Friday, January 7, 2011

Resident Evil - Ocampo's legal tactic No.2: Command Responsibility

The second equally controversial doctrine of international law that Ocampo will be pursuing is Command Responsibility.

Known popularly as the “Yamashita Standard”, it stipulates that a superior is liable for the actions of his subordinates if he knew, or from the circumstances ought to have known, that they were committing atrocities and he did nothing to stop them or punish them for their crimes.

The doctrine was first applied in international law against General Tomoyuki Yamashita, the commander of the Japanese army in the Philippines during WWII. He was accused of unlawfully disregarding and failing to discharge his duty as commander to control the operations of the members of his command, permitting them to commit brutal atrocities, and  that he had failed to exercise his responsibility to discover who ordered and committed the crimes, or had failed to punish the perpetrators.

Yamashita’s defence team showed that American air and combat activities had disrupted Japanese communication and in many ways destroyed them altogether, making it impossible for the accused to have ordered any atrocities or known that they were taking place. They also showed that most of the atrocities had been committed by the Japanese navy which, though Yamashita had operational command over, he had no power to discipline, demote or remove any of its members. However, he was still found guilty and hanged. The military tribunal found that atrocities had been committed by members of the Japanese army under his command and that he had failed to provide effective control over his troops. As the commanding officer, he had to take full responsibility for the actions of his men.

Command Responsibility is therefore a crime based on the lack of effective command. It is a crime of omission. It matters not if the superior approved the crimes or was outraged by their commission. He is fully liable for the crimes committed by his subordinates if he didn’t do anything to stop them or to punish those who committed them.

This crime is provided for by article 28 of the Rome Statutes. It states that a superior shall be criminally liable for the crimes of his subordinates as a result of his failure to exercise proper control over such subordinates where the superior knew or consciously disregarded information which clearly indicated that the subordinates were committing such crimes. The superior is also liable if he failed  to take all necessary and reasonable measures within his powers to prevent or stop such crimes, or to report them to competent authorities for investigation and prosecution.

But Command Responsibility is not restricted to military situations. It can be applied to any situation where a superior-subordinate relationship exists. This relationship must clearly exhibit the capacity of the superior to effectively exert control over the subordinate. Therefore persons in authority, whether in civilian or military settings, will incur criminal responsibility on the basis of their position as superiors. Even if the authority is informal, or even legally non-existent, as long as the superior-subordinate relationship exists, and the superior has effective control over the actions of his subordinates, then he is culpable. The doctrine was in this way used several times in the international tribunal on Rwanda to impose command responsibility on politician and other civilian leaders.

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