TRC Final Report

Volume 6

Section 5

Chapter 2

Subsection 7

COMMAND RESPONSIBILITY

Introduction

91. In dealing with the question of Command responsibility, a key case that has come to embody the contradictions in modern International law is that of General Tomayuki Yamashita.⁴² General Yamashita was tried by a United States Military Commission at the end of the Second World War for atrocities committed by Japanese forces in the Philippines – which included murder, rape and pillage. On the 6 February 1946, General Douglas MacArthur affirmed the death sentence imposed on General Yamashita.

92. Yamashita appealed to the United States Supreme Court, arguing that he had neither committed the crimes for which he had been found responsible nor ordered that they be committed. Writing the judgment for the Appeal Court, Chief Justice Harlan Fiske Stone rejected Ya mashi t a ’s appeal and stated:

[T] his overlooks the fact that the gist of the charge is an unlawful breach of duty by an army commander to control the extensive and widespread atrocities specified …It is evident that the conduct of military operations by troops whose excesses a re unrestrained by the order or efforts of their commander would almost certainly result in violations…Hence the law of war presupposes that its violation is to be avoided through the control of the operations of war by commanders who a re to some extent responsible for their subordinates.

93. Justices Wiley B Rutledge and Frank Murphy dissented. Judge Murphy wrote:

Nowhere was it alleged that that [Yamashita] personally committed any of the atrocities, or that he ordered their commission, or that he had any knowledge of the commission thereof by members of his command.

94. These conflicting views raised in the Yamashita case represents the two main schools of thought on the question of command re sponsibility. On the one hand, General MacArthur, Chief Justice Stone and the military commission considered it to be a dereliction of duty for a Commander not to control the behaviour of his troops. The approach embodies a ‘should have known or must have known’ a p p roach. Justice Murphy’s dissent re p resents the other view, namely that prosecutors must prove that a commander knew about the commission of widespread crimes by his troops before his failure to take action against such conduct makes him criminally liable.

95. Not surprisingly, the second is the approach that is followed today. Article 86 of Protocol I of 1977 (additional to the Geneva Convention of 1949 regarding the duty of the parties to an international armed conflict to act against grave b reaches) provides that ‘if they knew, or had information which should have enabled them to conclude in the circumstances at the time’ such crimes were taking place, they are required to ‘take all feasible measures within their power to prevent or repress their commission’.

96. One of the most important statements made in modern history is that made by the prosecution in its summation at Nuremberg in the High Command case:

Somewhere, there is unmitigated responsibility for these atrocities. Is it to be borne by the troop? Is it to be borne primarily by the hundreds of subordinates who played a minor role in this pattern of crime? We think it is clear that it is not where the deepest responsibility lies. Men in the mass, particularly when organized and disciplined in armies, must be expected to yield to prestige and authority, the power of example…Mitigation should be reserved for those upon whom superior orders are pressed down, and who lack the means to influence general standard of behavior. It is not, we submit, available to the commander who participates in bringing the criminal pressures to bear, and whose responsibility it is to ensure the preservation of honorable military traditions.^{4 3}

97. Yet the Nure m berg Military Tribunal refused to apply this ‘almost strict liability’ stand a rd. Instead, it established that in order to hold a superior responsible for the criminal acts of his subordinates:

t here must be a personal dereliction that 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. In the latter case it must be a personal neglect amounting to wanton, immoral disregard of the action of his subordinates amounting to acquiescence.

98. In the United States v Leeb^{4 4}, the tribunal found that the commander must have had knowledge of an order or have acquiesced in its implementation.

99. The statute adopted by the Security Council for the operations of the tribunal for the former Yugoslavia follow the standard of Protocol I and the dissenting view of Justice Murphy in the Yamashita case.

100. In essence, this view provides that commanders are culpable only if they knew about crimes that were being committed by their forces and did not do what they could to stop them.

101. The Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) in the case of Celebici, concluded that Protocol I was customary international law.

102. The international tribunals set up for the former Yugoslavia and Rwanda have made rulings on the question of command responsibility. Their rulings are pertinent to understanding international customary law on this point, with particular reference to two categories of individual responsibility for commanders or other superiors. They examine their potential responsibility, which may arise because of their role either in planning, instigating or assisting perpetrators of the violations, and that which they incur for the actions of their subordinates. In both instances, the legal implication of the omissions on the part of state authorities is also canvassed.