What is command responsibility ?

Topics: Laws of war, War crime, Criminal law Pages: 12 (2873 words) Published: December 2, 2014
What is command responsibility or superior responsibility? It is the doctrine of hierarchical accountability in cases of war crimes. It is also called the Yamashita principle. [Yamashita was the Commanding General of 14th Army Group between 9 Oct 44 - 2 Sep 45 and Military Governor of Philippines. He assumed post 11 days before the allied forces took control of Philippines. Under his command, his troops committed acts of violence, cruelty and homicide inflicted on the civilian population resulting in over 25,000 non-combatant men, women and children being killed. There was widespread destruction which included religious monuments and places of historical importance he was charged with failure to discharge his duty as commander and control the acts of the subordinates under his command.] The concept of superior responsibility was first included in the second Hague convention of 1907 and first applied by the German Supreme court after World War 1. In the Additional Protocol 1 to the Geneva Conventions of 1949 it is stated: Article 87 Duty of commanders

“1. The High Contracting Parties and the Parties to the conflict shall require military commanders, with respect to members of the armed forces under their command and other persons under their control, to prevent and, where necessary, to suppress and to report to competent authorities breaches of the Conventions and of this Protocol. 2. In order to prevent and suppress breaches, High Contracting Parties and Parties to the conflict shall require that, commensurate with their level of responsibility, commanders ensure that members of the armed forces under their command are aware of their obligations under the Conventions and this Protocol. 3. The High Contracting Parties and Parties to the conflict shall require any commander who is aware that subordinates or other persons under his control are going to commit or have committed a breach of the Conventions or of this Protocol, to initiate such steps as are necessary to prevent such violations of the Conventions or this Protocol, and, where appropriate, to initiate disciplinary or penal action against violators thereof.”1 In the ICC statue Article 28, it is stated

Article 28 of the ICC statute
“In addition to other grounds of criminal responsibility under this Statute for crimes within the jurisdiction of the Court: (a) A military commander or person effectively acting as a military commander shall be criminally responsible for crimes within the jurisdiction of the Court committed by forces under his or her effective command and control, or effective authority and control as the case may be, as a result of his or her failure to exercise control properly over such forces, where: (i) That military commander or person either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes; and (ii) That military commander or person failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.

(b) With respect to superior and subordinate relationships not described in paragraph (a), a superior shall be criminally responsible for crimes within the jurisdiction of the Court committed by subordinates under his or her effective authority and control, as a result of his or her failure to exercise control properly over such subordinates, where: (i) The superior either knew, or consciously disregarded information which clearly indicated, that the subordinates were committing or about to commit such crimes; (ii) The crimes concerned activities that were within the effective responsibility and control of the superior; and (iii) The superior failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent...
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