The concept of a commander‟s responsibility for war crimes committed by troops at the superior‟s direct command long antedates the Second World War. As early as 1439 nascent nation states held officers responsible for abuse,1 and in 1474 Peter von Hagenbach was tried by an international tribunal2 for crimes which he as a knight was deemed to have a duty to prevent. In 1625 Grotius posited "As for the ways by which rulers over others may become implicated in their crimes, there are two…tolerance and protection…we must hold that a person who knows of a crime and is able and bound to forbid it and does not do so, himself commits a crime...the people or the king are [not] rigidly bound to surrender the offender, but…they [must] either surrender or punish him."3

1 See, Charles VII of Orleans, Ordinances for the Armies, "The King orders each captain or lieutenant to be held responsible for the abuses, ills, and offenses committed by members of his company, and that as soon as he receives any complaint…he bring the offender to justice….If he fails to do so or covers up the misdeed….the captain shall be deemed responsible for the offense, as if he had committed it himself." Theodor Meron, Henry’s Wars and Shakespeare’s Laws, Oxford University Press (1994) 149 n. 40 citing Louis Guillaume de Vilevault and Louis Brequigny, Ordonnances Des Rois De France De La Troisième Race xiii at 306 (1782). 2 W. Hays Parks, Command Responsibility For War Crimes, 62 Military Law Review 1 at 4 (1973). In addition to Parks‟ usual comprehensive review a number of other first rate articles provide historical background. They include Carol Fox, Closing a Loophole in Accountability for War Crimes: Successor Commanders’ Duty to Punish Known Past Offenses, 55 CWRLR 443 (2004); Leslie Green, Superior Orders and Command Responsibility, 75 Mil. L. Rev. 309 (2003); Mark Martins, Rules of Engagement for Land Forces: A Matter of Training, Not Lawyering, 143 Mil. L. Rev. 3 (1994); and Michael Smidt, Yamashita, Medina, and Beyond: Command Responsibility in Contemporary Military Operations, 164 Mil. L. Rev 155 (2000). 3 Hugo de Groot (Grotius), The Law of War and Peace (De Jur Belli ac Pacis), Louise Loomis Trans., Walter Black, NY pp 235-237 (1949).

U.S. General Order No. 100 of 1863, (Instructions for the Government of United States Armies in the Field) authored by Dr. Francis Lieber of Columbia

University was the foundation for all written armed conflict codes which followed.4 Article 71 of the Instructions provided: Whoever intentionally inflicts additional wounds on an enemy already wholly disabled, or kills such an enemy, or who orders or encourages soldiers to do so, shall suffer death, if duly convicted, whether he belongs to the Army of the United States, or is an enemy captured after having committed his misdeed

4 See, Hugh Bellot, War Crimes: Their Prevention And Punishment, in The Grotius Society, Problems of the War, Vol II (1916) republished by Oceana Publications, New York (1962) at pp. 38-40 noting that General Order No. 100 was the basis for, inter alia, the Hague Conventions of 1899-1907 and their annexed Regulations. 5 Command responsibility apparently extended beyond mistreatment of persons hors de combat. On July 24, 1863 General William T. Sherman arrested Captain William Keeler who had ordered the burning of a cotton gin. Keeler was court-martialed for arson, violation of a general order, and neglect of duty. Keeler was acquitted, and Sherman disapproved the verdict, noting in a letter to General Grant that it was a "…volunteer court-martial tainted with the technicalities of our old civil courts." Lee Kennett, Sherman, A Soldier’s Life, Harper Collins, New York (2001) at p.225. 6 See Bellot, fn 4, supra. 7 See, Evan Wallach, Afghanistan, Quirin, and Uchiyama: Does the Sauce Suit the Gander? November 2003, The Army Lawyer, 19 at 25 et seq. 8 Treaty of Versailles, 1919. Article 229 provides, in part, that "Persons guilty of criminal acts against the nationals of one of the Allied and Associated Powers will be brought before the military tribunals of that Power. Persons guilty of criminal acts against the nationals of more than one of the Allied and Associated Powers will be brought before military tribunals composed of members of the military tribunals of the Powers concerned."

9 In referring the case the French government noted that German law did not exonerate criminal acts based on superior orders if the accused knew that the carrying out of the orders involved the

(Emphasis added).5

The Lieber Code was the basis for, inter alia, the Fourth Hague Convention of 1907 and its annexed Regulations.6 Those Regulations provide protection to opposing armies and any militias and volunteer corps which constitute the armed forces of a signatory power. In addition, they provide protection to other militias and volunteer corps which meet certain requirements: Article 1. The laws, rights, and duties of war apply not only to armies, but also to militia and volunteer corps fulfilling the following conditions: 1. To be commanded by a person responsible for his subordinates; 2. To have a fixed distinctive emblem recognizable at a distance; 3. To carry arms openly; and 4. To conduct their operations in accordance with the laws and customs of war.

(Emphasis added).7

Command responsibility continued to develop following the First World War when Germany, in lieu of international trials,8 designated the Supreme Court at Leipzig to apply international law to German defendants designated by the Allies. In the one case directly involving command responsibility Lieutenant General Karl Stegner and Major Benno Crusius were charged by the French Government9 with

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commission of a crime. George Battle, The Trials Before the Leipsic Supreme Court of Germans Accused of War Crimes, 8 Virginia Law Review 1, 12 (1919). 10 Stegner testified he had only ordered the execution of prisoners who surrendered and then continued to resist. id 11 Battle, supra at fn 9, at pp 12-14. 12 See Treaty of Sèvres, , signed 10 August 1920 but never ratified, as well as Treaties of Neuilly-sur-Seine, St. Germain-en-Laye, Trianon, and the Treaty of Versailles, all of which contained provisions relating to individual criminal responsibility for war crimes and crimes against humanity. 13 Ricardo Alfaro, Special Rapporteur, Question of International Criminal Jurisdiction, II Yearbook of the International Law Commission (1950) at pp. 5-7 discussing the St. James Declaration of 1942 placing among the Allies principal war aims "…the punishment, through the channels of organized justice, of those guilty of or responsible for these crimes, whether they ordered them, perpetrated them or participated in them…" (emphasis added); and the Moscow Declaration of 1943, that at the time of any armistice "…those German officers and men and members of the Nazi party who have been responsible for or have taken a consenting part in …atrocities, massacres and executions will be…judged and punished…" (Emphasis added). This appears to be the first articulation of civilian command responsibility. 14 See, Avalon Project at http://www.yale.edu/lawweb/avalon/imt/proc/imtconst.htm. 15 Although it did so in the context of rejecting a superior orders defense. "Neither the official position, at any time, of an accused, nor the fact that an accused acted pursuant to order of his government or of a superior shall, of itself, be sufficient to free such accused from responsibility for any crime with which he is charged, but such circumstances may be considered in mitigation of punishment if the Tribunal determines that justice so requires." Charter of the International Military Tribunal Far East at section 6. Avalon Project at http://www.yale.edu/lawweb/avalon/imtfech.htm. 16 Evan Wallach, The Procedural and Evidentiary Rules of the Post-World War II War Crimes Trials: Did They Provide an Outline for International Legal Procedure? 37 Columbia Journal of Transnational Law 851 at 860 et seq. (1999).

ordering the execution of prisoners of war. Despite Crusius‟ testimony that he had issued the order to shoot prisoners on direct orders from Stegner, the General was acquitted, apparently based on the determination of the court that Crusius had misunderstood the order.10 The court convicted Crusius, however, for issuing the order to execute prisoners.11

The legal basis for holding individuals criminally responsible for the commission of war crimes and crimes against humanity was included as part of the post-World War I treaties.12 World War Two

During the course of the Second World War, the Allies issued a number of warnings that commanders would be held responsible for criminal misconduct by their subordinates.13 Following cessation of hostilities in Europe, the Allies on August 6, 1945, signed the London Charter creating the International Military Tribunal. It provided at Section 6, inter alia, that "Leaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing [crimes against peace, war crimes, crimes against humanity] are responsible for all acts performed by any persons in execution of such plan."14 The Charter of the International Military Tribunal Far East ("IMTFE") provided a similar standard of command responsibility.15 They were applied both in the principal trials before international military tribunals at Nuremburg and Tokyo, and in subsequent national trials before military commissions.16

Command responsibility was a key issue at Nuremburg17 and Tokyo,18 and in three major trials, Leeb,19 List,20 and Yamashita.21 The elements which are the basis for the current law of command responsibility are articulated in the latter three cases. Leeb: The High Command Case

17 At Nuremberg the Defendants asserted the principle nullum crimen sine lege. nulla poena sine lege---that there can be no punishment of crime without a pre-existing law. In rejecting that argument the Tribunal necessarily imputed direct command responsibility: Occupying the positions they did in the government of Germany, the defendants, or at least some of them must have known of the treaties signed by Germany, outlawing recourse to war for the settlement of international disputes; they must have known that they were acting in defiance of all international law when in complete deliberation they carried out the designs of invasion and aggression. On this view of the case alone, it would appear that the maxim has no application to the present facts. The Defendants also raised a superior orders defense which was squarely rejected based on Article 8 of the Nuremberg Charter. "The fact that the defendant acted pursuant to order of his Government or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment." The Tribunal noted:

The provisions of this Article are in conformity with the law of all nations. That a soldier was ordered to kill or torture in violation of the international law of war has never been recognised as a defence to such acts of brutality, though, as the Charter here provides, the order may be urged in mitigation of the punishment. The true test, which is found in varying degrees in the criminal law of most nations, is not the existence of the order, but whether moral choice was in fact possible. While the final Judgment, includes no general comment on command responsibility, it does consider "…the facts concerning each of the accused in order to determine whether he was personally responsible for issuing, or participating in the issuance of, or--knowing of their illegality--forwarded any orders resulting in the commission of a crime against peace, war crimes, or crimes against humanity--that is to say, the offences over which the Tribunal possessed jurisdiction." See, Leslie Green, War Crimes, Crimes Against Humanity, and Command Responsibility, 50 Naval War College Review, Spring, 1997. See also, Leslie Green, Superior Orders and Command Responsibility, 75 Military Law Review 309 (2003). 18 Count 54 of the Tokyo Indictment charged high Japanese government and military officials with "ordering, authorizing, and permitting" commission of war crimes. Those convicted were all sentenced to death by hanging. Count 55 charged defendants with failure to take adequate steps to prevent war crimes. In its Judgement the IMTFE discussed command liability for failure to provide proper treatment to Prisoners of War. It held that those responsible for proper treatment meet that responsibility if they create a proper functioning system unless war crimes are committed and they knew of their commission and failed to take reasonable steps to prevent future crimes or they "…are at fault in having failed to acquire such knowledge." Judgement at 48,447. 19 United States v. Wilhelm Von Leeb et al, (The High Command Case), United States Military Tribunal, Nuremberg, 30 December, 1947, to 28 October, 1948. XII Law Reports of Trials of War Criminals 1. 20 United States v. Wilhelm List et al, (The Hostages Case) United States Military Tribunal, Nuremberg, 8 July, 1947, to 19 February, 1948. XII Law Reports of Trials of War Criminals 34. 21 United States v. Tomoyuki Yamashita, United States Military Commission, Manila, 8 October to 7 December, 1946. IV Law Reports of Trials of War Criminals 1. 22 See Leeb, at pp 65-74.

In Leeb, the tribunal followed Nuremburg precedent on direct responsibility for issuing illegal orders and the superior orders defence.22 It then discussed command responsibility in detail. What, it asked, should a commander do about crimes by his subordinates under orders from his superiors? "The choices which he has for opposition in this case are few: (1) he can issue an order countermanding the order; (2) he can resign; (3) he can sabotage the enforcement of the order within a somewhat limited sphere…[or] "…he could … do nothing."

The governing statute23 created liability in one who "…was connected with plans or enterprises involving … commission," of a covered crime. "Connection" was construed as requiring a personal breach of a moral obligation. "Under basic principles of command authority and responsibility, an officer who merely stands by while his subordinates execute a criminal order of his superiors which he knows is criminal, violates a moral obligation under International Law. By doing nothing he cannot wash his hands of international responsibility." The tribunal then articulated what are still the core concepts of command responsibility: …it must be recognized that the responsibility of commanders of occupied territories is not unlimited. … his criminal responsibility is personal. The act or neglect to act must be voluntary and criminal. The term "voluntary" does not exclude pressures or compulsions even to the extent of superior orders. That the choice was a difficult one does not alter either its voluntary nature or its criminality. … "War is human violence at its utmost. Under its impact, excesses of individuals are not unknown in any army. The measure of such individual excesses is the measure of the people who compose the army and the standard of discipline of the army to which they belong. ….

23 Control Council Law No. 10. 24 LRTWC at 74-76.

The authority, both administrative and military, of a commander and his criminal responsibility are related but by no means co-extensive. Modern war … entails a large measure of decentralization. A high commander cannot keep completely informed of the details of military operations of subordinates and most assuredly not of every administrative measure. He has the right to assume that details entrusted to responsible subordinates will be legally executed. … Criminality does not attach to every individual in this chain of command from that fact alone. There must be a personal dereliction. That can occur only where the act is directly traceable to him or where his failure to properly supervise his subordinates constitutes criminal negligence on his part. In the latter case it must be a personal neglect amounting to a wanton, immoral disregard of the action of his subordinates amounting to acquiescence. Any other interpretation of International Law would go far beyond the basic principles of criminal law as known to civilized nations.24 List: The Hostages Case List, which primarily dealt with the legality of reprisals against hostages, is important precedent for command responsibility because defendants denied knowledge of criminal acts and orders. The tribunal addressed that claim in detail:

An army commander will not ordinarily be permitted to deny knowledge of reports received at his headquarters, they being sent there for his special benefit. Neither will he ordinarily be permitted to

deny knowledge of happenings within the area of his command while he is present therein. It would strain the credulity of the Tribunal to believe that a high ranking military commander would permit himself to get out of touch with current happenings in the area of his command during war time. No doubt such occurrences result occasionally because of unexpected contingencies, but they are the unusual. With reference to statements that responsibility is lacking where temporary absence from headquarters for any cause is shown, the general rule to be applied is dual in character. As to events occurring in his absence resulting from orders, directions or a general prescribed policy formulated by him, a military commander will be held responsible in the absence of special circumstances. As to events, emergent in nature and presenting matters for original decision, such commander will not ordinarily be held responsible unless he approved of the action taken when it came to his knowledge. That standard of knowledge is still relevant and even more applicable now when battlefield command, control and communications permit a commander direct access to battlefield information in most circumstances down to squad level on a real time basis. Yamashita: Strict Liability

Some commentators argue, citing the Decision of the United States Supreme Court in Yamashita v. Styer 327 U.S.1, 66 S.Ct. 340 (1946), that Yamashita was actually convicted on the grounds of inefficiency in controlling his troops, which is not a precept of international law.25 In fact, examination of the military commission‟s decision from which Yamashita took a writ to the U.S. Supreme Court,26 shows ample grounds for conviction under the standards of direct responsibility and knowledge of misconduct articulated above.

25 See, e.g, dissent of Justice Murphy, 327 U.S. at 25 et seq, asserting that it was not shown that Yamashita had knowledge of the actions of his troops, as his command communications systems had been destroyed by US forces, and protesting that Yamashita was actually convicted on the grounds of inefficiency in controlling his troops, which is not a precept of international law. See also, Theodor Meron, Crimes and Accountability in Shakespeare, Copyright (c) 1998 The American Society of International Law, American Journal of International Law, January, 1998, 92 A.J.I.L. 1, p. 10. But see, Hays Parks, supra at fn. 2, at 25-30. 26 United States v. Tomoyuki Yamashita, supra at fn 21. 27 A. Frank Reel, The Case of General Yamashita, Octagon Books, New York (1971).

Yamashita was charged with "unlawfully disregard[ing] and fail[ing] to discharge his duty as commander to control…his command, [and] permitting them to commit brutal atrocities…" The bill of particulars included incidents of gross misconduct, including murder, against prisoners of war and civilians, as well as execution of death sentences without procedures required by the 1929 Geneva Prisoner of War Convention. His counsel argued vigorously27, and Yamashita testified, that he assumed command in the midst of battle, that he was never able to assert actual control over those troops who committed war crimes, and that his ability to control his troops was severely degraded by enemy attacks on his routes and means of communication.

Although some of the evidence admitted against Yamashita was highly questionable,28 direct testimony established his approval of execution of hundreds of suspected guerrillas without trial,29 and of thousands more without any kind of fair trial procedure.30 It also established that Yamashita‟s headquarters were within walking distance of POW camps where numerous atrocities occurred.31 Certainly, he had actual knowledge of criminal misconduct by his subordinates. The tribunal concluded that, in fact, the occurrences were so widespread he had to have, at the least, discovered and controlled them: Clearly, assignment to command military troops is accompanied by broad authority and heavy responsibility. This has been true in all armies throughout recorded history. It is absurd, however, to consider a commander a murderer or rapist because one of his soldiers commits a murder or a rape. Nevertheless, where murder and rape and vicious, revengeful 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, for the lawless acts of his troops, depending upon their nature and the circumstances surrounding them. …It is for the purpose of maintaining discipline and control, among other reasons, that military commanders are given broad powers of administering military justice. The tactical situation, the character, training and capacity of staff officers and subordinate commanders as well as the traits of character and training of his troops are other important factors in such cases. …The Commission concludes : (1) That a series of atrocities and other high crimes have been committed by members of the Japanese armed forces under your command …that they were not sporadic in nature but in many cases were methodically supervised by Japanese officers and non-commissioned officers ; (2) That during the period in question you failed to provide effective control of your troops as was required by the circumstances. Thus, rather than finding any sort of "strict liability" the commission held that the facts were so egregious General Yamashita had to have discovered and controlled them. While one might argue with the evidence upon which it is based, the conclusion was hardly novel.

Post War Developments

28 See, Wallach, Procedure, supra at fn 15. 29 LRTWC at 19. 30 Id at 20. 31 Parks, supra at fn 2, p.27.

Three major post-war developments strengthened the position of the command responsibility doctrine as customary international law. The first was the widespread adoption of the Geneva Conventions of 1949,32 followed by the articulation of the

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relative to the Treatment of Prisoners of War. Geneva, 12 August 1949, and Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949. 33 G. A. Res. 177 (II), paragraph (a), directed the International Law Commission to "formulate the principles of international law recognized in the Charter of the Nuremberg Tribunal and in the judgment of the Tribunal." The formulation was contained in the Report of the International Law Commission Covering its Second Session, 5 June-29 July 1950, Document A/1316, pp. 11-14. 34 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, and Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977. 35 The requirement of Article 5 Geneva Convention III (POWS) is exemplary of those responsibilities "Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal." That provision necessarily implies both that a commander must appoint a "competent tribunal" where necessary, and command responsibility for delicts flowing from failure to do so. C.f. United States Army Regulation AR 190-8, Enemy Prisoners of War, Retained Personnel, Civilian Internees and Other Detainees, Paragraph 1-6 Tribunals, 36 Article 130 of Geneva Convention III (POWS) is representative. Grave breaches include "…wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, compelling a prisoner of war to serve in the forces of the hostile Power, or wilfully depriving a prisoner of war of the rights of fair and regular trial prescribed in this Convention." 37 Article 129 of Geneva Convention III, for example, provides signatories must "… enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any … grave breaches … Each … shall be under the obligation to search for persons alleged to have committed. or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts. It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another High Contracting Party concerned, provided such High Contracting Party has made out a prima facie case." (Emphasis added). 38 In their entirety, the Nuremberg Principles provide that: 1) any individual who commits an act which constitutes a crime under international law is responsible therefor and liable to punishment; 2) the fact that an act is not criminalized in domestic law does not relieve the perpetrator from criminal responsibility; 3) holding the position of head of state does not relieve an individual of criminal responsibility for international crimes; 4) superior orders is not a defence; 5) individuals charged with international crimes have the right to a fair trial; 6) that international crimes include crimes against the peace, war crimes, and crimes against humanity, and 7) complicity in the commission of these crimes is also a basis for individual criminal responsibility.

Nuremburg Principles,33 and passage of the 1977 Protocols to the 1949 Conventions.34 The 1949 Convention created specific responsibilities35 and liabilities for commanders, and, through their specification of "grave breaches,"36 identified and required universal punishment of their perpetrators, including commanders.37 The Nuremburg Principles38 directly addressed command responsibility stating, inter alia, that direct liability applies to all actors, there are no superior orders or head of state defenses, and complicity in international crimes creates personal liability. In Article 87 Protocol I directly addresses the Duty of Commanders:

1. [Parties] shall require military commanders, with respect to members of the armed forces under their command and other persons under their control, to prevent and, where necessary, to suppress and to report [breaches] to competent authorities… 2. [Parties] shall require that, commensurate with their level of responsibility, commanders ensure that [military personnel they] command are aware of their [legal] obligations...

3. [Parties] shall require any commander who is aware that subordinates or other persons under his control are going to commit or have committed a breach …to initiate such steps as are necessary to prevent such violations … and, where appropriate, to initiate disciplinary or penal action against violators thereof.39

39 See also, Paragraph 82 "[Parties] in time of armed conflict, shall ensure that legal advisers are available, when necessary, to advise military commanders at the appropriate level on [international law requirements] and on the appropriate instruction to be given to the armed forces on this subject." That provision helps explain the proliferation of JAGs at Division, Brigade and even Battalion level in western armed forces over the past quarter century.

40 Although the United States has not ratified Geneva Protocols I and II, approximately 150 nations have ratified them, and the United States considers many of the Protocol provisions to be applicable as customary international law. Operational Law Handbook, 11 (U.S. Army Judge Advocate's School 2002); Lt. Col. James K. Carberry & Scott Holcomb, Target Selection at CFLCC: A Lawyer's Perspective, Field Artillery, Mar.-June 2004, at 40. Although "[t]he United States has not ratified the Geneva Protocols, [it] considers many sections to be legally binding as customary international law." 41 The principal cases, United States v. Calley and United States v. Medina, were aberrations. The jury instructions in both were, at best confusing, and quite arguably erroneous. They resulted in an acquittal of one defendant (Medina). See, Juan R. Torruella, On the Slippery Slopes of Afghanistan: Military Commissions and the Exercise of Presidential Power, 4 U. Pa. J. Const. L. 648 (2002) at fn. 168. In the other case, Calley, although sentenced to confinement at hard labor for twenty years, U.S. v. Calley, 1973 WL 14570, ACMR, 1973, was, on the order of President Richard Nixon, placed in confinement to quarters pending review. He eventually served three and a half years in quarters before his parole.

Taken together, those developments forcefully demonstrate recognition of command responsibility as binding customary international law.40 Several post-World War Two era cases which discussed command responsibility also contributed to the current law. The most important of those arose from the massacre at My Lei, Republic of South Vietnam, in 1968.41 The principle command responsibility case of interest arising from My Lei is Koster v. United States, 231 Ct. Cl. 301, 685 F.2d 407 (1982). Koster appealed from administrative sanctions imposed on him as commander of the 23d Infantry (Americal) Division of the United States Army in Vietnam in 1967 and 1968, after his alleged failure to conduct a prompt and proper investigation into My Lai.

The court established that Koster learned at least that: "(1) there were unusual figures for the day in that 128 of the enemy were reported killed in action yet there were only two U. S. soldiers killed, 11 wounded and only three weapons were captured; (2) there was a report of 20 civilian deaths from U. S. artillery fire, an unusually large number; and (3) [he] received … a … version of the report by a U. S. helicopter pilot who tried to stop the killing at My Lai 4…[he] learned a month later that (4) there was a Viet Cong propaganda leaflet that charged that U. S. troops had massacred some 500 civilians in and around Son My Village in mid-March…. [Koster initiated] inquiries, but, through various circumstances including what may have been a cover-up by some subordinate officers, the full, true story did not emerge." Court-martial charges against him were dismissed in favor of the imposition of administrative sanctions from which he sought relief in the courts. In a Memorandum imposing those sanctions, the Secretary of the Army explained:

In my view General Koster, although free of personal culpability with respect to the murders themselves, is personally responsible for the inadequacy of subsequent investigations, despite whatever other failures may have been ascribed to his subordinates

A commander is not, of course, personally responsible for all criminal acts of his subordinates. … But a commander clearly must be held responsible for those matters which he knows to be of serious import, and with respect to which he assumes personal charge. Any other conclusion would render essentially meaningless and unenforceable the concepts of great command responsibility accompanying senior positions of authority. 685 F.2d at 410. (Emphasis added). In affirming the sanction the Court of Military Appeals noted: The test of commanders, especially those in the field in times of actual hostilities, has always been strict. Too much is at stake for it to be otherwise. Those two statements offer a clear explanation of the modern rationale of command responsibility.

The Current Elements of Command Responsibility Under International Law

The concept of individual criminal responsibility in international criminal jurisprudence has evolved significantly in the past twelve years. The Statutes of the Ad Hoc Tribunals – the International Criminal Tribunals for the former Yugoslavia and Rwanda ("ICTY" and "ICTR") as well as those of the hybrid tribunals42 stem in part from the Nuremberg Principles and the precedents of the Nuremberg and Tokyo Tribunals.43 The jurisprudence of the ICTY and ICTR and the Rome Statute of the International Criminal Court ("ICC") all largely define the criminal responsibility of an individual for war crimes, crimes against humanity, and genocide as founded upon two different bases of liability.

42 The term "hybrid tribunal" describes those international tribunals which comprise both an international as well as a national legal component. These include the Special Court of Sierra Leone, the Special Panels in East Timor, the Bosnia War Crimes Chamber, the Iraq Special Tribunal, and the Extraordinary Chambers in the Courts of Cambodia. The statutes of these hybrid courts all contain provisions under international law as well as under the domestic legal systems in which they operate. They are also staffed by a combination of domestic and international practitioners, though the proportions of international to domestic staff vary dramatically from one court to another. 43 See John Jones, International Criminal Practice, General Principles of Criminal Law, p. 410, para. 6.2.7.

The first basis of individual criminal responsibility is direct. That is to say, the accused is alleged to have personally planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a war crime,

a crime against humanity, or genocide.44 The charge against an accused is based upon his or her own direct acts and conduct.

44 See, ICTY Statute Article 7(1), ICTR and Special Court for Sierra Leone Statute Article 6(1), ICC Statute Article 25(3). 45 See, ICTY Statute Article 7(3), ICTR and Special Court for Sierra Leone Statutes Article 6(3), ICC Statute Article 28. 46 See Prosecutor v. Krnojelac, Appeals Judgement, Case No. IT-97-25-A, App. Ch., 17 September 2003, para. 171, where the Appeals Chamber held that "It cannot be overemphasised that, where superior responsibility is concerned, an accused is not charged with the crimes of his subordinates but with his failure to carry out his duty as a superior to exercise control." 47 This theory holds that the jurisdiction of international tribunals is complementary to the jurisdiction of domestic courts, and thus international tribunals obtain jurisdiction only where a country is unwilling or unable to prosecute that person domestically. Note that the Rome Statute of the ICC includes this provision requiring that only individuals whose nations are unwilling or unable to prosecute them will be prosecuted before the ICC (Rome Statute Article 17), whereas the ICTY and ICTR did not contain such a restriction on prosecution. Nonetheless, over the course of their existence and in particular as they move towards the termination of their mandates, the ICTY and ICTR are gradually transferring cases involving lower level accused back to the Former Yugoslavia and Rwanda respectively, and for the most part going forward with cases which involve accused who held positions of superior authority. 48 See Delalić et al Trial Judgement, where the Chamber acknowledges the ICTY policy of "maintaining the investigation and indictment only of persons in positions of some military or political authority" but with an exception for "those responsible for exceptionally brutal or otherwise extremely serious offences," para 1283. The Special Court for Sierra Leone will be developing jurisprudence regarding factors the Court will consider in determining whether a particular accused "bears the greatest responsibility." ICTR Rules of Procedure Rules 9 and 10 require the Prosecutor and the Trial Chamber to take into consideration the "status of the accused at the time of the alleged offences" in determining whether to proceed with an investigation.

49 See Article 7 of the ICTY statute and Article 6 ICTR statute, "Individual criminal responsibility: 1. A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in articles 2 to 5 of the present Statute, shall be individually responsible for the crime. 2. The official position of any accused person, whether as Head of State or Government or as a responsible Government official, shall not relieve such person of criminal responsibility nor mitigate punishment. 3. The fact that any of the acts referred to in articles 2 to 5 of the present Statute 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.

The second basis of individual criminal responsibility is through command responsibility. Under this concept, an accused is alleged to have been in effective control over those who personally committed war crimes or crimes against humanity, to have known or have had reason to know that these crimes were being committed or had been committed, and to have failed to either prevent their commission or to punish those directly responsible.45 This mode of liability holds an individual in command criminally responsible for failure to act where obliged by law to do so.46

As international criminal law has developed toward a theory of complementarity,47 the Ad Hoc tribunals as well as the hybrid international tribunals seem to have moved towards a policy of prosecution primarily of those in positions of political or military superior authority. The ICTY has held just that.48 However, there is statutory authority that the ICTY and ICTR have jurisdiction over both those in superior authority positions as well as those who personally execute the crimes.49

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4. The fact that an accused person acted pursuant to an order of a Government or of a superior shall not relieve him of criminal responsibility, but may be considered in mitigation of punishment if the International Tribunal determines that justice so requires. [Emphasis Added] 50 See Statute of the Special Court for Sierra Leone, Article 1(1): "The Special Court shall, except as provided in subparagraph (2), have the power to prosecute persons who bear the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law committed in the territory of Sierra Leone since 30 November 1996, including those leaders who, in committing such crimes, have threatened the establishment of and implementation of the peace process in Sierra Leone." 51 ICRC, Customary International Humanitarian Law, Volume I: Rules, p. 556. 52 See Akayesu Trial Judgement, para 480. 53 Akayesu Trial Judgement, para 473. 54 See Tadić Trial Judgement, Para. 692, page 270, Case No. IT-94-1-T, 7 May 1997. 55 See Kvočka Appeal Judgement, Paras. 81, 82. 56 See Akayesu Trial Judgement, para. 479.

Some international courts have limited their jurisdiction in this regard. The Special Court for Sierra Leone, for example, is mandated by its statute to prosecute only those who bear the greatest responsibility for crimes under the Statute.50

Direct Responsibility

According to the International Committee of the Red Cross, "State practice establishes" the rule that "commanders and other superiors are criminally responsible for war crimes committed pursuant to their orders" as a "norm of customary international law applicable in both international and non-international armed conflict."51

The Ad hoc tribunals have further evolved the Nuremburg conspiracy doctrine under the concept of a "common criminal purpose," by which a co-perpetrator who participates in the commission of a crime with the requisite mens rea can be held directly criminally responsible for the crime even where the actual act is committed by another. This doctrine can form the basis for individual criminal responsibility for planning, instigating, or ordering a crime where the individual "design[s] the commission of a crime at both the preparatory and executive phases,"52 provided the planning actually leads to the commission of the crime.53 As stated in the Tadić case, however, "a person may only be criminally responsible for conduct where it is determined that he knowingly participated in the commission of an offence" and that "his participation directly and substantially affected the commission of that offence through supporting the actual commission before, during, or after the incident."54

The jurisprudence of the Ad Hoc tribunals has developed the doctrine of a "joint criminal enterprise," which requires a common criminal purpose as well as participants in the enterprise who act in a coordinated fashion in pursuit of the common criminal purpose. Three modes of joint criminal enterprise have been developed in the ICTY/R jurisprudence: 1) where all co-perpetrators possess the same intent to effect the common purpose, 2) which requires personal knowledge of an organised system (such as a concentration camp) and that the co-perpetrator furthered the criminal purpose of the system, and 3) where the co-perpetrator is held responsible for crimes committed beyond the scope of the common criminal purpose but which were a natural and foreseeable consequence.55 All three modes, if proven, result in direct responsibility for the crimes charged. Where an accused is charged with direct responsibility, liability requires knowing action.56

b. Superior or Command Responsibility According to the ICRC:

Commanders and other superiors are criminally responsible for war crimes committed by their subordinates if they knew, or had reason to know, that the subordinates were about to commit or were committing such crimes and did not take all necessary and reasonable measures in their power to prevent their commission, or if such crimes had been committed, to punish the persons responsible.57

57 ICRC, Customary International Humanitarian Law, Volume I: Rules, p. 558. 58 Ibid. 59 Prosecutor v. Delalić et al. (Čelebići case), Judgement, Case No. IT-96-21-A, App. Ch., 20 February 2001, para. 313. 60 Some argue the facts of Yamashita suggest that the General was convicted unfairly, due to his lack of knowledge of the commission of atrocities by his troops, as well as his inability to prevent these atrocities – all due to US actions which impeded his command and control over his subordinates. On that basis, they have criticized the judgement for imposing a strict liability standard on General Yamashita, making him responsible for the acts of his subordinates even if his command had been impeded and even in the face of blocked reporting lines which may in fact have prevented him from knowing of his subordinates‟ actions. Theodor Meron, Crimes and Accountability in Shakespeare, Copyright (c) 1998 The American Society of International Law, American Journal of International Law, January, 1998, 92 A.J.I.L. 1, p. 10. But see, Parks in footnote 2, supra.

State practice, now has established that this rule is "a norm of customary international law applicable in both international and non-international armed conflicts."58 Early Antecedents

Current international criminal practice requires that both effective control and knowledge are essential elements of command responsibility which must be proven in order to hold an individual responsible for international crimes under this mode of liability. In the Čelebići appeals judgement at the ICTY, the court clearly stated "It is undisputed that command responsibility does not impose strict liability on a superior for the offences of subordinates."59

Nonetheless, the fact that a commander may be held individually criminally responsible for crimes committed by subordinates is today a firmly rooted principle of international law. Thus, the "Yamashita Principle" 60 has in a sense been codified in Protocol I of the Geneva Conventions, as well as in the Statutes of the International Criminal Tribunals and the hybrid Tribunals; with the requirement of a showing of effective control, knowledge, and failure to prevent or punish the commission of the crimes, all as prerequisites to holding a commander responsible for the illegal actions of his or her subordinates. As stated by the ICTY Appeals Chamber in both the Čelebići and Aleksovski cases:

The principle of superior responsibility properly is analysed as containing three constitutive parts: (i) the existence of a superior-subordinate relationship; (ii) the superior knew or had reason to know that the criminal

act was about to be or had been committed; and (iii) the superior failed to take the necessary and reasonable measures to prevent the criminal act or punish the perpetrator thereof..61 This form of criminal liability is thus based on an omission by the commander. If, with reasonably imputed knowledge of the commission of international crimes, the commander fails to prevent or punish their commission, the commander will be held criminally liable under this doctrine even if s/he did not commit, conspire to commit, order or aid and abet in the commission of these crimes. As stated by the Appeals Chamber in the Delalić case at the ICTY:

65 But see Prosecutor v. Orić. Nasir Orić was convicted for his failure to prevent violations of international law, but the judgement appears to hold him responsible for dereliction of duty, rather than for the underlying crimes he failed to prevent (cruel treatment.) As he was convicted of failure to discharge his duty as a commander, his sentence was extremely modest – two years – whereas the

The literal meaning of Article 7(3) is not difficult to ascertain. A commander may be held criminally liable in respect of the acts of his subordinates in violation of Articles 2 to 5 of the Statute. Both the subordinates and the commander are individually responsible in relation to the impugned acts. The commander would be tried for failure to act in respect of the offences of his subordinates in the perpetration of which he did not directly participate.62 Current Jurisprudence As noted above, criminal liability for command responsibility requires satisfaction of three core elements.

First, the superior must have effective control over the subordinates – there must be a proven superior-subordinate relationship. Second, the superior must have knowledge of the perpetration by subordinates of acts which constitute violations of international law. Third, the superior must have either failed to prevent the commission of such acts, or failed to punish their commission after the fact.63 This standard applies in both international as well as internal armed conflict.64

It bears emphasis that command responsibility is a mode of liability for the violations of international humanitarian law. Thus, an individual will be held individually criminally responsible for direct participation in war crimes, crimes against humanity, or genocide, or for command over those who committed these crimes.65 Command entails an obligation to actively enforce binding law. Failure to

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sentence for the crime of cruel treatment would have certainly been significantly longer. This judgement, if not overturned on appeal, could form a new phase and divergence from international criminal practice in this area. It raises two primary questions immediately; first, is dereliction of duty a crime under international law? This question was raised in the United States Supreme Court in Yamashita, where Yamashita was convicted for failure to execute his duty as commander (Although that dereliction may have included direct responsibility, see Parks in fn 2, supra). Justice Murphy‟s dissent argues that Yamashita was convicted of "inefficiency in controlling his troops," which is not a crime recognized under international law. The Orić case takes this one step further, convicting the accused of failure to exercise due diligence. The second question raised by this recent decision, is whether this decision will serve as grounds for review of all prior cases where a commander is held responsible for the underlying war crimes, crimes against humanity, and/or genocide via this mode of liability. Will these convicted war criminals now have a basis on which to argue that their sentences were severe in light of their modest crime of dereliction of duty? See Prosecutor v. Orić, Judgement, para 293, 578,727. 66 Prosecutor v. Hadžihasanović and Kubura, Decision on Motions for Acquittal Pursuant to Rule 98 Bis, Case No. IT-01-47-T, T. Ch. II, 27 September 2004, para.164; Prosecutor v. Delalić et al., Judgement, Case No. IT-96-21-A, App. Ch., 20 February 2001, para.303. 67 Prosecutor v. Pavle Strugar, 98bis Decision, Case No. IT-01-42-T, T. Ch. II, 21 June 2004, para. 93; Prosecutor v. Zejnil Delalić et al., (Čelebići), Judgement, Case No. IT-96-21-T, T. Ch. II, 16 November 1998, para. 346; Prosecutor v. Dario Kordić and Mario Čerkez, Judgement, Case No. IT-95-14/2-T, T. Ch. III, 26 February 2001, para. 401; Prosecutor v. Tihomir Blaškić, Judgement, Case No. IT-95-14-T, T. Ch. 1, 3 March 2000, para. 294; Prosecutor v. Miroslav Kvočka et al., Judgement, Case No. IT-98-30/1-T, T. Ch. I, 2 November 2001, para. 314; Prosecutor v. Delalić et al., (Čelebići), Judgement, Case No. IT-96-21-A, App. Ch., 20 February 2001, paras. 195, 256. 68 Prosecutor v. Radoslav BrĎanin, Judgement, Case No. IT-99-36-T, T. Ch. II, 1 September 2004, para. 276. 69 As stated by the Appeals Chamber in Prosecutor v. Delalić et al. (Čelebići case), Judgement, Case No. IT-96-21-A, App. Ch., 20 February 2001, para. 251, "The superior-subordinate relationship is based on the notion of control within a hierarchy and … this control can be exercised in a direct or indirect manner, with the result that the superior-subordinate relationship itself may be both direct and indirect. There is no requirement that, for the necessary superior-subordinate relationship to exist, the perpetrator must be in a direct chain of command under the superior."

meet that obligation may create criminal consequences. A commander bears responsibility for the consequences of failure to act. First Element – Effective Control

The first element of command responsibility requires proof that the accused was in a position superior to the perpetrator.66 As stated by the ICTY in the BrĎanin case:

Effective control is defined as the material ability to prevent or punish the commission of the offence.67 Substantial influence over subordinates that does not meet the threshold of effective control is not sufficient under customary law to serve as a means of exercising superior criminal responsibility.68

It must be proven that the accused had effective control over the subordinates who perpetrated the violations. This may be shown through use of evidence of the command and control structure under which the accused and his/her subordinates were operating.69 However, there is no requirement to show that the perpetrator was

in a direct chain of command under the superior.70 It is sufficient that the accused was senior in a "formal or informal hierarchy" to the perpetrator.71

70 Prosecutor v. Kayishema and Ruzindana, Judgement, 21 May 1999 ((ICTR), Prosecutor v. Delalić et al. (Čelebići case), Judgement, Case No. IT-96-21-A, App. Ch., 20 February 2001, para. 251. 71 Prosecutor v. Delalić et al. (Čelebići case), Judgement, Case No. IT-96-21-A, App. Ch., 20 February 2001, paras. 303, 305 (footnote omitted). 72 Prosecutor v. Hadžihasanović and Kubura, Decision on Motions for Acquittal Pursuant to Rule 98 Bis, Case No. IT-01-47-T, T. Ch. II, 27 September 2004, para.164; Prosecutor v. Delalić et al., Judgement, Case No. IT-96-21-A, App. Ch., 20 February 2001, para. 197. 73 Prosecutor v. Akayesu, Judgement, 2 September 1998 (ICTR), Prosecutor v. Radoslav BrĎanin, Judgement, Case No. IT-99-36-T, T. Ch. II, 1 September 2004, para. 281 (ICTY). See also Prosecutor v. Bagilishema, Judgement, Case No. ICTR-95-1A-T, T. Ch. II, 7 June 2001, para. 51 (ICTR) citing Prosecutor v. Delalić et al (Čelebići Case), Appeal Judgement, Case No. IT-96-21-A, App. Ch., 20 February 2001, paras. 196, 197. The term "superior" is most commonly used, see ICTY Statute Article 7(3), ICTR and Special Court for Sierra Leone Statutes, Article 6(3). According to the ICRC, the military manuals and national legislation of many states also use the term "superior," demonstrating that the superior may be either civilian or military. 74 Prosecutor v. Bagilishema, Judgement, Case No. ICTR-95-1A-T, T. Ch. II, 7 June 2001, para. 50 citing Prosecutor v. Delalić et al (Čelebići Case), Appeal Judgement, Case No. IT-96-21-A, App. Ch., 20 February 2001, para. 192. 75 Prosecutor v. Bagilishema, Judgement, Case No. ICTR-95-1A-T, T. Ch. II, 7 June 2001, para. 55. See also ICC statute, Article 28. 76 Prosecutor v. Pavle Strugar, 98bis Decision, Case No. IT-01-42-T, T. Ch. II, 21 June 2004, para. 93; Prosecutor v. Zejnil Delalić et al., (Čelebići), Judgement, Case No. IT-96-21-T, T. Ch. II, 16 November 1998, para. 383; Prosecutor v. Delalić et al. (Čelebići), Judgement, Case No. IT-96-21-A, App. Ch., 20 February 2001, para. 241; Prosecutor v. Tihomir Blaškić, Judgement, Case No. IT-95-14-T, T. Ch. 1, 3 March 2000, para. 307; Report of the United Nations Commission of Experts, S/1994/674, p. 17.

This element may apply to both de jure and as de facto commanders,72 and may apply to individuals in either a military or civilian leadership role.73 Thus, there need be no official appointment of the individual to a command position, yet s/he may possess effective control over subordinates sufficient to invoke this mode of liability.74 In the Baglishema case, the International Criminal Tribunal for Rwanda held that in the case of de facto civilian leaders, no showing was required that the command they exercised over their subordinates was of the same nature as that of a military commanders; only that they possessed the material ability to prevent or punish the acts of their subordinates.75 Second Element – Knowledge or reason to know; the mens rea element

Secondly, the superior must have known or had reason to know that the criminal act was about to be or had been committed. This may be established through proof that the superior had actual knowledge that his subordinates were about to or had committed the alleged offences or that he had in his possession information of such a nature as to put him on notice of such risk.76 Again addressing the question of whether a commander may be held strictly liable for the acts of his/her subordinates, the ICTR makes it clear that a theory of strict liability is unacceptable. As with any criminal act, intent must be shown. As stated in Akayesu:

The Chamber holds that it is necessary to recall that criminal intent is the moral element required for any crime and that, where the objective is to ascertain the individual criminal responsibility of a person Accused of crimes falling within

the jurisdiction of the Chamber ... it is certainly proper to ensure that there has been malicious intent, or, at least, ensure that negligence was so serious as to be tantamount to acquiescence or even malicious intent.77

Thus, to satisfy this second element of liability, the prosecution may demonstrate that the perpetrator – the superior authority charged with criminal liability for these acts -- acted knowingly. This mode of liability can also be applied where a superior had reason to know78 that his subordinates were about to commit a crime or had already done so, and where the superior failed to either prevent the commission of the crime, or to punish subordinates following its commission. This element can be satisfied by showing the Accused had information which would provide reasonable notice these acts had been committed or were about to be committed.79

As to the form of the information available to him, it may be written or oral, and does not need to have the form of specific reports submitted pursuant to a monitoring system. This information does not need to provide specific information about unlawful acts committed or about to be committed. For instance, a military commander who has received information that some of the soldiers under his command have a violent or unstable character, or have been drinking prior to being sent on a mission, may be considered as having the required knowledge.80

To prove this element, it need only be demonstrated that a reasonable person in the position of the accused would have had knowledge based on the information within his or her possession – not that the superior actually knew it. However, it is not sufficient to say that a commander, by virtue of his or her position, "must have known."81

There must be an actual showing that the commander had reason to know, and the facts will be considered by the court on a case-by-case basis. According to the Aleksovski Trial Chamber, an individual‟s command position can, however, serve

as an indicator that he knew about the crimes committed by his subordinates.82 This must be considered under each circumstance in light of other indicators, such as the following list enunciated by the Čelebići and Blaškić Trial Judgements:

[T]he number, type and scope of the illegal acts; the time during which the illegal acts occurred; the number and type of troops involved; the logistics involved, if any; the geographical location of the acts; the speed of the operations; the modus operandi of similar illegal acts; the officers and staff involved; and the location of the commander at the time.83

The ICC Statute uses somewhat different language for non-military commanders, stating that it must be shown that the superior "consciously disregarded information which clearly indicated" that crimes were being or had been committed.84 Third Element – Failure to prevent or punish

The third element of command responsibility, requires proof the superior failed to take measures within his/her capacity to prevent the commission of the acts by subordinates, or to punish subordinates following their commission. A superior will only be held responsible for failure to take actions within his or her power to prevent violations or punish their commission.85

A commander may be shown to have failed to punish through demonstrated failure to reasonably investigate potential crimes and/or to report potential crimes to his or her superiors. This concept appears in the military manuals and case law of many nations, as well as in Additional Protocol I and the ICC Statute.86

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(b) With respect to superior and subordinate relationships not described in paragraph (a), a superior shall be criminally responsible for crimes within the jurisdiction of the Court committed by subordinates under his or her effective authority and control, as a result of his or her failure to exercise control properly over such subordinates, where: (i) The superior either knew, or consciously disregarded information which clearly indicated, that the subordinates were committing or about to commit such crimes; (ii) The crimes concerned activities that were within the effective responsibility and control of the superior; and (iii) The superior failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution. See also Additional Protocol I, Article 87, "1. The High Contracting Parties and the Parties to the conflict shall require military commanders, with respect to members of the armed forces under their command and other persons under their control, to prevent and, where necessary, to suppress and to report to competent authorities breaches of the Conventions and of this Protocol. 2. In order to prevent and suppress breaches, High Contracting Parties and Parties to the conflict shall require that, commensurate with their level of responsibility, commanders ensure that members of the armed forces under their command are aware of their obligations under the Conventions and this Protocol. 3. The High Contracting Parties and Parties to the conflict shall require any commander who is aware that subordinates or other persons under his control are going to commit or have committed a breach of the Conventions or of this Protocol, to initiate such steps as are necessary to prevent such violations of the Conventions or this Protocol, and, where appropriate, to initiate disciplinary or penal action against violators thereof. Those states using this standard in their military manuals include: Argentina, Australia, Canada, Colombia, Germany, Netherlands, South Africa, the US, and Sweden. Those states using this standard in their national legislation include: Argentina, Canada, Egypt, Germany, India, and the US. 87 Prosecutor v. Blaškić, Decision on the Defence Motion to Strike Portions of the Amended Indictment Alleging "Failure to Punish" Liability, Case No. IT-95-14-PT, TCI, 4 April 1997, para. 10. 88 Additional Protocol I to the Geneva Conventions states in Article 86 (1), "The High Contracting Parties and the Parties to the conflict shall repress grave breaches, and take measures necessary to suppress all other breaches, of the Conventions or of this Protocol which result from a failure to act when under a duty to do so" and in and 86(2), "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, as the case may be, 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." Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol 1), Adopted on 8 June 1977 by the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law applicable in Armed Conflicts, entry into force 7 December 1979, in accordance with Article 95. 89 Prosecutor v. Blaškić, Decision on the Defence Motion to Strike Portions of the Amended Indictment Alleging "Failure to Punish" Liability, Case No. IT-95-14-PT, T. Ch. I, 4 April 1997, para. 12

It has been held by the ICTY that proving that a superior failed to punish the violations of his subordinates may be sufficient to hold him responsible under this mode of liability, as failure to punish necessarily means failure to prevent, insofar as punishing a subordinate would serve to prevent further violations.87 The authority for this decision stems from Article 86(2) of Protocol I to the Geneva Conventions, which obliges commanders to take all practicable measures within their competence to prevent or repress the offence.88 Failure to fulfil this obligation under the Protocol "engages command responsibility", and thus the ICTY has applied this legal standard in its decisions.89 Each situation is to be judged on its own facts, as stated by the ICTR:

Given that Article 6(3) of the ICTR Statute, Article 7(3) of the ICTY Statute extends to de facto as well as de jure superiors, the ability of a superior to

prevent or punish a crime is a question that is inherently linked with the given factual situation. Only in light of the factual findings is it possible to determine the criminal liability of an accused.90

It is not a requirement to demonstrate causality between the failure to prevent or punish and the commission of the crime.91 Furthermore, the duty to prevent may be quite different depending upon the level of authority or command of the individual.92 Post World War II Tribunals viewed the duty to conduct investigations as falling within the duty to prevent,93 and this concept has been further applied by the ICTY.94

The failure of a commander to prevent a crime, however, may not simply be remedied by the commander exacting punishment thereafter.95 However, it may be shown to be sufficient for the commander have taken an "important step in the disciplinary process."96 Defences Failure to State a Claim…No Case to Answer In all instances, where available in good faith, a Defendant may and should affirmatively assert the Prosecution‟s failure to allege any essential element of a charged crime. That assertion places the court and prosecution on notice of the possible need to develop exculpatory evidence, permits principled decision making, and encourages speedy dismissal of unwarranted claims.

Lack of Effective Control… Inability to Command97 The corollary to lack of knowledge is degradation of means of communication and control to the extent the commander is unable to effectively exercise command. Yamashita is often raised in this context, although as discussed above, the decision may turn on the commission‟s refusal to believe the factual basis for his defense. It is still a valid argument that if a commander has, though enemy action , lost the ability to communicate and command, he or she can not be held responsible for misconduct which requires an element of knowledge.

Lack of Knowledge98

While a commander is under a positive obligation to obtain and apply information in a reasonable and timely fashion, there are limits to the amounts of immediate tactical information he or she can be expected to absorb. Thus, to the extent the commander could not reasonably be expected to learn of forthcoming or past battlefield misconduct there will exist an absolute defense. The key is reasonableness under all the circumstances surrounding the incident99, and the standard will vary with the means of command, control and communication available to the commander. Proactive Conduct

Customary law seems to imply that to the extent a commander or superior has reasonably complied with the requirements of training and supervision required articulated in Articles 82100 and 83101 of Protocol I,102 he or she has an absolute defence against crimes committed by subordinates outside the commander‟s knowledge or control. In addition, advice of counsel, where reasonably given and followed, may also constitute a defence.

Action to Prevent or Punish103 A commander or superior may defend on the basis that he took steps to prevent the commission of crimes by his subordinates. The superior may also defend on the basis that he took steps to punish his subordinates upon learning of their commission of crimes.

Reasonable Response Under Perceived Circumstances

Absent proactive conduct which prevented misconduct, a commander may also defend on the basis that his or her conduct was reasonable under the circumstances of combat. That defense combines taking reasonable action to prevent crimes (proactive conduct) or to punish perpetrators (reasonable investigation and response to received knowledge of war crimes), with aspects of military necessity which recognize that the commander‟s knowledge may be limited by the "fog of war."104 Superior Orders as a Mitigating Circumstance

104 "There is evidence in the record that there was no military necessity for this destruction and devastation. An examination of the facts in retrospect can well sustain this conclusion. But we are obliged to judge the situation as it appeared to the defendant at the time. If the facts were such as would justify the action by the exercise of judgment, after giving consideration to all the factors and existing possibilities, even though the conclusion reached may have been faulty, it cannot be said to be criminal. After giving careful consideration to all the evidence on the subject, we are convinced that the defendant cannot be held criminally responsible although when viewed in retrospect, the danger did not actually exist." United States v. Wilhelm List et al., 105 Prior to 1945, both the British and American Military Manuals opined that superior orders were an absolute defense unless the order was 106 Allied Control Council Law No. 10 for the Punishment of Persons Guilty of War Crimes, Crimes Against peace and Crimes Against Humanity provided at Article II, Section 4(b) that "The fact that any person acted pursuant to the order of his Government or of a superior does not free him from responsibility for a crime, but may be considered in mitigation." 107 See, Article 7(4) ICTY Statute, which states that '[t]he fact that an accused person acted pursuant to an order of a government or of a superior [...] may be considered in mitigation of punishment if the Tribunal determines that justice so requires'. 108 United States Military Commission, Shanghai, V LRTWC 1 (1946). 109 Darko Mrdja , Sentencing Judgement. (IT-02-59-S). Trial Chamber 31 March 2004.

While superior orders are no longer105 an absolute defense post-Nuremberg,106 they still may be considered as a mitigating circumstance.107 Thus, in United States v. Shigeru Sawada et al,108 the commission found "..unusually strong mitigating" circumstances where the offences "resulted largely from obedience to the laws and instructions of their Government and their Military Superiors." However, in Mrdja the ICTY rejected superior orders as mitigation, holding the orders to Mrdja 'were so manifestly unlawful that Darko Mrdja must have been well aware that they violated the most elementary laws of war and the basic dictates of humanity'.109 Duress

It is…a general principle of law recognised by civilised nations that an accused person is less blameworthy and less deserving of the full punishment when he performs a certain prohibited act under duress. We would use the term „duress‟ in this context to mean „imminent threats to the life of an accused if he refuses to commit a crime‟….On the one hand, a large number of jurisdictions recognise duress as a complete defence absolving the accused from all criminal responsibility. On the other hand, in other jurisdictions,

duress does not afford a complete defence to offenses generally but serves merely as a factor which would mitigate the punishment to be imposed on a convicted person.110

The jurisprudence of the ICTY/R do not absolutely establish duress as a defence to war crimes and crimes against humanity. In the Erdemović case, the Accused argued that had he refused to kill innocent civilian men as part of the Srebrenica massacre, he would himself have been killed. The Chamber was divided in its view of duress as a defence to crimes against humanity; the majority held that there can be no defence of duress to the categorical prohibition of killing civilians.111 Judge Cassesse dissented, holding that under certain strict circumstances, duress may be a defence, even to crimes of this gravity, and that if duress is not considered a defence, it may, at a minimum, be considered a mitigating circumstance.112 Judge Stephen also dissented, saying that duress may be a defence where nothing the defendant could have done under the circumstances would have saved the lives of the victims.113 All three majority judges held that duress under these circumstances could be considered a mitigating factor.114 In current international criminal practice, duress has often been raised as a defence in combination with superior orders, but the two could be raised separately. Diminished or Lack or Mental Responsibility

Rule 67(A)(ii)(a) of the ICTY and ICTR Rules of Procedure and Evidence enshrine a defence of diminished capacity.115

Lack of mental capacity is a complete defence under international criminal law. If it can be proven that the defendant was acting without reason due to mental incapacity, such that he is unaware of the "nature and quality" of his actions, and that he thus did not know that what he was doing was wrong, this is a complete defence.116 Regarding the plea of diminished mental capacity, the ICTY Chamber in the Delalić case had this to say:

It is an essential requirement of the defence of diminished responsibility that the accused‟s abnormality of mind should substantially impair his ability to control his actions. The question of the substantiality of impairment is subjective and is one of fact. The ability to exercise self-control in relation to one‟s physical acts, which is relevant to the defence of diminished responsibility, is distinct from the ability to form a rational judgement which must mean that it is distinct from the level of intelligence of the accused.117 The Appeals Chamber in the Celebići case referred to the defence of diminished capacity as a "defence in the true sense." As the Chamber stated:

[I]f the defendant raises the issue of lack of mental capacity, he is challenging the presumption of sanity by a plea of insanity…. the defendant bears the onus of establishing it…Such a plea, if successful, is a complete defence to a charge and it leads to an acquittal.118

This Chamber decided, however, that there is no defence in the ICTY Rules of diminished mental capacity, and that the Chamber does not have the capacity to create new defences beyond those prescribed by the Statute and Rules.119 However, the Chamber did consider diminished mental capacity as a mitigating factor in the context of sentencing. The ICC Statute has also excluded diminished mental capacity as a defence, but has included insanity or lack of mental capacity.120 Alibi

Rule 67(A)(ii)(b) of the ICTY and ICTR Rules of Procedure and Evidence codify the defence of alibi.121 However, the ICTY Appeals Chamber in the Celebići case termed it a "misuse of the word" to refer to an alibi as a defence.122 Tu Quoque

Tu Quoque, commonly referred to as the "eye for an eye" defence, is not an acceptable defence under international criminal law.123 The ICTY has held that

123 Prosecutor v. Kupreškić et al., Decision On Defence Motion to Summon Witness, Case No. IT-95-16-T, T. Ch. II., 8 February 1999, para. 15; Prosecutor v. Kupreškić et al., Decision on Evidence of the Good Character of the Accused and the Defence of Tu Quoque, Case No. IT-95-16-T, T. Ch. II., 17 February 1999. 124 Prosecutor v. Delalić et al. (Čelebići), Decision on the Request of the Accused Hazim Delić Pursuant to Rule 68 for Exculpatory Information, Case No. IT-96-21-T, T. Ch., 24 June 1997, para. 17. 125 It is worth noting, however, that while the defence was rejected at Nuremburg, the defence for Doenitz offered and had accepted an Affidavit of Admiral Nimitz establishing the United States ordered the institution of unrestricted submarine warfare against Japan immediately after the Japanese attack on Pearl Harbor. Against a prosecution argument that the offer constituted tu quoque, Doenitz‟s counsel successfully argued the Affidavit was intended only to establish state practice at that date. See, Joseph Persico, Nuremburg: Infamy On Trial at 223 (Viking Press, 1994). 126 The concept is certainly not new. While the Nazi apparatus was often paramilitary (e.g. the Sturmabteilung or "Brown Shirts" and the Schutzstaffel or "SS") the German government under the Nazi regimes continued many of the democratic forms of the Weimar Republic. Thus, Hitler governed as Chancellor, the Reichstag continued to function and the judiciary and police continued in existence (albeit, all in perverted forms). See generally, William Shirer, The Nightmare Years 1930-40, Little Brown (Boston, 1984), Robert Herzstein, The Nazis, Time-Life (New York, 1980). Despite those forms of civilian control, Hermann Goering, who played many roles in the Nazi government as varied as Chief of the Prussian Police, head of forest and game preservation, chief of the Air Force and Deputy Chancellor was found guilty at Nuremburg, not only for his military role, put also for his civilian one. "…Goering was often, indeed almost always, the moving force, second only to his leader. He was the leading war aggressor, both as political and as military leader…" Nuremburg Judgement. http://www.yale.edu/lawweb/avalon/imt/proc/judgoeri.htm. 127 The potential spectrum is a broad one. See e.g. North Korea (an hereditary Communist military dictatorship),;The People‟s Republic of China (Communist capitalism in which the military has played an important role in the commercial sector); Venezuela (where the leader of a failed military coup eventually obtained power through legitimate elections); Pakistan (a military government following a successful coup) and Burma (a classic military dictatorship). There are, of course, numerous other examples.

evidence of prior commission of international criminal law violations can never be considered grounds for later commission.124 Every individual is bound to respect international law regardless of the behaviour of other parties.125

Conclusion: The Future of Command Responsibility To the extent that inter and ante bellum trials follow a principled path of development it is reasonable to expect the resolution of what might appear to be two conflicting trends; extension of command responsibility to civilians and limitation of command responsibility to those who actually command. What remains very much open to question, however, is how the doctrine will apply to those who command the taking of possibly illegal military action against individuals who are allegedly "illegal enemy combatants."

Modern special tribunals such as the ICTY have properly extended criminal responsibility to all those who actually command or closely control military units, even if the responsible commander has civilian status. That trend recognizes two political realities. The first is that the principle of civilian control of armed forces essential to democratic values, may lead to criminal misconduct ordered, permitted, abetted or unpunished by civilian authorities.126 The second is that in totalitarian societies of all stripes the line between the military and government is often blurred and sometimes completely eliminated.127

Thus, it seems entirely proper that the effective control element of liability applies both de jure and as de facto commanders in either a military or civilian leadership role.128

128 See, footnotes 66-75 supra and accompanying text. 129 Found, for example in the development of the International Criminal Court and the various special tribunals. 130 Arguably. for example, including Yamashita, but see footnotes 25 and 26 supra. In any case, it is difficult to believe that if international law applied, under modern procedural and evidentiary rules all the evidence admitted against Yamashita would be held proper today. 131 Supra at fn 65. 132 See Evan Wallach, The Logical Nexus Between The Decision To Deny Application Of The Third Geneva Convention To The Taliban And Al Qaeda And The Mistreatment Of Prisoners In Abu Ghraib, 36 Case Western Reserve Journal Of International Law, No.s 2 and 3 541 (2004). 133 LIEUTENANT GENERAL ANTHONY R. JONES, INVESTIGATION OF THE ABU GHRAIB PRISON AND 205TH MILITARY BRIGADE, U.S. ARMY DOC. NO. AR 15-6, AT 14 (2004), noted that. [LTG Sanchez‟ memos on interrogation techniques]: [i]nadvertently, left certain issues for interpretation: namely, the responsibility for clothing detainees, the use of dogs in interrogation, and applicability of techniques to detainees who were not categorized as „security detainees.‟.Furthermore, some military intelligence personnel executing their interrogation duties at Abu Ghraib had previously served as interrogators, in other theaters of operation, primarily Afghanistan and GTMO. These prior interrogation experiences complicated understanding at the interrogator level. The extent of „word of mouth‟ techniques that were passed to the interrogators in Abu Ghraib by assistance teams from Guantanamo, Fort Huachuca, or amongst themselves due to prior asignments is unclear and likely impossible to determine….

At the same time responsibility has expanded to civilian and paramilitary leaders, however, the bases for conviction, and development and articulation of available defences, as well as the recognition of procedural and evidentiary rights,129 have limited culpability to a point where at least some persons convicted in the past under a command responsibility theory might today obtain a different result.130 The length of the never completed Milosevic trial demonstrates the potential burden of abusive assertion of those rights on international courts and prosecutors and those who provide their resources.

Another potentially troubling development is the holding in Orić,131 which appears to hold defendant responsible for dereliction rather than for the underlying crimes he failed to prevent. The reduced charge could adversely impact the deterrent value of command responsibility.

The greatest challenge currently facing the doctrine appears to be the liability of commanders fighting persons alleged to be "illegal enemy combatants." The inherent problem arises not from direct orders to violate prisoners‟ rights; a relatively straightforward question of detainee classification outside this chapter. Rather, the question is best presented in the Abu Ghraib132 context. There, orders to engage in interrogation techniques arguably legal when used against persons unprotected by a particular convention, "migrated,"133 (allegedly without direct orders for their use) to be applied by subordinates in an admittedly illegal fashion (probably constituting a grave breach), against protected persons.

The next hard test of command responsibility may well arise in this context. At the present time liability for mistreatment during interrogation of prisoners captured in the "Global War On Terror" has remained at a relatively low level.134 It is not clear that it will or should remain there. It would be ironic indeed if the next major development in the law of command responsibility arises from liability for orders allegedly given to protect liberal western democracies from criminal acts of terrorism by medieval terrorists who scorn the very laws which protect them.

134 See, Amy Goodman, Interview, Col. Janis Karpinski, the Former Head of Abu Ghraib, Admits She Broke the Geneva Conventions But Says the Blame "Goes All the Way to The Top" October 26th, 2005, http://www.democracynow.org/article.pl?sid=05/10/26/1423248