Command responsibility
[1][2][3][4] 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).
[5][6][7] 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).
[13][14] 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.
[23] To wit, Article 1 of Section I of Convention IV (Hague 1907) stipulates that: The laws, rights, and duties of war apply not only to armies, but also to militia and volunteer corps fulfilling these conditions: Moreover, command responsibility is stipulated in Article 43, Section III of Convention IV: The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.Furthermore, command responsibility is stipulated in Article 19 of Convention X, the Adaptation to Maritime War of the Principles of the Geneva Convention: The commanders in chief of the belligerent fleets must arrange for the details of carrying out the preceding articles, as well as for cases not covered thereby, in accordance with the instructions of their respective Governments and in conformity with the general principles of the present Convention.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.
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.
[25] 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.
[34] 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.
[36] 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.
[41] 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.
The Blaškić Trial Chamber concluded that "had reason to know", as defined by the ICTY Statute, also imposes a stricter "should have known" standard of the mens rea.
United Nations Security Council Resolution 955 (1994) set up an international criminal tribunal to judge people responsible for the Rwandan genocide and other serious violations of international law in Rwanda, or by Rwandan citizens in nearby states, between 1 January and 31 December 1994;[46] additional later resolutions expanded the scope and timeline of the tribunal.
[48] Akayesu was held responsible for his actions and non-actions as mayor and police commander of a commune in which many Tutsis were killed, raped, tortured, and otherwise persecuted.
[citation needed] Following several ad hoc tribunals, the international community decided on a comprehensive court of justice for future crimes against humanity.
[50] Human Rights Watch commented on this conflict by stating that: individual commanders and civilian officials could be liable for failing to take any action to end abuses by their troops or staff ...
[54] The ICC's prosecutors have charged al-Bashir with genocide because he "masterminded and implemented a plan to destroy in substantial part" three tribal groups in Darfur because of their ethnicity.
[54] For his conduct as President of Zimbabwe, including allegations of torture and murder of political opponents, it was suggested Robert Mugabe may be prosecuted using this doctrine.
