International criminal law: Command Responsibility

13th January 2019.

International criminal law is different from regular criminal law in domestic courts. International crimes are committed by large groups of people, which include terrorist networks, pirates, paramilitary groups, government and military agents.

It is difficult to prosecute those who are responsible. The international community has special rules that help prosecutors prove international crimes where it might ordinarily be difficult in domestic systems (such as command responsibility, joint criminal liability, control of the crime doctrine, liability for incitement to commit genocide).

Today I will look at command responsibility. The other special rules I will look at in another article. Command responsibility is the theory that a military (or civilian) superior is held responsible for the things that their subordinates do.

In this article I am looking at three cases:

The 1946 US Supreme Court case on General Yamashita.

The 1998 Celebici case at the UN International Criminal Tribunal for the former Yugoslavia.

The 1999 Alfred Musema case at the UN International Criminal Tribunal for Rwanda.

Command responsibility is the theory that in each level of the military, every commander of that level has control over their troops. When a crime is committed lower down the chain of command, the person above them can be held responsible for it. There is an obligation for those in charge to either prevent or punish atrocities by those lower down the chain of command.

The statutes of modern international tribunals (ICTY, Rwanda Tribunal, Special Court for Sierra Leone, the ICC) all have the clause that the fact that crimes are committed by subordinates does not relieve the superior of criminal responsibility.

If a commander knows or had reason to know that their subordinates was about to commit crimes, or had done so, and the commander fails to take necessary and reasonable measures to prevent such acts or punish the perpetrators, then the commander can be held criminally responsible.

Command responsibility then can be looked at in this equation under a negligence standard:

In command of subordinates + and know atrocities about to happen/have happened by these subordinates + failure to prevent/punish these subordinates = guilty under command responsibility.

In command of subordinates + don’t know atrocities about to happen/have happened + have not taken reasonable and necessary measures to know (e.g a reasonable commander in that situation should have made inquires to know) + failure to prevent/punish these subordinates = guilty under command responsibility.

The 1946 US Supreme Court case on General Yamashita.

General Yamashita was in charge of the Philippine islands at the end of World War 2. As the Allies invaded the islands and cut off communications, Yamashita’s troops began to commit the worst atrocities such as mass rape, mass murders of civilians and death marches to its inhabitants and prisoners of war. There was a book written about these atrocities, called The Sadist of the Rising Sun.

The US Supreme Court prosecuted Yamashita under theory of command responsibility. The judgment concluded that as he was the commander, whatever his troops did, he was ultimately responsible for.

This judgment did cause controversy at the time. The reason for that is there was debate over if he really could be held responsible for his troops, when the main cause for his failure to control his troops was because the Allies were successful in disrupting his communications.

Justice Murphy, a Supreme Court Justice, said that “nothing in all history in international law justifies this charge against a fallen commander of a defeated force, to use the very inefficiency and disorganization created by the victorious forces as the primary basis for condemning officers of the defeated armies, bears no resemblance to justice or to military reality.”

Ultimately the Court did clarify that he had condoned a climate of lawlessness, and therefore can be held responsible. He was given the death penalty. Based on this precedent, whenever a leader knows or should have known his troops are committing war crimes or crimes against humanity, the leader has a responsibility to prevent or punish the atrocities committed.

The 1998 Celebici case at the UN International Criminal Tribunal for the former Yugoslavia.

Celebici was a concentration camp of Bosnian Serb prisoners of war, most of whom were civilians. They were detained by Bosnian Muslims and Bosnian Croats who raped, beat, starved the Bosnian Serbs in Celebici during the 1992-1995 Bosnian war.

I will look at three individuals:

Zdravko Mucic (sentenced to 7 years in prison)

Hazim Delic (sentenced to 20 years in prison)

Zejnil Delalic (acquitted)

Zdravko Mucic: The Camp Commander. Guilty on the basis of command responsibility, sentenced to seven years.

The Court said he was the Camp Commander, he is responsible for the atrocities his troops committed. Mucic successfully proved he didn’t order these atrocities and he said that he did not know these acts were being committed. The Court did say that under a negligence standard, he should have known. The sentence of seven years was not that long compared to someone who did order the atrocities or took part in committing these atrocities.

Hazim Delic: The Deputy Camp Commander. An abusive man, and was convicted for crimes he committed, but found not guilty of command responsibility.

The Court judgment found that he had very little power in the camp, and his role was akin to an assistant, it was the commander that made the decisions.

Zejnil Delalic: A Sector Commander, responsible for the area where the camp was located. He was superior to Mucic. Found not guilty of command responsibility.

The Prosecutors argued that the Sector Commander negligently selected/trained the Camp Commander and should have been aware of what was happening in the concentration camp.

The Court said there were multiple Sector Commanders at the time. Delalic shown to only be responsible for military activities in the field. Not responsible over supervising the Camp Commanders. Court said Delalic was outside the direct chain of command. Court said in theory, as the superior, Delalic could have disciplined Mucic, but would be under a different chain of command.

From the Celebici case we can learn this, to prosecute under negligent command responsibility, there has to be effective control of subordinates. There has to be a direct line of authority between the superior and the perpetrators.  

The 1999 Alfred Musema case at the UN International Criminal Tribunal for Rwanda.

Alfred Musema was the Director of Gisovu Tea Factory in Kibuye Prefecture, Rwanda. He was not a military commander, but owner of a teashop, whose employees went on rampages and killed other ethnic groups. His employees were Hutus who worked for him at the tea shop.

While his employees tormented and murdered the Tutsis after work and on breaks, he did not attempt to stop them or discipline them.

As a private citizen, could you hold him responsible for what his employees did? The International Criminal Tribunal for Rwanda sentenced him to life imprisonment in 2001. He was guilty on command responsibility. This shows us that command responsibility doesn’t only apply in military situations, but can also apply to private citizens.

Musema was guilty on the basis of command responsibility because he exercised effective control over the tea factory employees through his power to appoint and remove them from their positions at the tea factory. Musema knew everyday his employees were committing these atrocities. Sometimes he was there, and cheering them on, he knew what was going on and he could have stopped them.

Command responsibility can therefore apply to outside of a military context. Owners of businesses, mayors of towns, governors of provinces all have a responsibility under international criminal law to prevent or punish crimes that their employees are committing.

Command responsibility is difficult to prove in courts. There must be proof of effective control over subordinates.

References:

Michael Sharf, Case Western Reserve University

https://supreme.justia.com/cases/federal/us/327/1/

http://www.icty.org/en/press/celebici-case-judgement-trial-chamber-zejnil-delalic-acquitted-zdravko-mucic-sentenced-7-years

http://unictr.irmct.org/en/cases/ictr-96-13