Sounding Board

Command responsibility

By: Fr. Joaquin G. Bernas S. J.
Philippine Daily Inquirer

4:09 am | Monday, June 27th, 2011

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The people who filed a civil case seeking to hold former President Gloria Macapagal-Arroyo liable, under command responsibility, for the extrajudicial killings and disappearances during her watch must have known what chance of success they had. Military commanders have been brought to court for the same purpose, but no suit has succeeded. But this is not because we have rejected command responsibility as law but rather because of failure to establish the necessary link between the commanders and the crime.

What is the doctrine of command responsibility? In its simplest terms, command responsibility means the responsibility of commanders for crimes committed by subordinate members of the armed forces or other persons subject to their control in international wars or domestic conflicts. The concept itself is not new. Sun Tzu recognized it in his sixth-century classic “The Art of War,” and the Holy Roman Empire applied it as early as 1474. Its more elaborate development, however, did not come until after World War II.

We can perhaps begin with the case closest to our country. Gen. Tomoyuki Yamashita was the commanding general of the Fourteenth Army Group of the Imperial Japanese Army in the Philippine Islands. He was charged with violating the laws of war. The charge stated that Yamashita, “[W]hile commander of armed forces of Japan at war with the United States of America and its allies, unlawfully disregarded and failed to discharge his duty as commander to control the operations of the members of his command, permitting them to commit brutal atrocities and other high crimes against people of the Philippines.”

Legal scholars and commentators who have studied the case are divided on the basis for the conviction of Yamashita. Did Yamashita have actual knowledge of the crimes or even ordered their commission? Or was he convicted on the basis of presumed constructive knowledge? There was no clear definition in the decision of what the commander’s state of mind had to be in order to justify conviction. It was not until later that the doctrine of command responsibility underwent more careful development.

The first important development was the codification of the doctrine in Protocol I to the Geneva Convention of 1977. Article 87 provides that parties to a conflict should require military commanders to prevent, supervise and report breaches of the Geneva Conventions and Protocol by troops and others under their command and, where appropriate, initiate disciplinary action.

On the basis of the text of Protocol I the ICRC Commentary identified three conditions for command responsibility:

(i) the person to be held responsible must be the superior of the person or persons committing the breach of the convention;

(ii) the superior must have known or had information which should have enabled him to conclude that a breach was being committed or was going to be committed; and

(iii) the superior did not take all feasible measures within his powers to prevent the breach.

These requisites were later reflected in Article 7(3) of the Statute of the International Criminal Tribunal for the former Yugoslavia (“ICTY”) which provides as follows: “The fact that any of the … crimes within the jurisdiction of the [Tribunal] was committed by a subordinate does not relieve his superior of criminal responsibility if he knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.”

The Trial Chamber identified three elements for liability pursuant to Article 7(3): (i) the existence of a superior-subordinate relationship; (ii) that the superior knew or had reason to know that the criminal act was about to be or had been committed; and (iii) that the superior failed to take the necessary and reasonable measures to prevent the criminal act or punish the perpetrator.

As things stand now, it is already a well-established norm of customary and conventional law that “military commanders and other persons occupying positions of superior authority may be held criminally responsible for the unlawful conduct of their subordinates.” Under the incorporation principle of our Constitution whereby we “adopt the generally accepted principles of international law as part of the law of the land…,” this is now also domestic law.

As much is said by former Justice Conchita Carpio Morales in a concurring opinion in a 2010 case decided by the Supreme Court. A categorical adoption of the doctrine of command responsibility, as Justice Carpio Morales said, will bring the writ of amparo cases to their logical conclusion.