Command responsibility
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[[Image:Peace Palace.jpg|thumb|350 px|right|[[Peace Palace]] in [[The Hague]]]]
'''Command responsibility''', sometimes referred to as the '''Yamashita standard''' or the '''Medina standard''', is the doctrine of hierarchical accountability in cases of [[war crimes]].<ref name="Danner-Martinez">[http://www.law.berkeley.edu/students/curricularprograms/ils/workshop/fall04_Martinez.pdf Guilty Associations: Joint Criminal Enterprise, Command Responsibility, and the Development of International Criminal Law] [http://66.102.9.104/search?q=cache:K1mCZsV-egMJ:www.law.berkeley.edu/students/curricularprograms/ils/workshop/fall04_Martinez.pdf+%22command+responsibility%22&hl=en&ct=clnk&cd=47&client=opera HTML version] by Allison Marston Danner and Jenny S. Martinez, September 15, 2004</ref><ref>[http://www.pbs.org/wnet/justice/world_issues_com.html Command Responsibility - An International Focus] by Anne E. Mahle, [[PBS]]</ref><ref name="Robin Rowland">[http://www.cbc.ca/news/background/iraq/abughraib_commandresponsibility.html Command, superior and ministerial responsibility] by Robin Rowland, [[CBC News Online]], May 6, 2004</ref>
The doctrine of “command responsibility” was established by the [[Hague Conventions (1899 and 1907)|Hague Conventions IV (1907) and X (1907)]] and applied for the first time by the German Supreme Court in Leipzig after [[World War I]], in the trial of [[Emil Muller]].<ref name="Analysis">[http://www.hlc.org.yu/english/War_Crimes_Trials_Before_National_Courts/Serbia/index.php?file=729.html Command Responsibility: The Contemporary Law] by Iavor Rangelov and Jovan Nicic, [[Humanitarian Law Center]], [[February 23]] [[2004]]</ref><ref name="Bantekas">[http://www.torturers.net/analysis/bantekas.html The Contemporary Law of Superior Responsibility] by Ilias Bantekas [[American Journal of International Law]], No 3 July 1999</ref><ref name="Kai Ambos">[http://jicj.oxfordjournals.org/cgi/content/abstract/mql045?ijkey=Wi1pSylVtrzfXqp&keytype=ref Joint Criminal Enterprise and Command Responsibility] by Kai Ambos, Professor of Criminal Law, Criminal Procedure, Comparative Law and International Criminal Law at the [[University of Göttingen]]; Judge at the State Court (Landgericht) [[Göttingen]], [[Journal of International Criminal Justice]], originally published online on January 25, 2007</ref>
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."
<ref name="StuartEHendin">[http://www.murdoch.edu.au/elaw/issues/v10n1/hendin101_text.html Command Responsibility and Superior Orders in the Twentieth Century - A Century of Evolution] by, Stuart E Hendin, [[Murdoch University Electronic Journal of Law]]</ref><ref>The Yamashita standard
*[http://robinrowland.com/sugamokwai.pdf Sugamo and the River Kwai] By Robin Rowland, Paper presented to Encounters at Sugamo Prison, Tokyo 1945-52, The American Occupation of Japan and Memories of the Asia-Pacific War, [[Princeton University]], [[May 9]] [[2003]]
*[http://www.pbs.org/wnet/justice/world_issues_yam.html The Yamashita Standard] by Anne E. Mahle, [[PBS]]</ref>
The "Medina standard" is based upon the prosecution of [[United States Army|US Army]] Captain [[Ernest Medina]] in connection with the [[My Lai Massacre]] during the [[Vietnam War]].<ref>[http://www.law.umkc.edu/faculty/projects/ftrials/mylai/MYL_LAW3.HTM Excerpt of the Prosecution Brief on the Law of Principals in ''United States v. Captain Ernest L. Medina'']</ref> 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. (Medina was, however, acquitted of all charges.)<ref name="StuartEHendin"/><ref>The Medina standard
*[http://www.dtic.mil/doctrine/jel/jfq_pubs/0709.pdf Human Rights and the Commander] By Barry McCaffrey, autumn 1995
*[http://carlisle-www.army.mil/usamhi/usarsa/HUMANRT/Human%20Rights%202000/my-lai.htm The My Lai Massacre: A Case Study] By MAJ. Tony Raimondo, Human Rights Program, [[School of the Americas]], [[Fort Benning]], Georgia</ref>
==Origin of command responsibility==
===Developing accountability===
[[Image:Deutsche Geschichte5-310.jpg|thumb|250px|right|Hagenbach on trial, from [[Bern]]er Chronik des Diebold Schilling dem Älteren]]
In ''[[The Art of War]]'', written during the 6th century BC, [[Sun Tzu]] argued that it was a commander's duty to ensure that his subordinates conducted themselves in a civilised manner during an armed conflict. The trial of [[Peter von Hagenbach]] by an ad hoc tribunal of the [[Holy Roman Empire]] in 1474, was the first “international” recognition of commanders’ obligations to act lawfully.<ref name="Greppi">[http://www.icrc.ch/web/eng/siteeng0.nsf/html/57JQ2X The evolution of individual criminal responsibility under international law] By Edoardo Greppi, Associate Professor of International Law at the [[University of Turin]], [[Italy]], [[International Committee of the Red Cross]] No. 835, p. 531-553, October 30, 1999.</ref><ref name="Grant">[http://www.law.harvard.edu/alumni/bulletin/2006/spring/gallery.php Exhibit highlights the first international war crimes tribunal] by Linda Grant, Harvard Law Bulletin.</ref> Hagenbach was put on trial for atrocities committed during the occupation of [[Breisach]], found guilty of war crimes and beheaded.<ref name="Schabas">[http://assets.cambridge.org/97805218/81258/excerpt/9780521881258_excerpt.pdf An Introduction to the International Criminal Court] William A. Schabas, [[Cambridge University Press]], Third Edition</ref> Since he was convicted for crimes "he as a knight was deemed to have a duty to prevent" Hagenbach defended himself by arguing that he was [[Nuremberg Defense|only following orders]]<ref name="Greppi"/><ref name="Murray">[http://www.cbc.ca/news/reportsfromabroad/murray/20020718.html Judge and master] By Don Murray, [[CBC News]], July 18, 2002.</ref> from the [[Duke of Burgundy]],[[Charles the Bold]], to whom the Holy Roman Empire had given Breisach.<ref>[http://law.gsu.edu/Miller_Lecture/2006/MillerLecture-S06-BassiouniDraft.pdf The Perennial Conflict Between International Criminal Justice and Realpolitik] February 10, 2006 Draft
by M. Cherif Bassiouni -Distinguished Research Professor of Law and President, [[International Human Rights Law Institute]], [[DePaul University College of Law]], To be Presented March 14, 2006 as the 38th [[Henry J. Miller Distinguished Lecture]], [[Georgia State University College of Law]], and to appear in the [[Georgia State University Law Review]]</ref> Despite the fact there was no explicit use of a doctrine of "command responsibility" it is seen as the first trial based on this principle.<ref name="Schabas"/><ref name="Mens_Rea">[http://www.globalpolicy.org/intljustice/general/2005/command.htm Command Responsibility] The Mens Rea Requirement, By Eugenia Levine, [[Global Policy Forum]], February 2005</ref>
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.<ref name="Greppi"/><ref name="Mens_Rea"/>
The [[Hague Conventions (1899 and 1907)|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."<ref name="Mens_Rea"/>
===Introducing responsibility for an omission===
[[Image:Yamashita.jpg|165px|thumb|right|[[Tomoyuki Yamashita]], 1945]]
Command responsibility is an [[Omission (criminal)|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 thousands 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."
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 ''In re Yamashita'' courts clearly accepted that a commander’s actual knowledge of unlawful actions is sufficient to impose individual criminal responsibility.<ref name="Mens_Rea"/><ref name="StuartEHendin"/>
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."<ref name="StuartEHendin"/><ref name="Mens_Rea"/><ref name="Bantekas"/>
In the ''[[Hostage Case]]'', the US Military Tribunal seems to limit the situations where a commander has a duty to know to instances where he has already had some information regarding subordinates’ unlawful actions.<ref name="StuartEHendin"/><ref name="Mens_Rea"/><ref name="Bantekas"/>
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 of which were part of the [[Subsequent Nuremberg Trials|Nürnberg 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.<ref name="Mens_Rea"/>
===Codification: Additional Protocol I===
<!-- Commented out because image was deleted: [[Image:Captain Ernest Medina.jpg|175px|thumb|right|Captain [[Ernest Medina]]]] -->
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.<ref name="Analysis"/><ref name="Kai Ambos"/><ref name="StuartEHendin"/> Article 86(2) states that:
:''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."<ref name="StuartEHendin"/><ref name="Mens_Rea"/><ref name="Bantekas"/>
===Definitions===
In the discussion regarding "command responsibility" the term "command" can be defined as
'''A''' [[De jure]] (legal) command, which can be both military and civilian. The determining factor here is not rank but subordination. Four structures are identified:<ref name="Analysis"/><ref name="Bantekas"/>
#''Policy command:'' [[heads of state]], high-ranking government officials, monarchs
#''Strategic command:'' [[War Cabinet]], [[Joint Chiefs of Staff]]
#''Operational command:'' military leadership; in Yamashita it was established that operational command responsibility cannot be ceded for the purpose of the doctrine of command responsibility – operational commanders must exercise the full potential of their authority to prevent war crimes, failure to supervise subordinates or non-assertive orders don’t exonerate the commander.
#''Tactical command:'' direct command over troops on the ground
International [[case law]] has developed two special types of "de jure commanders."
#''Prisoners-of-war (POW) camp commanders:'' the ICTY established in Aleskovski that POW camp commanders are entrusted with the welfare of all prisoners, and subordination in this case is irrelevant.
#''Executive commanders:'' supreme governing authority in the occupied territory – subordination is again irrelevant, their responsibility is the welfare of the population in the territory under their control, as established in the High Command and Hostages cases after World War II.
'''B''' [[De facto]] (factual) command, which specifies effective control, as opposed to formal rank. This needs a superior-subordinate relationship. Indicia are:<ref name="Analysis"/><ref name="Bantekas"/>
#''Capacity to issue orders''
#''Power of influence:'' influence is recognized as a source of authority in the [[Ministries case]] before the US military Tribunal after World War II.
#''Evidence stemming from distribution of tasks:'' the ICTY has established the [[Nikolic test]] – superior status is deduced from analysis of distribution of tasks within the unit, it applies both to operational and POW camp commanders.
Additional Protocol I and the Statutes of the ICTY, the ICTR, and the ICC makes prevention or prosecution of crimes mandatory.<ref name="Analysis"/>
==Application of Command Responsibility==
===The Nuremberg Tribunal===
[[Image:PICT4336.JPG|thumb|300px|The [[Süddeutsche Zeitung]] announces "The Verdict in Nuremberg." Depicted are (left, from top): Goering, Hess, Ribbentrop, Keitel, Kaltenbrunner, Rosenberg, Frank, Frick; (second column) Funk, Streicher, Schacht; (third column) Doenitz, Raeder, Schirach; (right, from top) Sauckel, Jodl, Papen, Seyss-Inquart, Speer, Neurath, Fritsche, Bormann. Image from [[Topography of Terror|Topography of Terror Museum, Berlin]].]]
{{main|Nuremberg Trials|Subsequent Nuremberg Trials|Nuremberg Defense}}
Following World War II, [[communis opinio]] was that the atrocities committed by the [[Nazism|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]]. The [[Nuremberg Charter]] determined the basis to prosecute people for:<ref name="Greppi"/>
#[[Crimes against peace]]: the planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing.
#[[War crimes]]: violations of the laws and customs of war. A list follows with, inter alia, murder, ill-treatment or deportation into slave labour or for any other purpose of the civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, the killing of hostages, the plunder of public or private property, the wanton destruction of cities, towns or villages, or devastation not justified by military necessity.
#[[Crimes against humanity]]: murder, extermination, enslavement, deportation, and other inhuman acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.
The [[jurisdiction ratione personae]] is considered to apply to "leaders, organisers, instigators and accomplices" involved in planning and committing those crimes.<ref name="Greppi"/>
===The International Criminal Tribunal for the former Yugoslavia===
{{main|International Criminal Tribunal for the former Yugoslavia}}
The ICTY statute article 7 (3) establishes that the fact that crimes "were committed by a subordinate does not relieve his superior of criminal responsibility if he knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators."<ref name="Mens_Rea"/>
In The Prosecutor v. [[Zejnil Delalić|Delalić]] et al (“the Čelebići case”) first considered the scope of command responsibility by concluding that "had reason to know" (artivcle 7(3)) means that a commander must have "had in his possession information of a nature, which at the least, would put him on notice of the risk of … offences by indicating the need for additional investigation in order to ascertain whether … crimes were committed or were about to be committed by his subordinates."<ref name="StuartEHendin"/><ref name="Mens_Rea"/><ref name="Bantekas"/>
In The Prosecutor v. [[Tihomir Blaškić|Blaškić]] ("the Blaškić case") this view was corroborated. However, it differed regarding ''mens rea'' required by AP I. 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 ''mens rea.''<ref name="StuartEHendin"/><ref name="Mens_Rea"/>
The conflicting views of both cases were addressed by the Appeals Chambers in Čelebići and in a separate decision in Blaškić. Both rulings hold that some information of unlawfal acts by subordinates must be available to the commander following which he did not, or inadequately, discipline the perpetrator.<ref name="Analysis"/><ref name="Bantekas"/><ref name="StuartEHendin"/><ref name="Mens_Rea"/>
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 [http://www.un.org/icty/halilovic/trialc/judgement/tcj051116e.htm#IIIB] of 16 November 2005 (para. 22-100).
===The International Criminal Tribunal for Rwanda===
{{main|International Criminal Tribunal for Rwanda}}
===The International Criminal Court===
[[Image:Building of the International Criminal Court in The Hague.jpg|thumb|right|300px|The International Criminal Court in The Hague]]
{{main|International Criminal Court}}
Following several [[ad hoc]] tribunals, the international community decided on a comprehensive court of justice for future crimes against humanity. This resulted in the International Criminal Court, which identified four categories.<ref name="Greppi"/>
#[[Genocide]]
#[[Crimes against humanity]]
#[[War crimes]]
#[[Crime of aggression|Crimes of aggression]]
Article 28 of the [[Rome Statute of the International Criminal Court]] codified the doctrine of command responsibility.<ref name="StuartEHendin"/> With Article 28(a) military commanders are imposed with individual responsibility for crimes committed by forces under their effective command and control if they:
:''"either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes."''<ref name="StuartEHendin"/><ref name="Mens_Rea"/><ref name="Kai Ambos"/>
It uses the stricter "should have known" standard of mens rea, instead of "had reason to know," as defined by the ICTY Statute.<ref name="Mens_Rea"/><ref name="Bantekas"/>
The Bush administration has adopted the [[American Servicemembers' Protection Act]] and entered in [[United_States_and_the_International_Criminal_Court#Article_98_Agreements|Article 98 agreements]] in an attempt to protect any US citizen from appearing before this court. As such it interferes with implementing the command responsibility principle when applicable to US citizens.<ref name="American Servicemembers' Protection Act">American Servicemembers' Protection Act
*[http://law.case.edu/lectures/files/2007-2008/20071016_Moreno-OcampoBackground.pdf The Nuremberg Tribunal: Background Reading about the International Criminal Court] by Michael P. Scharf
*[http://www.trinstitute.org/ojpcr/6_1krasnor.htm American Disengagement with the International Criminal Court: Undermining International Justice and U.S. Foreign Policy Goals] by Emily Krasnor, [[The Online Journal of Peace and Conflict Resolution]]
*[http://www.parl.gc.ca/information/library/PRBpubs/prb0211-e.htm#where The International Criminal Court: American Concerns About an International Prosecutor] by Benjamin R. Dolin, Law and Government Division, Library of [[The Parliament of Canada]], 14 May 2002
*[http://www.temple.edu/lawschool/drwiltext/Updates_1ed/updates9.htm Chapter 9: Individual Accountability for Violations of Human Dignity: International Criminal Law and Beyond]
</ref>
===The war on terror===
{{see|War on terror}}
A number of legal analysts have advanced the argument that the principle of "command responsibility" could make high-ranking officials within the Bush administration guilty of war crimes committed either with their knowledge or by persons under their control.<ref>US officials
*[http://hrw.org/reports/2005/us0405/ Getting Away with Torture? Command Responsibility for the U.S. Abuse of Detainees] Human Rights Watch, April 2005 Vol. 17, No. 1
*[http://www.commondreams.org/views06/0228-31.htm Accountability Absent in Prisoner Torture] by John D. Hutson, [http://www.twincities.com/ Pioneer Press], [[February 28]] [[2006]]
*[http://www.newyorker.com/fact/content/articles/060227fa_fact THE MEMO] How an internal effort to ban the abuse and torture of detainees was thwarted, by JANE MAYER, [[The New Yorker]], Issue of [[February 27]] [[2006]]
*[http://www.CounterPunch.org/lindorff02092006.html War Crimes and Commanders-in-Chief] George Bush and Tomoyuki Yamashita, By DAVE LINDORFF, [[CounterPunch (newsletter)|CounterPunch]], [[February 9]] [[2006]]
*[http://www.truthout.org/docs_05/011905A.shtml The Gonzales Indictment] by Marjorie Cohn in [http://www.truthout.org/ truthout] Wednesday [[January 19]] [[2005]]
*[http://www.laprensa-sandiego.org/archieve/november19-04/quaint.htm The Quaint Mr. Gonzales] by Marjorie Cohn in [http://www.laprensa-sandiego.org/ La Prensa San Diego], [[November 19]] [[2004]]
*[http://justworldnews.org/archives/000737.html Rumsfeld, Bush, and 'command responsibility']
*[http://www.salon.com/opinion/conason/2004/05/22/yoo/index.html From John Ashcroft's Justice Department to Abu Ghraib by Joe Conason] article in Salon [[May 22]] [[2004]]</ref>
As a reaction to the [[September 11, 2001 attacks]] the [[U.S. Government]] adopted several controversial measures (e.g., [[Legitimacy of the 2003 invasion of Iraq|invading Iraq]], introducing "[[unlawful combatant]]" status, conducting "[[extraordinary rendition]]s", and [[torture]]<ref>[[Prisoner abuse]]
*[http://www.humanrightsfirst.org/us_law/etn/dic/index.asp Command's Responsibility: Detainee Deaths in U.S. Custody in Iraq and Afghanistan] by [[Human Rights First]]
*[http://www.fpif.org/fpiftxt/3026 Command Responsibility?] by Jeremy Brecher and Brendan Smith,Published by [[Foreign Policy In Focus]] (FPIF), a joint project of the [[International Relations Center]] (IRC, online at www.irc-online.org) and the [[Institute for Policy Studies]] (IPS, online at www.ips-dc.org), January 10, 2006
*[http://www.counterpunch.org/mcgovern10012005.html Abu Ghraib is a Command Responsibility] By [[Ray McGovern]] Former CIA analyst, CounterPunch, October 1 / 2, 2005</ref> a.k.a: "[[enhanced interrogation methods]]").
[[Alberto Gonzales]] and others argued that detainees should be considered "[[unlawful combatant]]s" and as such not protected by the [[Geneva Conventions]] in multiple memoranda regarding these perceived legal gray areas.<ref>[http://www.salon.com/news/feature/2006/02/23/yoo/index_np.html Parsing pain] By Walter Shapiro, Salon </ref>
Gonzales' statement that denying coverage under the Geneva Conventions "substantially reduces the threat of domestic criminal prosecution under the [[War Crimes Act of 1996|War Crimes Act]]" suggests, at the least, an awareness by those involved in crafting policies in this area that US officials are involved in acts that could be seen to be [[war crimes]].<ref>War Crimes warnings
*[http://www.thenation.com/doc.mhtml?i=20050718&s=holtzman Torture and Accountability by Elizabeth Holtzman] article in [[The Nation]] posted [[June 28]] [[2005]] ([[July 18]] [[2005]] issue) about The Geneva Convention
*[http://www.democracynow.org/article.pl?sid=05/06/30/1333214 Former NY Congress member Holtzman Calls For President Bush and His Senior Staff To Be Held Accountable for Abu Ghraib Torture] Thursday, [[June 30]] [[2005]] on Democracy Now
*[http://msnbc.msn.com/id/4999734/ Memos Reveal War Crimes Warnings] By Michael Isikoff Newsweek [[May 19]] [[2004]]
*[http://www.globalpolicy.org/security/issues/iraq/attack/law/2003/0128uslawyers.htm US Lawyers Warn Bush on War Crimes] [http://www.globalpolicy.org/ Global Policy Forum] [[January 28]] [[2003]]</ref> The [[US Supreme Court]] challenged the premise on which this argument is based in [[Hamdan v. Rumsfeld]], in which it ruled that Common Article Three of the Geneva Conventions applies to detainees in Guantanamo Bay and that the [[Guantanamo military commission|Military Tribunals]] used to try these suspects were in violation of US and international law.<ref>[http://www.msnbc.msn.com/id/13773997/site/newsweek/ The Gitmo Fallout: The fight over the Hamdan ruling heats up—as fears about its reach escalate.] By Michael Isikoff and Stuart Taylor Jr., Newsweek, July 17, 2006</ref>
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]].<ref>[http://www.hrw.org/english/docs/2006/04/14/usdom13190.htm U.S.: Rumsfeld Potentially Liable for Torture Defense Secretary Allegedly Involved in Abusive Interrogation] Human Rights Watch, April 14, 2006</ref> [[Dave Lindorff]] contends that by ignoring the Geneva Conventions the US administration, including President Bush, as [[Commander-in-Chief]], is culpable for war crimes.<ref>[http://www.counterpunch.org/lindorff07032006.html The Real Meaning of the Hamdan Ruling Supreme Court: Bush Administration Has Committed War Crimes] By [[Dave Lindorff]], CounterPunch, July 3, 2006</ref> In addition, former chief prosecutor of the [[Nuremberg Trials]] [[Benjamin Ferencz]] has called the [[invasion of Iraq]] a "clear breach of law," and as such it constitutes a war crime.<ref>[http://www.alternet.org/waroniraq/38604/ Could Bush Be Prosecuted for War Crimes?] By Jan Frel, [[AlterNet]], July 10, 2006.</ref> On November 14, 2006, invoking [[universal jurisdiction]], legal proceedings were started in Germany - for their alleged involvement of prisoner abuse - against [[Donald Rumsfeld]], [[Alberto Gonzales]], [[John Yoo]], [[George Tenet]] and others.<ref>Universal jurisdiction
*[http://www.time.com/time/nation/article/0,8599,1557842,00.html Charges Sought Against Rumsfeld Over Prison Abuse] By ADAM ZAGORIN, Time
*[http://www.democracynow.org/article.pl?sid=06/11/09/1444246 War Crimes Suit Prepared against Rumsfeld] [[Democracy Now]], November 9th, 2006
*[http://www.commondreams.org/views06/1103-28.htm War Criminals, Beware] by Jeremy Brecher and Brendan Smith, The Nation, November 3, 2006
</ref> This allegedly prompted recently retired Donald Rumsfeld to cancel a planned visit to Germany.
There are also allegations by human rights groups and opponents of the Bush administration of deliberate or disproportionate targeting of [[civilian]]s by US forces, mainly through [[aerial bombardment]] but also alleged shootings, during the conflicts in [[Afghanistan]] and [[Iraq]] by US forces and allied [[private security contractor]]s, and controversy over [[depleted uranium]] munitions and [[cluster bomb]]s.
Lt. [[Ehren Watada]] has refused to be deployed to Iraq. Although his own deployment was not ordered until after [[United Nations Security Council Resolution|UNSCR]] 1511 authorized a [[multinational force in Iraq]]<ref>[http://www.undemocracy.com/S-RES-1511(2003)/page_1 Security Council Resolution 1511], October 16, 2003</ref>, Watada charges that the [[invasion of Iraq]] was illegal, and as such he claims he is bound by the command responsibility to refuse to take part in an [[illegal war]]. For this he stands trial at this moment.
The [[Military Commissions Act of 2006]] is seen as an [[amnesty law]] for crimes committed in the War on Terror by retroactively rewriting the War Crimes Act<ref>[http://www.thenation.com/doc/20061016/ratner Pushing Back on Detainee Act] by Michael Ratner is president of the Center for Constitutional Rights, [[The Nation]], October 4, 2006</ref> and by abolishing [[habeas corpus]], effectively making it impossible for detainees to challenge crimes committed against them.<ref>Military Commissions Act of 2006
*[http://writ.news.findlaw.com/dorf/20061011.html Why The Military Commissions Act is No Moderate Compromise] By MICHAEL C. DORF, [[FindLaw]], Oct. 11, 2006
*[http://writ.lp.findlaw.com/mariner/20061108.html The CIA, the MCA, and Detainee Abuse] By JOANNE MARINER, FindLaw, November 8, 2006
*[http://writ.news.findlaw.com/mariner/20070220.html Europe's Investigations of the CIA's Crimes] By JOANNE MARINER, FindLaw, Februari 20, 2007
*[http://www.villagevoice.com/news/0650,hentoff,75255,2.html Bush's War Crimes Cover-up] by Nat Hentoff, [[Village Voice]], December 8th, 2006
*[http://www.commondreams.org/views06/1001-23.htm The John McCain Charade] by Robert Kuttner, the [[Boston Globe]], October 1, 2006
*[http://www.truthout.org/docs_2006/092306C.shtml Bush's "Dirty War" Amnesty Law] By [[Robert Parry]], [[Consortium News]], September 23, 2006
*[http://www.alternet.org/rights/42414/ Republican Torture Laws Will Live in History] By Larisa Alexandrovna, [[AlterNet]], October 2, 2006.</ref>
[[Luis Moreno-Ocampo]] has told [[the Sunday Telegraph]] he is willing to start an inquiry by the [[International Criminal Court]] (ICC), and possibly a trial, for war crimes committed in Iraq involving British Prime Minister [[Tony Blair]] and American President [[George W. Bush]].<ref>[http://www.telegraph.co.uk/news/main.jhtml?xml=/news/2007/03/18/nirq118.xml Court 'can envisage' Blair prosecution] By Gethin Chamberlain, Sunday Telegraph, March 17, 2007</ref> Though under the [[Rome Statute]], the ICC has no jurisdiction over Bush, since the USA is not a State Party to the relevant treaty--unless Bush were accused of crimes inside a State Party. However Blair does fall under ICC jurisdiction.
[[Nat Hentoff]] wrote on August 28th, 2007, that a leaked report by the [[International Committee of the Red Cross]] and the July 2007 report by [[Human Rights First]] and [[Physicians for Social Responsibility]], titled [[Leave No Marks: Enhanced Interrogation Techniques and the Risk of Criminality]], might be used as evidence of American war crimes if there was a Nuremberg-like trial regarding the War on Terror.<ref>[http://www.villagevoice.com/news/0735,hentoff,77643,6.html History Will Not Absolve Us - Leaked Red Cross report sets up Bush team for international war-crimes trial] by Nat Hentoff, [[Village Voice]], August 28th, 2007</ref>
===War in Darfur===
{{see|Darfur conflict|International response to the Darfur conflict|War in Darfur|Timeline of the War in Darfur|Janjaweed}}
[[Human Rights Watch]] commented on this conflict by stating that:
<blockquote>...individual commanders and civilian officials could be liable for failing to take any action to end abuses by their troops or staff. ...... The principle of command responsibility is applicable in internal armed conflicts as well as international armed conflicts.<ref name="Darfur">Responsibility for crimes committed in Darfur
*[http://hrw.org/reports/2005/darfur1205/ Entrenching Impunity - Government Responsibility for International Crimes in Darfur] Human Rights Watch, December 2005, Volume 17, No. 17(A)
*[http://hrw.org/english/docs/2007/04/27/darfur15796.htm HRW Letter to Prime Minister Harper of Canada Regarding the Crisis in Darfur] Human Rights Watch, Nur Muhammed-Ally, Co-Chair
Teja Rachamalla, Co-Chair, On behalf of the Human Rights Watch Toronto Network</ref></blockquote>
The [[Sunday Times]] in March 2006 and the [[Sudan Tribune]] reported in March 2008 that the [[UN Panel of Experts]] determined that [[Salah Gosh]] and [[Abdel Rahim Mohammed Hussein]]
<blockquote>had "command responsibility" for the atrocities committed by the multiple Sudanese security services.<ref name="UN Panel">Times and Sudan Tribune report on UN Panel
*[Massacres suspect let into Britain] Hala Jaber, The Sunday Times, March 12, 2006
*[http://www.sudantribune.com/spip.php?article26214 Darfur, The $64 Question] By Mahmoud A. Suleiman, Sudan Tribune, March 3, 2008</ref></blockquote>
Following an inquiry by the United Nations, regarding allegations of involvement of the Government in genocide, the dossier was referred to the International Criminal Court.<ref name="UN Panel"/> On May 2, 2007, the ICC issued [[arrest warrant]]s for militia leader Ali Muhammad al-Abd al-Rahman, of the Janjaweed, a.k.a. [[Ali Kushayb]], and [[Ahmad Muhammad Haroun]] for crimes against humanity and war crimes.<ref name="UN Panel"/>
The [[International Criminal Court]]'s chief prosecutor, [[Luis Moreno-Ocampo]], announced on July 14, 2008, ten criminal charges against President [[Omar al-Bashir]], accusing him of sponsoring [[war crimes]] and [[crimes against humanity]].<ref name="Bashir">Bashir indicted
*[http://www.guardian.co.uk/world/2008/jul/14/sudan.warcrimes1?gusrc=rss&feed=worldnews Darfur genocide charges for Sudanese president Omar al-Bashir] by Peter Walker, James Sturcke, [[The Guardian]], July 14, 2008
*[http://internationallawobserver.eu/2008/07/14/icc-prosecutor-seeking-arrest-warrant-for-the-president-of-sudan/ ICC prosecutor seeking arrest warrant for the President of Sudan] by Dominik Zimmermann, [[International Law Observer]], July 14, 2008 </ref> 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.<ref name="Bashir"/> The ICC's prosecutor for Darfur, [[Luis Moreno-Ocampo]], is expected within months to ask a panel of ICC judges to issue an arrest warrant for Bashir.<ref name="Bashir"/>
===Zimbabwe===
{{see|Human rights in Zimbabwe|Joshua Nkomo|Zimbabwean Fifth Brigade|Zimbabwean presidential election, 2008}}
For his conduct as President of [[Zimbabwe]] it is suggested [[Robert Mugabe]] may be prosecuted using this doctrine.<ref>[http://www.brisbanetimes.com.au/news/world/mugabe-unlikely-to-pay-for-his-crimes/2008/04/03/1206851105833.html Mugabe unlikely to pay for his crimes] [[Brisbane Times]], April 4, 2008</ref> Because Zimbabwe has not subscribed to the International Criminal Court's jurisdiction it may be authorised by the [[United Nations Security Council]]. The precedent for this was set by its referral to bring indictments relating to the crimes committed in [[Darfur]].<ref name="Mugabe">Robert Mugabe may be prosecuted
*[http://business.timesonline.co.uk/tol/business/law/article3841142.ece We can do something about Mugabe The International Criminal Court has every right to demand justice and accountability] [[Mark S Ellis]], executive director of the [[International Bar Association]], [[Times Online]], April 30, 2008
*[http://www.telegraph.co.uk/news/worldnews/1583711/Robert-Mugabe-%27unlikely-to-flee-Zimbabwe%27.html Robert Mugabe 'unlikely to flee Zimbabwe'] [[Telegraph]]</ref>
==See also==
{{Portal|Criminal justice}}
{{Portal|Genocide|GenocidePortalLogo(ESR)2.JPG}}
{{Portal|Human rights}}
{{Portal|Politics}}
{{Portal|War}}
*[[Cases before the International Criminal Court]]
*[[Carl Schmitt]]
*[[Crime against humanity]]
*[[Crime against peace]]
*[[Crimina juris gentium]]
*[[Geneva Conventions]]
*[[Genocide]]
*[[International humanitarian law]]
*[[International Law]]
*[[Jus ad bellum]]
*[[Jus in bello]]
*[[List of war crimes]]
*[[List of war criminals]]
*[[List of military controversies]]
*[[Nuremberg Charter]]
*[[Nuremberg Defense]]
*[[Nuremberg Principles]]
*[[Peace Palace]]
*[[Respondeat superior]]
*[[Superior Orders]]
*[[Universal jurisdiction]]
*[[War crimes]]
*[[War Crimes Act of 1996]]
{{International Criminal Law}}
==Notes==
{{reflist|2}}
==References==
*[http://www.icrc.org/Web/Eng/siteeng0.nsf/html/57JQHP The interests of States versus the doctrine of superior responsibility] Ilias Bantekas, International Review of the Red Cross No. 838, p. 391-402
*[http://66.102.9.104/search?q=cache:b1PEV2qUItgJ:www.au.af.mil/au/awc/awcgate/mil_law_rev/volume164_smidt.pdf+%22command+responsibility%22&hl=en&ct=clnk&cd=85&client=opera YAMASHITA, MEDINA, AND BEYOND: COMMAND RESPONSIBILITY IN CONTEMPORARY MILITARY OPERATIONS] MILITARY LAW REVIEW
*[http://www.un.org/icty/BL/15art3e.htm THE TRIBUNAL'S FIRST TRIAL TO CONSIDER COMMAND RESPONSIBILITY...] by the [[ICTY]]
*[http://jurist.law.pitt.edu/forumy/2006/12/haditha-double-standard.php The Haditha Double Standard] by Victor Hansen, [[JURIST]]
*[http://law.bepress.com/expresso/eps/41/ The Last Line of Defense: The Doctrine of Command Responsibility, Gender Crimes in Armed Conflict, and the Kahan Report (Sabra & Shatilla)] [http://www.bepress.com/ The Berkeley Electronic Press]
*[http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=327&invol=1 YAMASHITA v. STYER, Commanding General, U.S. Army Forces, Western Pacific], Findlaw
*[http://www.fff.org/comment/com0405c.asp Yamashita v. Styer, 327 U.S. 1 (1946)] or [http://www.ess.uwe.ac.uk/WCC/Yamashita1.htm]
*[http://www.pbs.org/wnet/justice/world_issues_yam.html The Yamashita Standard] by Anne E. Mahle, [[PBS]]
*[http://www.pbs.org/wnet/justice/law_background_command.html Command Responsibility in the United States] by Anne E. Mahle, [[PBS]]
*[http://www.humanrightsfirst.org/us_law/commentary/hutson-cullen-041805.pdf FROM THE TOP ON DOWN] BY JOHN D. HUTSON AND JAMES CULLEN
*[http://law.vanderbilt.edu/faculty/pubs/danner-guity%20associations.pdf?abstract_id=526202 Guilty Associations: Joint Criminal Enterprise, Command Responsibility, and the Development of International Criminal Law] by Allison Marston Danner† and Jenny S. Martinez, CALIFORNIA LAW REVIEW
*[http://www.au.af.mil/au/awc/awcgate/mil_law_rev/volume164_smidt.pdf YAMASHITA, MEDINA, AND BEYOND: COMMAND RESPONSIBILITY IN CONTEMPORARY MILITARY OPERATIONS] by MAJOR MICHAEL L. SMIDT
*[http://www.murdoch.edu.au/elaw/issues/v10n1/hendin101_text.html Command Responsibility and Superior Orders in the Twentieth Century - A Century of Evolution] by Stuart E Hendin BA, MA, LLB, LLM, QC, Murdoch University Electronic Journal of Law, Volume 10, Number 1 (March 2003)
*[http://law.bepress.com/cgi/viewcontent.cgi?article=1101&context=expresso The Last Line of Defense: The Doctrine of Command Responsibility]
*[http://www.wihl.nl/categorieen/intro.asp?ssc_nr=41 SUPERIOR OR COMMAND RESPONSIBILITY]
*[http://www.justicescholars.org/pegc/archive/DoD/docs/Landrum_Yamashita.doc THE YAMASHITA WAR CRIMES TRIAL: COMMAND RESPONSIBILITY THEN AND NOW] by Major Bruce D. Landrum
*[http://robinrowland.com/sugamokwai.pdf Sugamo and the River Kwai] By Robin Rowland, Paper presented to Encounters at Sugamo Prison, Tokyo 1945-52, The American Occupation of Japan and Memories of the Asia-Pacific War, [[Princeton University]], [[May 9]] [[2003]]
*[https://www.jagcnet.army.mil/JAGCNETInternet/Homepages/AC/CLAMO-Public.nsf/0/7dcf7c8b01fe4f7085256ab60066eeb6/$FILE/McCaffrey%20Paper.doc ROLE OF THE ARMED FORCES IN THE PROTECTION AND PROMOTION OF HUMAN RIGHTS] General McCaffrey presented the following on [[18 November]] [[1995]] during "Nuremberg and the Rule of Law: A Fifty-Year Verdict."
*[http://www.torturers.net/analysis/bantekas.html THE CONTEMPORARY LAW OF SUPERIOR RESPONSIBILITY] By Ilias Bantekas, the American Journal of International Law v.93, no. 3, July 1999
[[Category:Hague Conventions|1899 and 1907]]
[[Category:Human rights abuses]]
[[Category:International law]]
[[Category:International courts]]
[[Category:International Criminal Court]]
[[Category:International criminal law]]
[[Category:Laws of war]]
[[Category:War crimes]]