Sunday, July 29, 2007

command responsibility and the breach of the duty to remain imformed and prevent the crime'

I would like to take notice of how the war criminals had been judged;It would be a basis for the discussion on how the commanders untried would have been judged.
The followings are some useful quotes in this regard.

Protection of Civilian Populations Against Bombing From the Air in Case of War, League of Nations, September 30, 1938

. Recognizes the following principles as a necessary basis for any subsequent regulations:

1) The intentional bombing of civilian populations is illegal;

2) Objectives aimed at from the air must be legitimate military objectives and must be identifiable;

3) Any attack on legitimate military objectives must be carried out in such a way that civilian populations in the neighbourhood are not bombed through negligence;

The Tribunal is of opinion that HIROTA b as derelict in his duty in not insisting before the Cabinet that immediate action be taken'to put an end to the atrocities, failing any other action open to him to bring about the same result. He was content to rely on assurances which he knew were not being implemented while hundreds of murders, violations of women, and other atrocities were being committed daily. His inaction amounted to criminal negligence.
The Tribunal finds HIROTA guilty under Counts 1 , 27 and 55. He i s not guilty under Counts 29, 31, 32, 33, 35 and 54.IMTfor far east pdf

338. In a number of cases against German and Japanese war criminals following the Second World War, beginning with the trial of the Japanese General Tomoyuki Yamashita before a United States Military Commission in Manila350, the principle of command responsibility for failure to act was relied upon by military courts and tribunals as a valid basis for placing individual criminal responsibility on superiors for the criminal acts of their subordinates. Thus, the United States Supreme Court, in its well-known holding in In Re Yamashita, answered in the affirmative the question of whether the law of war imposed on an army commander a duty to take the appropriate measures within his power to control the troops under his command for the prevention of acts in violation of the laws of war, and whether he may be charged with personal responsibility for failure to take such measures when violations result351.

the use of the generic term "superior" in this provision, together with its juxtaposition to the affirmation of the individual criminal responsibility of "Head[s] of State or Government" or "responsible Government official[s]" in Article 7(2), clearly indicates that its applicability extends beyond the responsibility of military commanders to also encompass political leaders and other civilian superiors in positions of authority.....

Thus, the International Military Tribunal for the Far East (hereafter "Tokyo Tribunal") relied on this principle in making findings of guilt against a number of civilian political leaders charged with having deliberately and recklessly disregarded their legal duty to take adequate steps to secure the observance of the laws and customs of war and to prevent their breach. For example, while holding General Iwane Matsui criminally liable for the infamous "Rape of Nanking" by declaring that "[h]e had the power, as he had the duty, to control his troops and to protect the unfortunate citizens of Nanking. He must be held criminally responsible for his failure to discharge this duty"377, the tribunal was also prepared to place such responsibility upon the Japanese Foreign Minister at the time, Koki Hirota. In finding the latter guilty of having disregarded his legal duty to take adequate steps to secure the observance and prevent breaches of the laws of war, the tribunal thus declared:

As Foreign Minister he received reports of these atrocities immediately after the entry of the Japanese forces into Nanking. According to the Defence evidence credence was given to these reports and the matter was taken up with the War Ministry. Assurances were accepted from the War Ministry that the atrocities would be stopped. After these assurances had been given reports of atrocities continued to come in for at least a month. The Tribunal is of the opinion that HIROTA was derelict in his duty in not insisting before the Cabinet that immediate action be taken to put an end to the atrocities, failing any other action open to him to bring about the same result. He was content to rely on assurances which he knew were not being implemented while hundreds of murders, violations of women, and other atrocities were being committed daily. His inaction amounted to criminal negligence.378

358. Similarly, the tribunal found Prime Minister Hideki Tojo and Foreign Minister Mamoru Shigemitsu criminally liable for their omissions to prevent or punish the criminal acts of the Japanese troops. In respect of the latter the tribunal declared:

We do no injustice to SHIGEMITSU when we hold that the circumstances, as he knew them, made him suspicious that the treatment of the prisoners was not as it should have been. Indeed a witness gave evidence for him to that effect. Thereupon he took no adequate steps to have the matter investigated, although he, as a member of the government, bore overhead responsibility for the welfare of the prisoners. He should have pressed the matter, if necessary to the point of resigning, in order to quit himself of a responsibility which he suspected was not being discharged.379

387. Regarding the mental standard of "had reason to know", the Trial Chamber takes as its point of departure the principle that a superior is not permitted to remain wilfully blind to the acts of his subordinates. There can be no doubt that a superior who simply ignores information within his actual possession compelling the conclusion that criminal offences are being committed, or are about to be committed, by his subordinates commits a most serious dereliction of duty for which he may be held criminally responsible under the doctrine of superior responsibility. Instead, uncertainty arises in relation to situations where the superior lacks such information by virtue of his failure to properly supervise his subordinates.
388. In this respect, it is to be noted that the jurisprudence from the period immediately following the Second World War affirmed the existence of a duty of commanders to remain informed about the activities of their subordinates. Indeed, from a study of these decisions, the principle can be obtained that the absence of knowledge should not be considered a defence if, in the words of the Tokyo judgement, the superior was "at fault in having failed to acquire such knowledge".414

389. For example, in the Hostage case the tribunal held that a commander of occupied territory is

charged with notice of occurrences taking place within that territory. He may require adequate reports of all occurrences that come within the scope of his power and, if such reports are incomplete or otherwise inadequate, he is obliged to require supplementary reports to apprise him of all the pertinent facts. If he fails to require and obtain complete information, the dereliction of duty rests upon him and he is in no position to plead his own dereliction as a defence.415Legal Character of Command Responsibility and its Status Under Customary International Law(cash)cash

# Fundamental to the Yamashita defence was the premise that he had in no way, either ordered or authorized, nor had he in any way tolerated such acts by forces under his command. He further was adamant, in his defence, that he had no knowledge of the fact that the war crimes in question were taking place.[184] He also argued that all of his time was committed to the preparation of the battle tasks at hand, that he was unfamiliar with the quality and abilities of the troops under his command, and as well that his communication infrastructure had been substantially compromised by the attacking enemy forces.[185]

The Yamashita case was subsequently appealed to the United States Supreme Court by way of an application for habeas corpus. The majority decision, delivered by Justice Stone[191] in large part makes little mention of the facts attendant to the conviction of General Yamashita by the original Tribunal. Rather, the majority judgment, in large part, attended to the technical aspects of the appeal. The majority decision, examined the actual allegation or charge made against Yamashita and noted that the substance of the allegation was that he (Yamashita) as commander had failed to control the actions of his forces by "permitting them to commit the extensive and widespread atrocities during the specified period".[192] However, in the same portion of the majority opinion, the following question is posed and answered:

The question is then whether the law of war imposes on an army commander a duty to take such appropriate measures as are within his power to control the troops under his command for the prevention of specified acts which are violations of a lot of war and which are likely to attend the occupation of hostile territory by an uncontrolled soldiery, and whether he may be charged with personal responsibility for his failure to take such measures when violations result.

It is evident from the conduct of military operations by troops whose excesses are unrestrained by the orders of their commander would almost certainly result in violations which it is the purpose of the law of war to prevent. Its purpose to protect civilian populations and prisoners of war from brutality would largely be defeated if the commander of an invading army could with impunity neglect to take reasonable measures for their protection. Hence, the law of war presupposes that its violation is to be avoided through the control of the operations of war by commanders who are to some extent (emphasis) responsible for their subordinates.[193] *1

General Matsui was the commander of the Japanese China Expeditionary Forces (1937-1938. The Tribunal found that forces under his overall command responsible for the atrocities that took place in Nanking. The Tribunal while accepting evidence that General Matsui had issued orders to the effect that war crimes were not to be committed, noted that given the amount of time during which these atrocities took place that General Matsui had to have had knowledge that his orders were not being followed, and in point of fact, were being ignored. The Tribunal further found that General Matsui had both the responsibility as well as the authority to prevent the (ongoing) atrocities and added that in taking no action to control his subordinates he attracted criminal culpabilityCommand Responsibility and Superior Orders in the Twentieth Century - A Century of Evolution(cash)*2

the Japanese armies were able
to occupy the Nationalist capital at Nanjing, in December 1937. The
Japanese had anticipated that with the fall of Nanjing the will of Chiang
Kai-shek and his Nationalist government would have been broken, and they
fully expected the Chinese Nationalist government, the Kuomintang, would
come to terms with Japanese hegemony in China. But, in this regard they were sorely disappointed when, despite the
privations, losses, and wholesale destruction of the Japanese invasion, the
Nationalist government resolutely determined to carry on the war, even with
the loss of their capital. Chiang Kai-shek moved his center of operations to
the city of Hankow, and the war continued on into l938.
Dean Meyers and My-Van Tran
University of South Australia

It is, however, the dissenting decision of Justice Murphy[194] that has attracted greatest attention. For example, Justice Murphy observed:

Nothing in all history or in international law, at least as far as I am aware, justifies such a charge against a fallen commander of a defeated force. To use the very inefficiency and disorganization created by the victorious forces as the primary basis for condemning officers of the defeated armies bears no resemblance to justice or to military reality.*1cash

The later judgement made clear what had been implicit in the previous judegements.
1977 Protocol Additional to the Geneva Conventions

The Commission found that in his capacity as Chief of Staff Lieutenant-General Eitan (along with the Defence Minister) had approved the operationpermitting the Phalangists to enter the camps. The Kahan Commission found liability on the part of the Chief of Staff for, firstly not taking steps to ensure the safety of the civilians within the camps and, secondly, for not putting in place procedures to allow him to receive ongoing and adequate information regarding the operation.[252] Further, the Commission found, as a matter of fact, that an officer, junior in rank to the Chief of Staff had ordered a halt to the Phalangist operation in the camps, however, this order was in effect countermanded notwithstanding information given advising of allegations murders.[253] Specifically, the Commission in its report noted:

The Chief of Staff was well aware that the Phalangists were full of feelings of hatred towards the Palestinians... On a number of occasions, the Chief of Staff had harsh and clear-cut things to say about the matter of fighting between the factions and communities in Lebanon, and about the concept of vengeance rooted in them:...

The absence of a warning from experts cannot serve as an explanation for ignoring the danger of a massacre. The Chief of Staff should have known and foreseen -- by virtue of common knowledge, as well as the special information at his disposal -- there was the possibility of harm to the population in the camps at the hands of the Phalangists...

If the Chief of Staff did not imagine at all that the entry of the Phalangists into the camps posed a danger to the civilian population, his thinking on this matter constitutes a disregard of important considerations that he should have taken into account.[254]
The clear judgment of the Commission was that the Chief of Staff had both breached his duty as well as had been derelict in the same. This was based, in large part, on the finding that he hada positive obligation to inquire as to whether or not criminal acts were taking place within the camps, and that if he was not satisfied that they were not taking place, or had not been taking place, that he was under a positive obligation or duty to prevent any possible continuation of the same. The Commission noted in this particular area that not only had the Chief of Staff disregarded information of atrocities, he had provided additional logistical support to the Phalangists in the camp

Amir Drori

# The Commission ruled that in his capacity of the commander of the forces in the area, General Drori had contemplated potential criminal acts being perpetrated by the Phalangists. He further had received reports from subordinates in his overall command that the civilians in the refugee camps would be at risk. It was General Drori who, at first instance, had ordered the Phalangists to cease their operations in the camps. The Commission further accepted evidence that the General had not been specifically informed that civilians were being killed by the Phalangist in the camps.[256]

# However, fault was found with his conduct in that he failed to pursue information he had received with reference to the Phalangists with whom he was dealing, and, that he further did not pursue the issue forcefully enough with the Chief of Staff. Rather, after being rebuffed by the Chief of Staff, General Drori left the issue, and in so doing, the Commission found that the same amounted to 'disengagement', and in turn this constituted a breach of duty

Command Responsibility an3d Superior Orders in the Twentieth Century - A Century of Evolution

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