Crimes against humanity

From Wikipedia, the free encyclopedia

https://en.wikipedia.org/wiki/Crimes_against_humanity 

Crimes against humanity are certain acts that are purposely committed as part of a widespread or systematic attack, directed against any civilians, in time of war or peace. The first prosecution for crimes against humanity took place at the Nuremberg trials. Initially being considered for legal use, widely in International Law, following the Armenian Genocide.

Crimes against humanity have since been prosecuted by other international courts (for example, the International Criminal Tribunal for the former Yugoslavia, the International Criminal Tribunal for Rwanda and the International Criminal Court) as well as in domestic prosecutions. The law of crimes against humanity has primarily developed through the evolution of customary international law. Crimes against humanity are not codified in an international convention, although there is currently an international effort to establish such a treaty, led by the Crimes Against Humanity Initiative.

Unlike war crimes, crimes against humanity can be committed during peace or war. They are not isolated or sporadic events, but are part either of a government policy (although the perpetrators need not identify themselves with this policy) or of a wide practice of atrocities tolerated or condoned by a government or a de facto authority. War crimes, murder, massacres, dehumanization, genocide, ethnic cleansing, deportations, unethical human experimentation, extrajudicial punishments including summary executions, use of weapons of mass destruction, state terrorism or state sponsoring of terrorism, death squads, kidnappings and forced disappearances, use of child soldiers, unjust imprisonment, enslavement, torture, rape, political repression, racial discrimination, religious persecution and other human rights abuses may reach the threshold of crimes against humanity if they are part of a widespread or systematic practice.

Term origins

The term "crimes against humanity" is potentially ambiguous because of the ambiguity of the word "humanity", which can mean humankind (all human beings collectively) or the value of humanness. The history of the term shows that the latter sense is intended.

Abolition of the slave trade

There were several bilateral treaties in 1814 that foreshadowed the multilateral treaty of Final Act of the Congress of Vienna (1815) that used wording expressing condemnation of the slave trade using moral language. For example, the Treaty of Paris (1814) between Britain and France included the wording "principles of natural justice"; and the British and United States plenipotentiaries stated in the Treaty of Ghent (1814) that the slave trade violated the "principles of humanity and justice".

The multilateral Declaration of the Powers, on the Abolition of the Slave Trade, of 8 February 1815 (which also formed Section XV of the Final Act of the Congress of Vienna of the same year) included in its first sentence the concept of the "principles of humanity and universal morality" as justification for ending a trade that was "odious in its continuance".

First use

Leopold II, King of the Belgians and de facto owner of the Congo Free State, who was the first person accused of crimes against humanity

The term "crimes against humanity" was used by George Washington Williams in a pamphlet published in 1890 to describe the practices of Leopold II of Belgium's administration of the Congo Free State. In treaty law, the term originated in the Second Hague Convention of 1899 preamble and was expanded in the Fourth Hague Convention of 1907 preamble and their respective regulations, which were concerned with the codification of new rules of international humanitarian law. The preamble of the two Conventions referenced the "laws of humanity" as an expression of underlying inarticulated humanistic values. The term is part of what is known as the Martens Clause.

On May 24, 1915, the Allied Powers, Britain, France, and Russia, jointly issued a statement explicitly charging for the first time ever another government of committing "a crime against humanity". An excerpt from this joint statement reads:

In view of these new crimes of Ottoman Empire against humanity and civilization, the Allied Governments announce publicly to the Sublime Porte that they will hold personally responsible for these crimes all members of the Ottoman Government, as well as those of their agents who are implicated in such massacres.

At the conclusion of the war, an international war crimes commission recommended the creation of a tribunal to try "violations of the laws of humanity". However, the US representative objected to references to "law of humanity" as being imprecise and insufficiently developed at that time and the concept was not pursued.

Nonetheless, a UN report in 1948 referred to the usage of the term "crimes against humanity" in regard to the Armenian massacres as a precedent to the Nürnberg and Tokyo Charters. On May 15, 1948, the Economic and Social Council presented a 384-pages report prepared by the United Nations War Crimes Commission (UNWCC), set up in London (October 1943) to collect and collate information on war crimes and war criminals. The report was in compliance to the request by the UN Secretary-General to make arrangements for "the collection and publication of information concerning human rights arising from trials of war criminals, quislings and traitors, and in particular from the Nürnberg and Tokyo Trials." The report had been prepared by members of the Legal Staff of the Commission. The report is highly topical in regard to the Armenian Genocide, not only because it uses the 1915 events as a historic example, but also as a precedent to the Articles 6 (c) and 5 (c) of the Nuremberg and Tokyo Charters, and thereby as a precursor to the then newly adopted UN Genocide Convention, differentiating between war crimes and crimes against humanity. By refereeing to the information collected during WWI and put forward by the 1919 Commission of Responsibilities, the report entitled "Information Concerning Human Rights Arising from Trials of War Criminals" used the Armenian case as a vivid example of committed crimes by a state against its own citizens. The report also noted that while the Paris Peace Treaties with Germany, Austria, Hungary and Bulgaria, did not include any reference to "laws of humanity", instead basing the charges on violations of "laws and customs of war", The Sèvres Peace Treaty with Turkey did so. In addition to the Articles 226–228, concerning customs of war (corresponding to Articles 228–230 of the Treaty of Versailles), the Sèvres Treaty also contained an additional Article 230, obviously in compliance with the Allied ultimatum of May 24, 1915 in regard to committed "crimes against humanity and civilization".

Nuremberg trials

Nuremberg Trials. Defendants in the dock. The main target of the prosecution was Hermann Göring (at the left edge on the first row of benches), considered to be the most important surviving official in the Third Reich after Hitler's death.

After the Second World War, the London Charter of the International Military Tribunal set down the laws and procedures by which the Nuremberg trials were to be conducted. The drafters of this document were faced with the problem of how to respond to the Holocaust and the grave crimes committed by the Nazi regime. A traditional understanding of war crimes gave no provision for crimes committed by a power on its own citizens. Therefore, Article 6 of the Charter was drafted to include not only traditional war crimes and crimes against peace, but also crimes against humanity, defined as

Murder, extermination, enslavement, deportation, and other inhumane 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.

Under this definition, crimes against humanity could be punished only insofar as they could be connected somehow to war crimes or crimes against peace. The jurisdictional limitation was explained by the American chief representative to the London Conference, Robert H. Jackson, who pointed out that it "has been a general principle from time immemorial that the internal affairs of another government are not ordinarily our business". Thus, "it is justifiable that we interfere or attempt to bring retribution to individuals or to states only because the concentration camps and the deportations were in pursuance of a common plan or enterprise of making an unjust war". The judgement of the first Nuremberg trial found that "the policy of persecution, repression and murder of civilians" and persecution of Jews within Germany before the outbreak of war in 1939 were not crimes against humanity, because as "revolting and horrible as many of these crimes were, it has not been satisfactorily proved that they were done in execution of, or in connection with," war crimes or crimes against peace. The subsequent Nuremberg trials were conducted under Control Council Law No. 10 which included a revised definition of crimes against humanity with a wider scope.

Tokyo Trial

The defendants at the Tokyo International Tribunal. General Hideki Tojo was one of the main defendants, and is in the centre of the middle row.

The International Military Tribunal for the Far East (IMTFE), also known as the Tokyo Trial, was convened to try the leaders of the Empire of Japan for three types of crimes: "Class A" (crimes against peace), "Class B" (war crimes), and "Class C" (crimes against humanity), committed during the Second World War.

The legal basis for the trial was established by the Charter of the International Military Tribunal for the Far East (CIMTFE) that was proclaimed on 19 January 1946. The tribunal convened on May 3, 1946, and was adjourned on November 12, 1948.

In the Tokyo Trial, Crimes against Humanity (Class C) was not applied for any suspect. Prosecutions related to the Nanking Massacre were categorised as infringements upon the Laws of War.

A panel of eleven judges presided over the IMTFE, one each from victorious Allied powers (United States, Republic of China, Soviet Union, United Kingdom, the Netherlands, Provisional Government of the French Republic, Australia, New Zealand, Canada, British India, and the Philippines).

Types of crimes against humanity

The different types of crimes which may constitute crimes against humanity differs between definitions both internationally and on the domestic level. Isolated inhumane acts of a certain nature committed as part of a widespread or systematic attack may instead constitute grave infringements of human rights, or – depending on the circumstances – war crimes, but are not classified as crimes against humanity.

Apartheid

The systematic persecution of one racial group by another, such as occurred during the South African apartheid government, was recognized as a crime against humanity by the United Nations General Assembly in 1976. The Charter of the United Nations (Article 13, 14, 15) makes actions of the General Assembly advisory to the Security Council. In regard to apartheid in particular, the UN General Assembly has not made any findings, nor have apartheid-related trials for crimes against humanity been conducted.

Rape and sexual violence

Neither the Nuremberg or Tokyo Charters contained an explicit provision recognizing sexual and gender-based crimes as war crimes or crimes against humanity, although Control Council Law No. 10 recognized rape as a crime against humanity. The statutes of the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda both included rape as a crime against humanity. The ICC is the first international instrument expressly to include various forms of sexual and gender-based crimes – including rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilisation, and other forms of sexual violence – as both an underlying act of crimes against humanity and war crime committed in international and/or non-international armed conflicts. As an example, the events of the Baku pogroms, the Sumgait pogrom, the Shusha massacre, the Siege of Stepanakert, and the Khatyn can be shown that the world strongly condemns. International institutions have asked for a ransom to avoid such incidents. There are hundreds of massacres, thousands of prisoners and wounded in these incidents.

In 2008, the U.N. Security Council adopted resolution 1820, which noted that "rape and other forms of sexual violence can constitute war crimes, crimes against humanity or a constitutive act with respect to genocide".

Legal status of crimes against humanity in international law

Unlike genocide and war crimes, which have been widely recognized and prohibited in international criminal law since the establishment of the Nuremberg principles, there has never been a comprehensive convention on crimes against humanity, even though such crimes are continuously perpetrated worldwide in numerous conflicts and crises. There are eleven international texts defining crimes against humanity, but they all differ slightly as to their definition of that crime and its legal elements.

In 2008, the Crimes Against Humanity Initiative was launched by Professor Leila Nadya Sadat at the Whitney R. Harris World Law Institute to address this gap in international law. The Initiative represents the first concerted effort to address the gap that exists in international criminal law by enumerating a comprehensive international convention on crimes against humanity.

On July 30, 2013, the United Nations International Law Commission voted to include the topic of crimes against humanity in its long-term program of work. In July 2014, the Commission moved this topic to its active programme of work based largely on a report submitted by Sean D. Murphy. Professor Sean D. Murphy, the United States’ Member on the United Nations’ International Law Commission, has been named the Special Rapporteur for Crimes Against Humanity. Sean D. Murphy attended the 2008 Experts' Meeting held by the Crimes Against Humanity Initiative prior to this appointment.

There is some debate on what the status of crimes against humanity under customary international law is. M. Cherif Bassiouni argues that crimes against humanity are part of jus cogens and as such constitute a non-derogable rule of international law.

United Nations

The United Nations has been primarily responsible for the prosecution of crimes against humanity since it was chartered in 1948.

After Nuremberg, there was no international court with jurisdiction over crimes against humanity for almost 50 years. Work continued on developing the definition of crimes against humanity at the United Nations, however. In 1947, the International Law Commission was charged by the United Nations General Assembly with the formulation of the principles of international law recognized and reinforced in the Nuremberg Charter and judgment, and with drafting a 'code of offenses against the peace and security of mankind'. Completed fifty years later in 1996, the Draft Code defined crimes against humanity as various inhumane acts, i.e., "murder, extermination, torture, enslavement, persecution on political, racial, religious or ethnic grounds, institutionalized discrimination, arbitrary deportation or forcible transfer of population, arbitrary imprisonment, rape, enforced prostitution and other inhuman acts committed in a systematic manner or on a large scale and instigated or directed by a Government or by any organization or group." This definition differs from the one used in Nuremberg, where the criminal acts were to have been committed "before or during the war", thus establishing a nexus between crimes against humanity and armed conflict.

A report on the 2008–09 Gaza War by Richard Goldstone accused Palestinian and Israeli forces of possibly committing a crime against humanity. In 2011, Goldstone said that he no longer believed that Israeli forces had targeted civilians or committed a crime against humanity.

On 21 March 2013, at its 22nd session, the United Nations Human Rights Council established the Commission of Inquiry on human rights in the Democratic People's Republic of Korea (DPRK). The Commission is mandated to investigate the systematic, widespread and grave violations of human rights in the Democratic People's Republic of Korea, with a view to ensuring full accountability, in particular for violations which may amount to crimes against humanity. The Commission dealt with matters relating to crimes against humanity on the basis of definitions set out by customary international criminal law and in the Rome Statute of the International Criminal Court. The 2014 Report by the commission found "the body of testimony and other information it received establishes that crimes against humanity have been committed in the Democratic People's Republic of Korea, pursuant to policies established at the highest level of the State... These crimes against humanity entail extermination, murder, enslavement, torture, imprisonment, rape, forced abortions and other sexual violence, persecution on political, religious, racial and gender grounds, the forcible transfer of populations, the enforced disappearance of persons and the inhumane act of knowingly causing prolonged starvation. The commission further finds that crimes against humanity are ongoing in the Democratic People's Republic of Korea because the policies, institutions and patterns of impunity that lie at their heart remain in place." Additionally, the commission found that crimes against humanity have been committed against starving populations, particularly during the 1990s, and are being committed against persons from other countries who were systematically abducted or denied repatriation, in order to gain labour and other skills for the Democratic People's Republic of Korea.

Security Council

UN Security Council Resolution 1674, adopted by the United Nations Security Council on 28 April 2006, "reaffirms the provisions of paragraphs 138 and 139 of the 2005 World Summit Outcome Document regarding the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity". The resolution commits the Council to action to protect civilians in armed conflict.

In 2008 the U.N. Security Council adopted resolution 1820, which noted that "rape and other forms of sexual violence can constitute war crimes, crimes against humanity or a constitutive act with respect to genocide".

According to the United Nations Security Council resolution 1970 (2011) concerning Libya, any direct or indirect trade of arms to the Libyan Arab Jamahiriya, in the form of supply, transfer, or sale should be prevented by the member nations. The arms embargo restricts the supply of arms, weapons, military vehicles, spare parts, technical assistance, finances, along with the provision of armed mercenaries, with origins of a country other than the one providing.

However, the United Nations claimed in its November 2019 report that the United Arab Emirates, Jordan and Turkey are violating the arms embargo imposed on Libya under the 1970 resolution. An airstrike on the migrant detention center in Tripoli in July 2019, believed to have been carried out by the United Arab Emirates, can be amounted as a war crime, as stated by the United Nations. The airstrike was deadlier than the 2011 militarized uprising that overthrew the regime of Muammar Gaddafi.

International courts and criminal tribunals

After the Nuremberg and Tokyo trials of 1945–1946, the next international tribunal with jurisdiction over crimes against humanity was not established for another five decades. In response to atrocities committed in the 1990s, multiple ad hoc tribunals were established with jurisdiction over crimes against humanity. The statutes of the International Criminal Court, the International Criminal Tribunals for the Former Yugolavia and for Rwanda each contain different definitions of crimes against humanity.

International Criminal Tribunal for Yugoslavia

In 1993, the UN Security Council established the International Criminal Tribunal for the former Yugoslavia (ICTY), with jurisdiction to investigate and prosecute three international crimes which had taken place in the former Yugoslavia: genocide, war crimes, and crimes against humanity. Article 5 of the ICTY Statute states that

The International Tribunal shall have the power to prosecute persons responsible for the following crimes when committed in armed conflict, whether international or internal in character, and directed against any civilian population:

(a) murder;

(b) extermination;

(c) enslavement;

(d) deportation;

(e) imprisonment;

(f) torture;

(g) rape;

(h) persecutions on political, racial and religious grounds;

(i) other inhumane acts."

This definition of crimes against humanity revived the original ‘Nuremberg’ nexus with armed conflict, connecting crimes against humanity to both international and non-international armed conflict. It also expanded the list of criminal acts used in Nuremberg to include imprisonment, torture and rape. Cherif Bassiouni has argued that this definition was necessary as the conflict in the former Yugoslavia was considered to be a conflict of both an international and non-international nature. Therefore, this adjusted definition of crimes against humanity was necessary to afford the tribunal jurisdiction over this crime.

International Criminal Tribunal for Rwanda

The UN Security Council established the International Criminal Tribunal for Rwanda in 1994 following the Rwandan genocide. Under the ICTR Statute, the link between crimes against humanity and an armed conflict of any kind was dropped. Rather, the requirement was added that the inhumane acts must be part of a "systematic or widespread attack against any civilian population on national, political, ethnic, racial or religious grounds." Unlike the conflict in the former Yugoslavia, the conflict in Rwanda was deemed to be non-international, so crimes against humanity would likely not have been applicable if the nexus to armed conflict had been maintained.

International Criminal Court

Headquarters of the ICC in The Hague

In 2002, the International Criminal Court (ICC) was established in The Hague (Netherlands) and the Rome Statute provides for the ICC to have jurisdiction over genocide, crimes against humanity and war crimes. The definition of what is a "crime against humanity" for ICC proceedings has significantly broadened from its original legal definition or that used by the UN. Essentially, the Rome Statute employs the same definition of crimes against humanity that the ICTR Statute does, minus the requirement that the attack was carried out ‘on national, political, ethnic, racial or religious grounds’. In addition, the Rome Statute definition offers the most expansive list of specific criminal acts that may constitute crimes against humanity to date.

Article 7 of the treaty stated that:

For the purpose of this Statute, "crime against humanity" means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:

(a) Murder;

(b) Extermination;

(c) Enslavement;

(d) Deportation or forcible transfer of population;

(e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;

(f) Torture;

(g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;

(h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court;

(i) Enforced disappearance of persons;

(j) The crime of apartheid;

(k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health;

The Rome Statute Explanatory Memorandum states that crimes against humanity

are particularly odious offenses in that they constitute a serious attack on human dignity or grave humiliation or a degradation of one or more human beings. They are not isolated or sporadic events, but are part either of a government policy (although the perpetrators need not identify themselves with this policy) or of a wide practice of atrocities tolerated or condoned by a government or a de facto authority. However, murder, extermination, torture, rape, political, racial, or religious persecution and other inhumane acts reach the threshold of crimes against humanity only if they are part of a widespread or systematic practice. Isolated inhumane acts of this nature may constitute grave infringements of human rights, or depending on the circumstances, war crimes, but may fall short of meriting the stigma attaching to the category of crimes under discussion. On the other hand, an individual may be guilty of crimes against humanity even if he perpetrates one or two of the offences mentioned above, or engages in one such offense against only a few civilians, provided those offenses are part of a consistent pattern of misbehavior by a number of persons linked to that offender (for example, because they engage in armed action on the same side or because they are parties to a common plan or for any similar reason.) Consequently when one or more individuals are not accused of planning or carrying out a policy of inhumanity, but simply of perpetrating specific atrocities or vicious acts, in order to determine whether the necessary threshold is met one should use the following test: one ought to look at these atrocities or acts in their context and verify whether they may be regarded as part of an overall policy or a consistent pattern of an inhumanity, or whether they instead constitute isolated or sporadic acts of cruelty and wickedness.

To fall under the Rome Statute, a crime against humanity which is defined in Article 7.1 must be "part of a widespread or systematic attack directed against any civilian population". Article 7.2.a states "For the purpose of paragraph 1: "Attack directed against any civilian population means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack." This means that an individual crime on its own, or even a number of such crimes, would not fall under the Rome Statute unless they were the result of a State policy or an organizational policy. This was confirmed by Luis Moreno Ocampo in an open letter publishing his conclusions about allegations of crimes committed during the invasion of Iraq in March 2003 which might fall under the ICC. In a section entitled "Allegations concerning Genocide and Crimes against Humanity" he states that "the available information provided no reasonable indicator of the required elements for a crime against humanity," i.e. 'a widespread or systematic attack directed against any civilian population'".

The ICC can only prosecute crimes against humanity in situations under which it has jurisdiction. The ICC only has jurisdiction over crimes contained in its statute – genocide, war crimes and crimes against humanity – which have been committed on the territory of a State party to the Rome Statute, when a non-party State refers a situation within its country to the court or when the United Nation Security Council refers a case to the ICC. In 2005 the UN referred to the ICC the situation in Darfur. This referral resulted in an indictment of Sudanese President Omar al-Bashir for genocide, crimes against humanity and war crimes in 2008. When the ICC President reported to the UN regarding its progress handling these crimes against humanity case, Judge Phillipe Kirsch said "The Court does not have the power to arrest these persons. That is the responsibility of States and other actors. Without arrests, there can be no trials.

Council of Europe

The Committee of Ministers of the Council of Europe on 30 April 2002 issued a recommendation to the member states, on the protection of women against violence. In the section "Additional measures concerning violence in conflict and post-conflict situations", states in paragraph 69 that member states should: "penalize rape, sexual slavery, forced pregnancy, enforced sterilization or any other form of sexual violence of comparable gravity as an intolerable violation of human rights, as crimes against humanity and, when committed in the context of an armed conflict, as war crimes;"

In the Explanatory Memorandum on this recommendation when considering paragraph 69:

Reference should be made to the Statute of the International Criminal Tribunal adopted in Rome in July 1998. Article 7 of the Statute defines rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization or any other form of sexual violence of comparable gravity, as crimes against humanity. Furthermore, Article 8 of the Statute defines rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization or any other form of sexual violence as a serious breach of the Geneva Conventions and as war crimes.

The Holodomor has been recognized as a crime against humanity by the European Parliament.

20th century

Argentines commemorate victims of military junta, 24 March 2019

Sources say the 20th century can be considered the bloodiest period in global history. Millions of civilian infants, children, adults, and elderly people died in warfare. One civilian perished for every combatant killed. Efforts of the International Committee of the Red Cross, humanitarian laws, and rules of warfare were not able to stop these crimes against humanity. These terminologies were invented since previous vocabulary was not enough to describe these offenses. War criminals did not fear prosecution, apprehension, or imprisonment before World War II. Britain's Prime Minister Winston Churchill favored the outright execution of war criminals. The United States was more lenient and called for a just trial. The British Government was convinced to institute the Nuremberg Trial which left several legacies. These are worldwide jurisdiction for severe war crimes are, creation of international war crime tribunals, judicial procedures that documented history of colossal crimes effectively, and success of UN courts in holding impartial trials.

The UN pointed out the Rome Statute of the International Criminal Court (ICC) specifically Article 7 (Crimes against Humanity), which defines large-scale acts of violence against a locality's civilian populace. These acts consist of murder; annihilation; enslavement; bondage; forced removal of the population; imprisonment or deprivation of physical liberty that violates international laws; maltreatment; forced prostitution and rape; discrimination and tyranny against certain groups; apartheid (racial discrimination and segregation); and, other inhumane acts. A publication from Trial International mentioned that crimes against humanity have been collated starting in 1990. These were the 1993 Statute of the International Criminal Tribunal for Yugoslavia, 1994 Statute of the International Tribunal for Rwanda, and 1998 Rome Statute of the International Criminal Court. The latter contains the latest and most extensive list of detailed crimes against civilians.

Command responsibility

From Wikipedia, the free encyclopedia

https://en.wikipedia.org/wiki/Command_responsibility 

 

Peace Palace in The Hague

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 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 Imperial Japanese Army 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.

Origin

Developing accountability

Hagenbach on trial, from Berner Chronik des Diebold Schilling dem Älteren

In The Art of War, written during the sixth century BC, Sun Tzu argued that a commander's duty was 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 no explicit use of a doctrine of "command responsibility" existed, 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 these 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
• 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 do not explicitly create a doctrine of command responsibility, they do uphold a notion that a superior must account for the 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 have been viewed as foundational roots of the 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.

Introducing responsibility for an omission

Tomoyuki Yamashita, 1945

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 if "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.

Following In re Yamashita, courts clearly accepted that a commander's actual knowledge of unlawful actions is sufficient to impose individual criminal responsibility.

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 in which a commander has a duty to know to instances if he already has 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 last 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.

Codification

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 Article 86(2) for the first time a provision would "explicitly address the knowledge factor of command responsibility".

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

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 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.

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. 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.^{[6][7][9][19]}

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).

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" 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.

International Criminal Court

The International Criminal Court in The Hague

Main article: International Criminal Court

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.

War on terror

Manfred Nowak, United Nations special rapporteur on torture and other cruel, inhuman, or degrading treatment or punishment, 2004-2010

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 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.

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 was 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.