Command responsibility, sometimes referred to as the Yamashita standard or the Medina standard, and also known as superior responsibility, is the legal doctrine of hierarchical accountability for war crimes.
The term may also be used more broadly to refer to the duty to supervise subordinates, and liability for the failure to do so, both in government, military law, and with regard to corporations and trusts.
The doctrine of "command responsibility" was established by the Hague Conventions of 1899 and 1907, partly based on the American Lieber code, a war manual for the Union forces signed by President Abraham Lincoln in 1863, and was applied for the first time by the German Supreme Court at the Leipzig War Crimes Trials after World War I, in the 1921 trial of Emil Müller.
The United States of America confirmed and incorporated the mentioned 1899 and 1907 Hague Conventions on "command responsibility" into United States federal law through the precedent set by the United States Supreme Court (called the "Yamashita standard") in the case of Japanese General Tomoyuki Yamashita. He was prosecuted in 1945 for atrocities committed by troops under his command in the Philippines, in the Pacific Theater during World War II. Yamashita was charged with "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."
Furthermore, the so-called "Medina standard" clarified the U.S. law to clearly also encompass U.S. officers, so that those as well as foreign officers such as General Yamashita can be prosecuted in the United States. The "Medina standard" is based upon the 1971 prosecution of U.S. Army Captain Ernest Medina in connection with the My Lai Massacre during the Vietnam War. It holds that a U.S. commanding officer, being aware of a human rights violation or a war crime, will be held criminally liable if he does not take action. However, Medina was acquitted of all charges.
In The Art of War, written during the 6th century BC, Sun Tzu argued that it was a commander's duty to ensure that his subordinates conducted themselves in a civilised manner during an armed conflict. Similarly, in the Bible (Kings 1: Chapter 21), within the story of Ahab and the killing of Naboth, King Ahab was blamed for the killing of Naboth on orders from Queen Jezebel, because Ahab (as king) was responsible for everyone in his kingdom.
The trial of Peter von Hagenbach by an ad hoc tribunal of the Holy Roman Empire in 1474, was the first "international" recognition of commanders' obligations to act lawfully. Hagenbach was put on trial for atrocities committed during the occupation of Breisach, found guilty of war crimes and beheaded. Since he was convicted for crimes "he as a knight was deemed to have a duty to prevent", Hagenbach defended himself by arguing that he was only following orders from the Duke of Burgundy, Charles the Bold, to whom the Holy Roman Empire had given Breisach. Despite the fact there was no explicit use of a doctrine of "command responsibility", it is seen as the first trial based on this principle.
During the American Civil War, the concept developed further, as can be seen in the "Lieber Code". This regulated accountability by imposing criminal responsibility on commanders for ordering or encouraging soldiers to wound or kill already disabled enemies. Article 71 of the Lieber Code provided that:
Whoever intentionally inflicts additional wounds on an enemy already wholly disabled, or kills such an enemy, or who orders or encourages soldiers to do so, shall suffer death, if duly convicted, whether he belongs to the Army of the United States, or is an enemy captured after having committed his misdeed.
The Hague Convention of 1899 was the first attempt at codifying the principle of command responsibility on a multinational level and was reaffirmed and updated entirely by the Hague Convention of 1907. The doctrine was specifically found within "Laws and Customs of War on Land" (Hague IV); October 18, 1907: "Section I on Belligerents: Chapter I The Qualifications of Belligerents", "Section III Military Authority over the territory of the hostile State", and "Adaptation to Maritime War of the Principles of the Geneva Convention" (Hague X); October 18, 1907. Article 1 of Section I of the 1907 Hague IV stated that:
The laws, rights, and duties of war apply not only to armies, but also to militia and volunteer corps fulfilling the following conditions:
- To be commanded by a person responsible for his subordinates;
- To have a fixed distinctive emblem recognizable at a distance;
- To carry arms openly; and
- To conduct their operations in accordance with the laws and customs of war.
Another example of command responsibility is shown in Article 43 of Section III of the same convention which stipulated that:
The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.
In "Adaptation to Maritime War of the Principles of the Geneva Convention" (Hague X), Article 19 stated that:
The commanders in chief of the belligerent fleets must arrange for the details of carrying out the preceding articles, as well as for cases not covered thereby, in accordance with the instructions of their respective Governments and in conformity with the general principles of the present Convention.
While the Hague Conventions of 1899 and 1907 does not explicitly create a doctrine of command responsibility, it does uphold a notion that a superior must account for their actions of his subordinates. It also suggests that military superiors have a duty to ensure that their troops act in accordance with international law and if they fail to command them lawfully, their respective states may be held criminally liable. In turn, those states may choose to punish their commanders. At such, the Hague Conventions of 1899 and 1907 has been viewed as a foundational root of modern doctrine of command responsibility. After World War I, the Allied Powers' Commission on the Responsibility of the Authors of the War and on the Enforcement of Penalties recommended the establishment of an international tribunal, which would try individuals for "order[ing], or, with knowledge thereof and with power to intervene, abstain[ing] from preventing or taking measures to prevent, putting an end to or repressing, violations of the laws or customs of war."
Since the end of the Cold War, private contractors have become more prevalent in zones of conflict. Both political and legal scholars highlight the multiple challenges this has introduced when tracing the responsibility of crimes in the field. Some, such as Martha Lizabeth Phelps, go as far to claim that if hired contractors are indistinguishable from national troops, the contractors borrow the state's legitimacy. The command responsibility of actions in warfare become increasingly unclear when actors are viewed as being part of a state's force, but are, in truth, private actors.
Command responsibility is an omission mode of individual criminal liability: the superior is responsible for crimes committed by his subordinates and for failing to prevent or punish (as opposed to crimes he ordered). In re Yamashita before a United States military commission in 1945, General Yamashita became the first to be charged solely on the basis of responsibility for an omission. He was commanding the 14th Area Army of Japan in the Philippines during the Pacific Theater of World War II when some of the Japanese troops engaged in atrocities against thousands of civilians and prisoners of war. As commanding officer, he was charged with "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."
By finding Yamashita guilty, the Commission adopted a new standard, stating that where "vengeful actions are widespread offenses and there is no effective attempt by a commander to discover and control the criminal acts, such a commander may be held responsible, even criminally liable." However, the ambiguous wording resulted in a long-standing debate about the amount of knowledge required to establish command responsibility. The matter was appealed, and was affirmed by the United States Supreme Court in 1946. After sentencing, Yamashita was executed.
In the High Command Case (1947–8), the U.S. military tribunal argued that in order for a commander to be criminally liable for the actions 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" based upon "a wanton, immoral disregard of the action of his subordinates amounting to acquiescence".
In the Hostage Case (1947–8), the U.S. military tribunal seemed to limit the situations where a commander has a duty to know to instances where he has already had some information regarding subordinates' unlawful actions.
After World War II, the parameters of command responsibility were thus increased, imposing liability on commanders for their failure to prevent the commission of crimes by their subordinates. These cases – the latter two part of the Nürnberg tribunals – discussed explicitly the requisite standard of mens rea, and were unanimous in finding that a lesser level of knowledge than actual knowledge may be sufficient.
The first international treaty to comprehensively codify the doctrine of command responsibility was the Additional Protocol I ("AP I") of 1977 to the Geneva Conventions of 1949. Article 86(2) states that:
the fact that a breach of the Conventions or of this Protocol was committed by a subordinate does not absolve his superiors from ... responsibility ... if they knew, or had information which should have enabled them to conclude in the circumstances at the time, that he was committing or about to commit such a breach and if they did not take all feasible measures within their power to prevent or repress the breach.
Article 87 obliges a commander to "prevent and, where necessary, to suppress and report to competent authorities" any violation of the Conventions and of AP I.
In the discussion regarding "command responsibility" the term "command" can be defined as
International case law has developed two special types of "de jure commanders."
Additional Protocol I and the Statutes of the ICTY, the ICTR, and the ICC makes prevention or prosecution of crimes mandatory.
Following World War II, communis opinio was that the atrocities committed by the Nazis were so severe a special tribunal had to be held. However, contemporary jurists such as Harlan Fiske Stone criticized the Nuremberg Trials as victor's justice. The Nuremberg Charter determined the basis to prosecute people for:
|Crimes against peace||the planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing.|
|War crimes||violations of the laws and customs of war. A list follows with, inter alia, murder, ill-treatment or deportation into slave labour or for any other purpose of the civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, the killing of hostages, the plunder of public or private property, the wanton destruction of cities, towns or villages, or devastation not justified by military necessity.|
|Crimes against humanity||murder, extermination, enslavement, deportation, and other inhuman acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.|
The jurisdiction ratione personae is considered to apply to "leaders, organisers, instigators and accomplices" involved in planning and committing those crimes.
The ICTY statute article 7 (3) establishes that the fact that crimes "were committed by a subordinate does not relieve his superior of criminal responsibility if he 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."
In The Prosecutor v. Delalić et al. ("the Čelebići case") first considered the scope of command responsibility by concluding that "had reason to know" (article 7(3)) means that a commander must have "had in his possession information of a nature, which at the least, would put him on notice of the risk of ... offences by indicating the need for additional investigation in order to ascertain whether ... crimes were committed or were about to be committed by his subordinates."
In The Prosecutor v. Blaškić ("the Blaškić case") this view was corroborated. However, it differed regarding mens rea required by AP I. The Blaškić Trial Chamber concluded that "had reason to know", as defined by the ICTY Statute, also imposes a stricter "should have known" standard of mens rea.
The conflicting views of both cases were addressed by the Appeals Chambers in Čelebići and in a separate decision in Blaškić. Both rulings hold that some information of unlawful acts by subordinates must be available to the commander following which he did not, or inadequately, discipline the perpetrator.
The concept of command responsibility has developed significantly in the jurisprudence of the ICTY. One of the most recent judgements that extensively deals with the subject is the Halilović judgement of 16 November 2005 (para. 22-100).
The United Nations Security Council Resolution 955 (1994) set up an international criminal tribunal to judge people responsible for the Rwandan Genocide and other serious violations of international law in Rwanda, or by Rwandan citizens in nearby states, between 1 January and 31 December 1994; additional later resolutions expanded the scope and timeline of the tribunal. The tribunal has jurisdiction over genocide, crimes against humanity, and war crimes.
The judgement against Jean-Paul Akayesu established rape as a war crime. Rape was placed in line with "other acts of serious bodily and mental harm" rather than the historical view of rape as "a trophy of war." Akayesu was held responsible for his actions and non-actions as mayor and police commander of a commune in which many Tutsis were killed, raped, tortured, and otherwise persecuted.
Another case prosecuted persons in charge of a radio station and a newspaper that incited and then encouraged the Rwandan genocide. The defendants were charged with genocide, incitement to genocide, and crimes against humanity for their positions of control and command in the "hate media," although they physically had not committed the acts.
Following several ad hoc tribunals, the international community decided on a comprehensive court of justice for future crimes against humanity. This resulted in the International Criminal Court, which identified four categories.
Article 28 of the Rome Statute of the International Criminal Court codified the doctrine of command responsibility. With Article 28(a) military commanders are imposed with individual responsibility for crimes committed by forces under their effective command and control if they:
The Bush administration has adopted the American Servicemembers' Protection Act and entered in Article 98 agreements in an attempt to protect any US citizen from appearing before this court. As such it interferes with implementing the command responsibility principle when applicable to US citizens.
A number of commentators have advanced the argument that the principle of "command responsibility" could make high-ranking officials within the Bush administration guilty of war crimes committed either with their knowledge or by persons under their control.
Alberto Gonzales and others argued that detainees should be considered "unlawful combatants" and as such not be protected by the Geneva Conventions in multiple memoranda regarding these perceived legal gray areas.
Gonzales' statement that denying coverage under the Geneva Conventions "substantially reduces the threat of domestic criminal prosecution under the War Crimes Act" suggests, at the least, an awareness by those involved in crafting policies in this area that U.S. officials are involved in acts that could be seen to be war crimes. The U.S. Supreme Court overruled the premise on which this argument is based in Hamdan v. Rumsfeld, in which it ruled that Common Article Three of the Geneva Conventions applies to detainees in Guantanamo Bay, and that the Guantanamo military commission used to try these suspects were in violation of U.S. and international law because it was not created by Congress.
On April 14, 2006, Human Rights Watch said that Secretary Donald Rumsfeld could be criminally liable for his alleged involvement in the abuse of Mohammad al-Qahtani. Dave Lindorff contends that by ignoring the Geneva Conventions. the U.S. administration, including President Bush, as Commander-in-Chief, is culpable for war crimes. In addition, former chief prosecutor of the Nuremberg Trials Benjamin Ferencz has called the invasion of Iraq a "clear breach of law", and as such it constitutes a crime against peace. On November 14, 2006, invoking universal jurisdiction, legal proceedings were started in Germany - for their alleged involvement of prisoner abuse - against Donald Rumsfeld, Alberto Gonzales, John Yoo, George Tenet and others. This allegedly prompted recently retired Donald Rumsfeld to cancel a planned visit to Germany.
Former Army Lt. Ehren Watada refused to be deployed to Iraq based on his claims of command responsibility. Although his own deployment was not ordered until after Security Council Resolution 1511 authorized a multinational force in Iraq, Watada argued that the invasion of Iraq was illegal, and as such he claimed he was bound by command responsibility to refuse to take part in an illegal war. He was discharged from the Army in 2009.
The Military Commissions Act of 2006 is seen as an amnesty law for crimes committed in the War on Terror by retroactively rewriting the War Crimes Act and by abolishing habeas corpus, effectively making it impossible for detainees to challenge crimes committed against them.
Luis Moreno-Ocampo told The Sunday Telegraph that he is willing to start an inquiry by the International Criminal Court (ICC), and possibly a trial, for war crimes committed in Iraq involving British Prime Minister Tony Blair and American President George W. Bush, even though under the Rome Statute the ICC has no jurisdiction over Bush, since the United States is not a State Party to the relevant treaty—unless Bush were accused of crimes inside a State Party, or the UN Security Council (where the United States has a veto) requested an investigation. However, Blair does fall under ICC jurisdiction as Britain is a State Party.
Nat Hentoff wrote on August 28, 2007, that a leaked report by the International Committee of the Red Cross and the July 2007 report by Human Rights First and Physicians for Social Responsibility, titled Leave No Marks: Enhanced Interrogation Techniques and the Risk of Criminality, might be used as evidence of American war crimes if there was a Nuremberg-like trial regarding the War on Terror.
Shortly before the end of President Bush's second term, newsmedia in other countries started opining that under the United Nations Convention Against Torture, the United States is obligated to hold those responsible for prisoner abuse to account under criminal law. One proponent of this view was the United Nations special rapporteur on torture and other cruel, inhuman or degrading treatment or punishment (Professor Manfred Nowak) who, on January 20, 2009, remarked on German television that former president George W. Bush had lost his head of state immunity and under international law, the United States would now be mandated to start criminal proceedings against all those involved in these violations of the UN Convention Against Torture. Law professor Dietmar Herz explained Nowak's comments by saying that under U.S. and international law former President Bush is criminally responsible for adopting torture as an interrogation tool.
Human Rights Watch commented on this conflict by stating that:
... individual commanders and civilian officials could be liable for failing to take any action to end abuses by their troops or staff ... The principle of command responsibility is applicable in internal armed conflicts as well as international armed conflicts.
had "command responsibility" for the atrocities committed by the multiple Sudanese security services.
Following an inquiry by the United Nations, regarding allegations of involvement of the Government in genocide, the dossier was referred to the International Criminal Court. On May 2, 2007, the ICC issued arrest warrants for militia leader Ali Muhammad al-Abd al-Rahman, of the Janjaweed, a.k.a. Ali Kushayb, and Ahmad Muhammad Haroun for crimes against humanity and war crimes. To this day Sudan has refused to comply with the arrest warrants and has not turned them over to the ICC.
The International Criminal Court's chief prosecutor, Luis Moreno-Ocampo, announced on July 14, 2008, ten criminal charges against President Omar al-Bashir, accusing him of sponsoring war crimes, genocide, and crimes against humanity. The ICC's prosecutors have charged al-Bashir with genocide because he "masterminded and implemented a plan to destroy in substantial part" three tribal groups in Darfur because of their ethnicity. The ICC's prosecutor for Darfur, Luis Moreno-Ocampo, is expected within months to ask a panel of ICC judges to issue an arrest warrant for Bashir.
For his conduct as President of Zimbabwe, including allegations of torture and murder of political opponents, it is suggested Robert Mugabe may be prosecuted using this doctrine. Because Zimbabwe has not subscribed to the International Criminal Court's jurisdiction it may be authorised by the United Nations Security Council. The precedent for this was set by its referral to bring indictments relating to the crimes committed in Darfur.
The 3rd Armoured Division is a formation of the Syrian Army responsible for securing the northern approach to Damascus. The division is based in a military complex near Qutayfah and has traditionally been seen as one of the Assad Government's most reliable conventional Divisions.Air Force Space Command
Air Force Space Command (AFSPC) is a major command of the United States Air Force (USAF), with its headquarters at Peterson Air Force Base, Colorado, and subordinate to U.S. Space Command. AFSPC supports U.S. military operations worldwide through the use of many different types of space operations, and is the primary space force for the U.S. Armed Forces.
More than 38,000 people perform AFSPC missions at 88 locations worldwide; they include military personnel of the USAF, Air Force Reserve and Air National Guard; Department of the Air Force civilians (DAFC); and civilian contractors.
The Air Force Global Strike Command has responsibility for intercontinental ballistic missiles (ICBMs).Center for Justice and Accountability
The Center for Justice and Accountability (CJA) is a US non-profit international human rights organization based in San Francisco, California. Founded in 1998, CJA represents survivors of torture and other grave human rights abuses in cases against individual rights violators before U.S. and Spanish courts. CJA has pioneered the use of civil litigation in the United States as a means of redress for survivors from around the world. As of 2016, it has a staff of 12 employees (among them six lawyers), headed by executive director Dixon Osburn.Commander of the Royal Netherlands Navy
The Commander of the Royal Netherlands Navy (CZsk) (Dutch: Commandant Zeestrijdkrachten) is the highest-ranking officer of the Royal Netherlands Navy. The CZsk reports directly to the Chief of the Netherlands Defence Staff.
The position of CZsk was created on 5 September 2005, following a large overhaul of the command structure of the Dutch armed forces. In this overhaul the position of Bevelhebber der Zeestrijdkrachten was dropped and the position of Commander of the Naval Force in The Netherlands was upgraded to the current CZsk position. Ever since the integration of the Royal Netherlands Marine Corps into the Navy, the former Commander of the Marine Corps has held the position of Deputy Commander of the Royal Netherlands Navy.
In addition to being the commanding officer of the Dutch Navy, under the terms of the BENESAM Treaty the CZsk is also the Admiral of the Benelux (the commanding officer of the integrated command of the Dutch and Belgian fleets). This means the CZsk is the commanding officer of the operational units of the Royal Netherlands Navy and the Belgian Naval Component.
Also, the CZsk shares command responsibility with the Chief of the Netherlands Defence Staff for units that have been deployed on international missions (under the colors of the United Nations).
The position of CZsk is statutorily held by a Vice Admiral or Lieutenant General of the Marines (NATO OF-8). The current CZsk is Vice-admiraal Rob Kramer, who succeeded Lieutenant general Rob Verkerk in the position in September 2017.Home Front Command
The Israeli Home Front Command (Hebrew: פיקוד העורף, Pikud HaOref) is an Israel Defense Forces regional command, created in February 1992 following the Gulf War, which was the first war since the 1948 Arab-Israeli War in which centers of civilian population faced significant threat. The command is responsible for civil defense: preparing the civilian population for a conflict or disaster, assisting the population during the crisis, and contributing to post-crisis reconstruction.
Until the establishment of the Command, responsibility for the Home Front fell under the Civilian Defense's Chief Officer Corps Command and under Regional Defense. During that time, the three regional commands had their own home front commands. After the first Persian Gulf War, these organizations were unified and the Home Front Command was created.
This unit should not be confused with Unit 669. The Home Front Command includes a domestic search and rescue unit, primarily operating in times of natural disasters, while Unit 669 is the Israeli Air Force's Tactical Combat Search and Rescue (CSAR) unit that operates behind enemy lines.
It is currently headed by Aluf Tamir Yadai.Marine Aircraft Group 41
Marine Aircraft Group 41 (MAG-41) is a United States Marine Corps reserve aviation unit based at Naval Air Station Joint Reserve Base Fort Worth, Texas that is currently composed of one F/A-18A+ squadron, one KC-130T squadron, an aviation logistics squadron, as well as detachments from wing support and air control squadrons. Following decommissioning of Marine Aircraft Group 46 in 2009, MAG-41 also assumed command responsibility for the geographically separated Northrop F-5F aggressor squadron based at Marine Corps Air Station Yuma, Arizona and a Boeing Vertol CH-46 squadron HMM-764 based at Edwards Air Force Base, California. HMM-764 transitioned to the MV-22B in 2013 and relocated to MCAS Miramar.Omission (law)
An omission is a failure to act, which generally attracts different legal consequences from positive conduct. In the criminal law, an omission will constitute an actus reus and give rise to liability only when the law imposes a duty to act and the defendant is in breach of that duty. In tort law, similarly, liability will be imposed for an omission only exceptionally, when it can be established that the defendant was under a duty to act.Peter von Hagenbach
Peter von Hagenbach (or Pierre de Hagenbach or Pietro di Hagenbach or Pierre d’Archambaud or Pierre d'Aquenbacq, circa 1420 – May 9, 1474) was a Bourguignon knight from Alsace and Germanic military and civil commander.
He was born into an Alsatian-Burgundian family, originally from Hagenbach and owned a castle there.
He was instated as bailiff of Upper Alsace by Charles the Bold, Duke of Burgundy, to administer the territories and rights on the Upper Rhine which had been mortgaged by Duke Sigmund of Further Austria for 50,000 florins in the Treaty of St. Omer in 1469. There he coined the term Landsknecht—from German, Land ("land, country") + Knecht ("servant").
It was originally intended to indicate soldiers of the lowlands of the Holy Roman Empire as opposed to the Swiss mercenaries. As early as 1500 the misleading spelling "Lanzknecht" became common because of the phonetic and visual similarity between Land(e)s ("of the land/territory") and Lanze ("lance").
Following a rebellion by towns of the Upper Rhine against his tyranny, Hagenbach was put on trial for the atrocities committed during the occupation of Breisach, found guilty of war crimes, and beheaded at Breisach. His trial by an ad hoc tribunal of the Holy Roman Empire in 1474 was the first “international” recognition of commanders’ obligations to act lawfully. He was convicted of crimes, specifically murder, rape and perjury, among other crimes, "he as a knight was deemed to have a duty to prevent." He defended himself by arguing that he was only following orders from the Duke of Burgundy, to whom the Holy Roman Empire had given Breisach. Although there was no explicit use of a doctrine of command responsibility, it is seen as the first trial based on that principle. As well, it includes the earliest documented prosecution of gender-based/targeted crimes when he was convicted for rapes committed by his troops.Plausible deniability
Plausible deniability is the ability of people (typically senior officials in a formal or informal chain of command) to deny knowledge of or responsibility for any damnable actions committed by others in an organizational hierarchy because of a lack of evidence that can confirm their participation, even if they were personally involved in or at least willfully ignorant of the actions. In the case that illegal or otherwise disreputable and unpopular activities become public, high-ranking officials may deny any awareness of such acts to insulate themselves and shift blame onto the agents who carried out the acts, as they are confident that their doubters will be unable to prove otherwise. The lack of evidence to the contrary ostensibly makes the denial plausible; that is, credible, although sometimes it merely makes it unactionable. The term typically implies forethought, such as intentionally setting up the conditions to plausibly avoid responsibility for one's (future) actions or knowledge. In some organizations, legal doctrines such as command responsibility exist to hold major parties responsible for the actions of subordinates involved in heinous acts and nullify any legal protection that their denial of involvement would carry.
High-ranking officials in more typically Eastern cultures, such as Japan or Korea, are often expected to take full responsibility for improper actions by their subordinates. As an example, Japanese CEOs have made dramatic public apologies and even committed suicide when their companies have been dishonored in some way.
In politics and espionage, deniability refers to the ability of a powerful player or intelligence agency to pass the buck and avoid blowback by secretly arranging for an action to be taken on their behalf by a third party ostensibly unconnected with the major player. In political campaigns, plausible deniability enables candidates to stay clean and denounce third-party advertisements that use unethical approaches or potentially libellous innuendo.
In the US, plausible deniability is also a legal concept. It refers to lack of evidence proving an allegation. Standards of proof vary in civil and criminal cases. In civil cases, the standard of proof is "preponderance of the evidence" whereas in a criminal matter, the standard is "beyond a reasonable doubt". If an opponent cannot provide evidence for his allegation, one can plausibly deny the allegation even though it may be true.
Although plausible deniability has existed throughout history, that name for it was coined by the CIA in the early 1960s to describe the withholding of information from senior officials in order to protect them from repercussions in the event that illegal or unpopular activities by the CIA became public knowledge. The roots of the name go back to Harry Truman's national security council paper 10/2 of June 18, 1948, which defined "covert operations" as "...all activities (except as noted herein) which are conducted or sponsored by this Government against hostile foreign states or groups or in support of friendly foreign states or groups but which are so planned and executed that any US Government responsibility for them is not evident to unauthorized persons and that if uncovered the US Government can plausibly disclaim any responsibility for them." During Eisenhower's administration, NSC 10/2 was incorporated into more specific NSC 5412/2 "Covert Operations." NSC 5412 was de-classified in 1977, and is located at the National Archives.Ratko Mladić
Ratko Mladić (Serbian Cyrillic: Ратко Младић, pronounced [râtko mlǎːdit͡ɕ]; born 12 March 1942) is a Bosnian Serb convicted war criminal and former military commander who led the Army of Republika Srpska (VRS) as a general during the Yugoslav Wars. He was later found guilty of committing war crimes, crimes against humanity, and genocide by the International Criminal Tribunal for the former Yugoslavia (ICTY).
On 31 May 2011, Mladić was extradited to The Hague, where he was processed at the detention center that holds suspects for the ICTY. His trial formally began in The Hague on 16 May 2012 and was concluded on 22 November 2017, finding him guilty and sentencing him to life in prison.
A long-time member of the League of Communists of Yugoslavia, Mladić began his career in the Yugoslav People's Army (JNA) in 1965. He came to prominence in the Yugoslav Wars, initially as a high-ranking officer of the Yugoslav People's Army and subsequently as the Chief of the General Staff of the Army of Republika Srpska in the Bosnian War of 1992–95. He has been referred to by certain media outlets as the "Butcher of Bosnia".
In July 1996 the Trial Chamber of the ICTY, proceeding in the absence of Mladić under the ICTY's Rule 61, confirmed all counts of the original indictments, finding there were reasonable grounds to believe he had committed the alleged crimes, and issued an international arrest warrant. The Serbian and United States' governments offered €5 million for information leading to Mladić's capture and arrest. Mladić nevertheless managed to remain at large for nearly sixteen years, initially sheltered by Serbian and Bosnian Serb security forces and later by family. On 26 May 2011, he was arrested in Lazarevo, Serbia. His capture was considered to be one of the pre-conditions for Serbia being awarded candidate status for European Union membership.
On 22 November 2017, he was sentenced to life in prison by the ICTY after being found guilty of 10 charges, one of genocide, five of crimes against humanity and four of violations of the laws or customs of war. He was cleared of one count of genocide. As the top military officer with command responsibility, Mladić was deemed by the ICTY to be responsible for both the siege of Sarajevo and the Srebrenica massacre.Superior orders
Superior orders, often known as the Nuremberg defense, lawful orders, just following orders, or by the German phrase Befehl ist Befehl ("an order is an order"), is a plea in a court of law that a person—whether a member of the military, law enforcement, a firefighting force, or the civilian population—not be held guilty for actions ordered by a superior officer or an official.The superior orders plea is often regarded as the complement to command responsibility.One of the most noted uses of this plea, or defense, was by the accused in the 1945–1946 Nuremberg trials, such that it is also called the "Nuremberg defense". The Nuremberg trials were a series of military tribunals, held by the main victorious Allies after World War II, most notable for the prosecution of prominent members of the political, military, and economic leadership of the defeated Nazi Germany. These trials, under the London Charter of the International Military Tribunal that set them up, established that the defense of superior orders was no longer enough to escape punishment, but merely enough to lessen punishment.Historically, the plea of superior orders has been used both before and after the Nuremberg Trials, with a notable lack of consistency in various rulings.
Apart from the specific plea of superior orders, discussions about how the general concept of superior orders ought to be used, or ought not to be used, have taken place in various arguments, rulings and statutes that have not necessarily been part of "after the fact" war crimes trials, strictly speaking. Nevertheless, these discussions and related events help to explain the evolution of the specific plea of superior orders and the history of its usage.Sylvestre Mudacumura
Sylvestre Mudacumura (1954 in Gisenyi, Rwanda - 18 September 2019) was the overall commander of the military wing of the rebel Democratic Forces for the Liberation of Rwanda (FDLR), known as the Forces Combattants Abacunguzi (FOCA). He was the deputy commander of the Presidential Guard of the Rwandan Armed Forces during the 1994 genocide. Described as being age 55 in 2009, prior to the genocide he attended "the leadership academy of the armed forces in Hamburg" on a two year scholarship. (This institution appears almost certainly to have been the Führungsakademie der Bundeswehr.) Following the genocide, it is believed Mudacumura's wife and children were moved to Germany with the help of FDLR political leader Ignace Murwanashyaka.Mudacumura is an FDLR 'westerner', belonging to the group of rebels who were previously based in Kamina and fought alongside the Forces Armées Congolaise, as opposed to the group that stayed in the Kivus. Since 2003, there has been tension within the FDLR as Mudacumura has replaced 'easterners' with 'westerners' in the command structure. He is implicated in the December 2006 death of the former FOCA second in command, Colonel Jean Baptist Kanyandekwe, who died of poisoning at a party thrown by the FOCA head. Kanyandekwe is said to have led a faction advocating for the end of hostilities and the return of the rebels to Rwanda.Human Rights Watch said in December 2009,
According to former FDLR combatants interviewed by Human Rights Watch and others, General Mudacumura has clear and immediate command responsibility over FDLR forces. "It is Mudacumura who gives all the overall instructions and commands, and others follow his orders... No operation could ever be done without his consent," one former FDLR combatant told Human Rights Watch. In another case, a senior FDLR deserter from the Reserve Brigade told UN officials that Lt. Col. Félicien Nzabanita, commander of the Reserve Brigade, which conducted several of the larger attacks on civilians during Umoja Wetu and Kimia II, "never made any decisions unless they were coming from Mudacumura."
It is unclear if Mudacumura or Murwanashyaka has more power in the organization, with at least one FOCA colonel reporting that Murwanashyaka reported to Mudacumura during a visit. Mudacumura's younger brother, known as "Big Patrick", has a relationship with the Indian Battalion of MONUC. Big Patrick was also rumored to have used his contacts with MONUC to provide expatriate medical care to Mudacumura in November 2009. Mudacumura's brother-in-law, Lt. Col. Edmond Ngarambe, was the FOCA spokesperson prior to being captured in Operation Umoja Wetu.Tihomir Blaškić
Tihomir Blaškić (born 2 November 1960) is a retired general of the Croatian Defence Council (HVO) who served during the Bosnian War and the Croat–Bosniak War. The International Criminal Tribunal for the Former Yugoslavia (ICTY) indicted him on war crimes charges and in 2000 he was sentenced to 45 years of prison. In July 2004, the ICTY, on appeal, determined that his command responsibility for most of the charges was non-existent and his sentence was lessened to nine years imprisonment. He was released the following month.Trial of Slobodan Milošević
The war crimes trial of Slobodan Milošević, the former President of Yugoslavia, at the International Criminal Tribunal for the former Yugoslavia (ICTY) lasted from February 2002 until his death in March 2006. Milošević faced 66 counts of crimes against humanity, genocide and war crimes committed during the Yugoslav Wars of the 1990s. He pleaded not guilty to all the charges.
In a judgment issued on 24 March 2016 in the separate trial of Radovan Karadžić, the ICTY said there was insufficient evidence in that case that Milošević had supported plans to expel non-Serbs from Serb-held territory in Bosnia during the 1992-95 war.United States war crimes
United States war crimes are the violations of the laws and customs of war of which the United States Armed Forces are accused of committing since the signing of the Hague Conventions of 1899 and 1907. These have included the summary execution of captured enemy combatants, the mistreatment of prisoners during interrogation (torture), and the use of violence against civilian non-combatants.
War crimes can be prosecuted in the United States through the War Crimes Act of 1996. However, the U.S. Government strongly opposes the International Criminal Court (ICC) treaty, arguing that the Court lacks checks and balances, and thus does not accept ICC jurisdiction over its nationals.Victor M. Hansen
Victor M. Hansen is an American lawyer and military officer, and a professor of law at the New England School of Law, in Boston.Hansen is notable for his wide publications on military justice and the treatment of captives held in extrajudicial detention by the Bush Presidency.Vladimir Lazarević
Vladimir Lazarević (Serbian Cyrillic: Владимир Лазраревић; born 23 March 1949) is a Serbian colonel general of the Third Army Corps, and later the commander of the Priština Corps of the Federal Republic of Yugoslavia. He was indicted by the International Criminal Tribunal for the former Yugoslavia 2003 and was convicted in 2009 of command responsibility for war crimes against Kosovo Albanians during the Kosovo War.War crime
A war crime is an act that constitutes a serious violation of the laws of war that gives rise to individual criminal responsibility. Examples of war crimes include intentionally killing civilians or prisoners, torturing, destroying civilian property, taking hostages, performing a perfidy, raping, using child soldiers, pillaging, declaring that no quarter will be given, and seriously violating the principles of distinction and proportionality, and military necessity.
The concept of war crimes emerged at the turn of the twentieth century when the body of customary international law applicable to warfare between sovereign states was codified. Such codification occurred at the national level, such as with the publication of the Lieber Code in the United States, and at the international level with the adoption of the treaties during the Hague Conventions of 1899 and 1907. Moreover, trials in national courts during this period further helped clarify the law. Following the end of World War II, major developments in the law occurred. Numerous trials of Axis war criminals established the Nuremberg principles, such as notion that war crimes constituted crimes defined by international law. Additionally, the Geneva Conventions in 1949 defined new war crimes and established that states could exercise universal jurisdiction over such crimes. In the late 20th century and early 21st century, following the creation of several international courts, additional categories of war crimes applicable to armed conflicts other than those between states, such as civil wars, were defined.
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