Command Responsibility and War Crimes: general discussion

[jmm99]

If you are prosecuted for war crimes, your prosecution will hinge on the rules which you can find in ICRC Customary IHL, Chapter 43 - Individual Responsibility.

You will not, of course, be prosecuted by the ICRC - but in a military or civilian court of your own country, another country claiming universal jurisdiction or an international court. These are basically pro-prosecution rules; so any competent prosecutor will use them or something close to them. According to the ICRC, they are rules set by Customary International Humanitarian Law; and, thus, binding globally.

The quote below has the link to each rule's webpage, and the black-letter rule. In addition, for each rule, the webpage includes an explanatory commentary (of several pages, plus footnotes). The commentaries include various headings - e.g. : Summary of Rule, International armed conflicts, Non-international armed conflicts, Interpretion, Forms of individual criminal responsibility, Individual civil liability, Mitigation of punishment, Manifestly unlawful orders, Unlawful orders, Armed opposition groups, Footnotes. You really have to read all the commentaries to understand the charges against you.

151. Individual Responsibility

Rule 151. Individuals are criminally responsible for war crimes they commit.

152. Command Responsibility for Orders to Commit War Crimes

Rule 152. Commanders and other superiors are criminally responsible for war crimes committed pursuant to their orders.

153. Command Responsibility for Failure to Prevent, Repress or Report War Crimes

Rule 153. Commanders and other superiors are criminally responsible for war crimes committed by their subordinates if they knew, or had reason to know, that the subordinates were about to commit or were committing such crimes and did not take all necessary and reasonable measures in their power to prevent their commission, or if such crimes had been committed, to punish the persons responsible.

154. Obedience to Superior Orders

Rule 154. Every combatant has a duty to disobey a manifestly unlawful order.

155. Defence of Superior Orders

Rule 155. Obeying a superior order does not relieve a subordinate of criminal responsibility if the subordinate knew that the act ordered was unlawful or should have known because of the manifestly unlawful nature of the act ordered.

Our troops are required to correctly apply these rules to the various situations covered by the commentaries - and, if they don't happen to have a lawyer at their elbows, tough $hit (ignorance of the law is not a very good defense). I don't think I'm asking too much of SWC members to learn the same rules and commentaries; not freeze like deer in the headlights when legal issues come up; and at least attempt some historical re-enactment as a soldier of that time - who probably (with some exceptions) "had little or no capacity to determine whether any of these actions or events were or were not compliant with the codes and practices of that time."

In re Yama$hita, 327 U.S. 1 (1946), is the classic SCOTUS case on command responsibility. The dissent of Frank Murphy - on the merits of prosecuting Yama$hita - is worth the read; keeping in mind that it was written by a 50-something reserve infantry officer who offered to resign from the Court in exchange for a rifle company in WWII combat. It also has a discussion of the law of war crimes as applied in the P.I. before WWII - which Frank Murphy knew well.

Regards

Mike

Murphy opinion (13pp.) attached.