Command responsibility - AbsoluteAstronomy.com

Command responsibility, sometimes referred to as the Yamashita standard or the Medina standard, and also known as superior responsibility, is the doctrine of hierarchical accountability in cases of war crimes.

The doctrine of “command responsibility” was established by the Hague Conventions IV (1907) and X (1907)

Hague Conventions (1899 and 1907)

The Hague Conventions were two international treaties negotiated at international peace conferences at The Hague in the Netherlands: The First Hague Conference in 1899 and the Second Hague Conference in 1907...

and applied for the first time by the German Supreme Court in Leipzig

Leipzig

Leipzig Leipzig has always been a trade city, situated during the time of the Holy Roman Empire at the intersection of the Via Regia and Via Imperii, two important trade routes. At one time, Leipzig was one of the major European centres of learning and culture in fields such as music and publishing...

after World War I

World War I

World War I , which was predominantly called the World War or the Great War from its occurrence until 1939, and the First World War or World War I thereafter, was a major war centred in Europe that began on 28 July 1914 and lasted until 11 November 1918...

, in the 1921 trial of Emil Muller

Emil Muller

Emil Muller was a Captain in the Imperial German Army who was convicted and sentenced at the Leipzig War Crimes Trial in 1921.Muller was born in Karlsruhe and worked as a barrister before joining the army. He was appointed head of the Flavy de Martel prisoner of war camp where approximately 1000...

.

The "Yamashita standard" is based upon the precedent set by the United States Supreme Court in the case of Japanese General Tomoyuki Yamashita

Tomoyuki Yamashita

General was a general of the Japanese Imperial Army during World War II. He was most famous for conquering the British colonies of Malaya and Singapore, earning the nickname "The Tiger of Malaya".- Biography :...

. He was prosecuted in 1945, in a still controversial trial, for atrocities committed by troops under his command in the Philippines

Philippines

The Philippines , officially known as the Republic of the Philippines , is a country in Southeast Asia in the western Pacific Ocean. To its north across the Luzon Strait lies Taiwan. West across the South China Sea sits Vietnam...

. 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."

The "Medina standard" is based upon the 1971 prosecution of US Army

United States Army

The United States Army is the main branch of the United States Armed Forces responsible for land-based military operations. It is the largest and oldest established branch of the U.S. military, and is one of seven U.S. uniformed services...

Captain Ernest Medina

Ernest Medina

Ernest Lou Medina is a former captain of infantry in the United States Army. He served during the Vietnam War and was acquitted in a court-martial of war crimes charges in 1971...

in connection with the My Lai Massacre

My Lai Massacre

The My Lai Massacre was the Vietnam War mass murder of 347–504 unarmed civilians in South Vietnam on March 16, 1968, by United States Army soldiers of "Charlie" Company of 1st Battalion, 20th Infantry Regiment, 11th Brigade of the Americal Division. Most of the victims were women, children , and...

during the Vietnam War

Vietnam War

The Vietnam War was a Cold War-era military conflict that occurred in Vietnam, Laos, and Cambodia from 1 November 1955 to the fall of Saigon on 30 April 1975. This war followed the First Indochina War and was fought between North Vietnam, supported by its communist allies, and the government of...

. It holds that a commanding officer, being aware of a human rights

Human rights

Human rights are "commonly understood as inalienable fundamental rights to which a person is inherently entitled simply because she or he is a human being." Human rights are thus conceived as universal and egalitarian . These rights may exist as natural rights or as legal rights, in both national...

violation or a war crime, will be held criminally liable when he does not take action. However, Medina was acquitted of all charges.

Developing accountability

In The Art of War
The Art of War
The Art of War is an ancient Chinese military treatise that is attributed to Sun Tzu , a high ranking military general and strategist during the late Spring and Autumn period...

, written during the 6th century BC, Sun Tzu

Sun Tzu

Sun Wu , style name Changqing , better known as Sun Tzu or Sunzi , was an ancient Chinese military general, strategist and philosopher who is traditionally believed, and who is most likely, to have authored The Art of War, an influential ancient Chinese book on military strategy...

argued that it was a commander's duty to ensure that his subordinates conducted themselves in a civilised manner during an armed conflict. The trial of Peter von Hagenbach

Peter von Hagenbach

Peter von Hagenbach was a Bourguignon knight from Alsace and Germanic military and civil commander....

by an ad hoc tribunal of the Holy Roman Empire

Holy Roman Empire

The Holy Roman Empire was a realm that existed from 962 to 1806 in Central Europe.It was ruled by the Holy Roman Emperor. Its character changed during the Middle Ages and the Early Modern period, when the power of the emperor gradually weakened in favour of the princes...

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

Breisach

Breisach is a town with approximately 16,500 inhabitants, situated along the Rhine in the Rhine Valley, in the district Breisgau-Hochschwarzwald, Baden-Württemberg, Germany, about halfway between Freiburg and Colmar — 20 kilometres away from each — and about 60 kilometres north of Basel near the...

, 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

Duke of Burgundy

Duke of Burgundy was a title borne by the rulers of the Duchy of Burgundy, a small portion of traditional lands of Burgundians west of river Saône which in 843 was allotted to Charles the Bald's kingdom of West Franks...

, Charles the Bold, to whom the Holy Roman Empire had given Breisach. Despite the fact there was no explicit use of a doctrine of "command responsibility" it is seen as the first trial based on this principle.

During the American Civil War

American Civil War

The American Civil War was a civil war fought in the United States of America. In response to the election of Abraham Lincoln as President of the United States, 11 southern slave states declared their secession from the United States and formed the Confederate States of America ; the other 25...

, the concept developed further, as is seen in the “Lieber Code

Lieber Code

The Lieber Code of April 24, 1863, also known as Instructions for the Government of Armies of the United States in the Field, General Order № 100, or Lieber Instructions, was an instruction signed by President Abraham Lincoln to the Union Forces of the United States during the American Civil War...

.” This regulated accountability by imposing criminal responsibility on commanders for ordering or encouraging soldiers to wound or kill already disabled enemies.

The Hague Convention (IV) of 1907

Hague Conventions (1899 and 1907)

was the first attempt at codifying the principle of command responsibility on a multinational level. It was not until after WWI that 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."

Introducing responsibility for an omission

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, 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 when some of the Japanese troops engaged in atrocities against thousands of civilians. 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 where "vengeful actions are widespread offences 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 re Yamashita 327 U.S. 1 (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, the United States 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, the US Military Tribunal seemed to limit the situations where a commander has a duty to know to instances where he has already had some information regarding subordinates’ unlawful actions.

Following 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 latter two part of the Nürnberg tribunals

Subsequent Nuremberg Trials

The Subsequent Nuremberg Trials were a series of twelve U.S...

, discussed explicitly the requisite standard of mens rea
Mens rea
Mens rea is Latin for "guilty mind". In criminal law, it is viewed as one of the necessary elements of a crime. The standard common law test of criminal liability is usually expressed in the Latin phrase, actus non facit reum nisi mens sit rea, which means "the act does not make a person guilty...

, 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:
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

De jure

De jure is an expression that means "concerning law", as contrasted with de facto, which means "concerning fact".De jure = 'Legally', De facto = 'In fact'....

(legal) command, which can be both military and civilian

Civilian control of the military

Civilian control of the military is a doctrine in military and political science that places ultimate responsibility for a country's strategic decision-making in the hands of the civilian political leadership, rather than professional military officers. One author, paraphrasing Samuel P...

. The determining factor here is not rank but subordination. Four structures are identified:

Policy command: heads of state, high-ranking government officials, monarchs
Strategic command: War Cabinet
War Cabinet
A War Cabinet is a committee formed by a government in a time of war. It is usually a subset of the full executive cabinet of ministers. It is also quite common for a War Cabinet to have senior military officers and opposition politicians as members....

, Joint Chiefs of Staff
Joint Chiefs of Staff
The Joint Chiefs of Staff is a body of senior uniformed leaders in the United States Department of Defense who advise the Secretary of Defense, the Homeland Security Council, the National Security Council and the President on military matters...
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 don’t exonerate the commander.
Tactical command: direct command over troops on the ground

International case law

Case law

In law, case law is the set of reported judicial decisions of selected appellate courts and other courts of first instance which make new interpretations of the law and, therefore, can be cited as precedents in a process known as stare decisis...

has developed two special types of "de jure commanders."

Prisoners-of-war (POW) camp commanders: the ICTY established in Aleskovski that POW camp commanders are entrusted with the welfare of all prisoners, and subordination in this case is irrelevant.
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

De facto

De facto is a Latin expression that means "concerning fact." In law, it often means "in practice but not necessarily ordained by law" or "in practice or actuality, but not officially established." It is commonly used in contrast to de jure when referring to matters of law, governance, or...

(factual) command, which specifies effective control, as opposed to formal rank. This needs a superior-subordinate relationship. Indicia are:

Capacity to issue orders
Power of influence: influence is recognized as a source of authority in the Ministries case before the US military Tribunal after World War II.
Evidence stemming from distribution of tasks: the ICTY has established the Nikolic test – superior status is deduced from analysis of distribution of tasks within the unit, it 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.

Nuremberg Tribunal

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 Inter Alia -Track listing:# Inter Alia# Outfox'd # Righteous Badass # The Altogether feat. Bix, Apt, UNIVERSE ARM and Cal# The Day-to-Daily# Trouble Brewing # The Prestidigitator# The Force... , 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

Tihomir Blaškic

Tihomir Blaškić is a Bosnian Croat army officer who was sentenced in 2000 to 45 years imprisonment at the International Criminal Tribunal for the Former Yugoslavia for war crimes as part of the Lašva valley ethnic cleansing...

("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 unlawfal acts by subordinates must be available to the commander following which he did not, or inadequately, discipline the perpetrator.

The concept of command responsibility has developed significantly in the jurisprudence of the ICTY. One of the most recent judgements that extensively deals with the subject is the Halilović judgement http://www.un.org/icty/halilovic/trialc/judgement/tcj051116e.htm#IIIB of 16 November 2005 (para. 22-100).

International Criminal Court

Following several ad hoc

Ad hoc

Ad hoc is a Latin phrase meaning "for this". It generally signifies a solution designed for a specific problem or task, non-generalizable, and not intended to be able to be adapted to other purposes. Compare A priori....

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.

Genocide
Genocide
Genocide is defined as "the deliberate and systematic destruction, in whole or in part, of an ethnic, racial, religious, or national group", though what constitutes enough of a "part" to qualify as genocide has been subject to much debate by legal scholars...
Crimes against humanity
War crimes
Crimes of aggression

Article 28 of the Rome Statute of the International Criminal Court

Rome Statute of the International Criminal Court

The Rome Statute of the International Criminal Court is the treaty that established the International Criminal Court . It was adopted at a diplomatic conference in Rome on 17 July 1998 and it entered into force on 1 July 2002. As of 13 October 2011, 119 states are party to the statute...

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:
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

American Servicemembers' Protection Act

The American Service-Members' Protection Act is a United States federal law introduced by US Senator Jesse Helms and signed into Law by George W. Bush as an amendment to the National Defense Authorization Act and passed in August 2002 by Congress...

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

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

September 11, 2001 attacks

The September 11 attacks The September 11 attacks The September 11 attacks (also referred to as September 11, September 11th or 9/119/11 is pronounced "nine eleven". The slash is not part of the pronunciation...

the U.S. Government adopted several controversial measures (e.g., invading Iraq

Legitimacy of the 2003 invasion of Iraq

A dispute exists over the "legitimacy" of the 2003 invasion of Iraq. The debate centers around the question whether the invasion was an unprovoked assault on an independent country that may have breached international law, or if the United Nations Security Council authorized the invasion A dispute...

, asserting "unlawful combatant

Unlawful combatant

An unlawful combatant or unprivileged combatant/belligerent is a civilian who directly engages in armed conflict in violation of the laws of war. An unlawful combatant may be detained or prosecuted under the domestic law of the detaining state for such action.The Geneva Conventions apply in wars...

" status, and "enhanced interrogation methods").

Alberto Gonzales

Alberto Gonzales

Alberto R. Gonzales was the 80th Attorney General of the United States. Gonzales was appointed to the post in February 2005 by President George W. Bush. Gonzales was the first Hispanic Attorney General in U.S. history and the highest-ranking Hispanic government official ever...

and others argued that detainees should be considered "unlawful combatant

Unlawful combatant

s" and as such not be protected by the Geneva Conventions

Geneva Conventions

The Geneva Conventions comprise four treaties, and three additional protocols, that establish the standards of international law for the humanitarian treatment of the victims of war...

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

War Crimes Act of 1996

The War Crimes Act of 1996 was passed with overwhelming majorities by the United States Congress and signed into law by President Bill Clinton....

" suggests, at the least, an awareness by those involved in crafting policies in this area that US officials are involved in acts that could be seen to be war crimes. The US Supreme Court overruled the premise on which this argument is based in Hamdan v. Rumsfeld

Hamdan v. Rumsfeld

Hamdan v. Rumsfeld, 548 U.S. 557 , is a case in which the Supreme Court of the United States held that military commissions set up by the Bush administration to try detainees at Guantanamo Bay lack "the power to proceed because its structures and procedures violate both the Uniform Code of Military...

, in which it ruled that Common Article Three of the Geneva Conventions applies to detainees in Guantanamo Bay, and that the Guantanamo military commission

Guantanamo military commission

The Guantanamo military commissions are military tribunals created by the Military Commissions Act of 2006 for prosecuting detainees held in the United States Guantanamo Bay detainment camps.- History :...

used to try these suspects were in violation of US and international law because it was not created by Congress.

On April 14, 2006, Human Rights Watch

Human Rights Watch

Human Rights Watch is an international non-governmental organization that conducts research and advocacy on human rights. Its headquarters are in New York City and it has offices in Berlin, Beirut, Brussels, Chicago, Geneva, Johannesburg, London, Los Angeles, Moscow, Paris, San Francisco, Tokyo,...

said that Secretary Rumsfeld could be criminally liable for his alleged involvement in the abuse of Mohammad al-Qahtani. Dave Lindorff

Dave Lindorff

Dave Lindorff is an investigative reporter, a columnist for CounterPunch, and a contributor to Businessweek, The Nation, Extra! and Salon.com...

contends that by ignoring the Geneva Conventions the US administration, including President Bush, as Commander-in-Chief

Commander-in-Chief

A commander-in-chief is the commander of a nation's military forces or significant element of those forces. In the latter case, the force element may be defined as those forces within a particular region or those forces which are associated by function. As a practical term it refers to the military...

, is culpable for war crimes. In addition, former chief prosecutor of the Nuremberg Trials

Nuremberg Trials

The Nuremberg Trials were a series of military tribunals, held by the victorious Allied forces of World War II, most notable for the prosecution of prominent members of the political, military, and economic leadership of the defeated Nazi Germany....

Benjamin Ferencz has called the invasion of Iraq a "clear breach of law," and as such it constitutes a crime against peace

Crime against peace

A crime against peace, in international law, refers to "planning, preparation, initiation, or waging of wars 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"...

. On November 14, 2006, invoking universal jurisdiction

Universal jurisdiction

Universal jurisdiction or universality principle is a principle in public international law whereby states claim criminal jurisdiction over persons whose alleged crimes were committed outside the boundaries of the prosecuting state, regardless of nationality, country of residence, or any other...

, legal proceedings were started in Germany - for their alleged involvement of prisoner abuse - against Donald Rumsfeld

Donald Rumsfeld

Donald Henry Rumsfeld is an American politician and businessman. Rumsfeld served as the 13th Secretary of Defense from 1975 to 1977 under President Gerald Ford, and as the 21st Secretary of Defense from 2001 to 2006 under President George W. Bush. He is both the youngest and the oldest person to...

, Alberto Gonzales

Alberto Gonzales

, John Yoo

John Yoo

John Choon Yoo is an American attorney, law professor, and author. As a former official in the United States Department of Justice during the George W...

, George Tenet

George Tenet

George John Tenet was the Director of Central Intelligence for the United States Central Intelligence Agency, and is Distinguished Professor in the Practice of Diplomacy at Georgetown University....

and others. This allegedly prompted recently retired Donald Rumsfeld to cancel a planned visit to Germany.

There are also allegations by human rights groups and opponents of the Bush administration of deliberate or disproportionate targeting of civilian

Civilian

A civilian under international humanitarian law is a person who is not a member of his or her country's armed forces or other militia. Civilians are distinct from combatants. They are afforded a degree of legal protection from the effects of war and military occupation...

s by US forces, mainly through aerial bombardment

Strategic bombing

Strategic bombing is a military strategy used in a total war with the goal of defeating an enemy nation-state by destroying its economic ability and public will to wage war rather than destroying its land or naval forces...

but also alleged shootings, during the conflicts in Afghanistan

Afghanistan

Afghanistan , officially the Islamic Republic of Afghanistan, is a landlocked country located in the centre of Asia, forming South Asia, Central Asia and the Middle East. With a population of about 29 million, it has an area of , making it the 42nd most populous and 41st largest nation in the world...

and Iraq

Iraq

Iraq ; officially the Republic of Iraq is a country in Western Asia spanning most of the northwestern end of the Zagros mountain range, the eastern part of the Syrian Desert and the northern part of the Arabian Desert....

by US forces and allied private security contractors, and controversy over depleted uranium

Depleted uranium

Depleted uranium is uranium with a lower content of the fissile isotope U-235 than natural uranium . Uses of DU take advantage of its very high density of 19.1 g/cm3...

munitions and cluster bomb

Cluster bomb

A cluster munition is a form of air-dropped or ground-launched explosive weapon that releases or ejects smaller sub-munitions. Commonly, this is a cluster bomb that ejects explosive bomblets that are designed to kill enemy personnel and destroy vehicles...

s.

Former Army Lt. Ehren Watada

Ehren Watada

Ehren K. Watada was a First Lieutenant of the United States Army. He was the first commissioned officer in the US armed forces to refuse to deploy to Iraq, in June, 2006...

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

United Nations Security Council Resolution 1511

United Nations Security Council Resolution 1511, adopted unanimously on October 16, 2003, after reaffirming previous resolutions on Iraq, particularly 1483 and 1500 , and Resolution 1373 on terrorism, the Council urged countries to contribute towards a multinational force to maintain security and...

authorized a multinational force in Iraq

Multinational force in Iraq

The Multi-National Force – Iraq was a military command, led by the United States, which was responsible for Operation Iraqi Freedom. Multi-National Force – Iraq replaced the previous force, Combined Joint Task Force 7, on 15 May 2004, and was later itself reorganized into its successor, United...

, 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

Military Commissions Act of 2006

The United States Military Commissions Act of 2006, also known as HR-6166, was an Act of Congress signed by President George W. Bush on October 17, 2006. Drafted in the wake of the Supreme Court's decision on Hamdan v...

is seen as an amnesty law

Amnesty law

An amnesty law is any law that retroactively exempts a select group of people, usually military leaders and government leaders, from criminal liability for crimes committed.Most allegations involve human rights abuses and crimes against humanity.-History:...

for crimes committed in the War on Terror by retroactively rewriting the War Crimes Act and by abolishing habeas corpus

Habeas corpus

is a writ, or legal action, through which a prisoner can be released from unlawful detention. The remedy can be sought by the prisoner or by another person coming to his aid. Habeas corpus originated in the English legal system, but it is now available in many nations...

, effectively making it impossible for detainees to challenge crimes committed against them.

Luis Moreno-Ocampo has told the Sunday Telegraph he is willing to start an inquiry by the International Criminal Court

International Criminal Court

The International Criminal Court is a permanent tribunal to prosecute individuals for genocide, crimes against humanity, war crimes, and the crime of aggression .It came into being on 1 July 2002—the date its founding treaty, the Rome Statute of the...

(ICC), and possibly a trial, for war crimes committed in Iraq involving British Prime Minister Tony Blair

Tony Blair

Anthony Charles Lynton Blair is a former British Labour Party politician who served as the Prime Minister of the United Kingdom from 2 May 1997 to 27 June 2007. He was the Member of Parliament for Sedgefield from 1983 to 2007 and Leader of the Labour Party from 1994 to 2007...

and American President George W. Bush

George W. Bush

George Walker Bush is an American politician who served as the 43rd President of the United States, from 2001 to 2009. Before that, he was the 46th Governor of Texas, having served from 1995 to 2000....

. Though under the Rome Statute, the ICC has no jurisdiction over Bush, since the USA 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 USA has a veto) requested an investigation. However Blair does fall under ICC jurisdiction as Britain is a State Party.

Nat Hentoff

Nat Hentoff

Nathan Irving "Nat" Hentoff is an American historian, novelist, jazz and country music critic, and syndicated columnist for United Media and writes regularly on jazz and country music for The Wall Street Journal....

wrote on August 28, 2007, that a leaked report by the International Committee of the Red Cross

International Committee of the Red Cross

The International Committee of the Red Cross is a private humanitarian institution based in Geneva, Switzerland. States parties to the four Geneva Conventions of 1949 and their Additional Protocols of 1977 and 2005, have given the ICRC a mandate to protect the victims of international and...

and the July 2007 report by Human Rights First

Human Rights First

Human Rights First is a nonprofit, nonpartisan human rights organization based in New York City and Washington, D.C....

and Physicians for Social Responsibility

Physicians for Social Responsibility

Physicians for Social Responsibility is the largest physician-led organization in the USA working to protect the public from the what they consider threats of nuclear proliferation, climate change, and environmental toxins...

, 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 US is obligated to hold those responsible for prisoner abuse to account under criminal law

Criminal law

Criminal law, is the body of law that relates to crime. It might be defined as the body of rules that defines conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of people, and that sets out the punishment to be imposed on people who do not obey...

. One proponent of this view was the United Nations Special Rapporteur

Special Rapporteur

Special Rapporteur is a title given to individuals working on behalf of the United Nations within the scope of "Special Procedures" mechanisms who bear a specific mandate from the United Nations Human Rights Council....

on torture and other cruel, inhuman or degrading treatment or punishment (Professor Manfred Nowak

Manfred Nowak

Manfred Nowak is an Austrian human rights lawyer.Nowak was a student of Felix Ermacora, and cooperated with him until Ermacora's death in 1995. They co-founded the Ludwig Boltzmann Institut für Menschenrechte in 1992...

) who, on January 20, 2008, remarked on German television that former president George W. Bush had lost his head of state immunity and under international law the U.S. 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 interrogation tool.

War in Darfur

Human Rights Watch

commented on this conflict by stating that:
The Sunday Times in March 2006, and the Sudan Tribune in March 2008, reported that the UN Panel of Experts determined that Salah Gosh

Salah Gosh

Major General Salah Abdallah "Gosh" is the former national security advisor of the republic of Sudan, prior to this position he was the director of Sudan's National Security and Intelligence Services, and holds the rank of army major general....

and Abdel Rahim Mohammed Hussein

Abdel Rahim Mohammed Hussein

Abdel Rahim Mohammed Hussein is the current Minister of Defence of The Republic of Sudan. He was also the former Minister of Interior affairs until he resigned and then reinstated at his current post...

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 warrant

Arrest warrant

An arrest warrant is a warrant issued by and on behalf of the state, which authorizes the arrest and detention of an individual.-Canada:Arrest warrants are issued by a judge or justice of the peace under the Criminal Code of Canada....

s for militia leader Ali Muhammad al-Abd al-Rahman, of the Janjaweed, a.k.a. Ali Kushayb

Ali Kushayb

Ali Muhammad Ali Abd-Al-Rahman, commonly known as Ali Kushayb, is a former senior Janjaweed commander supporting the Sudanese government against Darfur rebel groups, and currently is sought under an arrest warrant by the International Criminal Court for war crimes. He was known as aqid al oqada ...

, 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

International Criminal Court

's chief prosecutor, Luis Moreno-Ocampo, announced on July 14, 2008, ten criminal charges against President Omar al-Bashir

Omar al-Bashir

Lieutenant General Omar Hassan Ahmad Al-Bashir is the current President of Sudan and the head of the National Congress Party. He came to power in 1989 when he, as a brigadier in the Sudanese army, led a group of officers in a bloodless military coup that ousted the government of Prime Minister...

, accusing him of sponsoring war crimes, genocide

Genocide

Genocide is defined as "the deliberate and systematic destruction, in whole or in part, of an ethnic, racial, religious, or national group", though what constitutes enough of a "part" to qualify as genocide has been subject to much debate by legal scholars...

and crimes against humanity. The ICC's prosecutors have charged al-Bashir with genocide

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

Zimbabwe

Zimbabwe is a landlocked country located in the southern part of the African continent, between the Zambezi and Limpopo rivers. It is bordered by South Africa to the south, Botswana to the southwest, Zambia and a tip of Namibia to the northwest and Mozambique to the east. Zimbabwe has three...

, including allegations of torture

Torture

Torture is the act of inflicting severe pain as a means of punishment, revenge, forcing information or a confession, or simply as an act of cruelty. Throughout history, torture has often been used as a method of political re-education, interrogation, punishment, and coercion...

and murder

Murder

Murder is the unlawful killing, with malice aforethought, of another human being, and generally this state of mind distinguishes murder from other forms of unlawful homicide...

of political opponents, it is suggested Robert Mugabe

Robert Mugabe

Robert Gabriel Mugabe is the President of Zimbabwe. As one of the leaders of the liberation movement against white-minority rule, he was elected into power in 1980...

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

United Nations Security Council

The United Nations Security Council is one of the principal organs of the United Nations and is charged with the maintenance of international peace and security. Its powers, outlined in the United Nations Charter, include the establishment of peacekeeping operations, the establishment of...

. The precedent for this was set by its referral to bring indictments relating to the crimes committed in Darfur

Darfur

Darfur is a region in western Sudan. An independent sultanate for several hundred years, it was incorporated into Sudan by Anglo-Egyptian forces in 1916. The region is divided into three federal states: West Darfur, South Darfur, and North Darfur...

. Otherwise a Zimbabwean regime following Mugabe's would have jurisdiction over his alleged crimes (in the absence of any amnesty law

Amnesty law

) as would the numerous countries with universal jurisdiction over torture, including Britain.

External links

Human Rights First; Private Security Contractors at War: Ending the Culture of Impunity (2008)
Human Rights First; Command’s Responsibility: Detainee Deaths in U.S. Custody in Iraq and Afghanistan

The source of this article is wikipedia, the free encyclopedia. The text of this article is licensed under the GFDL.

Developing accountability

Introducing responsibility for an omission

Codification

Definitions

Nuremberg Tribunal

International Criminal Tribunal for the former Yugoslavia

International Criminal Court

War on terror

War in Darfur

Zimbabwe

See also

External links