Command responsibility and the defence of superior orders Lecture April 12, 2016 by Arne Willy Dahl

The unlucky general

A commander must generally be prepared to be held responsible for acts or omissions by his subordinates, if he could have corrected matters by his own activity. Officers must keep themselves informed, stay active and ahead of events, and take corrective action if something seems to be developing in an undesirable direction. The passive commander may lose his command, or in the more serious cases, face a trial.

Yamashita between October 9, 1944 and September 2, 1945, in the Philippine islands, “while commander of armed forces of Japan at war with the United States of America and its allies, unlawfully disregarded and failed to discharge his duty as commander to control the operations of the members of his command, permitting them to commit brutal atrocities and other high crimes against people of the United States and its dependencies, particularly the Philippines; and he … thereby violated the laws of war.” The number of victims ran up into tens of thousands.

Hirota "Hirota was derelict in his duty in not insisting before the Cabinet that immediate action be taken to put an end to the atrocities, failing any other action open to him to bring about the same result. He was content to rely on assurances which he knew were not being implemented while hundreds of murders, violations of women, and other atrocities were being committed daily. His inaction amounted to criminal negligence".

AP I Article 86 – failure to act 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. 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.

AP I Article 87 – Duty of commanders 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 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.

Art. 87 – cont. 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.

ICTY Statute art 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 or her superior of criminal responsibility if he or she 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.

ICC statute art 28 Responsibility of commanders and other superiors In addition to other grounds for criminal responsibility under this Statute for crimes within the jurisdiction of the Court: (a) A military commander or person effectively acting as a military commander shall be criminally responsible for crimes within the jurisdiction of the Court committed by forces under his or her effective command and control, or effective authority and control as the case may be, as a result of his or her failure to exercise control properly over such forces, where:

ICC statute art (i)That military commander or person either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes; and (ii)That military commander or person 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.

ICC statute art (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:

ICC statute art (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.

How can action after the event absolve from responsibility? Early punitive action will be the best way to stop further crimes. Inaction can easily be interpreted as condoning crimes. Command responsibility is a crime of omission.

Pictet’s commentary [...] the negligence must be so serious that it is tantamount to malicious intent, apart from any link between the conduct in question and the damage that took place. This element in criminal law is far from being clarified, but it is essential, since it is precisely on the question of intent that the system of penal sanctions in the Conventions is based.

ICTR Akayesu paragraph 488 According to one view it derives from a legal rule of strict liability, that is, the superior is criminally responsible for acts committed by his subordinate, without it being necessary to prove the criminal intent of the superior. Another view holds that negligence which is so serious as to be tantamount to consent or criminal intent, is a lesser requirement.

ICTR Akayesu Paragraph 489 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, such as genocide, crimes against humanity and violations of Article 3 Common to the Geneva Conventions and of Additional Protocol II thereto, 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.

ICTR cites Judge Röling (minority in Tokyo) "Generally speaking, a Tribunal should be very careful in holding civil government officials responsible for the behaviour of the army in the field. Moreover, the Tribunal is here to apply the general principles of law as they exist with relation to the responsibility for omissions'. Considerations of both law and policy, of both justice and expediency, indicate that this responsibility should only be recognized in a very restricted sense".

ICTR Akayesu Paragraph The Chamber therefore finds that in the case of civilians, the application of the principle of individual criminal responsibility, enshrined in Article 6 (3), to civilians remains contentious. Against this background, the Chamber holds that it is appropriate to assess on a case by case basis the power of authority actually devolved upon the Accused in order to determine whether or not he had the power to take all necessary and reasonable measures to prevent the commission of the alleged crimes or to punish the perpetrators thereof.

ICTR more conservative than ICC The responsibility of civilian leaders is no more contentious, Re military commanders, ICTR’s words saying that it is proper to ensure that there has been malicious intent or the equivalent, will probably not be the last.

Some particular questions Commanders and superiors Where in the chain of command? Deputy commanders Chiefs of staff Multinational units

Military organisation

Military organisation including DC/XO

Staff organisation

Multi-national organisation

Some problems Disciplinary and penal authority always remain on national channels Never been tested before a court where command responsibility lies Successful defence of limited powers? Undermine authority Successful defence of obedience to superior orders? Strengthen authority.

Superior orders The soldier’s dilemma Admitted as defence? Or only in mitigation?

Oppenheim 1906 “Violations of rules regarding warfare are war crimes only when committed without an order of the belligerent Government concerned. If members of the armed forces commit violations by order of their Government, they are not war criminals and cannot be punished by the enemy … [F]or the commanders are alone responsible, and the latter may, therefore, be punished as war criminals on their capture by the enemy.”

Leiptzig trials Dover Castle case: «He was therefore of the opinion that the measures taken by the German Admirality against enemy hospital ships were not contrary to international law, but were legitimate reprisals... The accused... Cannot, therefore, be punished for his order» Llandovery Castle case: «The firing on the vboats was an offence against the law of nations... The rule... is simple and is universally known. Patzig’s order does not free the accused from guilt.»

1945 Nuremberg statute Art. 8. 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 if the Tribunal determines that justice so requires.

Discussions after Nuremberg Traditional theory: No liability. Soldiers cannot decide, since they do not know. –Respondeat superior – the responsibility is with the superior Opposing theory: Absolute liability. Only lawful orders can create an obligation to obey. Third opinion: Superior orders in mitigation.

1992 ICTY Statute Art The fact that an accused person acted pursuant to an order of a Government or of a superior shall not relieve him or her of criminal responsibility, but may be considered in mitigation of punishment if the International Tribunal determines that justice so requires.

2002 Sierra Leone Art The fact that an accused person acted pursuant to an order of a Government or of a superior shall not relieve him or her of criminal responsibility, but may be considered in mitigation of punishment if the Special Court determines that justice so requires.

Iraq 2003 Art. 15 e) 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 Tribunal determines that justice so requires.

1998 ICC Statute Art The fact that a crime within the jurisdiction of the Court has been committed by a person pursuant to an order of a Government or of a superior, whether military or civilian, shall not relieve that person of criminal responsibility unless: (a) The person was under a legal obligation to obey orders of the Government or the superior in question; (b) The person did not know that the order was unlawful; and (c) The order was not manifestly unlawful. 2. For the purposes of this article, orders to commit genocide or crimes against humanity are manifestly unlawful.

Why difference between national law and customary international law? National legislations are more lenient than International Customary Law. Cassese: The explanation is that national provisions has to cover any violation of military law. The ICC Statute should, therefore, be interpreted restrictively. Is Cassese right?

Other possible explanations to the discrepancy? Norwegian law The 1946 Act on Punishment of alien war criminals: only in mitigation 1902 Military Penal Act: accepts International and hybrid courts/tribunals Indonesia trials and the Khmer Rouge trials: accept? Nuremberg, ICTY, Sierra Leone and Iraq: only in mitigation Could the difference be that we accept the defence when we are trying our own people, but not when we are trying ”someone else”?

Common Law countries However, situation blurred by jurisprudence in common law countries: USA and Canada accept the defence UK and Australia do not

Is the ICC statute wrong? Prevails as treaty law over customary law Conforms with the principle in GC III art. 82: “If any law, regulation or order of the Detaining Power shall declare acts committed by a prisoner of war to be punishable, whereas the same acts would not be punishable if committed by a member of the forces of the Detaining Power, such acts shall entail disciplinary punishments only. ” Highly questionable to deny an accused who has POW status the defense of superior orders, when you admit it to your own personnel.

The future Not very likely that many new ad hoc tribunals will be established The preferred solution will more likely be to refer situations to the ICC The ICC statute will rule and the defence of obedience to superior ordres will become the norm.

Some matters of interpretation What is an order? Who can issue orders? Connection between order and conduct Mistake of law

What is manifestly unlawful? (I) Under ICC Article 33, orders to commit genocide or crimes against humanity are manifestly unlawful. Superior orders cannot be invoked as a defence. “The distinguishing mark of a “manifestly unlawful” order should be displayed like a black flag over the order given, as a warning reading “Prohibited!”.” (Kafr Kassem case)

What is manifestly unlawful? (II) Cassese: Orders to commit war crimes are just as “manifestly unlawful” as orders to commit genocide or crimes against humanity. This calls for a restrictive interpretation of the ICC Statute. Is Cassese right?

Excessive attacks ICC Art. 8, 2, b (iv) Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long­term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated;

Problems with assessing military advantage Military advantage may depend on the commander’s plan, which is secret. The Military advantage must be assessed in a wider context, which may be hidden from the subordinate.

The crime of starvation ICC Art. 8, 2, b (xxv) Intentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival, including wilfully impeding relief supplies as provided for under the Geneva Conventions;

G IV Art. 23 Each High Contracting Party shall allow the free passage of all consignments of medical and hospital stores and objects necessary for religious worship intended only for civilians of another High Contracting Party, even if the latter is its adversary. It shall likewise permit the free passage of all consignments of essential foodstuffs, clothing and tonics intended for children under fifteen, expectant mothers and maternity cases.

Soldiers at a checkpoint Are soldiers at a checkpoint supposed to take matters in their own hands according to their own understanding as to whether particular relief consignments should be allowed free passage?

Conclusions Persons that have followed manifestly unlawful orders should be held responsible. But it may be to go one step too far to declare that all orders to commit war crimes are, by definition, manifestly unlawful. In sum: The law seems to stabilize at a point close to where it was at the Leipzig trials in

Moral choice There must be a possibility for a moral choice. Risk of punishment for disobedience? Risk of capital punishment?

Duress – Art. 31 (1) (d) The conduct which is alleged to constitute a crime within the jurisdiction of the Court has been caused by duress resulting from a threat of imminent death or of continuing or imminent serious bodily harm against that person or another person, and the person acts necessarily and reasonably to avoid this threat, provided that the person does not intend to cause a greater harm than the one sought to be avoided. Such a threat may either be: (i) Made by other persons; or (ii) Constituted by other circumstances beyond that person's control.

End of lecture Thank you for your attention Any more questions?