Several years ago, Beth Van Schaack highlighted a gap in U.S. law regarding atrocity crimes. Although well established in international criminal law as well as other areas of U.S. law, Title 18 of the U.S. Code lacks command responsibility as a mode of criminal responsibility. Following the issuance of pardons by President Donald Trump, Gabor Rona drew renewed attention to command responsibility as a mode of liability.
Here I drill down on the United States’ centuries-long recognition of one specific element of command responsibility – the duty to punish.
To briefly review, war crimes are serious violations of the law of war which entail individual criminal liability under international law. Under the law of war doctrine of command responsibility, a superior commander may, in some circumstances, incur criminal liability in connection with war crimes committed by his subordinates.
Command responsibility imposes both forward-looking and backward-looking obligations upon a commander for promoting compliance with the laws of war by his subordinates. Beforehand, a commander has an obligation to prevent war crimes by his subordinates. After the fact, a commander has an obligation to punish war crimes committed by his subordinates. A commander’s failure to uphold either his duty to prevent or duty to punish may give rise to his own responsibility for war crimes.
This duty to punish has been an element of command responsibility since at least the Hundred Years’ War. In 1439, King Charles VII of France issued an ordinance identifying the failure of a commander to discipline a subordinate as a basis for the punishment of the commander.
The King orders each captain or lieutenant to be held responsible for the abuses, ills, and offenses committed by members of his company, and that as soon as he receives any complaint…he bring the offender to justice…If he fails to do so or cover up the misdeed…the captain shall be deemed responsible for the offense, as if he had committed it himself and shall be punished in the same way as the offender would have been. (emphasis added)
The duty to punish was embedded in the American understanding of the law of war even before the United States declared its independence. The Articles of War adopted by the Second Continental Congress on June 30, 1775 (a week after George Washington was commissioned as Commander in Chief), provide that:
Every officer, commanding in quarters or on a march, shall keep good order, and, to the utmost of his power, redress all such abuses or disorders which may be committed by any officer or soldier under his command: If upon any complaint [being] made to him, of officers or soldiers beating, or otherwise ill-treating any person, or of committing any kind of riot, to the disquieting of the inhabitants of this Continent; he the said commander, who shall refuse or omit to see justice done on the offender or offenders, and reparation made to the party or parties injured, as far as the offender’s wages shall enable him or them, shall, upon due proof thereof, be punished as ordered by a general court-martial, in such manner as if he himself had committed the crimes or disorders complained of….(emphasis added)
Whether and to what extent this duty to punish is baked into the constitutional expectations for the Commander in Chief is a subject for another day.
Command responsibility as a mode of liability featured prominently in post-World War II war crimes trials. Although most of these courts failed to identify the elements of this mode of liability, the tribunal in United States v. Soemu Toyoda was an exception. Here, the tribunal articulated elements of command responsibility and specifically identified the duty to punish as one of those elements.
The Tribunal considers the essential elements of command responsibility for atrocities of any commander to be:
1. The offenses, commonly recognized as atrocities, were committed by troops of his command;
2. The ordering of such atrocities.
In the absence of proof beyond a reasonable doubt of the issuance of orders, then the essential elements of command responsibility are:
1. As before, that atrocities were actually committed;
2. Notice of the commission thereof. This notice may be either:
a) Actual, as in the case of an accused who sees their commission or who is informed thereof shortly thereafter; or
b) Constructive. That is, the commission of such a great number of offenses within his command that a reasonable man could come to no other conclusion than that the accused must have known of the offense or of the existence of an understood and acknowledged routine for their commission.
3. Power of command. That is, the accused must be proved to have had actual authority over the offenders to issue order to them not to commit illegal acts, and to punish offenders.
4. Failure to take such appropriate measures as are within his power to control the troops under his command and to prevent acts which are violations of the laws of war.
5. Failure to punish offenders.
Following World War II, the United States incorporated the duty to punish into the 1956 U.S. Army Field Manual, FM 27-10, which provides in pertinent part that:
The commander is also responsible if he has actual knowledge, or should have knowledge, through reports received by him or through other means, that troops or other persons subject to his control are about to commit or have committed a war crime and he fails to take the necessary and reasonable steps to insure compliance with the law of war or to punish violators thereof. (emphasis added)
The first treaty-based codification of command responsibility (which includes the duty to punish) appears in Additional Protocol I, Article 86(2) of which provides that:
The fact that a breach of the Conventions or of this Protocol was committed by a subordinate does not absolve his superiors from penal or disciplinary responsibility, as the case may be, if they knew, or had information which should have enabled them to conclude in the circumstances at the time, that he was committing or was going to commit such a breach and if they did not take all feasible measures within their power to prevent or repress the breach. (emphasis added)
Although the United States is not a party Additional Protocol I, a review of the treaty by the Joint Chiefs of Staff concluded that “[t]he obligations created by Articles 86 and 87 are well within the precedents for war crimes liability established by American tribunals after World War II.”
The United States played a central role in the creation of the International Criminal Tribunal for the Former Yugoslavia (ICTY) by the UN Security Council and command responsibility, including the duty to punish, is an element of the ICTY’s Statute. In language reminiscent of the Army Field Manual’s “necessary and reasonable” formulation, Article 7(3) of the ICTY Statute provides that:
The fact that any of the acts referred to in articles 2 to 5 of the present Statute 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. (emphasis added)
In contemporaneous statements, the United States affirmed its understanding that Article 7(3) reflected existing, rather than new international law. In an amicus brief submitted to the ICTY in 1995, the United States explained that in creating the ICTY, “the Council has not attempted to create new humanitarian law or to interfere with the way in which law is developed. The law to be applied by the Tribunal is established by convention and customary law, and affirmed by the General Assembly.”
Speaking in support of the ICTY, U.S. officials also repeatedly emphasized the particular importance of the duty to punish. Following the U.N. Security Council vote establishing the ICTY in 1993, Ambassador Madeleine Albright expressed the view of the United States that “individual liability arises in…the failure of a superior—whether political or military—to take reasonable steps to prevent or punish such crimes by persons under his or her authority.” In November 1993, Secretary of State Warren Christopher stressed this point, writing in the Boston Globe that “[i]n establishing the tribunal, the Security Council has reaffirmed a fundamental principle that binds civilized societies: Those who carry out atrocities must be held accountable for their actions. So must those who have failed their legal duty to prevent and punish war crimes.” And in a speech the following year, Ambassador Albright further expounded on the settled understanding of the duty to punish:
One advantage we have now is Nuremberg itself. Many of the legal arguments put forward by defendants at Nuremberg were disposed of in the judgments there. Today, there should be no question that political and military leaders may be held criminally accountable if they do not stop atrocities by their followers or do not punish those responsible.
Although famously not a party to the Rome Statute of the International Criminal Court (ICC), the United States played a central role in the drafting of what would become Article 28 of the Rome Statute which provides for the command responsibility. In a departure from earlier articulations of command responsibility, including those the United States had recognized as reflecting CIL, the United States proposed a bifurcated standard for command responsibility for the Rome Statute. Under the U.S. proposal, military commanders would be held to a less rigorous mens rea (i.e. knew or should have known) than civilian superiors. However, under both the military and civilian standards, a superior has not only an ex ante duty to prevent, but also to an ex post duty to “take all necessary and reasonable measures within his or her power” to repress atrocity crimes/punish the perpetrators thereof. As adopted, Article 28 provides, in pertinent part, that military commanders/civilian superiors may bear criminal responsibility if they “failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.”
Despite “un-signing” the Rome Statute, the administration of George W. Bush continued to recognize the duty to punish as an element of command responsibility under customary international law. Indeed the Bush administration created two separate war crimes courts — in Guantanamo Bay and Iraq — empowered to try defendants under the doctrine of command responsibility, including the duty to punish.
First consider the Guantanamo Bay military commissions before turning to the Iraq tribunal. In the wake of the 9/11 attack, President Bush ordered the creation of military commissions to try suspected terrorist for “violations of the laws of war and other applicable laws by military tribunals.” The Department of Defense subsequently set forth the crimes triable by military commission in Military Commission Instruction No. 2 which explained that it was declarative of the pre-existing law of war. The instruction specified “command/superior responsibility” as a mode of liability and identified the duty to punish in language reminiscent of the ICTY Statute (“[t]he accused failed to take all necessary and reasonable measures within his power to prevent or repress the commission of the offense or offenses”).
Following the Supreme Court’s decision in Hamdan v. Rumsfeld , which struck down the initial incarnation of the military commissions, Congress enacted the 2006 Military Commissions Act (2006 MCA). As with Military Commission Instruction No. 2, the 2006 MCA was framed as declaratory of the pre-existing law and provided for command responsibility as a mode of liability.
Any person is punishable as a principal under this chapter who—
- commits an offense punishable by this chapter, or aids, abets, counsels, commands, or procures its commission;
- causes an act to be done which if directly performed by him would be punishable by this chapter; or
- is a superior commander who, with regard to acts punishable under this chapter, knew, had reason to know, or should have known, that a subordinate was about to commit such acts or had done so and who failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof. (emphasis added)
The 2009 MCA also included substantially the same standard for command responsibility as its predecessor, including the duty to punish. The 2009 MCA, signed into law by President Barack Obama again purported to codify existing law, incorporating “offenses that have traditionally been triable under the law of war or otherwise triable by military commission.” Senator Lindsey Graham (at the time a reserve Judge Advocate General in the U.S. Airforce) emphasized this point on the floor of the Senate. “Congress has codified offenses which have traditionally been tried by military commissions under customary international law,” he stated.
The duty to punish also featured in the war crimes tribunal the United States helped create in Iraq. Following the 2003 invasion of Iraq, the U.S.-led occupation authority governing Iraq, the Coalition Provisional Authority (CPA), initiated the creation of an Iraqi Special Tribunal to try Iraqis for genocide, crimes against humanity, war crimes, and certain violations of Iraqi criminal law. Article 15(e) of the Statute of the Iraqi Special Tribunal provides for command responsibility and includes a duty to punish, albeit in somewhat different (and broader) language than that used in the FM27-10 formulation:
The fact that any of the acts referred to in Articles 11 to 14 of the present Statute 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 submit the matter to the competent authorities for investigation and prosecution. (emphasis added.)
As Professor Van Schaack has previously explained, command responsibility has also been incorporated into the Torture Victims Protection Act (TVPA). The command responsibility standard of the TVPA includes the duty to punish.
The TVPA was enacted to “carry out obligations of the United States under the United Nations Charter and other international agreements pertaining to the protection of human rights by establishing a civil action for recovery of damages from an individual who engages in torture or extrajudicial killing.” Although not mentioned explicitly in the text of the TVPA, the legislative history indicates that civil liability under the TVPA was intended to apply under the standard for command responsibility under international criminal law, including the duty to punish.
As the Eleventh Circuit explained in Ford v. Garcia:
The essential elements of liability under the command responsibility doctrine are: (1) the existence of a superior-subordinate relationship between the commander and the perpetrator of the crime; (2) that the commander knew or should have known, owing to the circumstances at the time, that his subordinates had committed, were committing, or planned to commit acts violative of the law of war; and (3) that the commander failed to prevent the commission of the crimes, or failed to punish the subordinates after the commission of the crimes. Although the TVPA does not explicitly provide for liability of commanders for human rights violations of their troops, legislative history makes clear that Congress intended to adopt the doctrine of command responsibility from international law as part of the Act.
Notably, the State Department chose to excerpt Ford’s analysis of command responsibility in its annual digest of U.S. practice in international law.
Discussions of accountability for atrocity crimes, both domestically and abroad, should be informed by the United States’ own long-standing views that a commander’s failure to punish war crimes by his subordinates may itself amount to a war crime.
The author was an attorney-adviser in the Office of the Legal Adviser at the Department of State at the time of publication. This piece was written in the author’s personal capacity and the views presented here do not necessarily represent those of the Department of State or the United States government.