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. 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. 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, the Duke of Burgundy, to whom the Holy Roman Empire had bequeathed Breisach. 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.
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: 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. national militia to defend Germany from the Red Army in the last months of the Second World War (1939–1945) in Europe. (1899–1902) in South Africa. 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. 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, At Nuremberg, in the
High Command Trial, 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. 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. Consequent to the 11 September 2001 terrorist attacks, the U.S. government deployed legalistic arguments to justify torture by way of
prisoner abuse, arguing that captured
al Qaeda fighters are
unlawful combatants – not soldiers – and thus could be subjected to
enhanced interrogation methods, because under U.S. law they were classified as
detainees and not as
prisoners of war (POWs). To justify flouting the
Geneva Conventions (1949) protecting prisoners of war, U.S. Attorney General
Alberto Gonzáles said that classifying al Qaeda POWs as
unlawful combatants "substantially reduces the threat of domestic criminal prosecution under the
War Crimes Act of 1996". In the case of
Hamdan v. Rumsfeld, the U.S. Supreme Court overruled Attorney General Gonzáles' illegal reclassification of POWs as detainees; ruled that Common Article 3 of the Geneva Conventions applies to the Al Qaeda POWs at the Guantanamo Bay prison camp; and ruled that the
Guantanamo military commission who tried, judged, and sentenced al Qaeda POWs was an illegitimate military tribunal, because the U.S. Congress did not establish it. Moreover, the
Human Rights Watch organization said that, given his superior responsibility of government office, U.S. Secretary of Defense Donald Rumsfeld would be criminally liable for the torturing of the prisoner
Mohammed al-Qahtani. In "The Real Meaning of the Hamdan Ruling Supreme Court: Bush Administration Has Committed War Crimes" (2006), the writer
Dave Lindorff said that in flouting the Geneva Conventions, the Bush administration were legally liable for war crimes in U.S.-occupied Iraq.
Universal jurisdiction In 2006, a prosecutor of the
Nuremberg trials (1945–1946),
Benjamin Ferencz, said that the U.S. invasion of Iraq (2003) was a
crime against peace that breached international law, and so exposed the superior responsibility of U.S. President George W. Bush for unilaterally launching an
aggressive war. In November 2006, the Federal Republic of Germany invoked
universal jurisdiction and began legal proceedings against U.S. defense secretary Rumsfeld, U.S. Attorney General Gonzáles, the jurist
John Yoo, and CIA chief
George Tenet, for their legal liability for
U.S. war crimes. was the U.N. Special Rapporteur on torture from 2004 until 2010. Moreover, in legal practice, the
Military Commissions Act of 2006 (MCA) functions as an
amnesty law for the Bush administration to flout their superior responsibility and thus their legal liability for war crimes committed when prosecuting the
war on terror, because, by denying POWs the right of
habeas corpus, the MCA retroactively rewrote the
War Crimes Act of 1996, which defined
war crime as any serious violation of the Geneva Convention, which left the POW no means of legal defense. In "Court 'can envisage' Blair Prosecution" (2007), the jurist
Luis Moreno-Ocampo (ICC, 2003–2012) offered to begin a war-crimes enquiry for a war-crimes trial of British Prime Minister Tony Blair and U.S. President George W. Bush, for the
International Criminal Court to hear. In "History Will Not Absolve Us: Leaked Red Cross Report Sets up Bush Team for International War-crimes Trial" (2007),
Nat Hentoff said that the report
Leave No Marks: Enhanced Interrogation Techniques and the Risk of Criminality (2007), by
Human Rights First and
Physicians for Social Responsibility, would be evidence of U.S. war crimes at a war-crimes trial of the war on terror. Moreover, by the end of the Bush administration in 2008, the international community said that the
United Nations Convention Against Torture (1985) obligated the U.S. government to prosecute the civilian and military officers who ordered and realized the torture of POWs captured during the war on terror. The
United Nations special rapporteur on torture,
Manfred Nowak (in office 2004–2010), said that, as a former president of the U.S., George W. Bush had lost his
head-of-state immunity and that international law obligated the U.S. government to start
criminal proceedings against the government officials and military officers who violated the U.N. Convention Against Torture. In support of Nowak's statement, the jurist Dietmar Herz explained that former president George W. Bush is criminally responsible for adopting torture-as-interrogation, per the legal doctrine of superior responsibility stipulated in the international
laws of war and the U.S. Code.
Codification The
Additional Protocol I (AP I, 1977) to the Geneva Conventions of 1949 was the first comprehensive codification of the legal doctrine of command responsibility. In the Additional Protocol No. I, the terms of Article 86(2) "explicitly address the knowledge factor of command responsibility", and stipulate that: Therefore, in the execution of military operations, Article 86(2) obligates a commanding officer to "prevent, and, where necessary, to suppress and report to competent authorities" any violation of the Geneva Conventions and of Additional Protocol I.
Definitions In discussions of
command responsibility the term
command is defined as Moreover, Additional Protocol I to the Geneva Convention and the statutes of the
International Tribunal for the former Yugoslavia (ICTY), the
International Criminal Tribunal for Rwanda (ICTR), and the
International Criminal Court (ICC) stipulate that the prevention and prosecution of
war crimes and of
crimes against humanity are legal responsibilities of a commanding officer. ==Application==