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Published online by Cambridge University Press: 13 April 2022
A recent report by the Australian Defence Force arrived at a conclusion that further investigation was not warranted of commanders regarding their responsibility for failing to investigate suspicious behaviour of subordinates in Afghanistan, who were accused of violations of international humanitarian law. This troubling conclusion calls for a better analysis and understanding of command responsibility in international law and gaps in the law of command responsibility. This article identifies the conflicting precedents and scholarship regarding the law of command responsibility, which create uncertainty, and proposes a clarification of that law, with a special focus on the “reason to know” standard that triggers responsibility for failing to prevent or punish war crimes. It refutes the popular claim that commanders must act wilfully, and it rejects the common dichotomy between a commander who orders or otherwise directly participates in the war crimes of subordinates and one who unwittingly fails to prevent or punish such crimes. Using the empirical psychological literature, the article further explains how commanders can insidiously signal toleration of war crimes without giving direct orders. Finally, the article argues that international law, by absolving commanders who fail to properly train their subordinates to respect the law of armed conflict, misses a rare opportunity to deter war crimes, and offers some suggestions to fill this gap in the law.
The authors thank Haley Bjorn for her research assistance.
1 US Department of the Army, Army Regulation 600-20: Army Command Policy, 24 July 2020, para. 2-1(b).
2 Inspector-General of the Australian Defence Force Afghanistan Inquiry Report, 2020 (Brereton Report), available at: https://afghanistaninquiry.defence.gov.au/sites/default/files/2020-11/IGADF-Afghanistan-Inquiry-Public-Release-Version.pdf (all internet references were accessed in March 2022).
3 Ibid., p. 29, paras 18–19.
4 Ibid., p. 31, para. 30.
5 Ibid., p. 464, paras 336, 338–339; p. 490, paras 49–50.
6 Ibid., p. 41, para. 77.
7 Ibid., p. 31, para. 30.
8 Ibid., p. 325.
9 Ibid., p. 332, para. 15.
10 Ibid., p. 489, para. 42.
11 Rome Statute of the International Criminal Court, 2187 UNTS 3, 17 July 1998 (Rome Statute), Art. 28. Section 268.11 of the Australian Criminal Code Act 1995 (Cth), which is discussed in the Brereton Report, largely but not precisely replicates the command responsibility provision of the Rome Statute.
12 Rome Statute, Art. 28.
13 See ibid., Art. 25(3)(b).
14 See ibid., Art. 25(3)(c); see also e.g. International Criminal Tribunal for Rwanda (ICTR), Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Judgment (Trial Chamber), 2 September 1998, paras 693–694 (finding the mayor of Taba Commune in Rwanda guilty of aiding and abetting widespread and systematic rapes through his “words of encouragement”, which “sent a clear signal of official tolerance for sexual violence, without which these acts would not have taken place”).
15 See Rome Statute, Art. 25(d). Cf. Bonafé, Beatrice I., “Finding a Proper Role for Command Responsibility”, International Journal of Criminal Justice, Vol. 5, No. 3, 2007, p. 615Google Scholar; Meloni, Chantal, Command Responsibility in International Criminal Law, Springer, New York, 2010, pp. 216–233CrossRefGoogle Scholar (discussing the International Criminal Tribunal for the former Yugoslavia (ICTY) decisions imposing responsibility for aiding and abetting, conspiracy and joint criminal enterprise).
16 For detailed historical summaries of State practice, see Parks, William H., “Command Responsibility for War Crimes”, Military Law Review, Vol. 62, No. 1, 1973, pp. 2–16Google Scholar; Lippman, Matthew, “Humanitarian Law: The Uncertain Contours of Command Responsibility”, Tulsa Journal of Comparative and International Law, Vol. 9, No. 1, 2001Google Scholar.
17 Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties, Report Presented to the Preliminary Peace Conference, Versailles, 29 March 1919, reprinted in American Journal of International Law, Vol. 14, No. 1, 1920, p. 121.
18 W. H. Parks, above note 16, p. 20.
19 Several authors have argued that there was credible evidence that Yamashita was aware of the war crimes (see e.g. W. H. Parks, above note 16, pp. 22–38; O'Brien, William V., “The Law of War, Command Responsibility and Vietnam”, Georgetown Law Journal, Vol. 60, No. 3, 1972, pp. 625–627Google Scholar; Eckhardt, William G., “Command Criminal Responsibility: A Plea for a Workable Standard”, Military Law Review, Vol. 97, No. 1, 1982, p. 19Google Scholar), but the tribunal never in fact found direct evidence that Yamashita had knowledge. It held instead that the war crimes were so open, systematic and in propinquity to Yamashita's location that knowledge could reasonably be imputed to him on the facts. The tribunal put great emphasis on those duties of a commander that, if properly exercised, would have led to the discovery of the war crimes, but this emphasis is more consistent with a “reason to know” standard than with an actual knowledge standard.
20 US Military Commission, Manila, Trial of General Tomoyuki Yamashita, Case No. 21, Judgment, 4 February, 1946, in UN War Crimes Commission, Law Reports of Trials of War Criminals, Vol. 4, 1948, pp. 34–35.
21 Ilias Bantekas, Principles of Direct and Superior Responsibility in International Humanitarian Law, Juris, New York, 2002, pp. 113–114 (footnotes omitted). But see Mettraux, Guénaël, The Law of Command Responsibility, Oxford University Press, Oxford, 2009, pp. 217–218CrossRefGoogle Scholar (interpreting ICTY precedents, including the Čelebići case decision, to exonerate commanders for whom evidence of the war crimes of subordinates is readily available, but who take no steps whatsoever to acquire it).
22 See e.g. United Nations War Crimes Commission, United States v. von Leeb, in Law Reports of Trials of War Criminals, Vol. 9, 1949, p. 512. That said, some tribunals varied the phrasing of the duty of command responsibility. Thus, for example, in the Toyoda trial, the IMTFE characterized the commander's duty as one of “the exercise of ordinary diligence” or “use of reasonable diligence” to learn of the commission of crimes by subordinates. See IMTFE, United States v. Toyoda, in Records of the Trial of Accused War Criminal Soemu Toyoda, Tried by a Military Tribunal Appointed by the Supreme Commander of the Allied Powers, Tokyo, Japan, 1948–1949, National Archives and Records Administration, M1729, 7 rolls; Transcripts from the Case of the United States of America vs. Soemu Toyoda and Hiroshi Tamura, 1946–1948, M1661, 4 rolls (Toyoda Transcript).
23 Protocol Additional (I) to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, 1125 UNTS 3, 8 June 1977 (entered into force 7 December 1978) (AP I), Art. 86(2).
24 Anne-Marie Boisvert, Hélène Dumont and Martin Petrov, “Quand les crimes des sous-fifres engage la responsabilité de leur chef: La doctrine de la responsabilité du supérieur hiérarchique en droit pénal international”, Canadian Criminal Law Review, Vol. 9, No. 1, 2004, p. 117.
25 See ICTR, Prosecutor v. Bagilishema, Case No. ICTR-95-1A-A, Judgment (Appeals Chamber), 3 July 2002, para. 28.
26 Claude Pilloud, Yves Sandoz, Christophe Swinarski and Bruno Zimmermann (eds), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, ICRC, Geneva, 1987 (ICRC Commentary on APs), p. 1012.
27 It is thus even less justified to argue that a commander must have verified proof of a potential war crime by subordinates to incur liability for failing to prevent those crimes, and he must consciously choose not to act. See G. Mettraux, above note 21, pp. 208, 217, 223. Such an argument excuses both total neglect of supervision on the commander's part and his wilful blindness to indicators of possible war crimes, in contradiction to the plain words of AP I.
28 ICRC Commentary on APs, above note 26, p. 1014.
29 Updated Statute of the International Criminal Tribunal for the former Yugoslavia, September 2009, Art. 7(3).
30 ICTR, Bagilishema, above note 25, para. 28 (quoting ICTY, Prosecutor v. Čelebići [sic: Delalić], Case No. IT-96-21-A, Judgment (Appeals Chamber), 20 February 2001, para. 238).
31 See, generally, Elies van Sliedregt, “Command Responsibility at the ICTY: Three Generations of Case-Law and Still Ambiguity”, in Bert Swart, Alexander Zahar and Göran Sluiter (eds), The Legacy of the International Criminal Tribunal for the Former Yugoslavia, Oxford University Press, Oxford, 2011.
32 Rome Statute, Art. 28(a).
33 See below text accompanying note 62.
34 There was insufficient published debate at the Diplomatic Conference to explain why the original “should have known” language was amended to “had information which should have enabled them to conclude”. The United States had proposed altering the phrase to “should reasonably have known”, but one can only guess as to why the “information” language was added. See Howard S. Levie, “Command Responsibility”, U.S. Air Force Academy Journal of Legal Studies, Vol. 8, 1997–98, pp. 8–9.
35 Some writers have interpreted the “should have known” standard as somehow more relaxed than the “reason to know” standard. It appears that Guénaël Mettraux in particular has conflated “reason to know” with the widely accepted responsibility of a commander to supervise his or her subordinates in order to prevent war crimes, and has concluded that the former is unique to and a product of the latter, resulting in a “legal fiction” of knowledge. G. Mettraux, above note 21, pp. 77–78, 210–212. There is no support for such an interpretation. The confusion can be easily dispelled by pointing out that the commander should have known of a war crime when he or she had reason to know of it, and the commander has reason to know of a war crime when ordinary supervision of his or her subordinates produces information that would alert a reasonable person that subordinates planned to commit or had committed a war crime. No fictional imputation of actual knowledge to the commander is necessary.
36 The Statute of the Special Court for Sierra Leone, 2002, uses identical language in its Article 6.
37 Jean-Marie Henckaerts and Louise Doswald-Beck (eds), Customary International Humanitarian Law, Vol. 1: Rules, Cambridge University Press, Cambridge, 2005 (ICRC Customary Law Study), pp. 558–562, available at: https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1.
38 ICRC Commentary on APs, above note 26, pp. 1013–1014. This interpretation of the difference in meaning between the English and French versions misunderstands the significance of the English past conditional tense, but ultimately this misapprehension does not affect the Commentary's conclusion.
39 Martinez, Jenny S., “Understanding Mens Rea in Command Responsibility”, Journal of International Criminal Justice, Vol. 5, No. 3, 2007, pp. 653–654CrossRefGoogle Scholar.
40 ICTY, Prosecutor v. Delalić, Case No. IT-96-21-T, Judgment (Trial Chamber), 16 November 1998, para. 333.
41 The case of Prosecutor v Orić expanded the test to include a fourth limb: that “an act or omission incurring criminal responsibility according to Articles 2 to 5 and 7(1) of the [ICTY] Statute has been committed by other(s) than the accused (‘principal crime’)”. ICTY, Prosecutor v Orić, Case No. IT-03-68, Judgment (Trial Chamber), 30 June 2006, para. 294. See also Tilman Blumenstock and Wayde Pittman, “Prosecutor v. Naser Orić: The International Criminal Tribunal for the Former Yugoslavia Judgment of Srebrenica's Muslim Wartime Commander”, Leiden Journal of International Law, Vol. 19, No. 4, 2006.
42 Rome Statute, Art. 28.
43 See ICTY, Prosecutor v. Krnojelac, Case No. IT-97-25-A, Judgment (Appeals Chamber), 17 September 2003, para. 171, in International Legal Materials, Vol. 43, 2004, p. 330; accord ICTY, Orić, above note 41, para. 293 (“neglect of duty”).
44 See e.g. ICC, Prosecutor v. Bemba, Case No. ICC-01/05-01/08, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor against Jean-Pierre Bemba Gombo, 15 June 2009, para. 436.
45 See also ICTY, Prosecutor v Halilović, Case No. IT-01-48-T, Judgment (Trial Chamber), 16 November 2005, para. 54; ICTY, Prosecutor v Hadžihasanović, Case No. IT-01-47-T, Judgment (Trial Chamber), 15 March 2006, paras 74–75; ICTY, Krnojelac, above note 43, para. 171 (“It cannot be overemphasised that, where responsibility is concerned, an accused is not charged with the crimes of his subordinates but with his failure to carry out his duty as a superior to exercise control”).
46 See e.g. ICTY, Prosecutor v. Delalić, Case No. IT-96-21-A, Judgment (Appeals Chamber), 20 February 2001.
47 AP I, Art. 87.
48 Rome Statute, Art. 28.
49 ICTY, Prosecutor v. Halilović, Case No. IT-01-48-A, Judgement (Appeals Chamber), 16 October 2007, para. 59.
50 ICTY, Delalić, above note 46, paras 193, 197.
51 ICC, Prosecutor v. Bemba, Case No. ICC-01/05-01/08-3343, Judgment (Trial Chamber III), 21 March 2016, para. 180.
52 The ability to terminate employment was considered critical in the Musema case at the ICTR for determining de facto and de jure control. See ICTR, Prosecutor v. Musema, Case No. ICTR-96-13-T, Judgment (Trial Chamber), 27 January 2000, para. 880.
53 ICC, Bemba, above note 51, para. 188.
54 See e.g. US District Court, Southern District of Florida, Romagoza Arce v. Guillermo Garcia, Case No. 99-8364-CIV, Jury Instructions, 19 July 2002, p. 8 (unrep.), available at: https://cja.org/wp-content/uploads/downloads/Romagoza_Jury_Instructions_242.pdf.
55 See W. G. Eckhardt, above note 19, p. 4; Rome Statute, Art. 25(3).
56 See Williamson, Jamie Allan, “Some Considerations on Command Responsibility and Criminal Liability”, International Review of the Red Cross, Vol. 90, No. 870, 2008, p. 308Google Scholar.
57 U.S. Military Tribunal, Nuremberg, Trial of Wilhelm List and Others, Case No. 47, Judgment, 19 February 1948, p. 71, in Trials of War Criminals before the Nuernberg Military Tribunals under Control Council Law No. 10, Vol. 11, US Government Printing Office, Washington, DC, 1950, pp. 1271–1272.
58 Ibid., p. 1271.
59 British Military Court, Wuppertal, Germany, Trial of Major Karl Rauer and Six Others, Case No. 23, Judgment, 18 February 1946, in United Nations War Crimes Commission, Law Reports of Trials of War Criminals, Vol. 4, Her Majesty's Stationery Office, London, 1948, pp. 113–117.
60 IMTFE, United States of America v. Araki and Others, Judgment, 4 November 1948, p. 48,445.
61 Ibid.
62 Toyoda Transcript, above note 22, Vol. 19, p. 5006.
63 Nuremberg Military Tribunal, United States of America v. von Leeb et al., Case No. 72, Judgment, 28 October 1948 (High Command), in Trials of War Criminals before the Nuernberg Military Tribunals under Control Council Law No. 10, Vol. 11, US Government Printing Office, Washington, DC, 1950, pp. 543–544 (emphasis added).
64 ICTR, Bagilishema, above note 25, para. 28, quoting ICTY, Čelebići, above note 30, para. 238.
65 ICTY, Delalić, above note 46, para. 238. The quoted language refutes those who reject a commander's legal duty to acquire knowledge altogether and claim instead that the commander must have positive knowledge of an incipient or past crime. See G. Mettraux, above note 21, pp. 76–77, 209; B. I. Bonafé, above note 15, pp. 606–607; A.-M. Boisvert, H. Dumont and M. Petrov, above note 24, pp. 126–127.
66 ICTY, Prosecutor v. Blaskić, Case No. IT-95-14-T, Judgment (Trial Chamber), 3 March 2000, para. 332.
67 Ibid., para. 307 (quoting Final Report of the Commission of Experts Established pursuant to Security Council Resolution 780 (1992), UN Doc. S/1994/674, 27 May 1994, Annex, para. 58).
68 ICTY, Delalić, above note 46, paras 388–393.
69 Ibid.; accord ICTY, Prosecutor v. Blaskić, Case No. IT-95-14-A, Judgment (Appeals Chamber), 29 July 2004, para. 62.
70 ICTY, Blaskić, above note 69, para. 406. As noted earlier, civilian commanders are held to a different standard.
71 US Department of Defense, Law of War Manual, December 2016, p. 1141, § 18.23.3.2.
72 US military jurisprudence under the Uniform Code of Military Justice similarly frequently ignores the “reason to know” standard and requires “actual knowledge” of the subordinates’ intentions to commit war crimes for the criminal conviction of the commanding officer. See e.g. United States v. Medina, CM 427162, 1971; United States v. Flaherty, 12 CMR 466, 1953, p. 469. For criticism of this approach as incompatible with international law (and, indeed, with US military law at the time and since), see Joseph Goldstein et al., The My Lai Massacre and Its Cover-Up: Beyond the Reach of Law?, Free Press, New York, 1976; W. G. Eckhardt, above note 19, pp. 11–22; Clark, Roger S., “Medina: An Essay on the Principles of Criminal Liability for Homicide”, Rutgers-Camden Law Journal, Vol. 5, No. 1, 1973Google Scholar; Smidt, Michael L., “Yamashita, Medina, and Beyond: Command Responsibility in Contemporary Military Operations”, Military Law Review, Vol. 164, 2000, pp. 211–234Google Scholar; Mitchell, Andrew D., “Failure to Halt, Prevent or Punish: The Doctrine of Command Responsibility for War Crimes”, Sydney Law Review, Vol. 22, No. 3, 2000, pp. 396–397Google Scholar.
73 Criminal Code Act 1995, No. 12, as amended up to 20 April 2019, § 268.115.
74 UK Ministry of Defence, The Manual of the Law of Armed Conflict, 2004, §§ 16.36, 16.36.6. With uncharacteristic optimism, the Manual also asserts that, despite the various formulations of command responsibility, “there is general agreement on the nature of command and the degree of knowledge required” (§ 16.36.2).
75 International Criminal Court Act 2001, § 65(2)(3), Chap. 17, 11 May 2001.
76 Rome Statute, Art. 28(a)(i).
77 Ibid., Art. 28(b)(i–ii). See generally Maria Nybondas, Command Responsibility and Its Applicability to Civilian Superiors, TMC Asser Press, The Hague, 2010.
78 Loi No. 2010-930, 9 August 2010, Art. 7, codified in Code Pénal, Art. 462-7.
79 Gesetz zur Einführung des Völkerstrafgesetzbuches, 26 June 2002, §§ 4, 13, in Bundesgesetzblatt, Part 1, No. 42, 2002, p. 2254 (authors’ translation).
80 ICTY, Delalić, above note 46, para. 155.
81 See Yoram Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict, 2nd ed., Cambridge University Press, Cambridge, 2010, p. 275; Bing Bing Jia, “The Doctrine of Command Responsibility: Current Problems”, Yearbook of International Humanitarian Law, Vol. 3, 2000, pp. 159–160; Diane A. Desierto, “The Contours of Command Responsibility: Philippine Incorporation and Customary Evolution”, Asia-Pacific Yearbook of International Humanitarian Law, Vol. 2, 2006, pp. 227–228.
82 Cf. Daryl A. Mundis, “Crimes of the Commander: Superior Responsibility under Article 7(3) of the ICTY Statute”, in Gideon Boas and William A. Schabas (eds), International Criminal Law Developments in the Case Law of the ICTY, Martinus Nijhoff, Leiden, 2003, pp. 239, 262.
83 See I. Bantekas, above note 21, pp. 116–117. But see G. Mettraux, above note 21, p. 201 (asserting that a commander's awareness of “criminal propensities among some subordinates” triggers no legal duty of supervision to prevent possible war crimes).
84 ICTY, Delalić, above note 40, para. 394. Some scholars similarly despair of a general rule on the standard of conduct that should be required of commanders to address possible war crimes by subordinates: see e.g. J. A. Williamson, above note 56, p. 310.
85 ICTY, Orić, above note 41, para. 329; ICTY, Čelebići, above note 84, para. 395; accord ICC, Prosecutor v. Bemba, Case No. ICC-01/05-01/08 A, Judgment (Appeals Chamber), 8 June 2018, para. 167.
86 ICC, Prosecutor v. Bemba, Case No. ICC-01/05-01/08, Decision (Appeals Chamber), 8 June 2018, para. 170.
87 ICTY, Prosecutor v. Hadžihasanović, Case No. IT-01-47-A, Judgment (Appeals Chamber), 22 April 2008, paras 30–31.
88 See Sepinwall, Amy J., “Failures to Punish: Command Responsibility in Domestic and International Law”, Michigan Journal of International Law, Vol. 30, No. 1, 2009, pp. 294–295Google Scholar.
89 ICTY, Krnojelac, above note 43, para. 171; accord ICTY, Orić, above note 41, para. 293 (“neglect of duty”).
90 See Damaška, Mirjan, “The Shadow Side of Command Responsibility”, American Journal of International Law, Vol. 49, No. 3, 2001, p. 467Google Scholar. This was also the position of Judge Shahabudeen in his separate opinion in ICTY, Prosecutor v. Hadzihasanović, Case No. IT-01-47-AR72, Judgment (Appeals Chamber), 16 July 2003, para. 32.
91 See e.g. Rome Statute, Art. 28; ICTY, Halilović, above note 49, para. 53; International Criminal Court Act 2001, § 65; Military Commission Act of 2009, Title XVIII, § 950q, HR 2647; Final Report of the Commission of Experts, UN Doc. S/1994/674, 27 May 1994.
92 As Bing Bing Jia has observed, the language of Rome Statute Article 28 conditions the responsibility of the commander for subordinate war crimes on a causative connection between the failure to properly control the subordinate and the commission of the war crime: B. B. Jia, above note 81, p. 15. A negligent commander who could not have prevented a subordinate's war crime if he or she had (counterfactually) tried to prevent it, therefore, cannot be held criminally liable under the Statute. In contrast, causation was not viewed as obligatory in the jurisprudence of the ICTY and ICTR: see ICTY, Blaškić, above note 69, paras 73 ff. The Trial Chamber in the Čelebići case posited that a causal relationship between the commander's acts and the subordinate's war crime “may be considered to be inherent” in command responsibility, but it also admitted finding no support for this proposition in customary international law. ICTY, Delalić, above note 40, paras 398–400.
93 ICTY, Blaškić, above note 69, para. 83.
94 ICTY, Orić, above note 41, para. 338.
95 Cf. Robinson, Darryl, “How Command Responsibility Got So Complicated: A Culpability Contradiction, Its Obfuscation, and a Simple Solution”, Melbourne Journal of International Law, Vol. 13, No. 1, 2000, pp. 16–17Google Scholar.
96 See e.g. W. G. Eckhardt, above note 19; Lippman, Matthew, “Humanitarian Law: The Uncertain Contours of Command Responsibility”, Tulsa Journal of Comparative and International Law, Vol. 9, No. 1, 2001Google Scholar; O'Reilly, Arthur Thomas, “A Call to Realign Doctrine with Principles”, American University International Law Review, Vol. 20, No. 1, 2004Google Scholar; B. I. Bonafe, above note 15; A.-M. Boisvert, H. Dumont and M. Petrov, above note 24, p. 122; A. D. Mitchell, above note 72, p. 402.
97 See e.g. Antonio Cassese, International Criminal Law, 3rd ed., Oxford University Press, Oxford, 2013; Steer, Cassandra, Translating Guilt: Identifying Leadership Liability for Mass Atrocity Crimes, TMC Asser Press, The Hague, 2017, p. 264CrossRefGoogle Scholar; Bantekas, Ilias, “The Contemporary Law of Superior Responsibility”, American Journal of International Law, Vol. 39, No. 3, 1999, p. 577Google Scholar; B. B. Jia, above note 81, pp. 32–33; Trechsel, Stefan, “Command Responsibility as a Separate Offense”, Berkeley Journal of International Law Publicist, Vol. 3, 2009, pp. 29–30, 34–35Google Scholar; cf. G. Mettraux, above note 21, pp. 38–41, 45, 223 (“To be liable, the commander must, therefore, have been aware of the criminal character of his [own] action and, with that awareness, he must have consciously decided not to fulfil his obligations”).
98 See e.g. M. Damaška, above note 90, passim; G. Mettraux, above note 21, pp. 86, 221; C. Meloni, above note 101, pp. 633–636; O'Reilly, Arthur Thomas, “Command Responsibility: A Call to Realign the Doctrine with Principles of Individual Accountability and Retributive Justice”, Gonzaga Law Review, Vol. 40, No. 1, 2004–05Google Scholar; see also A. J. Sepinwall, above note 88, pp. 255–256.
99 See e.g. ICTR, Akayesu, above note 14, para. 78; ICTY, Prosecutor v. Naletilić, Case No. IT-98-34-A, Judgment (Appeals Chamber), 3 May 2006, para. 114.
100 See e.g. M. Damaška, above note 90, pp. 463–467; D. Robinson, above note 95, pp. 30–31.
101 See e.g. Nuremberg Military Tribunal, High Command, above note 63, pp. 543–544; G. Mettraux, above note 21, p. 42. See also Chantal Meloni, “Command Responsibility”, Journal of International Criminal Justice, Vol. 5, No. 3, 2007, pp. 621–623 (noting that the ICTY interpreted the post-Second World War legislation on command responsibility as a form of accomplice liability, and correctly noting that the Tokyo judgment took a different view).
102 M. Damaška, above note 90, pp. 468–469 (“Used as a vehicle for vicarious liability, approval of a transgression is alien to the tenets of modern criminal law”).
103 Many jurisdictions recognize general intent crimes characterized by criminal negligence or recklessness, such as reckless arson or driving under the influence of alcohol. Some also recognize strict liability crimes, such as statutory rape. See e.g. Danish Penal Code, No. 871, 2014, § 216, available at: www.retsinformation.dk/eli/lta/2014/871#Kap24; Penal Code of Japan, 2017, Art. 177, available at: www.japaneselawtranslation.go.jp/law/detail/?id=3581&vm=04&re=01; UK Sexual Offences Act 2003, c. 42, § 5.
104 On the pitfalls of trying to fit international criminal law into the Procrustean bed of municipal criminal law, see generally Drumbl, Mark A., Atrocity, Punishment and International Law, Cambridge University Press, Cambridge, 2007, pp. 5–9, 38–39CrossRefGoogle Scholar; Osiel, Mark, “The Banality of Good: Aligning Incentives against Mass Atrocity”, Columbia Law Review, Vol. 105, No. 6, 2005, pp. 1753, 1768Google Scholar.
105 Cf. Gerhard Werle and Florian Jessberger, Principles of International Criminal Law, 4th ed., Oxford University Press, Oxford, 2020. Surprisingly, the ICTR Trial Chamber claimed without support that command responsibility did derive from the individual criminal responsibility in dicta in the Akayesu judgment. ICTR, Akayesu, above note 14, para. 78.
106 See Major Trenton W. Powell, “Command Responsibility: How the International Criminal Court's Jean-Pierre Bemba Gombo Conviction Exposes the Uniform Code of Military Justice”, Military Law Review, Vol. 225, 2017, pp. 837–838.
107 See e.g. Defence Force Discipline Act 1982, No. 152, C2019C00107, Compilation No. 33, 2 March 2019, § 27, available at: www.legislation.gov.au/Details/C2019C00107 (Australia); Uniform Code of Military Justice, 2021, Art. 90, 10 USC § 890 (United States); Décret No. 2005-796 relatif à la discipline générale militaire, 15 July 2005, Arts 5(1), 7, available at: www.legifrance.gouv.fr/jorf/id/JORFTEXT000000630665 (France); Código de Justicia Militar, 16 July 1951, Art. 667, Sanción Ley 14029, available at: http://servicios.infoleg.gob.ar/infolegInternet/anexos/105000-109999/105438/texact.htm#49 (Argentina). See, generally, Mark J. Osiel, Obeying Orders: Atrocity, Military Discipline, and the Law of War, Routledge, London, 2017, p. 241 fn. 21.
108 See e.g. Uniform Code of Military Justice, 2021, Art. 90, 10 USC § 890 (United States); Code de Justice Militaire (Nouveau), 2021, Arts L323-6 to L323-8 (France); Army Act, 1995, §§ 34, 36, 71, 85 (United Kingdom); Military Justice Law 5715, 1955, §§ 122–124, 133 (Israel).
109 See e.g. US Department of the Army, Field Manual 22-100: Military Leadership, 1965, paras 19, 25; US Department of the Army, Field Manual 100-5: Operation of Army Forces in the Field, 1968, paras 3–7.
110 See e.g. US Department of the Army, Field Manual 5-19: Composite Risk Management, 2006, paras 1-0, 1–17, 1–18.
111 See Barnao, Charlie, “Military Training: Group Culture, Total Institution, and Torture”, Italian Sociological Review, Vol. 9, No. 2, 2019, p. 295Google Scholar.
112 This dynamic has been studied extensively by social and clinical psychologists. See e.g. Newman, Leonard S. and Erber, Ralph, Understanding Genocide: The Social Psychology of the Holocaust, Oxford University Press, New York, 2002CrossRefGoogle Scholar; Dutton, Donald G., The Psychology of Genocide, Massacres, and Extreme Violence: Why “Normal” People Come to Commit Atrocities, Praeger, Westport, CT, 2007Google Scholar; Roth, Paul A., “Social Psychology and Genocide”, in Bloxham, Donald and Moses, A. Dirk (eds), The Oxford Handbook of Genocide Studies, Oxford University Press, Oxford, 2010, p. 198Google Scholar.
113 D. Robinson, above note 95, p. 11 (footnotes omitted).
114 This is the case a fortiori in the context of collective war crimes, such as genocide. Cf. A.-M. Boisvert, H. Dumont and M. Petrov, above note 24, p. 122 (observing in the context of collective crimes: “Le droit pénal classique des pays occidentaux, centré sur la répression d'un acte précis en fonction d'une certaine conception philosophique de l’être humain, convient mal en effet à la répression de la criminalité de groupe”).
115 W. G. Eckhardt, above note 19, p. 4.
116 Kenneth A. Howard, “Command Responsibility for War Crimes”, Journal of Public Law, Vol. 21, No. 1, 1972, p. 21.
117 See J. S. Martinez, above note 39, p. 662. Cf. Committee of the Whole: Summary Record of the 1st Meeting, 16 June 1998, UN Doc. A/CONF.183/C.1/SR.1, 20 November 1998, paras 67 ff. (statements of the United States justifying the ICC regime of separate command responsibility).
118 Cf. J. S. Martinez, above note 39, p. 662.
119 Cf. ibid., p. 663.
120 See e.g. G. Mettraux, above note 21, p. 73; ICRC Commentary on APs, above note 26, p. 1012.
121 See e.g. M. Damaška, above note 90, p. 480.
122 See Y. Dinstein, above note 81, p. 271.
123 See e.g. Hansen, Victor, “Creating and Improving Legal Incentives for Law of War Compliance”, New England Law Review, Vol. 42, No. 2, 2008, pp. 248–258Google Scholar.
124 See, generally, Wish, Myron and Kaplan, Susan J., “Toward an Implicit Theory of Interpersonal Communication”, Sociometry, Vol. 40, No. 3, 1977CrossRefGoogle Scholar; Miles L. Patterson, “Strategic Functions of Nonverbal Exchange”, in John A. Daly and Mohn M. Wiemann (eds), Strategic Interpersonal Communication, Erlbaum, Hillsdale, NJ, 1994, p. 273.
125 US S. Doc. 213, 57th Cong., 2nd Sess., p. 5. The background to this conviction can be reviewed in John Bassett Moore, A Digest of International Law, Vol. 7, US Government Printing Office, Washington, DC, 1906, p. 187.
126 See, generally, M. Wish and S. J. Kaplan, above note 124; Yus, Francisco, “Misunderstandings and Explicit/Implicit Communication”, Pragmatics, Vol. 9, No. 4, 1999, p. 487Google Scholar; Jan Hoogervorst, Henk van de Flier and Paul L. Koopman, “Implicit Communication in Organisations”, Journal of Managerial Psychology, Vol. 19, No. 3, 2004.
127 See Ian Kershaw, Hitler 1936–1945: Nemesis, Penguin Press, London, 2000, pp. 355–389.
128 See Richardot, Sophie, “‘You Know what to Do with Them’: The Formulation of Orders and Engagement in War Crimes”, Aggression and Violent Behavior, Vol. 19, No. 2, 2014, p. 87CrossRefGoogle Scholar.
129 See A. J. Sepinwall, above note 88, p. 291; see also Melissa Epstein Mills, “Brass-Collar Crime: A Corporate Model for Command Responsibility”, Willamette Law Review, Vol. 47, No. 1, 2010, pp. 39–50 (description of command failures at Haditha and Abu Ghraib). The command responsibility doctrine was not invoked by the US courts martial in either the Haditha or Abu Ghraib incidents. Ibid., p. 26.
130 See S. Richardot, above note 128, p. 86; Jerrold M. Post and Lara K. Panis, “Crimes of Obedience: ‘Groupthink’ at Abu Ghraib”, International Journal of Group Psychotherapy, Vol. 61, No. 1, 2011, p. 54.
131 See M. Cherif Bassiouni, “The Institutionalization of Torture under the Bush Administration”, Case Western Reserve Journal of International Law, Vol. 37, No. 2, 2006, p. 390; Christopher Kutz, “The Lawyers Know Sin: Complicity in Torture”, in Karen J. Greenberg (ed.), The Torture Debate in America, Cambridge University Press, Cambridge, 2005, pp. 242–243.
132 See Gregory S. Gordon, Atrocity Speech Law: Foundation, Fragmentation, Fruition, Oxford University Press, New York, 2017, p. 289; S. Richardot, above note 128, pp. 87–88; J. M. Post and L. K. Panis, above note 130, pp. 62–64.
133 See G. S. Gordon, above note 132, p. 287.
134 J. M. Post and L. K. Panis, above note 130, pp. 62–64.
135 In Stanley Milgram's experiments on obedience to authority, one subject shocked a person to death without direct instructions from the experimenter, seemingly based on the belief that the experimenter wished the shocks to continue when the “learner” resisted answering the experimenter's questions. See Stephen Gibson, “Obedience without Orders: Expanding Social Psychology's Conception of ‘Obedience’”, British Journal of Social Psychology, Vol. 58, No. 1, 2019, pp. 241, 250.
136 See generally Stanley Milgram, Obedience to Authority: An Experimental View, Harper, New York, 1974 (describing a series of experiments showing that a large majority of persons will obey instructions of apparent authorities to torture and ultimately kill another person).
137 See Emilie A. Caspar et al., “The Effect of Military Training on the Sense of Agency and Outcome Processing”, Nature Communications, 31 August 2020, available at: https://doi.org/10.1038/s41467-020-18152-x; Silvia da Costa et al., “Obedience to Authority, Cognitive and Affective Responses and Leadership Style in relation to a Non-Normative Order: The Milgram Experiment”, Revista de Psicología, Vol. 39, No. 2, 2021.
138 See, generally, Asch, Solomon E., “Opinions and Social Pressure”, Scientific American, Vol. 193, No. 5, 1955CrossRefGoogle Scholar; Larsen, Knud S., “The Asch Conformity Experiment: Replication and Transhistorical Comparisons”, Journal of Social Behavior and Personality, Vol. 5, No. 4, 1990Google Scholar.
139 Pascal Vennesson, “Cohesion and Misconduct: The French Army and the Mahé Affair”, in Anthony King (ed.), Frontline: Combat and Cohesion in the Twenty-First Century, Oxford University Press, Oxford, 2015, p. 235.
140 There are numerous examples of deliberate criminal activities committed by military personnel, perceived as being part of a broader mission: see Rowe, Peter, “Military Misconduct during International Armed Operations: ‘Bad Apples’ or Systemic Failure?”, Journal of Conflict and Security Law, Vol. 13, No. 2, 2008CrossRefGoogle Scholar; Frederick, Jim, Black Hearts: One Platoon's Descent into Madness in Iraq's Triangle of Death, Harmony Books, New York, 2010Google Scholar; Williams, A. T., A Very British Killing: The Death of Baha Mousa, Jonathan Cape, London, 2012Google Scholar.
141 P. Vennesson, above note 139, p. 242. See also Michael Walzer, Arguing about War, Yale University Press, New Haven, CT, 2006, p. 31, who writes that systemic criminal acts done pursuant to military objectives can be considered as “purposive crimes” rather than “crimes of indiscipline”.
142 Ibid., pp. 242–243. See also P. Rowe, above note 140, pp. 170–182.
143 Brereton Report, above 2, p. 31, para. 27; p. 33, para. 34.
144 Ibid., p. 34, para. 40.
145 See A. J. Sepinwall, above note 88, p. 289.
146 See, generally, Irving L. Janis, Groupthink: Psychological Studies of Policy Decisions and Fiascoes, Houghton Mifflin, Boston, MA, 1982, pp. 5–9.
147 Ibid., p. 60.
148 See e.g. J. M. Post and L. K. Panis, above note 130, p. 61 (context of US torture of detainees at Abu Ghraib military prison); D. G. Dutton, above note 112, pp. 102–103, 111.
149 A. J. Sepinwall, above note 88, p. 290.
150 Brereton Report, above note 2, p. 326.
151 Arthur Conan Doyle, “The Adventure of Silver Blaze”, Strand Magazine, London, 1892.
152 K. A. Howard, above note 116, p. 17. See also A. J. Sepinwall, above note 88, p. 289. In his treatise on international criminal law, Judge Cassese insightfully observes that a commander's wilful failure to prevent a subordinate's war crime need not involve positive action; “it may happen that the commander by his inaction aimed in fact at furthering the crime of the subordinate”. A. Cassese, above note 97, p. 244. Similarly, he notes that it can be argued that failure to exercise the duty of supervision may “in some way” contribute to the war crime. Ibid., p. 245.
153 ICTY, Blaškić, above note 66, p. 789.
154 ICTY, Prosecutor v. Aleksovski, Case No. IT-95-14/1, Judgment (Trial Chamber), 25 June 1999, para. 65.
155 See e.g. Brereton Report, above note 2, p. 325.
156 Peter Rowe, “Military Misconduct during International Armed Operations”, Journal of Conflict and Security Law, Vol. 13, No. 1, 2008, p. 179. This very sentiment was echoed in the aftermath of the My Lai massacre by US forces in Vietnam. During the trial of Lieutenant Calley, his superior Captain Medina gave four reasons as to why he did not report the massacre to his superiors: “The four reasons that I did not report the shooting of any innocent or noncombatants at the village of My Lai four and the reason that I suppressed the information from the brigade commander when I was questioned are as follows: Number one, I realized that instead of going in and doing combat with an armed enemy, the intelligence information was faulty and we found nothing but women and children in the village of My Lai four, and, seeing what had happened, I realized exactly the disgrace that was being brought upon the Army uniform that I am very proud to wear. Number two, I also realized the repercussions that it would have against the United States of America. Three, my family, and number four, lastly, myself, sir.” See “Captain Ernest Medina, Witness of the Court”, Famous Trials, available at: https://famous-trials.com/mylaicourts/1628-myl-medin.
157 M. Damaška, above note 90, p. 467.
158 See e.g. M. Damaška, above note 90; D. Robinson, above note 95, pp. 18–23.
159 See A. J. Sepinwall, above note 88, pp. 298–302. Darryl Robinson has argued that the municipal criminal law concept of “accessory after the fact” could not justify holding commanders responsible for failing to punish the war crimes of subordinates: D. Robinson, above note 95, p. 48. While technically correct, this argument is irrelevant. As discussed, municipal criminal law analogies have no application in international criminal law due to the very different contexts in which the respective legal systems operate.
160 See e.g. ICTY, Delalić, above note 46, para. 226; G. Mettraux, above note 21, pp. 248 (arguing that a commander's failure to adopt general measures to prevent war crimes is not relevant to command responsibility), 225 (arguing that, if an officer receives “contradictory reports about allegations of crimes” of subordinates, the officer is free to ignore the more disturbing report and rely on the “optimistic and calming report” without investigation, without incurring command responsibility if the reassuring reports turn out to be false). See also Amy Sepinwall's discussion of how the United States repeatedly declined to prosecute officers who intentionally or recklessly ignored war crimes by subordinates in Iraq: A. J. Sepinwall, above note 88, pp. 258–260, 275–279, 284–285.
161 ICTY, Delalić, above note 46, para. 226 (emphasis in original); accord ICTY, Blaskić, above note 69, para. 62; ICTR, Bagilishema, above note 25, para. 42. In Kordić, the Trial Chamber interpreted the Čelebići appellate judgment to excuse commanders from a general duty of supervision of their subordinates. ICTY, Prosecutor v. Kordić, Case No. IT-95-14/2-T, Judgment (Trial Chamber), 26 February 2001, paras 432–437.
162 ICTR, Bagilishema, above note 25, paras 35–37.
163 ICTY, Halilović, above note 45, para. 71.
164 S. Trechsel, above note 97, p. 29.
165 See e.g. ICTY, Blaskić, above note 69, para. 332; G. Mettraux, above note 21, p. 45.
166 See e.g. S. Trechsel, above note 97 p. 32; G. Mettraux, above note 21, p. 225; A.-M. Boisvert, H. Dumont and M. Petrov, above note 24, p. 127.
167 Nuremberg Military Tribunal, High Command, above note 63, pp. 543–544.
168 Sigrid Redse Johansen, The Military Commander's Necessity: The Law of Armed Conflict and Its Limits, Cambridge University Press, Cambridge, 2019, p. 78.
169 Douglas MacArthur, Reminiscences, Da Capo Press, Burlington, VT, 1964, p. 298.
170 ICTY, Prosecutor v. Blaskić, Case No. IT-95-14-T, Decision (Trial Chamber), 3 March 2000, paras 329–332.
171 See I. Bantekas, above note 21, pp. 67–70; cf. W. G. Eckhardt, above note 19, pp. 22–24.
172 An informative case arose following the Canadian intervention in Somalia during the mid-1990s. In Morneault v. Canada (2000 CarswellNat 980), the Appeals Division of the Canadian Federal Court reviewed the decision of a Commission of Inquiry to discipline a lieutenant colonel whose subordinate soldiers beat to death a detainee and shot civilians during a deployment in Somalia. Although another commander had ordered his subordinates to “abuse” any Somali intruders into the base, the Commission did not find that Morneault had specifically ordered or participated in war crimes. It instead concluded that he had failed in his duty as a commander to train and supervise his subordinates, and to ensure that his subordinates knew their obligations under the international law of armed conflict in general and with regard to detainees in particular. See Dishonoured Legacy: Lessons of the Somalia Affair: Report of the Commission of Inquiry into the Deployment of Canadian Forces to Somalia, Vol. 4, 1997, pp. 1029–1032. See also L. C. Green, “Command Responsibility in International Humanitarian Law”, Transnational Law & Contemporary Problems, Vol. 5, 1995, pp. 370–371.
173 It is thus incorrect to argue that because any responsibility a commander may have to train troops is subject to municipal military law and policies, the nature of that training or other preventive measures, or the absence altogether of training, is irrelevant to the commander's responsibility for the war crimes of subordinates: see G. Mettraux, above note 21, pp. 69–70, 248. The ICC arrived at the opposite conclusion, finding a commander responsible for failing to properly train his troops and disseminate a code of conduct prohibiting pillage: ICC, Prosecutor v. Bemba, Case No. ICC-01/05-01/08, Judgment, 21 March 2016, paras 736–737.
174 M. E. Mills, above note 129, pp. 25–26.
175 Superior Military Government Court of the French Occupation Zone in Germany, Case of Hermann Roechling and Others, Judgment, 25 January 1949, reprinted in Trials of the War Criminals Before the Nuremberg Military Tribunals under Control Council Law No. 10, Vol. 14, 1949, pp. 1097, 1106.
176 Rome Statute, Art. 28.
177 Crimes against Humanity and War Crimes Act, SC 2000, c. 24, para. 7. “Criminal negligence”, it should be noted, is a higher standard under Canadian law than simple negligence; it requires wanton or reckless disregard for a legal duty. See Canadian Criminal Code, RSC 1985, c. C-46, § 219.
178 This is how Parks interprets the Muto and Yamashita holdings: see W. H. Parks, above note 16, pp. 89–90. We disagree. We interpret these cases as drawing the inference of knowledge under the specific facts of the cases, involving war crimes so systematic, widespread and repeated that an inference of knowledge was properly drawn in the cases at bar.
179 In May 2019, Trump pardoned several officers and a security contractor who had either been convicted of murdering civilians and unarmed prisoners of war or had been accused of such crimes and were awaiting trial. He also restored the full rank and pay of a Navy SEAL who had committed war crimes. See Leo Shane III, “Trump Grants Clemency to Troops in Three Controversial War Crimes Cases”, Military Times, 22 November 2019; Dan Maurer, “Should There Be a War Crime Pardon Exception?”, Lawfare.com, 3 December 2019, available at: www.lawfareblog.com/should-there-be-war-crime-pardon-exception. In 2020, he also pardoned private military contractors who murdered civilians and children in Iraq. See “Trump Grants Clemency to Former Blackwater Contractors Convicted of War Crimes in Iraq and Associates Prosecuted Following the Mueller Investigation”, American Journal of International Law, Vol. 115, No. 2, 2021; Leo Shane III, “Trump Pardons Former Rep. Duncan Hunter and Four Iraq War Vets Convicted in Blackwater Shooting”, Military Times, 22 December 2020. High-ranking Pentagon officers and veteran soldiers alike expressed dismay about and opposition to the pardons and clemencies for undermining military discipline and the LOAC. See David S. Cloud, “Senior Military Officers Rebel against Trump Plan to Pardon Troops Accused of War Crimes”, Los Angeles Times, 22 May 2019, available at: www.latimes.com/politics/la-na-pol-pentagon-oppose-trump-pardon-murder-warcrimes-20190522-story.html; Alex Johnson, “Gallagher Case Reveals Trump's Ignorance of the Military, Fired Navy Secretary Writes”, NBC News, 27 November 2019, available at: www.nbcnews.com/news/military/gallagher-case-reveals-trump-s-ignorance-military-fired-navy-secretary-n1092931. One jurist has made a strong case for Trump's status as a war criminal based on command responsibility. See Gabor Rona, “Can a Pardon Be a War Crime? When Pardons Themselves Violate the Laws of War”, Just Security, 25 May 2019 and 24 December 2020, available at: www.justsecurity.org/64288/can-a-pardon-be-a-war-crime-when-pardons-themselves-violate-the-laws-of-war/.
180 See Dunnaback, Jeremy, “Command Responsibility: A Small-Unit Leader's Perspective”, Northwestern University Law Review, Vol. 108, No. 4, 2014, pp. 1411, 1419Google Scholar.
181 See K. A. Howard, above note 116, p. 21; cf. J. Dunnaback, above note 180, p. 1420 (“There is always some level of risk that war crimes are about to be committed”).
182 W. H. Parks, above note 16, p. 103.
183 See e.g. M. Damaška, above note 90, p. 474; J. Dunnaback, above note 180, p. 1414.
184 See e.g. Warner, Christopher H. et al. , “Effectiveness of Battlefield-Ethics Training during Combat Deployment: A Programme Assessment”, The Lancet, Vol. 378, No. 9794, 2011CrossRefGoogle Scholar.
185 See G. Mettraux, above note 21, p. 211. Mettraux also argues that obligating commanders to fulfil their military duties of supervision “has the practical effect of shifting the burden of proof” to the defendant. However, this claim assumes that only evidence of the commander's actual knowledge of war crimes is relevant. As noted, the commander is factually and morally responsible for a broader range of attitudes and behaviour by subordinates.
186 Cf. M. Osiel, above note 107, p. 193.
187 Nuremberg Military Tribunal, High Command, above note 63, p. 558.
188 Ibid.
189 See C. Meloni, above note 101, p. 636.
190 K. A. Howard, above note 116, p. 20.