Definitions

In the discussion regarding "command responsibility" the term "command" can be defined as
A. De jure (legal) command, which can be both military and civilian. The determining factor here is
not rank but subordination. Four structures are identified:
1. Policy command: heads of state, high-ranking government officials, monarchs
2. Strategic command: War Cabinet, Joint Chiefs of Staff
3. Operational command: military leadership. In Yamashita it was established that operational
command responsibility cannot be ceded for the purpose of the doctrine of command
responsibility; operational commanders must exercise the full potential of their authority to
prevent war crimes failure to supervise subordinates or non-assertive orders does not
exonerate the commander.
4. Tactical command: direct command over troops on the ground
International case law has developed two special types of "de jure commanders."
1. Prisoners-of-war (POW) camp commanders: the ICTY established in Aleksovski that POW
camp commanders are entrusted with the welfare of all prisoners, and subordination in this
case is irrelevant.
2. Executive commanders: supreme governing authority in the occupied territory.
Subordination is again irrelevant their responsibility is the welfare of the population in the
territory under their control, as established in the High Command and Hostages cases after
World War II.
B. De facto (factual) command, which specifies effective control, as opposed to formal rank. This
needs a superior-subordinate relationship. Indicia are:
1. Capacity to issue orders.
2. Power of influence: influence is recognized as a source of authority in the Ministries
case before the US military Tribunal after World War II.
3. Evidence stemming from distribution of tasks: the ICTY has established the Nikolic test
superior status is deduced from analyzing distribution of tasks within the unit, and the test
applies both to operational and POW camp commanders.
Additional Protocol I and the Statutes of the ICTY, the ICTR, and the ICC makes prevention or
prosecution of crimes mandatory.
Application[edit]
Nuremberg Tribunal
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:
Crime Description
Crimes the planning, preparation, initiation or waging of a war of aggression, or a war in
against violation of international treaties, agreements or assurances, or participation in a
peace common plan or conspiracy for the accomplishment of any of the foregoing.
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 crimes
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 murder, extermination, enslavement, deportation, and other inhuman acts
against committed against any civilian population, before or during the war,
humanity 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.
International Criminal Tribunal for the former Yugoslavia[
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. Delali et al. ("the elebii 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. Blaki ("the Blaki case") this view was corroborated. However, it differed
regarding mens rea required by AP I. The Blaki 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 elebii and in a
separate decision in Blaki. Both rulings hold that some information of unlawfal 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 Halilovi
judgement of 16 November 2005 (para. 22-100).
International Criminal Tribunal for Rwanda[edit]
Main article: International Criminal Tribunal for Rwanda
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"[29] 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.
1. Genocide
2. Crimes against humanity
3. War crimes
4. Crimes of aggression
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:
either knew or, owing to the circumstances at the time, should have known that the forces were
committing or about to commit such crimes.
It uses the stricter "should have known" standard of mens rea, instead of "had reason to know," as
defined by the ICTY Statute.
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.
As a reaction to the September 11, 2001 attacks, the U.S. government adopted several controversial
measures (e.g., asserting "unlawful combatant" status and "enhanced interrogation methods").
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 treatyunless 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.
War in Darfur
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.
The Sunday Times in March 2006, and the Sudan Tribune in March 2008, reported that the UN
Panel of Experts determined that Salah Gosh and Abdel Rahim Mohammed Hussein
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.

Zimbabwe
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. Otherwise, a Zimbabwean regime following
Mugabe's would have jurisdiction over his alleged crimes (in the absence of any amnesty law) as
would the numerous countries with universal jurisdiction over torture, including the UK.
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