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A study of the Mens Rea of command responsibility

June 4, 2016

Military commanders are regarded to have responsibility for their soldiers and thus assume accountability for their actions - they can therefore be punished for crimes committed by soldiers. The question raised is whether a superior can be held responsible for the actions of a soldier which he had no actual knowledge of.

In this article, Joshua Harvey seeks to answer the question: what is the mens rea of command responsibility.

Command responsibility has been an intriguing and divisive topic in International Law since the Post-Second World War trials held across Europe and the Pacific. The question of whether a commander can be held responsible for the actions of his men, whether he had actual knowledge of those actions or not, has promoted a great deal of debate. Military commanders are widely regarded as those who have responsibility for their soldiers; they are deemed to assume accountability for their soldiers’ actions. Thus when soldiers commit crimes their superiors can be punished for those acts, even if those superiors did not participate in the crimes. Further, it has been debated whether a Commander can be held responsible for the actions of his men when he had no actual knowledge of them. The question can therefore be posed: what is the mens rea of command responsibility.  

 

 

History and Development

Before examining the controversial issue of the definition and interpretation of the mens rea of command responsibility, a brief summary of the history of this area of law is necessary. Command, or superior responsibility is a doctrine of International Law which has no corresponding basis at national level. Its purpose is to hold commanders responsible for the actions of their troops and its origins can be found as far back as 2,500 years ago in the Art of War, written by Sun Tzu, ruler of China. There are several other instances of this rule being implemented throughout history, a notable example of which is the French Code written by Charles VII of Orleans in 1439, following the start of the Hundred Years War.

            Following the First World War, command responsibility was given an international basis[1] on which the modern law finds its footing. The first case on this matter was that of Yamashita,[2] which concerned a Japanese General who was held responsible for the crimes committed by his soldiers in the Second World War. In this case, the prosecutor relied on the ‘should have known’ standard; the extent of the crimes was such that Yamashita should have realised they were being committed. The outcome of this case was controversial, however, as there was no evidence to support that he indeed should have known what his troops did. The case also involved separate, fair trial issues which perhaps affects its authority.

            Fifty years after Yamashita, statutewas drafted for the International Criminal Tribunal for the Former Yugoslavia (ICTY) which refined the test for command responsibility down to three elements. [3]  Firstly there must be a superior/subordinate relationship; secondly there must be a ‘mental element’, in other words the superior must know or have reason to know that the soldier will commit the acts; and finally the superior must fail to take reasonable measures to prevent the acts being committed.[4] A further requirement of causation was later added by the International Criminal Court (ICC) in its statute.[5]

 

The Mental Element

The mens rea element required for command responsibility has been decided and interpreted in different ways by the various international courts in the years that followed the Yamashita case.  Both International ad hoc tribunals[6] and the ICC have ruled on this matter and these judgments will be focused on herein.

 

International Criminal Tribunal for the Former Yugoslavia (ICTY)

The two most influential judgments of the ICTY as regards command responsibility are the ‘Celebici case [7] and Blaškić [8]which offer differing opinions on the matter. The seminal judgment, in the Celebici caseopined that the mens rea for command responsibility existed where:

             [A superior]...had actual knowledge...that his subordinates were committing or about to commit crimes...or where he had in his possession information of a nature, which at the least, would put him of the risk of such offences... [9] 

The court here interprets the ICTY Statute[10] narrowly, giving only two situations where the superior can be held responsible for the acts of his subordinates; he knew of their actions or he failed to act despite having information that indicated they would commit a crime. In other words, knowledge cannot be inferred from a commander’s failure in his duty to know the actions of his soldiers, but from his failure to realise those actions given the information available to him.[11]

            In determining the outcome of this issue, the court examined several cases and statutes from International Courts and Tribunals. The court in particular examined the case of Yamashita, which stated:

            ... the crimes which were shown to have been committed by Yamashitas troops were so widespread, both in space and in time...the accused knew of their perpetration, or evidence that he must have failed to fulfill a duty discover the standard of conduct of his troops. [12]

This at first seems contradictory to the decision of the court, but it must be taken alongside a tempering statement made subsequently;

             Short of maintaining that a Commander has a duty to discover the state of discipline prevailing among his troops, Courts...may...have regarded means of knowledge as being the same as knowledge itself. [13]

            This brings the Yamashita judgment more into line with that of the Appeals Chamber in ‘Celibici’. If the commander had the means to gain knowledge available to him, but failed to act on it he could be held responsible in the same way as if he had actual knowledge of the actions of his troops. The Yamashita case is very tentative in its approach to this issue. The court opined that the negligence standard should apply, that if a commander fails in his duty to prevent his troops committing crimes he is responsible[14], but also that the commander’s failure to act on information available to him would incur liability. The judgment is left open to interpretation, as the judges phrased it, it awaits further elucidation and consolidation[15] and the opinions voiced in ‘Celibici’ are considered the leading authority.

            Perhaps a more concrete ratification of the judgment in ‘Celibici’ can be found in the wording of Article 86 of Protocol 1.[16] This states very succinctly that;

             The fact that a breach of the Conventions or of this Protocol was committed by a subordinate does not absolve his superiors...if they knew, or had information which should have enabled them to conclude in the circumstances at the time, that he was committing or was going to commit such a breach and if they did not take all feasible measures within their power to prevent or repress the breach [17]

This protocol makes no mention of the negligence principle outlined above and only highlights two situations in which a superior can be found liable; if he had actual knowledge of the crimes or if he had information in his possession which indicated the possibility of a crime taking place, but did nothing to prevent it.

 

The prior case of Blaškić offered an alternative view to ‘Celebici, exploring the possibility of negligence leading to liability on the part of commanders. It is important at this stage to highlight that subsequent ICTY case law has rejected negligence in command responsibility[18], though it is still of relevance since it has had some influence on other International Courts, namely the ICC. Although the trial chamber in Blaškić accepted that if a commander cannot be held liable for crimes he did not know were committed, it also added:

             ...such ignorance cannot be a defence where the absence of knowledge is the result of negligence in the discharge of his duties: this commander had reason to know within the meaning of the Statute. [19]

In reaching it’s conclusion, the trial chamber in Blaškić relied on several American Military Tribunal and French Military Government Tribunal cases which took place in the aftermath of the Second World War. Two such cases were Toyoda[20] and Roechling[21]In the Toyoda case, the court stated that if the commander should have known that crimes were being committed through  reasonable diligence in the discharge of his duties, he would be held liable for the crimes. [22] The question posed was whether a reasonable commander in his position would have realised that crimes were being committed. It is a lesser test than that set down in ‘Celebici as it does not require possession of information per se, merely that a competent commander in his position would have realised the crimes were being committed.

            In the case of Roechling, the court was placed a far greater burden on the commander opining:

            no superior may prefer this defence indefinitely; for it is his duty to know what occurs in his organisation, and lack of knowledge, therefore, can only be the result of criminal negligence. [23]

According to this judgment, any lack of knowledge is a failure in command and is therefore deemed to be negligent. This is a very strict approach to adopt as on that basis all commanders would be responsible for the crimes of their men, if they knew of them or not. The wide ambit of this judgment is substantially different to the jurisprudence on command responsibility.

 

 

 

International Criminal Court (ICC)

The ICC approach to the issue of command responsibility is, in my opinion, a hybrid of the two opinions set forth in the ICTY. In it’s approach to establishing the mens rea, the ICC Statute has distinguished between military and civilian commanders.

            For military commanders, the standard is that they knew or ought to have known (due to the circumstances) that crimes were being committed or were about to be committed by their men. [24] Prima facie, this test appears similar to the Celebici approach, which has been adopted by the ad hoc tribunals, [25] but in practice the court has tended to lean more towards the standard of negligence set down in BlaškićAn example of this is the case of Bemba Gombo[26]The court in this case made emphasis of the fact that previous International Tribunals would not be followed when it came to determining the mens rea;

             The Chamber is mindful of the fact that the had reason to know criterion embodied in the statutes of the ICTR, ICTY and SSCL sets a different standard to the should have known standard under article 28(a) of the Statute.’ [27]

The should have known standard relates to the reasonable man standard set down for negligence. The question the court seeks to answer is whether a reasonable commander in that situation would have realised that his men were committing or about to commit the crime. This can be seen as an attempt by the ICC to encourage commanders to take more responsibility, as negligent actions will offer no defence.

            The standard set down for non-military commanders is that they knew or consciously disregarded information that gave clear warning their men were committing or about to commit a crime.[28] This is very much aimed at protecting civilian commanders as much as possible, given that it is the strictest test for mens rea in this area of law. This perhaps raises certain questions over the fairness of this process; a civilian commander could simply be oblivious to everything around him and as a result he would not be responsible for the actions of his men. This standard has been rejected in the ICTR,[29] but is still used in the ICC.

 

 

 

Conclusions

The development of the mens rea of command responsibility has not been straightforward. There has been much discussion and disagreement in the various International Courts and Tribunals over the correct standards to set for both military and non-military superiors. It must be said, however, that although the judgments of the ICTY and to a lesser extent, the ICTR, have been integral to the history and development of the mental element of the crime, they will lose their relevance in the years to come. They are merely temporary International Tribunals set up to deal with specific events and so we must look to the ICC and the standards they set for the mens rea of command responsibility. The ICC statute and subsequent rulings have caused some controversy due to the fact they do not correlate with the rulings of the ad hoc tribunals, but they do draw on those influences to create a hybrid system. The mens rea standard for the non-military commander is now much higher than for the military superior, but this can be seen to reflect the nature of the two individuals. Military personnel are often regarded as stronger than the average individual and so they are expected to act in a different way. For example, they are expected to put their lives at risk for others, as is explained in the English House of Lords case of R v Dudley and Stephens:

             The duty, in case of shipwreck, of a captain to his crew, of his crew to the passengers, of soldiers to women and children...these duties impose on men the moral necessity, not of preservation, but of sacrifice of their lives for others... [30]

From this point of view, it seems logical that military commanders should have more responsibility placed on them to prevent crimes being committed and be held to a higher standard than the average man. Whilst the progression of the law in this area has been somewhat turbulent, the ICC has begun to stabilise the ship and bring some uniformity to the jurisprudence. There are still, however, some contentious issues, mainly the distinction between military and non-military commanders so perhaps in time the ICC will address this further.

 

[1] ‘Report of the Commission on the Responsibility of the Authors of the War’ (1920)14 AJIL 95, 121.

[2] US v Yamashita (1945) 327 US 1

[3] Protocol 1, Art. 7(3) ICTY Statute

[4] These were out and explained in Delalic, Mucic, Delic & Landzo ICTY T. Ch.II 16.11.1998, para 344

[5] Art. 28 Rome Statute of the International Criminal Court (ICC) 1998

[6] International Criminal Court for the Former Yugoslavia (ICTY) & International Criminal Court for Rwanda (ICTR)

[7] Prosecutor v Delalic, Mucic, Delic & Landžic (ICTY) IT-96-21

[8] Prosecutor v Thomir Blaškić (ICTY) IT-95-14

[9] ‘Celibici case’ T.Ch. para 383

[10] Art.7(3)

[11] “Celibici case’ A.Ch. para 226

[12] Law Reports of Trials of War Criminals, Vol IV, p94

[13] Ibid

[14] This position is supported in Blaškić

[15] Law Reports of Trials of War Criminals, Vol IV, p95

[16] Additional Protocol 1, ICTY Statute

[17] Art. 86(2) Ibid

[18] Blaškić A.Ch. para. 63   see also; The Prosecutor v Bagilishema ICTR-95-1A-A  A.Ch. para.34-35

[19] Prosecutor v Tihomer Blaškić (ICTY) IT-95-14 A.Ch. para.332

[20] U.S.A v Soemu Toyoda 1948

[21] Hermann Roechling & Others (1948)

[22] Toyoda Official Transcript of Record of Trial, pg 5006

[23] Roechling General Tribunal

[24] Art.28(a) Rome Statute (1998)

[25] Bagilishema A.Ch. para.26-37

[26] The Prosecutor v Jean-Pierre Bemba Gombo ICC-01/05-01/08

[27] Ibid para.434

[28] Art.28(b) Rome Statute (1998)

[29] Begilishima A.Ch. para.26-37

[30] R v Dudley and Stephens 14 Q.B.D.273 (1884)

 

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