In the practice of international law, command responsibility (also superior responsibility) is the legal doctrine of hierarchical accountability for war crimes, whereby a commanding officer (military) and a superior officer (civil) are legally responsible for the war crimes and the crimes against humanity committed by their subordinates; thus, a commanding officer always is accountable for the acts of commission and the acts of omission of their soldiers.Guilty Associations: Joint Criminal Enterprise, Command Responsibility, and the Development of International Criminal Law by Allison Marston Danner and Jenny S. Martinez, 15 September 2004.Command, superior and ministerial responsibility by Robin Rowland, CBC News Online, 6 May 2004Superior responsibility (Prosecutor v. Popović et al, ICTY TC II, 10 June 2010 (case no. IT-05-88-T). p. 511)
In the late 19th century, the legal doctrine of command responsibility was codified in the Hague Conventions of 1899 and 1907, which are partly based upon the Lieber Code (General Orders No. 100, 24 April 1863), military law that legally allowed the Union Army to fight in the regular and the irregular modes of warfare deployed by the Confederacy during the American Civil War (1861–1865). As international law, the legal doctrine and the term command responsibility were applied and used in the Leipzig war crimes trials (1921) that included the trial of Captain Emil Müller for prisoner abuse committed by his soldiers during the First World War (1914–1918). by Iavor Rangelov and Jovan Nicic, Humanitarian Law Center, 23 February 2004.The Contemporary Law of Superior Responsibility by Ilias Bantekas, American Journal of International Law, 3 July 1999Joint Criminal Enterprise and Command Responsibility by Profr. Kai Ambos, University of Göttingen, 25 January 2007.
In the 20th century, in the late 1940s, the Yamashita standard derived from the incorporation into the U.S. Code of the developments of the legal doctrine of command responsibility presented in the Nuremberg trials (1945–1946). Abiding by that legal precedent, the U.S. Supreme Court allowed the U.S. prosecution of the war crimes case against Imperial Japanese Army General Tomoyuki Yamashita for the atrocities committed by his soldiers in the Philippine Islands, in the Pacific Theatre (1941–1945) of the Second World War. The Manila Military Tribunal charged, tried, and judged Gen. Yamashita for "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".Stuart E Hendin, "Command Responsibility and Superior Orders in the Twentieth Century – A Century of Evolution", Murdoch University Electronic Journal of LawThe Yamashita standard Robin Rowland, "Sugamo and the River Kwai", a research paper presented to Encounters at Sugamo Prison, Tokyo 1945–52, The American Occupation of Japan and Memories of the Asia-Pacific War, Princeton University, 9 May 2003. Anne E. Mahle, The Yamashita Standard, PBS
In the 20th century, in the early 1970s, the Medina standard expanded the U.S. Code to include the criminal liability of American military officers for the war crimes committed by their subordinates, as are the war-criminal military officers of an enemy power. The Medina standard was established in the court martial of U.S. Army Captain Ernest Medina in 1971 for not exercising his command authority as a company commander, by not acting to halt the My Lai massacre (16 March 1968) committed by his soldiers during the Vietnam War (1955–1975).The Medina standard Barry McCaffrey, "Human Rights and the Commander", autumn 1995 Maj. Tony Raimondo, "The My Lai Massacre: A Case Study", Human Rights Program, School of the Americas, Fort Benning, Georgia
Historical development 9th-century BC to 5th-century BC Asia In The Art of War (5th century BC), Sun Tzu said that the duties and responsibilities of a commanding officer were to ensure that in prosecuting a war, his soldiers act in accordance with the customary laws of war, by limiting their operational actions to the military aims of the war.
15th-century Europe In 1474, in the Holy Roman Empire (962–1806), the trial of the Burgundian knight Peter von Hagenbach was the first international recognition of the legal doctrine of command responsibility, of a commander's legal obligation to ensure that his soldiers act in accordance with customary law in prosecuting their war.Greppi, Eduardo. "The evolution of individual criminal responsibility under international law". University of Turin, Italy, International Committee of the Red Cross No. 835, p. 531–553, October 30, 1999.Grant, Linda. "Exhibit highlights the first international war crimes tribunal". Harvard Law Bulletin. The tribunal tried Hagenbach for atrocities committed by his soldiers during their military occupation of Breisach, and was found guilty of their war crimes, condemned to death, and then was beheaded.Schabas, William A. An Introduction to the International Criminal Court (3rd ed.). Cambridge University Press.
The Knight Hagenbach was accused of, tried, and convicted for war crimes that "he, as a knight, was deemed to have [had] a duty to prevent"; in self-defense, Hagenbach argued that he was only following the military orders of Charles the Bold,Murray, Don. "Judge and master". CBC News. 8 July 2002. the Duke of Burgundy, to whom the Holy Roman Empire had bequeathed Breisach.Bassiouni, M. Cherif. "The Perennial Conflict Between International Criminal Justice and Realpolitik". 10 February 2006. International Human Rights Law Institute, DePaul University College of Law. Presented 14 March 2006 as the 38th Henry J. Miller Distinguished Lecture, Georgia State University College of Law, and to be published in the Georgia State University Law Review. Although the term command responsibility did not exist in the 15th century, the tribunal did presume he had a legal responsibility for war crimes of his soldiers, thus Hagenbach's trial was the first war crimes trial based upon the legal doctrine of command responsibility.Levine, Eugenia. "Command Responsibility: The Mens Rea Requirement". Global Policy Forum. February 2005.
19th-century United States During the American Civil War (1861–1865), the legal doctrine of command responsibility was codified in the Lieber Code – General Orders No. 100: Instructions for the Government of Armies of the United States in the Field (24 April 1863) – the contemporary updating of the 18th-century military law of the 1806 Articles of War that allowed the Union Army to lawfully combat the regular and irregular modes of warfare (partisans, guerrillas, spies) deployed by the Confederacy in the mid-19th century.
As U.S. military law, the Lieber Code stipulated a commander's legal responsibility for the war crimes and crimes against humanity committed by his subordinate officers, sergeants, and soldiers; and further stipulated the duties and rights of the individual soldier of the Union Army to not commit war crimes – such as the summary execution of Confederate POWs, irregular combatants, and enemy civilians; thus Article 71, Section III of the Lieber Code stipulates that:
20th century The Hague Conventions of 1899 and 1907 are the international legal foundations for the conduct of war among civilized nations, especially the legal doctrine of command responsibility for war crimes and crimes against humanity. The Hague Convention of 1907 updated the codifications of the Hague Convention of 1899, thus, in Convention IV (18 October 1907), the Laws and Customs of War on Land emphasizes command responsibility in three places: (i) Section I: On Belligerents: Chapter I: The Qualifications of Belligerents; (ii) Section III: Military Authority over the Territory of the Hostile State; and (iii) the Adaptation to Maritime War of the Principles of the Geneva Convention deal specifically with command responsibility.
To wit, Article 1 of Section I of Convention IV (Hague 1907) stipulates that:
Moreover, command responsibility is stipulated in Article 43, Section III of Convention IV:
Furthermore, command responsibility is stipulated in Article 19 of Convention X, the Adaptation to Maritime War of the Principles of the Geneva Convention:
Militias and irregular formations Since the 1990s, national governments have hired mercenary soldiers to replace regular army soldiers in fighting wars, which replacement of tactical combat personnel (infantry) – by a private military company – raises the legal matter of command responsibility for the war crimes and crimes against humanity committed by mercenaries ostensibly not subject to the military law of any belligerent party.The 20th-century legal definition of a mercenary soldier is in Article 47, Protocol I Protocol Additional to the Geneva Convention of 1977.
Political scientists and military jurists said that when the operational conduct of mercenary soldiers is indistinguishable from the operational conduct of the combatant soldiers (uniform, weapons, tactics, missions, etc.) that practical likeness renders the mercenary (militiaman or irregular combatant) into a legitimate agent of the belligerent state, who thus is subject to the legal liabilities of command responsibility codified in the Hague and in the Geneva Conventions.
Yamashita standard As a legal doctrine of military law, command responsibility stipulates that an act of omission is a mode of individual criminal liability, whereby the commanding officer is legally responsible for the war crimes committed by his subordinates, by failing to act and prevent such crimes; and for failing to punish war-criminal subordinates. In late 1945, the war-crimes trial of General Tomoyuki Yamashita, Japanese Fourteenth Area Army, was the first instance of a commanding officer formally charged with a criminal act of omission by “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” in the Philippine Islands, where his soldiers committed atrocities against Allied prisoners of war, Filipino guerrillas, and civilians during the Second World War.
The International Military Tribunal for the Far East who charged, tried, and judged Gen. Yamashita guilty of war crimes established the Yamashita standard of criminal liability, whereby if "vengeful actions are widespread offenses, and there is no effective attempt by a commander to discover and control the criminal acts, [then] such a commander may be held responsible, even criminally liable". In 1946, with the Application of Yamashita, the U.S. Supreme Court resolved the ambiguous wording of that legal definition of command responsibility, which did not establish the commander's required degree of knowledge of the war crimes committed by his subordinates.
At Nuremberg, in the High Command Trial,Case No. 12, 1947–1948 the U.S. military tribunal ruled that in order for a commanding officer to be criminally liable for the war crimes 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" by way of "a wanton, immoral disregard of the actions of his subordinates amounting to [the commander's] acquiescence" to the war crimes.
At Nuremberg, in the trial of the Hostages Case,Case No. 7, 1947–1948 the judgements of the U.S. military tribunal seemed to limit the circumstances wherein a commanding officer has a duty to investigate, document, and know in full of all instances of atrocity and war crime, especially if the commander already possessed information regarding the war crimes of his subordinate officers and soldiers.