Rumsfeld, Bush, and ‘command responsibility’

I was glad to see that Jonathan Tepperman, an editor at Foreign
Affairs, raised the important issue of command responsibility
regarding the tortures and other abuses in the US global gulag, in an

op-ed piece
he had in the NYT Thursday. Certainly, the fact that–according
to the news that has come out this week–Donald Rumsfeld and high-ranking
people in the White House Counsel’s office and the Vice-President’s office
all took active parts in the discussions around the legality of the extremely
abusive techniques used within the gulag brings the question of command
responsibility front and center.

As Tepperman sums it up,

Under the doctrine of command responsibility, officials can be
held accountable for war crimes committed by their subordinates even if
they did not order them– so long as they had control over the perpetrators,
had reason to know about the crimes, and did not stop them or punish the
criminals.

This doctrine has been well accepted into US domestic law, most notably
in the Supreme Court’s ruling in the case of General Yamashita, the
man who had been the Japanese commander of the Philippines during the chaotic
days when his forces’ positions there were collapsing to the Americans.

Indeed, the Supreme Court’s ruling ascribed to a commander an even
broader epistemic responsibility than Tepperman indicates. It is
not just that the commander “has reason to know about the crimes”, but rather
that a commander has an active responsibility to know about, and
to try to stop and punish, crimes of this severity.

Many of the Japanese units in the Philippines did, undisputedly, commit
atrocities during the period in question. Yamashita was captured by the
US forces, and was later charged with responsibility for those war crimes.
As described in a well-compiled little
paper
written by Marine Corps lawyer Maj. Bruce Landrum:

the defense strategy was to deny any knowledge of the
crimes and to discredit any evidence directly linking Yamashita with any
of them. The defense argued that the general should not be punished for his
“status” as the commander of the perpetrators without any showing of “fault”
on his part. The prosecution argued that the atrocities
were so widespread and numerous that Yamashita must have known of them, unless
he was affirmatively avoiding knowledge. Either way, the prosecution argued,
the commander had failed in his duty to control his troops.

Yamashita’s lawyers filed a habeas brief on his behalf with the U.S. Supreme
Court; and the Supremes, in Landrum’s words, “denied any relief [to Yamashita], upholding the
authority and procedures of the military commission, and specifically holding
that military commanders have an affirmative duty to control their subordinates.
“

Ilias Bantekas, the Director of the International Law Center at the University
of Westminster School of Law (in the UK) has published a good, seemingly thorough
article
on command responsibility, titled THE CONTEMPORARY LAW OF SUPERIOR RESPONSIBILITY
(American Journal of International Law, v.93, no. 3, July 1999).
He writes,

Despite his de jure command, Yamashita, who assumed his
post only eleven days before the invasion by United States forces, ordered
a partial evacuation. He then split the remainder of the Japanese forces
into three separate fighting units, ceding full command of two, and commanding
the other himself. Contrary to his orders, the evacuation did not occur,
and Yamashita was left isolated in a remote mountainous region, apparently
lacking communications with his headquarters and the two other commanders.

Yamashita’s conviction was upheld for acts of troops beyond his
de facto control, on the ground that operational command responsibility cannot
be ceded for the purposes of the doctrine of command responsibility even though
the specific aspects of such command are actually ceded to others. This rule,
referred to as the “delegation principle,” is recognized as a general principle
of criminal law. It strains the mind to consider the possibility of upholding
criminal responsibility in cases where both de facto control is missing
and de jure command was already ceded for military purposes and not for the
purpose of escaping criminal responsibility. Certainly, it must have seemed
to the Supreme Court that authority was delegated for the purpose of evading
responsibility which raised the risks of crime. Command responsibility cannot
be avoided.

The doctrine of command responsibility (DCR) was developed a lot by
the U.S.-dominated International Military Tribunal established to try the
actions pursued in the Far East by Japanese commanders and (some) political
Japanese leaders. That tribunal ran in parallel with its more famous
(and more international) counterpart at Nuremberg. The DCR was then
further developed in the 1990s, most notably in judgments rendered by the
International Criminal Tribunals for former Yugoslavia and Rwanda. In
ICTY, it plays a crucial role in the case against Slobodan Milosevic. It has also been used once again in US domestic courts, most notably
in the July 2002 judgment of a Miami court that found two retired Salvadoran
generals liable for tortures committed by units under their command. One
had been the head of the country’s National Guard at the time; the other,
the Defense Minister (think Rumsfeld).

Bantekas’s article deals with many issues of direct relevance in the case
of the present US gulag abuse cases. He writes of the responsibility
of occupation commanders (think Sanchez), as follows:

Executive
or occupation commanders are those individuals vested by the occupying state
with supreme governing authority in the occupied territory. The difference
between operational and executive commanders is that while the former are
responsible for the acts of people under their command or control, the
latter are accountable within the territory they occupy to assure that
the rights of civilians and POWs therein are fully protected. In the
case of executive commanders… their responsibility is co-extensive with
their appointed command structure. This responsibility cannot be limited,
even by a commander’s own state’s legislation. Since executive superiors
are not bound under the rule of subordination, they have a duty to prevent
and punish crimes which involve auxiliary or allied forces stationed within
their area of command.A similar duty exists in cases of inter-communal rivalry.
Commanders are also obliged to enforce discipline in related events in order
to protect both local majorities and minorities. [Here and elsewhere in this JWN post, I have emphasized by underlining parts of the works cited that seem of particular relevance in today’s US context –HC.]

In cases where executive commanders also perform operational tasks, they
must nonetheless be aware of any occurrences within their territory, even
if they are not present. Hence, the exercise also of operational command
does not absolve them from their executive command obligations. Acquisition
of information can be achieved by demanding constant and reliable appraisal
of all pertinent facts. This generally involves establishing an effective
reporting system which would ensure delivery of adequate and up to date
information to the commander. The duty of executive commanders to protect
and care for the welfare of civilians is a strict responsibility element
in the actus reus definition of their command responsibility.

The sources and precedents Bantekas cites in those paragraphs come mainly
from judgments rendered at the Tokyo Trials, which dealt centrally with
atrocities that took place in non-Japanese areas under Japanese military
occupation. A couple of the precedents came from the Nuremberg
Tribunal. In a footnote at the end there, he spells out that:

It is apparent that no mens rea [criminal intent] is required. Even
though this construction is upheld by international law, one should consider
analogous advances in some domestic criminal laws regarding offenses of strict
responsibility.

Bantekas also deals specifically with the issue of the treatment of
prisoners:

According
to a basic principle of military law and practice, once under captivity,
prisoners become subordinates to the captor commanders, and are deemed to
be in the hands of the captor state. Since Hague Convention IV (1907) POWs
are customarily offered humane treatment. Therefore, responsibility for
their treatment rests with government officials, operational officers in
command of formations who are holding the prisoners, as well as officials
in departments concerned with prisoner welfare and any other civilian or
military official being in direct and immediate control of prisoners. It
seems unreasonable, however, to hold government officials responsible without
requiring proof of knowledge and a capacity to act. [The citation there was
to an ICTR ruling in the case of Jean-Paul Akayesu, the elected bourgmestre
of the Rwandan town of Taba. The Court ruled that judges had ruled:that
the issue of the responsibility of civilian government officials for the
actions of Rwandan militia leaders in that case would depend on the
“power of authority actually devolved upon the accused, in order to determine
whether or not he had the power to take all necessary and reasonable measures
to prevent and punish.”
Bantekas continues…] However, rules that hold the Head
of government and minister in charge of prisoner affairs responsible
are reasonable, since these officials’ duties are to acquire knowledge
and act accordingly.

Head of government…. In the present context, that would be George
W. Bush? …. (The actual head of Government cited by Bantekas at
that point was Jean-Paul Kambanda, who was Prime Minister of Rwanda throughout
the state-backed genocide there.)

Well, now we get into the question of GWB and his confederates in what
is increasingly looking like a globe-circling conspiracy to
facilitate the perpetration of systematic abuse of detainees–
and centrally, to the important issue of the duty of these officials both
to know what was going on inside US-run detention facilities, and to act
on that knowledge.

Epistemology and George W. Bush: a topic that might seem hilarious on
the face of it but which in this case is of truly deadly import.

Bantekas gives us the following consideration of the epistemologic issues
involved in the DCR:

Actual Knowledge

The term “knowledge” denotes awareness as to the existence of a circumstance
or awareness of it occurring. According to the elebii judgment [a
1999 judgment at ICTY], “actual knowledge” in Article 7(3) of the ICTY Statute
may be established through direct or circumstantial evidence. Actual
knowledge may also be imputed to superiors where they had “in [their] possession
information of a nature, which at least, would put [them] on notice of the
risk of such offenses by indicating the need for additional investigation
in order to ascertain whether such crimes were committed or were about to
be committed by [their] subordinates.”

In the absence of direct evidence, constructive knowledge may be established
through circumstantial evidence. This knowledge is arrived at through examining
striking features of subordinate criminal activity and arriving at the
inference that the superior who is accused was aware of those crimes. Imputation
or inference through circumstantial evidence can be established in a number
of ways. The UN Commission of Experts, responsible for investigating the
legal and factual bases for gross violations of humanitarian law in the
former Yugoslavia, noted that commanders “must have known” about the criminal
activities of their subordinates based on the
number, type and scope of illegal acts; the time during which they occurred;
the number and type of troops involved; the logistics involved, if any; the
geographical location of the acts; their widespread occurrence; the tactical
tempo of operations; the modus operandi of similar illegal acts; the
offenders and staff involved and the location of the commander at that time…

Presumption of Knowledge

The Yamashita judgment emphasized that the widespread
nature and notoriety of crimes perpetrated by the Japanese forces support
the conclusion that the accused “either knew or had the means of knowing”
of their widespread commission. The same result was confirmed in the
Trial of Sakai, where the accused was convicted by the Chinese War
Crimes Military Tribunal for atrocities committed by his subordinates.This
“must have known standard” was reaffirmed by the United States Military
Tribunal’s Hostage case, although it was not based on
widespread occurrence and notoriety, but on the accused’s failure to require
and obtain complete information.

…

“Had Reason to Know” Standard

Other than actual knowledge, Article 7(3) of the ICTY Statute creates responsibility
for failure to act upon information which a superior “had reason to know.”
This should be understood as having the same meaning as the phrase “had information
enabling them to conclude,” used in Geneva Protocol I (1977). The “reason
to know” standard means that commanders who are in possession of sufficient
information to be on notice of subordinate criminal activity cannot escape
liability by declaring their ignorance, even if such ignorance of the specific
crime is amply established. This standard creates an objective negligence
test which takes into full account the circumstances at the time. Absence
of knowledge is no defense if the superior did not take reasonable steps
to acquire such knowledge, which in itself is criminal negligence. Although
this standard rejects a presumption of knowledge it, nonetheless, also rejects
pleas of ignorance even if they are genuine. This raises a duty to know,
rebuttable only through evidence of due diligence, because it is a commander’s
duty to be apprised of facts within his or her command. [The precedents
cited here came not only from the Statute and case law of ICTY, but also
from judgments rendered in military tribunals held for Nazi-era perpetrators
of war crimes in the US and French zones of post-WW2 Germany.]

So, moving from the commander’s duty to know to his
or her duty to act, Bantekas wrote:

The Duty to Prevent

Article 86(2) of Geneva Protocol I and Article 7(3) of the ICTY Statute expressly
establish a duty to prevent at the moment subordinates “are going (or “are
about”) to commit a crime.” The duty to prevent commences upon the preparation
or planning of an offense by subordinates…

Superiors successfully discharge their duty to prevent subordinate crimes
when they employ every means in their power to do so. This also involves
pointing out objections to a criminal plan, even if the accused has no further
authority to intervene…

The Duty to Punish

A superior’s “duty to punish” arises after the commission of an offense.
It is predicated upon offenses by others which have already occurred, not
future offenses. Punishment is, therefore, intended to deter the commission
of future offenses. This duty to punish is distinct from a commander’s preventive
duty.

…

The Duty to Control

We have thus far established that ICTY Statute Article 7(3) includes the
customary duty to act–the duties to prevent and/or punish. Mens rea
for omission of these duties is direct or indirect intention, or gross
negligence. This suggests that international law imposes on commanders no
duty to either discover or predict the conduct of their troops, unless it
is at least clear that crimes are likely to occur. In contrast, the editor
of the concluding Law Report of the Trials of War Criminals series wrote
that there was some support for the view “that a commander has a duty, not
only to prevent crimes of which he has knowledge or which seem to him likely
to occur, but also to take reasonable steps to discover the standard of
conduct of his troops, and it may be that this view will gain ground.
” Going one step further, it is well-established that international law intends
to bar not only actual breaches of its norms, but also of its potential breaches.

While the duty to prevent a crime commences when commanders have reasonable
grounds to suspect subordinates will commit some crime, case law suggests
that commanders cannot escape liability if they fail to control their troops
before their duty to prevent commences. Thus, in the Abbaye Ardenne
case, where the accused was convicted for inciting and tolerating the denial
of quarter to captured combatants, the Canadian War Crimes Tribunal held
that commanders may be held accountable for the conduct of their troops when
they fail to take into consideration factors that would lead them to obvious
conclusions, e.g., the age, training or experience of their men and women.
Reference to a “duty to control,” concerning the conduct of a commander’s
subordinates, by the United States Supreme Court in Yamashita, makes
sense only if read in conjunction with the judgment of the Military Commission
which grounded Yamashita’s “failure to control” liability upon his failure
to personally inspect his forces. This duty is further supported in the
Toyoda judgment which explicitly recognized that commanders have “[a]
duty to control, to take necessary steps to prevent commission . . . of atrocities,
and to punish offenders.” Remarkably, that tribunal elaborated the doctrine
of command responsibility in terms of three distinct duties…

Finally, in a warning that will be very relevant from
July 1 on, Bantekas writes:

command responsibility should not be overlooked when examining the nature
of a mixed conflict. The ICJ in the Nicaragua case determined that
when an intervening state gives “direct and critical combat support” to an
insurgent force and insurgent operations reflect “strategy and tactics wholly
devised” by the intervening state, then an agency relationship is established.
Indeed, despite the inconsistent understanding and
application of the Nicaragua test by the various ICTY Chambers, in
cases where an agency relationship is found to exist it is not far-fetched
to consider the military or political leaders of the intervening state to
be individually responsible for certain acts of their agent “subordinates.”

Well, I don’t have time to finish my analysis of this issue yet. But
I do think people should be looking closely at the DCR these days.

It strikes me that even without the DCR, there is a
still-unfolding paper trail that involves high-ranking people in Rumsfeld’s
office and in the VP’s office and the head of the Office of White House Counsel
in the planning (conspiracy?) of operations intended to subvert long-held
standards of behavior in warfare to which the US has adhered and that are,
indeed, encoded in the US Uniform Code of Military Justice, etc etc.

Add in the DCR, however, with its duties to know and
to act (including a duty to control the actions of subordinates), and it
seems entirely possible that at least Rumsfeld and possibly also the Prez
and the VP could be held culpable for their subordinates’ actions in encouraging
treatment of detainees in US-run facilities that is most certainly cruel,
inhuman, and degrading and therefore, under both domestic and international
law, quite illegal.

—–
Methodological notes:

I used Bantekas’s article as a main source here because
it seems fairly thorough and up-to-date–and, the full text is available
online. I note that in a couple of places, the cross-referencing between
his 223 footnotes is “off” by one number–which can happen to the best of
us. But it’s usually easy to find which footnote he’s cross-referencing.
In the above digest of some of the more relevant parts of his article,
I stripped out the footnotes since I’m not sure my blogging software supports
them. I also did NOT use any of his arguments that rely on references
to the ICC Statute. I thought it most convincing–in a US context–
to cite only court judgments made by courts whose establishment the US has openly
supported. The couple of Israeli references Bantekas makes are sourced
to various portions of the report of the 1983 Kahan Commission into the Sabra
and Shatila massacres.