The Doctrine of Command Responsibility and Its Application to Superior Civilian Leadership: Does the International Criminal Court Have the Correct Standard?

• Author: Major James D. Levine Ii
• Pages: 05

52 MILITARY LAW REVIEW [Vol. 193

THE DOCTRINE OF COMMAND RESPONSIBILITY AND ITS APPLICATION TO SUPERIOR CIVILIAN LEADERSHIP: DOES THE INTERNATIONAL CRIMINAL COURT HAVE THE

CORRECT STANDARD?

MAJOR JAMES D. LEVINE II*

1. Introduction

   In 1998, the Rome Statute of the International Criminal Court (ICC) codified the doctrine of command, or superior, responsibility in Article

   28.1 Article 28 is unique in the development of the doctrine of superior responsibility in that it specifically provides for different mens rea standards depending upon whether the superior is a military commander or a civilian non-military superior.2 Providing different standards of knowledge has met with some controversy and concern.3

   The doctrine of superior responsibility holds a superior criminally responsible for the criminal conduct of his subordinates.4 Command responsibility can be subdivided into two different types of responsibility, direct and indirect.5 Direct responsibility involves holding a superior criminally responsible for issuing unlawful orders.6 Indirect or imputed criminal responsibility involves holding a superior criminally responsible for failing to take action in order to prevent criminal activity of subordinates, investigate allegations of criminal activity of subordinates, and report or punish subordinates who are found to have committed criminal acts.7 This article will focus on the indirect or imputed form of superior responsibility.8 Criminal responsibility is based on the superior's omissions.9 The doctrine consists of three general elements: (1) the existence of a superior-subordinate relationship; (2) actual or constructive knowledge of the superior that a criminal act was about to be or had been committed; and (3) failure by the superior to take reasonable and necessary measures to prevent the crimes or punish the wrongdoers. These will be explored further during the course of the article.

   This article will address the creation of a different mens rea standard for civilian superiors in Article 28 and discuss whether in fact this change really increases the difficulty of a successful prosecution. Part II will provide an overview of the historical development of the doctrine of superior responsibility. The modern application of the doctrine will be discussed in Part III. Part IV will examine the elements of the superior responsibility doctrine as identified in Article 28 of the Rome Statute. Finally, in Part V, three scenarios will be presented involving civilian superiors and subordinate criminal conduct, and then Article 28 will be applied and a potential result discussed.

2. Historical Development of the Doctrine of Superior Responsibility

   1. Pre-World War II

      The idea of holding a commander criminally liable for the actions of his subordinates emerges from the concept of command responsibility, that is, the notion that a commander is generally responsible for his command.10 The doctrine of command responsibility can be traced back in time to the writings of Sun Tzu.11 An early recording of the concept of superior responsibility for the actions of others was made by Grotius, who stated that "[a] community, or its rulers, may be held responsible for the crime of a subject if they know of it and do not prevent it when they could and should prevent it."12 The doctrine continued to develop in Europe by identifying individuals in command as potentially criminally liable for their orders to subordinates and their subordinates' criminal behavior.13 For instance, in 1439, King Charles VII of France issued the following ordinance:

      The King orders that each captain or lieutenant be held responsible for the abuses, ills and offences committed by members of his company, and that as soon as he

      receives any complaint concerning any such misdeed or abuse, he bring the offender to justice so that the said offender be punished in a manner commensurate with his offence, according to these Ordinances. If he fails to do so or covers up the misdeed or delays taking action, or if, because of his negligence or otherwise, the offender escapes and thus evades punishment, the captain shall be deemed responsible for the offence as if he had committed it himself and shall be punished in the same way as the offender would have been.14

      In the United States, an early pronouncement of the doctrine can be found in the eleventh article of the 1775 Massachusetts Articles of War, providing that:

      Every Officer commanding, in quarters, or on a march, shall keep good order, and to the utmost of his power, redress all such abuses or disorders which may be committed by any Officer or Soldier under his command; if upon complaint made to him of Officers or Soldiers beating or otherwise ill-treating any person, or committing any kind of riots to the disquieting of the inhabitants of this Continent, he, the said commander, who shall refuse or omit to see Justice done to this offender or offenders, and reparation made to the party or parties injured, as soon as the offender's wages shall enable him or them, upon due proof thereof, be punished, as ordered by General Court-Martial, in such manner as if he himself had committed the crimes or disorders complained of.15

      In 1907, the doctrine received implicit recognition in the Fourth Hague Convention respecting the laws and customs of war on land.16

      Article 1 of the Annex to the Convention provides that in order for an armed force to receive the rights of a lawful belligerent, it must be "commanded by a person responsible for his subordinates."17 In addition to recognizing the importance of a responsible commander, the Convention also imposed upon an occupying commander the responsibility to maintain public order and safety.18 While not specifically addressing or defining the responsibility of a commander for the actions of his subordinates, Article 3 of the Convention recognized the responsibility of a nation for "all acts committed by persons forming part of its armed forces."19

      After the end of hostilities at the conclusion of World War I, the first international attempt was made to hold commanders accountable for the crimes of their subordinates.20 The Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties presented a report recommending the creation of an international tribunal to prosecute violators of the laws and customs of war arising out of World War I.21 One conclusion of the report was that "[a]ll persons belonging to enemy countries, however high their position may have been, without distinction of rank, including Chiefs of States, who have been guilty of offences against the laws and customs of war or the laws of humanity, are liable to criminal prosecution."22 Due to objection and disagreement of some commission members, no international tribunal was ever

      formed,23 but a small number of individuals were tried by the German Supreme Court at Leipzig, Germany.24

   2. Post-World War II

      The first international application of the doctrine of superior responsibility occurred after the conclusion of World War II, at the Nuremburg and Tokyo tribunals.25 The post-World War II cases are important because they form the foundation and precedent for future development and application of the doctrine. Neither the Nuremberg nor Tokyo charters specifically addressed the concept of holding a superior accountable for the actions of his subordinates,26 although both addressed the issue of "direct command responsibility."27 These cases had a

      significant impact in establishing international recognition for and development of the doctrine of command responsibility, specifically holding superior commanders and civilians responsible for the actions of their subordinates.

      1. Yamashita

      The case which generated the most controversy is that of General Tomoyuki Yamashita.28 General Yamashita was the commander of the Fourteenth Army Group of the Japanese Imperial Army responsible for the Philippine Islands from 9 October 1944, until he surrendered on 3 September 1945.29 During this time period, General Yamashita was both the military commander of all Japanese forces in the Philippines and the military governor of the Philippines.30 On 2 October 1945, General Yamashita was charged with failing to discharge his duties as a commander to control the soldiers of his command from committing atrocities and other crimes against Americans, American allies and Filipinos in the Philippines.31 At trial, Yamashita denied knowledge of the atrocities committed and asserted that his command and control were

      disrupted by fighting the Americans, distance, time, and the inability to inspect his troops.32 He was tried by an American military commission of five general officers who convicted him and sentenced him to death by hanging.33

      Yamashita's defense counsel successfully sought review before the United States Supreme Court.34 The issues before the Court concerned the lawfulness of the military commission's power to try Yamashita; whether the charge preferred stated an offense in violation of the law of war; and whether Yamashita was provided a fair trial.35 The Court decided all issues in favor of the United States.36

      The Yamashita trial is of importance in the development of the command responsibility doctrine because it recognized the affirmative duty of a commander to take appropriate measures under the circumstances to ensure his subordinates abide by the law of war; that failing to do so violates the law of war; and that a properly constituted tribunal of another nation has jurisdiction over a former enemy commander.37

      2. Tribunals of German War Criminals

      In Germany, the trials of German war criminals were conducted by a number of different courts. The most famous was the International Military Tribunal at Nuremberg which tried twenty-two of the most senior German war criminals.38 Superior responsibility was only an indirect concern before that tribunal.39 The trials with the greatest...