Hilao v. Estate of Marcos,103 F.3d 767, 776 to 778 (9th Cir. 1996)

The district court instructed the jury that it could find the Estate liable if it found either that (1) Marcos directed, ordered, conspired with, or aided the military in torture, summary execution, and "disappearance" or (2) if Marcos knew of such conduct by the military and failed to use his power to prevent it. The Estate challenges the latter basis for liability, arguing that liability is not imposed under such conditions in analogous U.S. law claims, that "no international law decision ... has ever imposed liability upon a foreign official" on those grounds, and that the district court essentially made the Estate liable on a respondeat superior theory that is inapplicable in intentional torts.

The principle of "command responsibility" that holds a superior responsible for the actions of subordinates appears to be well accepted in U.S. and international law in connection with acts committed in wartime, as the Supreme Court's opinion in In Re Yamashita indicates:

[T]he gist of the charge is an unlawful breach of duty by petitioner as an army commander to control the operations of the members of his command by 'permitting them to commit' the extensive and widespread atrocities specified.... [T]he law of war presupposes that its violation is to be avoided through the control of the operations of war by commanders who are to some extent responsible for their subordinates.... [P]rovisions [of international law] plainly imposed on petitioner, who at the time specified was military governor of the Philippines, as well as commander of the Japanese forces, an affirmative duty to take such measures as were within his power and appropriate in the circumstances to protect prisoners of war and the civilian population. This duty of a commanding officer has heretofore been recognized, and its breach penalized[,] by our own military tribunals.

In re Yamashita, 327 U.S. 1, 14-16, 66 S.Ct. 340, 347-48, 90 L.Ed. 499 (1946). See also Art. 86(2), Protocol to the Geneva Conventions of August 12, 1949, opened for signature December 12, 1977, reprinted in 16 I.L.M. 1391, 1429 (1977) ("The fact that a breach of the Conventions or of this Protocol was committed by a subordinate does not absolve his superiors from penal [or] disciplinary 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 was going to commit such a breach and if they did not take all feasible measures within their power to prevent or repress the breach."); Art. 7(3), Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia, 32 I.L.M. 1159, 1192-94 (1993) ( "The fact that any [act of genocide, crime against humanity, or violation of the Geneva Conventions or of the laws or customs of war] was 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 thereof."); see generally Lt. Cmdr. Weston D. Burnett, Command Responsibility and a Case Study of the Criminal Responsibility of Israeli Military Commanders for the Pogrom at Shatila and Sabra, 107 Mil.L.J. 71 (1985).

The United States has moved toward recognizing similar "command responsibility" for torture that occurs in peacetime, perhaps because the goal of international law regarding the treatment of noncombatants in wartime--"to protect civilian populations and prisoners ... from brutality", Yamashita, 327 U.S. at 15, 66 S.Ct. at 347-48--is similar to the goal of international human-rights law. This move is evidenced in the legislative history of the TVPA:

[A] higher official need not have personally performed or ordered the abuses in order to be held liable. Under international law, responsibility for torture, summary execution, or disappearances extends beyond the person or persons who actually committed those acts--anyone with higher authority who authorized, tolerated or knowingly ignored those acts is liable for them.

S.Rep. No. 249, 102d Cong., 1st Sess. at 9 (1991) (footnote omitted) (citing Forti and In re Yamashita ). At least one district court has recognized such liability. Xuncax, 886 F.Supp. at 171-73, 174-75 ("Gramajo was aware of and supported widespread acts of brutality committed by personnel under his command resulting in thousands of civilian deaths.... Gramajo refused to act to prevent such atrocities." "... Gramajo may be held liable for the acts of members of the military forces under his command."). See also Paul v. Avril, 901 F.Supp. 330, 335 (S.D.Fla.1994) ("Defendant Avril [former military ruler of Haiti] bears personal responsibility for a systematic pattern of egregious human rights abuses in Haiti during his military rule ... He also bears personal responsibility for the interrogation and torture of each of the plaintiffs ... All of the soldiers and officers in the Haitian military responsible for the arbitrary detention and torture of plaintiffs were employees, representatives, or agents of defendant Avril, acting under his instructions, authority, and control and acting within the scope of authority granted by him."). The conduct at issue in this case involved violations by members of military or paramilitary forces of a jus cogens norm of international law parallel to the types of war crimes for which international law imposes command responsibility. Siderman de Blake v. Republic of Argentina, 965 F.2d 699, 714-717 (9th Cir.1992) (prohibition against torture has attained status of jus cogens norm from which no derogation is permitted). In these circumstances, the district court's instruction on the second category of liability was proper under international law.