Human Rights
The Doctrine of Command Responsibility and its application in international humanitarian law
‘As for the ways by which rulers over others may become implicated in their crimes, there are two ..tolerance and protection…we must hold that a person who knows of a crime and is able and bound to forbid it and does not do so, himself commits a crime ..the people or the king are not rigidly bound to surrender the offender, but they must either surrender or punish him.’
GROTIUS (1652).as quoted in Cherif Bassouni -International Criminal Law (3rd Edition 2008)
US President Barack Obama, Secretary of State Hillary Clinton, Vice President Jo Biden and others in the Whit House situation room as the raid on Osama bin Laden's hideout was underway
The origins of command responsibility date back centuries. In the 6th century B.C., Sun Tzu in his Ping Fa- ‘The Art of War’ wrote about the duty of army commanders to ensure that their subordinates conducted themselves in a civilized manner in armed conflict. (see Wikepedia-the free encyclopedia).In 1439,Charles VII of France issued the Ordinance of Orleans, which imposed blanket responsibility on commanders for all unlawful acts of their subordinates. Although the tribunal did not entirely rely on command responsibility the first international recognition of the concept occurred in the trial of Peter Von Hagenbach in the days of the Holy Roman Empire.
During the US Civil War, the US Government worked with Professor Alfred Lieber of the University of Columbia to codify the rules governing warfare. Article 71 of General Orders No. 100 ,’Instructions for the Government of Armies of the United States in the Field’, known as the ‘Lieber Code’ imposed criminal liability on commanders for ordering or encouraging soldiers to wound or kill already disabled enemies. The first attempt at international level to codify the principle of command responsibility was the Hague Convention (IV) of 1907 ‘Respecting the Laws and Customs of War on Land’. Article 1 of the Annex to the Convention stated that an armed force had to be commanded by a person responsible for his subordinates, but did not further detail the particular obligations of the commanders.
Geneva Convention
The Additional Protocol I (‘API’) of 1977 to the Geneva Convention of 1949 was the first international treaty to comprehensively codify
Photograph of body of Tiger supremo Velupillai Pirapaharan released to media after he was killed on May 18, 2009 marking the end of Sri Lanka's 26 year old civil war
the doctrine of command responsibility. Article 86(2) states the fact that a breach of the Convention of this Protocol was committed by a subordinate does not absolve his superiors from responsibility if they knew, or had information which should have enabled them to conclude in the circumstances at the time, that he was committing or about to commit such a breach and ‘if they did not take all feasible measures within their power to prevent or repress the breach’.
Article 87 requires a commander to ‘prevent and where necessary ,to suppress and report to competent authorities’ any breaches of the Conventions and of the Additional Protocol I(‘API’).It should be noted that Article 86(2) explicitly addresses the knowledge factor of command responsibility. There is an ongoing debate as to whether this knowledge factor found in Article 86(2) can be interpreted to include a stricter ‘should have known’ mens rea (guilty intention) standard.
The statutes of the two tribunals established by the UN Security Council, The International Criminal Tribunal for the former Yugoslavia (ICTY) and The International Criminal Tribunal for Ruwanda (ICTR) further developed the doctrine of command responsibility in International Humanitarian Law.
Knew or should have known
The doctrine of command responsibility has recently been codified in Article 28 of the Rome Statute of the International Criminal Court (ICC). Article 28(a) imposes individual responsibility on military commanders for crime committed by forces under their effective command and control if they either knew or owing to the circumstances at the time, ‘should have known’ that the forces were committing or about to commit such crimes. Thus, literally interpreted Article 28(a) of the Rome Statute imposes a stricter standard of knowledge than Article 86(2) of the Additional Protocol I (‘API’) of 1977 to the Geneva Convention.
Not a party
Sri Lanka is not a State Party that has ratified or acceded to the Rome Statute. Therefore the International Criminal Court has no jurisdiction over the territory of Sri Lanka. Article 12(1) under ‘Precondition to the exercise of jurisdiction’ states: ’A State which becomes a Party to this Statute thereby accepts the jurisdiction of the Court with respect to crimes referred to in Article 5’. Article 5.1 of the Rome Statute grants jurisdiction to investigate (a) crimes of genocide, (b) crimes against humanity,(c) war crimes and (d) crime of aggression.
No jurisdiction without SC referral
In a recent interview with the Australian published in LankaNewspapers.com web site on 18th July 2011, the President of the ICC Hon.
Sri Lankans celebrate the death of the ruthless Terrrorist leader and the end of the civil war
Sang Hyun Song has stated that the Court has no jurisdiction with respect to Sri Lanka without a reference to the Court by the UN Security Council. A further obstacle is that the Court’s jurisdiction as it stands at present does not extend to matters related to terrorism.
The US Government under the Bush Administration adopted the ‘American Service-members’ Protection Act in an attempt to protect any US citizen from appearing before the ICC. The said Act interferes with the application or implementation of the principle of command responsibility when applied to US citizens.
It was reported recently in the Lanka Standard and in other local and international media that a law suit based on command responsibility has been filed in the United States District Court of Columbia under the Torture Victims Protection Act and attempts have been made to serve summons on H.E.Mahinda Rajapakse President of Sri Lanka. Under Article 2 of the Convention dealing with ‘Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters’ the designated Central Authority in Sri Lanka for the acceptance of such documents is the Ministry of Justice. Under the Foreign Sovereigns Immunity Act of the United States, it is extremely doubtful that a foreign Head of State can be issued with summons by a US Court. The Secretary to the Ministry of Justice has quite properly refused to receive such summons as this act is a direct violation of the sovereignty of our country.
The United States should first put its house in order and submit to the jurisdiction of the International Court of Justice on alleged war crimes committed during the Bush Administration before traversing the entire world hunting for purported human rights violations brought forward by interested parties linked to the barbaric LTTE.
(Most of the information in the above article has been obtained from the internet)
Lakshman Keerthisinghe, LL.B., LL.M. is an Attorney-at-Law and a former senior consultant in the Law Reform Project funded by the UNDP for the Human Rights Commission of Sri Lanka
15 Comments to “The Doctrine of Command Responsibility and its application in international humanitarian law”
August 15, 2011 at 1:12 pm
Just because the US was not brought to Courts on its misdeeds, Sri Lanka
can quote US and get off the hook, despite all the video evidence etc., is what you are saying to the layman ??
August 21, 2011 at 11:08 pm
Please explain to me how the United States obtained a moral right to sit upon judgement on Sri Lanka while shielding its soldiers from action on human rights violations.The UN can initiate an inquiry against Sri Lanka after it has dealt with the US because the purported human rights violations against suspected al qaeda prisoners by US soldiers were committed prior to the purported violations by Sri Lankan soldiers.Justice must not only be done it must also seem to be done.
August 9, 2011 at 5:18 am
I AM NEITHER A SUPPORTER OF THE RAJAPAKSAS NOR A LACKEY OF THE UNITED STATES.For further explanation see my reply to Ms.Pathirana posted below.
August 8, 2011 at 5:23 pm
Dear Mr. Keerthisinghe Hitler was chief too but only the foulest men supported him. You dont blindly support people just because they are the heads of countries. You support values and character and decency. HISTORY WILL JUDGE THOSE WHO SUPPORT THE RAJAPAKSES
August 9, 2011 at 5:07 am
Ms.Pathirana,
You have missed the point.I AM NEITHER A SUPPORTER OF RAJAPAKSAS NOR A LACKEY OF THE UNITED STATES.I am holding the balance of justice EVENLY as applicable to both.The basis of my argument is that the US has no right to sit upon judgement on the purported human rights violations said to have been committed by the Sru Lanka Army under the Rajapaksa regime AND TAKE ACTION AGAINST THEM UNDER COMMAND RESPONSIBILITY when the United States is shielding its soldiers who have allegedly committed human rights violations under the Bush ADMINISTRATION BY USING THE AMERICAN SERVICE MEMBERS’ PROTECTION ACT AND PREVENTING ACTION AGAINST GEORGE BUSH UNDER COMMAND RESPONSIBILITY.CAN I PUT IT MORE SIMPLY THAN THIS BECAUSE U SEEM TO BE INSISTING ON ACTION AGAINST THE SRI LANKAN REGIME WHILE SHIELDING THE US REGIME.
August 8, 2011 at 5:20 pm
No Mr Keerthisinghe I have not suffered perosnally they way you think. I have lived out of sri lanka for a long time and my immediate family is doing well and happy. But I am concerned for those who were the victims of this was and this regime. I m not a selfish man because we don’t live like islands we are all part of each other so we have to have feelings forthe betterment of each other
August 9, 2011 at 5:15 am
I AGREE
August 8, 2011 at 10:01 am
Very interesting points. Thanks!
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August 7, 2011 at 9:25 am
Mr.Narmadan,
After writing the above reply,I read ur comments once again.I feel that u have suffered some personal loss during the unfortunate conflict.I AM NOT FOR A MOMENT CONDONING ANY EXTRA JUDICIAL KILLINGS NOR DENYING THAT HUMAN RIGHTS VIOLATIONS MAY HAVE TAKEN PLACE NOR INSULTING THE VICTIMS OF SUCH VIOLATIONS,I AM INDEED UNHAPPY AND VEXED THAT SRI LANKA HAD TO UNDERGO SUCH A BAD PERIOD ,but what I SAY IS THAT UNITED STATES HAS NO MORAL RIGHT TO SIT UPON JUDGEMENT ON OTHERS WHEN THEY SHIELD THEIR SOLDIERS FROM SUCH VIOLATIONS.WHAT ABOUT THE FATE OF THE INNOCENTS WHO WERE TORTURED BY THE US military? WILL THEY EVER GET JUSTICE WHEN THE PERPETRATORS ARE SHIELDED AND CAN NOT BE BROUGHT BEFORE THE ICC? I AM DEFINITELY NOT HOLDING ANY BRIEF FOR ANYONE,LEST I BE MISUNDERSTOOD.PL. FORGIVE ME IF I HAD HURT UR FEELINGS.
August 7, 2011 at 4:48 am
Agani you are missing the point Mr Keerthisinghe. Unlike in Sri Lanka the Executive does not go to bed with the Judiciary in the US. Under certain laws individuals have a right to file cases. On the merit of thiese cases they will either be dismissed or not by the court. You are confusing US govt policy and the justice system. Yes the US govt is duplicitous in doing so, but their domestic justice system works by and large. Anyone can be taken to court and they usually will not be killed for exercising this right. You are confusing also the US courts and the ICC and ICJ those are international tribunals. But anyone has the right to file a case in a US court if it is provided for in the laws and in certain cases involving international relations the courts refer to the State department for advise on whether to proceed because obviously all countries must safeguard their interests internationally. Also you are mixing up individuals who happen to be sri lankan with the Entirety of sri lanka. Just because there are a few rotten eggs does not mean it applies to sri lanka. This is a myth put forward by the Rajapakse’s to safeguard themselves. I have not come across one peraon who speaks badly aganist sri lanka as a whole and sri lankans. But please do not bury your head in the stand. Do not insult the innocent victims of this war by denying that HR violations did not take place or that there were extra judicial killings. That is wrong of you to do and it is much more wrong because you are a lawyer. Thank you
August 7, 2011 at 7:37 am
Again you have missed the point.Although you agree that the US GOVERNMENT is duplicitous in its actions as far as the human rights violations are concerned you wish to ignore this fact and concentrate on finding fault with the Sri Lankan Government claiming to be a person standing for justice and fair play.Justice is symbolized by a scale held evenly.Your scale is tilting towards the US.Some say that might is right.ALTHOUGH YOU SAY THAT in Sri Lanka that the judiciary is going to bed with the executive,can you show me one judgement that has been given that way.A judge also has his freedom in private life to entertain his friends at parties but this does not necessarily mean that a partial judgement will be given.As the judges are unable to defend themselves due to their position some people go on criticizing them thereby undermining the rule of law.Any person aggrieved has the right to file a law suit.What I have said in the article is that the US Court can not summon a Head of State under the existing laws due to a lack of jurisdiction,I am well aware of the difference between a US COURT and International Tribunals.For ur information the US Courts are set up under the US Constitution and the INTERNATIONAL CRIMINAL COURT (ICC)was set up under the Rome Statute which is an international treaty.
August 7, 2011 at 3:41 am
This article was fine until it came to the final paragraphs. Then the writer showed his true colors as a Rajpakse sycophant rather than a dispassionate legal mind
August 7, 2011 at 4:38 am
Ms.Pathirana,
To be a dispassionate legal mind am I to turn a blind eye to the fact that the US Government is shielding its soldiers who are alleged to have committed war crimes under the Bush Administration and attempting to hunt down purported similar crimes committed under the Rajapakse Administration through the judicial system.ARE WE TO SILENTLY WATCH AS ANOTHER COUNTRY HOWEVER POWERFUL IT IS USURPS THE SOVEREIGNTY OF THE SRI LANKAN NATION?Whether it is Rajapakse or Bandaranayake,the person you are referring to is the duly elected President of our country.Are we to be traitors to our own country?I am not anybody’s sycophant.
August 7, 2011 at 3:39 am
Mr Keerthisinghe it is not the US that is traversing the world looking for anything. The US is a democracy and has a good justice system and great legislation and individuals aggrieved by those in power have every right to file cases. They can also file cases without fearing for their lives like in Sri Lanka now. As a lawyer you should know that and uphold that sacred right .That is the purpose of law after all. At least in this way some equality can be achieved between the lowly and the powerful. Do not blind yourself to justice and fairplay
August 7, 2011 at 4:25 am
Mr.Paliguru,
Do you agree with the duplicity displayed by the US Government shielding its soldiers,who have committed human rights abuses and the US Courts hunting others,who are alleged to have committed similar offenses.Is this justice and fair play in your eyes?