crime, will be held criminally liable when he does not take action.[3] Photographs of the My Lai Massacre provoked world outrage and became an international scandal. ... Ernest Lou Medina was a captain in the United States Army during the Vietnam War. ...

Contents


Origin of command responsibility

Developing accountability

In Ping Fa - “the Art of War,” around 500 B.C., Sun Tzu advocated that it was a commanders duty to make sure his subordinates, during an armed conflict, conducted themselves in a civilised manner. The trial of Peter von Hagenbach by an ad hoc tribunal in the Holy Roman Empire, was the first “international” recognition of commanders’ obligations to act lawfully. He was convicted of crimes "he as a knight was deemed to have a duty to prevent." However, there was no explicit use of a doctrine of command responsibility. The Art of War (Chinese: 孫子兵法 sūn zi bīng fǎ) was a Chinese military text written during the 6th century BC by Sun Tzu. ... Sun Tzu (孫子 also commonly written in pinyin: Sūn Zǐ) was the author of The Art of War, an influential ancient Chinese book on military strategy (for the most part not dealing directly with tactics). ...


During the American Civil War, the concept developed further, as is seen in the “Lieber Code.” This regulated accountability by imposing criminal responsibility on commanders for ordering or encouraging soldiers to wound or kill already disabled enemies. Combatants United States of America (Union) Confederate States of America (Confederate) Commanders Abraham Lincoln, Ulysses S. Grant Jefferson Davis, Robert E. Lee Strength 2,200,000 1,064,000 Casualties Killed in action: 110,000 Total dead: 360,000 Wounded: 275,200 Killed in action: 93,000 Total dead: 258... The Lieber Code of 24th of April, 1863, also known as General Order Number 100 and named after Francis Lieber, was an instruction to the Union Forces of the USA during the Civil War that dictated how soldiers should conduct themselves in war time. ...


The Hague Convention (IV) of 1907 was the first attempt at codifying the principle of command responsibility on a multinational level. It was not until after WWI that the Allied Powers’ Commission on the Responsibility of the Authors of the War and on the Enforcement of Penalties recommended the establishment of an international tribunal, which would try individuals for "order[ing], or, with knowledge thereof and with power to intervene, abstain[ing] from preventing or taking measures to prevent, putting an end to or repressing, violations of the laws or customs of war."[4]


Introducing responsibility for an omission

Command responsibility is an omission mode of individual criminal liability: the superior is responsible for crimes committed by his subordinates and for failing to prevent or punish (as opposed to crimes he ordered). In Re Yamashita before the United States Military Commission, General Yamashita became the first to be charged on the basis of responsibility for an omission. He was leading the 14th Area Army of Japan in the Philippines, when they engaged in atrocities against hundreds of civilians. As commanding officer he was charged with "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." Photo of Yamashita Tomoyuki. ... Photo of Yamashita Tomoyuki. ... Tomoyuki Yamashita, 1945 General Tomoyuki Yamashita (山下 奉文 Yamashita Tomoyuki) (November 8, 1885 – February 23, 1946) was a general of the Japanese Army during the World War II era. ...


With finding Yamashita guilty, the Commission adopted a new standard to judge a commander, stating that where "vengeful actions are widespread offences and there is no effective attempt by a commander to discover and control the criminal acts, such a commander may be held responsible, even criminally liable." However, the ambiguous wording resulted in a long-standing debate about the standard of knowledge required to establish command responsibility. After sentencing he was executed.


Following Re Yamashita courts clearly accepted that a commander’s actual knowledge of unlawful actions is sufficient to impose individual criminal responsibility.[4]


In the High Command Case, the United States Military Tribunal argued that in order for a commander to be criminally liable for the actions 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," based upon "a wanton, immoral disregard of the action of his subordinates amounting to acquiescence." The High Command Trial (or, officially, The United States of America vs. ...


In the Hostage Case, the US Military Tribunal seems to reduce the duty to know of a commander to instances where he has already had some information regarding subordinates’ unlawful actions. Wilhelm List is handed the indictment in the Hostages Trial. ...


So, following World War II, the parameters of command responsibility were increased, imposing liability on commanders for their failure to prevent the commission of crimes by their subordinates. These cases, the latter two were part of the Nüremberg tribunals, discussed explicitly the requisite standard of mens rea, and were unanimous in the finding that a lesser level of knowledge than actual knowledge may be sufficient.[4] A German newspaper announces The Verdict in Nuremberg. ... The mens rea is the Latin term for guilty mind used in the criminal law. ...


Codification: Additional Protocol I

The first international treaty to comprehensively codify the doctrine of command responsibility was the Additional Protocol I (“AP I”) of 1977 to the Geneva Conventions of 1949. Article 86(2) states that: Image File history File links Captain_Ernest_Medina. ... Image File history File links Captain_Ernest_Medina. ... Ernest Lou Medina was a captain in the United States Army during the Vietnam War. ...

the fact that a breach of the Conventions or of this Protocol was committed by a subordinate does not absolve his superiors from …responsibility…if they knew, or had information which should have enabled them to conclude in the circumstances at the time, that he was committing or about to commit such a breach and if they did not take all feasible measures within their power to prevent or repress the breach.

Article 87 obliges a commander to "prevent and, where necessary, to suppress and report to competent authorities" any violation of the Conventions and of AP I.


In Article 86(2) for the first time a provision would "explicitly address the knowledge factor of command responsibility."[4]


The Nuremberg Tribunal

Main article: Nuremberg Trials

Following World War II, communis opinio was that the atrocities committed by the Nazis were so severe a special tribunal had to be held. However, critics have accused the prosecution of the Nazis as being victor's justice. A German newspaper announces The Verdict in Nuremberg. ... This page lists direct English translations of common Latin phrases, such as veni vidi vici and et cetera. ... National Socialism redirects here. ... The label victors justice (in German, Siegerjustiz) is applied by advocates to a situation in which they believe that a victorious nation is applying different rules to judge what is right or wrong for their own forces and for those of the (former) enemy. ...


The International Criminal Tribunal for the former Yugoslavia

Main article: International Criminal Tribunal for the former Yugoslavia

In The Prosecutor v. Delalic et al (“the Celebici case”) first considered the scope of command responsibility.[4] The International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, more commonly referred to as the International Criminal Tribunal for the former Yugoslavia (ICTY), is a body of the United Nations (UN) established to...


The concept of command responsibility has developed significantly in the jurisprudence of the ICTY. One of the most recent judgements that extensively deals with the subject is the Halilović judgement [1] of 16 November 2005 (para. 22-100).


The International Criminal Tribunal for Rwanda

Main article: International Criminal Tribunal for Rwanda

Wanted poster for the ICTR The International Criminal Tribunal for Rwanda (ICTR) is a court under the auspices of the United Nations for the prosecution of offenses committed in Rwanda during the genocide which occurred there during April, 1994, commencing on April 6. ...

The International Criminal Court

Main article: International Criminal Court

Following several ad hoc tribunals, the international community decided on a comprehensive court of justice for all future crimes against humanity. This resulted in the International Criminal Court. Official logo of the ICC. The International Criminal Court (ICC) was established in 2002 as a permanent tribunal to prosecute individuals for genocide, crimes against humanity, and war crimes, as defined by several international agreements, most prominently the Rome Statute of the International Criminal Court. ... Ad hoc is a Latin phrase which means for this [purpose]. It generally signifies a solution that has been tailored to a specific purpose, such as a tailor-made suit, a handcrafted network protocol, and specific-purpose equation and things like that. ...


Article 28 of the Rome Statute of the International Criminal Court codified the doctrine of command responsibility. With Article 28(a) military commanders are imposed with individual responsibility for crimes committed by forces under their effective command and control if they: The Rome Statute of the International Criminal Court (or Rome Statute) is the treaty which established the International Criminal Court (ICC). ... Official logo of the ICC. The International Criminal Court (ICC) was established in 2002 as a permanent tribunal to prosecute individuals for genocide, crimes against humanity, and war crimes, as defined by several international agreements, most prominently the Rome Statute of the International Criminal Court. ...

"either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes."[4]

Application in the war on terror

Further information: War on terror

As a reaction to the September 11, 2001 attacks the Bush administration adopted several controversial measures (i.e. invading Iraq, introducing "illegal combatant" status, "extraordinary rendition", allowing torture as "enhanced interrogation method"). These followed several memos in which Gonzales et al, advocated that detainees should be considered unlawful combatants and as such the Geneva Conventions could be refuted.[5] He stated that by doing so it "substantially reduces the threat of domestic criminal prosecution under the War Crimes Act." Critics note that in his advice to President Bush, Gonzales explicitly mentions the US War Crimes Act. This suggests the memos acknowledge U.S. officials are involved in acts that could be seen to be war crimes.[6] The war on terrorism or war on terror (abbreviated in U.S. policy circles as GWOT for Global War on Terror) is an effort by the governments of the United States and its principal allies to destroy groups deemed to be terrorist (primarily radical Islamist organizations such as al-Qaeda... The explosion resulting from the crashing of United Airlines Flight 175 into the South Tower. ... The Bush administration includes President George W. Bush, Vice President Richard Cheney, Bushs Cabinet, and other select officials and advisors. ... The 2003 invasion of Iraq was launched by the United States and the United Kingdom on March 20, 2003, with support from some other governments, making up what was described as the coalition of the willing. ... Unlawful combatant (also illegal combatant or unprivileged combatant) describes a person who engages in combat without meeting the requirements for a lawful belligerent according to the laws of war as specified in the Third Geneva Convention. ... Extraordinary rendition is an American extra-judicial procedure which involves the sending of untried criminal suspects, generally suspected terrorists or alleged supporters of groups which the US Government considers to be terrorist organizations, to countries other than the United States for imprisonment and interrogation [1]. According to Swiss councillor Dick... Alberto R. Gonzales (born August 4, 1955) is the 80th and current Attorney General of the United States, becoming the first Hispanic to serve in the position. ... This page includes English translations of several Latin phrases and abbreviations such as . ... To meet Wikipedias quality standards, this article or section may require cleanup. ... Development of the Geneva Conventions from 1864 to 1949 The Geneva Conventions consist of four treaties formulated in Geneva, Switzerland, that set the standards for international law for humanitarian concerns. ... The War Crimes Act of 1996 was passed by the United States Congress and signed into law by President Bill Clinton. ... A war crime is a punishable offense, under international law, for violations of the law of war by any person or persons, military or civilian. ...


Furthermore, aggressive interrogation techniques were adopted[7] which Human Rights organisations and the UN stated amounted to torture.[8] As pictures emerged showing abuse in Abu Ghraib prison, Iraq, several low level military personnel were prosecuted. Subsequently similar transgressions in Afghanistan were uncovered. Concommitant with the prisoner abuse there was the scandal of the practise of extraordinary rendition in which suspects are apprehended and extradicted to other countries. According to Human Rights organisations these prisoners are sent to less democratic parts of the world where they supposedly are tortured. This article is about the United Nations, for other uses of UN see UN (disambiguation) Official languages English, French, Spanish, Russian, Chinese, Arabic Secretary-General Kofi Annan (since 1997) Established October 24, 1945 Member states 191 Headquarters New York City, NY, USA Official site http://www. ... Satar Jabar standing on a box with wires connected to his body Wikimedia Commons has media related to: Abu Ghraib prisoner abuse images Beginning in 2003, numerous accounts of abuse and torture of prisoners held in the Abu Ghraib Prison in Iraq (also known as Baghdad Correctional Facility) occurred. ... In 2005, a 2,000-page U.S. Army report was obtained by the New York Times concerning the homicides of two unarmed civilian Afghan prisoners by U.S. armed forces in 2002 at the Bagram Collection Point. ... Extraordinary rendition is an American extra-judicial procedure which involves the sending of untried criminal suspects, generally suspected terrorists or alleged supporters of groups which the US Government considers to be terrorist organizations, to countries other than the United States for imprisonment and interrogation [1]. According to Swiss councillor Dick...


Legal analysts advance the theory that the "Command responsibility" could result in legal challenges involving war crimes, for high-ranking officials within the Bush administration.[9]


On April 14, 2006, Human Rights Watch said that Secretary Rumsfeld could be criminally liable for his alleged involvement in the abuse of Mohammad al-Qahtani.[10] Human Rights Watch is a U.S.-based international human rights non-governmental organization located in New York City, USA, that conducts advocacy and research on human rights issues. ... Donald Rumsfeld Donald Henry Rumsfeld (born July 9, 1932) is the current Secretary of Defense of the United States, since January 20, 2001, under President George W. Bush. ... Mohamed Mani Ahmad al-Kahtani (Arabic: sometimes transliterated Muhammed Al Kahtani or other ways) is a member of the terrorist group al-Qaida. ...


See also

Carl Schmitt Carl Schmitt (July 11, 1888 - April 7, 1985) was a German legal theoretician and political scientist. ... A crime against humanity is a term in international law that refers to acts of murderous persecution against a body of people, as being the criminal offence above all others. ... Development of the Geneva Conventions from 1864 to 1949 The Geneva Conventions consist of four treaties formulated in Geneva, Switzerland, that set the standards for international law for humanitarian concerns. ... International Humanitarian Law (IHL), also known as the law of war, the laws and customs of war or the law of armed conflict, is the legal corpus comprised of the Geneva Conventions and the Hague Regulations, as well as subsequent treaties, case law, and customary international law. ... This article or section is missing references or citation of sources. ... Jus ad bellum (Latin for Law to War; see also just war) are a set of criteria that are consulted before engaging in war, in order to determine whether entering into war is justifiable. ... The laws of war (Jus in bello) define the conduct and responsibilities of belligerent nations, neutral nations and individuals engaged in warfare, in relation to each other and to protected persons, usually meaning civilians. ... The Nuremberg Principles were a set of guidelines for determining what constitues a war crime. ... The Peace Palace is located in the Hague, the Netherlands. ... A war crime is a punishable offense, under international law, for violations of the law of war by any person or persons, military or civilian. ...

Notes

  1. ^ Command Responsibility: The Contemporary Law by, Iavor Rangelov and Jovan Nicic, Humanitarian Law Center, February 23, 2004
  2. ^ The Yamashita standard
  3. ^ The Medina standard
  4. ^ a b c d e f Command Responsibility The Mens Rea Requirement, By Eugenia Levine, Global Policy Forum, February 2005
  5. ^ Parsing pain By Walter Shapiro, Salon
  6. ^ War Crimes warnings
  7. ^ Prisoner abuse
  8. ^ UN report
  9. ^ The Bush administration and command responsibility
  10. ^ U.S.: Rumsfeld Potentially Liable for Torture Defense Secretary Allegedly Involved in Abusive Interrogation Human Rights Watch, April 14, 2006

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