Expanding Command Responsibility Beyond War: The Application of the Doctrine of Command Responsibility to Human Rights Law

Abstract

The doctrine of command responsibility has been an effective and enduring tool in the International Humanitarian Law effort to punish war crimes. In a reversal of the traditional direction of International Human Rights and Humanitarian Law convergence, the doctrine of command responsibility has grown well beyond its role only in humanitarian law to reach areas outside of armed conflicts and outside of traditional armed forces. Command responsibility first expanded from its traditional role during international armed conflicts to a seemingly natural role in non-international armed conflicts. Later, Courts began to apply the doctrine of command responsibility to hold civilians responsible for war crimes of subordinates if they have a superior-subordinate relationship similar to senior military commanders. Recently, courts have expanded command responsibility to hold senior military and civilian leaders accountable not for war crimes, but for serious human rights violations. Commanders have been held responsible for human rights violations occurring outside traditional armed conflict situations. This paper will explore the development and expansion of the war crimes notion of command responsibility to address human rights violations during and even outside of armed conflict. Specifically, the article will discuss how the doctrine is currently being used in various U.S. forums including civil, criminal and administrative proceedings to hold leaders accountable for human rights violations during armed conflicts. This transition, for being a war crimes tool to a human rights tool, is the next significant advancement of the doctrine of command responsibility.