Doctrine Of Command Responsibility Research Articles

Regulatory Choices at the Advent of Gig Warfare

Abstract Regulation of military ai may take place in three ways. First, existing rules and principles in ihl is already or could be extended via reinterpretation to apply to military ai; second, new ai regulation may appear via “add-ons” to existing rules, finally, regulation of military ai may appear as a completely new framework, either through new state behavior that results in customary international law or through a new legal act or treaty. By introducing this typology, one may identify possible manners of regulation that are presently under-researched and/or ignored, for example how Rules of Engagement (roe) may be a way to control the use of military ai. Expanding on existing scholarship, the articles discusses how military ai may operate under different forms of military command and control systems, how regulation of military ai is not only a question of “means” but also “methods” of warfare and how the doctrine of supervisory responsibility may go beyond the doctrine of command responsibility. In the case that fully-automated Lethal Autonomous Weapons Systems (laws) are available and considered for use, it is suggested that their use should be prohibited in densely populated areas following the same logic as incendiary weapons. Further, one could introduce certain export restrictions on fully-automated laws to prevent proliferation to non-state actors and rogue states.

The Doctrine of Command Responsibility in Australian Military Law

The Doctrine of Command Responsibility in Australian Military Law

Command Responsibility in the Times ofTokhang: Defining Military-likeness under Article 28(a) of the Rome Statute

AbstractPresident Rodrigo Duterte won on a law-and-order campaign promise to fatten the fish in Manila Bay with the corpses of criminals. By the time the Philippines withdrew from the Rome Statute, the body count stood at a reported 30,000, a fifth of whom were openly killed in Philippine National Police (PNP) anti-drug operations. Duterte has since been accused of Crimes Against Humanity,inter alia, as “a person effectively acting as a military commander” under Article 28(a) of the Rome Statute for failing to prevent, repress, and report the crimes of his police subordinates. This study tests the veracity of that claim. It seeks to determine whether Duterte, as the Chief Executive and overall superior of the PNP – statutorily, a civilian group – may be held liable as a military-like commander under the doctrine of command responsibility. At the core of this query lies a singular concern far from simple: the meaning of military-likeness.

Bemba and the Individualisation of War: Reconciling Command Responsibility under Article 28 Rome Statute with Individual Criminal Responsibility

Never has the doctrine of command responsibility been shaken as when the Appeal Chamber of the International Criminal Court issued the Bemba Appeal Judgment. The latter solely addresses whether the defendant – Jean-Pierre Bemba, former Commander-in-chief of the Mouvement de libération du Congo – took reasonable and necessary measures to prevent or punish his subordinates’ crimes perpetrated in the Central African Republic. Yet, the various dissenting, separate and concurring opinions advocate opposing positions on the scope, elements and nature of this notorious doctrine. This paper relocates the ‘sharp disagreements’ that surfaced during the Bemba Appeal Judgment within the broader phenomena of the individualisation of war. Through an in-depth examination of the interpretation offered by the appellate judges, it designs a model of command responsibility that properly individualises Article 28 Rome Statute, and, by the same token, respect the fundamental rights of military commanders.

Law at a Critical Juncture: The US Army’s Command Responsibility Trials at Manila, 1945-1947

Abstract The US Army’s war crimes trials of the hundreds of Japanese military personnel tried at Manila from 1945 to 1947 represent an opportunity to gain valuable insights into Allied ‘justice’ at a time when many aspects of war crimes jurisprudence were at a formative stage. Specifically, the Manila trials offer a unique portal into the jurisprudence of the doctrine of command responsibility. The ‘command responsibility trials’ at Manila, as they became known, are important for understanding the jurisprudential path to finding superiors criminally responsible for the criminal acts of their subordinates. This paper examines five trials from the US Army’s Manila trials in relation to the doctrine of command responsibility and in so doing, shows how the Manila trials significantly contributed to the development of the very important doctrine known as command responsibility.

“All Necessary and Reasonable Measures” – The Bemba Case and the Threshold for Command Responsibility

On 21 March 2016 Trial Chamber iii of the International Criminal Court unanimously convicted the former Vice-President of the Democratic Republic of the Congo, Jean-Pierre Bemba Gombo, on the basis of the doctrine of command responsibility for crimes against humanity and war crimes committed by troops under his command in the Central African Republic from 2002 to 2003. On 8 June 2018 however, the Appeals Chamber reversed the judgment and acquitted Bemba of all charges. The Appeals Chamber held that the Trial Chamber erred in finding that Bemba failed to take all necessary and reasonable measures to prevent and repress crimes committed by his subordinates as contemplated in Article 28(a)(ii) of the Rome Statute. This article evaluates the meaning of “all necessary and reasonable measures” in the context of command responsibility and considers whether Bemba met this threshold in order to avoid incurring criminal responsibility under Article 28(a)(ii).

Punish and Be Punished?

Abstract Pursuant to the doctrine of command responsibility, military commanders can be found criminally responsible for having failed to take necessary and reasonable measures to prevent or punish the crimes of their subordinates. Focusing on the duty of commanders of organized armed groups to punish the war crimes committed by their subordinates, this article enquires whether the commanders’ duty is subject to any limit under international law. By analysing the imposition of disciplinary and criminal measures, including prosecution in armed group courts and detention, the article argues that a commander cannot fulfil their duty to punish through unlawful measures and can only be required to take punitive measures which are not themselves illegal or criminal under international law. Otherwise, the commander would face a paradoxical choice: not punish their subordinates and be punished for having failed to do so or punish them and nonetheless be punished for having done so through illegal or criminal measures. Courts should be mindful of this when holding an individual responsible for failing to take certain punitive measures pursuant to the doctrine of command responsibility.

Rape as a Tactic of Terror: Holding the Islamic State Accountable

Sexual violence is an essential part of the political economy of the self-proclaimed Islamic State. The terrorist group uses rape, sexual slavery, and other forms of sexual violence for recruitment; to terrorize communities into compliance and displace them from strategic areas; to torture and extract intelligence; to compel conversion and indoctrination through forced marriage; and to generate revenue through sex trafficking, slave trade, and ransoms. Sexual violence during armed conflict can violate the law of war and in some cases can amount to torture. Under the doctrine of command responsibility, leaders can be prosecuted for war crimes when they knew or should have known that their subordinates were committing such crimes and failed to take adequate steps to prevent the crimes or punish those responsible. Holding the Islamic State accountable for sexual violence, particularly the systematic rape of women and girls from the Yazidi religious minority, would help disrupt the terrorist organization’s authority and resources, but finding a court with jurisdiction over these crimes is a challenge. Iraq has not joined the International Criminal Court (ICC), the Islamic State is not a recognized state, and domestic courts face obstacles in addressing these complex transnational crimes. Despite the difficulties, the ICC offers the most promising venue to investigate and try these cases, secure justice and reparations for the victims, punish the perpetrators, and deter future crimes. A version of this paper (under the same title) was published at on Just Security on August 11, 2017.

Responsibility of Commanders Under Russian Criminal Law in the Context of De Lege Lata

The article deals with the issue of current reflection of the specific concept of international humanitarian law, i.e. command responsibility, in THE Russian Criminal Law. The emergence of such a specific penal construction is necessitated by the need to bring to justice commanders (or superiors regardless of their civil or military status) for condoning the commission of a crime. The latter, by virtue of their superior position over their subordinates, obviously have the possibility of preventing them from committing crimes. Accordingly, the failure to take appropriate measures to prevent subordinates from committing war crimes, which, directly or indirectly, may even encourage subordinates to violate international humanitarian law rules, should be punishable. The author refers to the history of this construction in international humanitarian law and examines the permissibility of the direct operation of the rules of international humanitarian law in this part. It is concluded that the commanding officer can be held liable under the Russian Criminal Law is only possible after the rule in question is established (or identified) in the Russian Criminal Law, and this rule completely meets a relevant obligation assumed by the Russian Federation, i.e. criminalizing the failure of a commander on the scale envisaged by international humanitarian law. The author goes on to the implementation of the relevant provisions in Russian and Soviet legislations and then refers to the 1996 Russian Criminal Code. The author concludes that the full scheme of such responsibility does not exist under the existing Criminal Code, since neither the General Part with regard to complicity nor the Special Part with regard to certain crimes provide for criminal responsibility of commanders. It is impossible to justify the commander's responsibility through the institution of complicity. Article 42 of the Criminal Code of the Russian Federation concerning execution of an order as a defense to criminal responsibility is not applicable. Articles 286, 293, 316 and 356 of the Criminal Code also do not cover the whole range of situations involving responsibility of the commander. However, there are complex criminal cases in which criminal responsibility could be properly justified only if the doctrine of command responsibility is applied.

Contemplating the Meaning of 'Responsibility' in Responsible Command

Operating under responsible command is an essential requirement to qualify as a lawful combatant, and is also central to the criminal accountability doctrine of command responsibility. This reveals the indelible link between the role of the commander and the effective implementation of the law of armed conflict. Understanding this linkage is vital to ensuring that commanders and other military leaders fulfill their obligation to prepare subordinates to navigate the chaos of mortal combat within the legal, and by implication, moral framework the LOAC provides. Few commanders would question the proposition that responsible commanders prepare their military units to effectively perform their combat missions. However, operational effectiveness is only one aspect of developing a “responsible” command. Because this term is grounded in the expectation of LOAC compliance, a truly responsible command exists only when the unit is prepared to execute its operational mission in a manner that fully complies with LOAC obligations. This broader conception of a disciplined military unit reflects the true nature of the concept of responsible command, as only military units built on this conception of discipline advance the complementary objectives of military effectiveness and humanitarian respect. Accordingly, the requirement that lawful combatants operate under responsible command is an admonition to all military leaders that truly effective military units are those capable of executing their missions with maximum operational effect within the framework of humanitarian constraint that defines the limits of justifiable violence during armed conflict.

Autonomous Weapon Systems: Legal Consequences of Taking the Man Out of the Loopp

This essay considers how the development and fielding of autonomous weapon systems will implicate compliance with the law of armed conflict (LOAC). It argues that assessing the legality of such weapon systems will be facilitated by analogy to the human soldier. Specifically, the essay considers how inherent human cognitive autonomy is managed through the process of training and responsible command to ensure the soldier functions consistent with the requirements of the LOAC. It then suggests that because fielding commanders will have little opportunity to influence the artificial intelligence based judgments of future autonomous weapon systems, they must undergo a 'compliance validation' process that produces a higher degree of confidence in LOAC compliance than that expected of the human soldier. This leads to consideration of the relationship between the traditional doctrine of command responsibility and the expectation of LOAC compliance for the human soldier, and why this doctrine cannot be expected to produce the same effect with regard to autonomous weapons. Accordingly, the essay proposes that the focal point of 'responsibility' must be reconsidered in relation to autonomous weapons, recasting the doctrine to one more focused on 'procurement responsibility.' The essay closes by raising and answering several theoretical questions related to the development and employment of autonomous weapons.

International Criminal Law before the Supreme Court of Mexico

AbstractThis article explores different cases taken before the Supreme Court of Mexico concerning issues of international criminal law. The first part addresses the proposition of universal jurisdiction in the Cavallo case. The second part concerns the ex post facto application of the Inter-American Convention on Forced Disappearance of Persons and the issue of the statute of limitations regarding international crimes in the Forced Disappearance case and the Echeverría Appeal. The final part discusses the Atenco case, in which the doctrine of command responsibility was considered but ultimately not used in the final decision. The conclusion is that the methods of interpretation of the Supreme Court are still limited by the Constitution, which sometimes hinders developments consistent with international standards.

Adjudication Deferred: Command Responsibility for War Crimes and US Military Justice from My Lai to Haditha and Beyond

The public international law doctrine of command responsibility, like many firmly accepted rules in law, is more clearly stated than consistently applied. Intended to establish a base level of order and responsibility for sustained violence endemic to the inherently ugly nature of war, even state militaries of fully mature Western democracies demonstrate difficulty appreciating its importance and applying its law.

The Philippine President as Tortfeasor-in-Chief: Establishing Civil Liability for Constitutional Negligence

AbstractThis article analyzes the liability of the Philippine President for the tort of constitutional negligence in relation to the murders and forced disappearances of leftists, journalists, and other dissidents. It uses the international law doctrine of command responsibility as a form of attribution that may be used, by analogy, to hold the President accountable for a culture of impunity. The article describes the role of the President as the regulator of a human rights-conducive information ecology and argues that massive human rights violations meant to silence dissidents are a source of liability for which a class action suit is an available remedy. Finally, it looks at the concept of presidential immunity from suit from a comparative perspective and argues that the continued application of restrictive immunity rules established during the American colonial era is misplaced considering the universalist design of the present Philippine Constitution and developments in immunity jurisprudence in the United States.

The Doctrine of Command Responsibility Revisited

The Doctrine of Command Responsibility Revisited

Doctrine of Command Responsibility in U.S. Human Rights Cases

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Command Responsibility of Civilian Superiors for Genocide

The article critically examines the use of the doctrine of command responsibility by the UN International Criminal Tribunal for Rwanda in two of its judgements, Kayishema & Ruzindana and Musema. It argues that in assessing superior-subordinate relationships the ICTR applied the wrong standard in both cases. While there is no doubt that civilian superiors are liable to prosecution for command responsibility, the doctrine will be properly operative only in cases where the superior's control of subordinates strongly resembles that enjoyed by military commanders. The article builds upon the arguments of the ICTY's Čelebići judgement on this point, and emphasises the difficulty in holding lower-ranking Rwandan civilians responsible as superiors for genocide committed by supposed subordinates.

The Doctrine of Command Responsibility: Current Problems

This article follows on an earlier study of the topic of command responsibility. When that previous analysis was made, the jurisprudence of the International Criminal Tribunals for the Former Yugoslavia (ICTY) and Rwanda (ICTR) in this area was nascent. A number of issues have since been considered and decided upon by the two Tribunals in several judgements, which have already attracted some scholarly attention. It is proposed to examine herein the doctrine of command responsibility in the light of the evolving case law of the Tribunals and other evidence of practice outside these judicial fora. The aim is to discover whether customary law has progressed or developed, and what questions recent practice has raised.

Commanders on Trial: The Blaškić. Case and the Doctrine of Command Responsibility under International Law

Commanders on Trial: The Blaškić. Case and the Doctrine of Command Responsibility under International Law

Commanding Rape: Sexual Violence, Command Responsibility, and the Prosecution of Superiors by the International Criminal Tribunals for the Former Yugoslavia and Rwanda

SummaryEvidence indicates that individuals responsible for mass rapes in the former Yugoslavia and Rwanda were acting on orders from their superiors. The international criminal tribunals for the former Yugoslavia and for Rwanda have indicated their intention to prosecute individuals responsible for sexual violence and their superiors. The prosecution of superiors rests on the doctrine of command responsibility — a doctrine Well-established in international criminal law. This article presents the difficulties that arise in applying the doctrine of command responsibility to cases of wartime sexual assaults. Relying on a feminist analysis of international humanitarian law, the author identifies the imbalance that exists between the principle of military necessity and the principle of humanitarianism — an imbalance that makes rape the least condemned and punished of war crimes. In the absence of traditional military command structures, as was the case in Bosnia and Rwanda, a superior is well-placed to deny his authority over those who committed wartime rapes. Despite this challenge, the author asserts that the Tribunal for the former Yugoslavia, in theCelebicicase, developed a realistic approach to the doctrine of command responsibility and reasonably concluded that a camp commander was criminally responsible for rapes committed by his subordinates.