Command Responsibility

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MENS REA
[…] His guilt cannot be determined by whether he had operational command,
administrative command, or both. If he knew, or should have known, by use of
reasonable diligence, of the commission by his troops of atrocities and if he did not
do everything within his power and capacity under the existing circumstances to
prevent their occurrence and punish the offenders, he was derelict in his duties.
Only the degree of his guilt would remain.” 464
In the Hostages case held before a US Military Tribunal under Control Council Law No.
10, the Tribunal rejected the defence of the accused General List that he had no knowledge
of unlawful killings committed by his subordinates, stating that:
“A commanding general of occupied territory is charged with the duty of
maintaining peace and order, punishing crime, and protecting lives and property
within the area of his command. His responsibility is coextensive with his area
of command. He is charged with notice of occurrences taking place within that
territory. He may require adequate reports of all occurrences that come within the
scope of his power and, if such reports are incomplete or otherwise inadequate,
he is obliged to require supplementary reports to apprize him of all the pertinent
facts. If he fails to require and obtain complete information, the dereliction of
duty rests upon him and he is in no position to plead his own dereliction as
a defence. Absence from headquarters cannot and does not relieve one from
responsibility for acts committed in accordance with a policy he instituted or in
which he acquiesced.” 465
The US Military Tribunal hearing the High Command case held that:
“Criminality does not attach to every individual in this chain of command from
that fact alone. There must be a personal dereliction. That can occur only where
the act is directly traceable to him or where his failure to properly supervise his
subordinates constitutes criminal negligence on his particle. In the latter case
it must be a personal neglect amounting to a wanton, immoral disregard of the
action of his subordinates amounting to acquiescence.” 466
Commenting on these cases, the ICTY Trial Chamber in Čelebići held that:
“[I]t is to be noted that the jurisprudence from the period immediately following
the Second World War affirmed the existence of a duty of commanders to remain
informed about the activities of their subordinates. Indeed, from a study of these
decisions, the principle can be obtained that the absence of knowledge should
not be considered a defence if, in the words of the Tokyo Judgement, the superior
was ‘at fault in having failed to acquire such knowledge’.” 467
After reviewing the jurisprudence following World War II, the Blaškić Trial Chamber also
464 U.S.A. v. Soemu Toyoda, Official Transcript of Record of Trial, 6 September 1949, p. 5006.
465 U.S.A. v. Wilhelm List et al., in Trials of War Criminals, vol. XI, p. 1271.
466 U.S.A. v. Wilhelm von Leeb et al., in Trials of War Criminals, vol. XI, pp. 543-544.
467 ICTY, Mucic et al. (“Celebici”), TC, Judgement, Case No. IT-96-21-T, 16 November 1998, para. 388; referring to the Tokyo Trial Official Transcript, 4
November 1948, pp. 48, 445.
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