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INDEPTH: IRAQ
Command, superior and ministerial responsibility
Robin Rowland, CBC News Online | May 6, 2004

Before there was an international code of law, some forces, including the United States in the Philippines, had prosecuted officers for "war crimes."


Hideki Tojo, premier of Japan at the time of Pearl Harbor, in December 1947. On Nov. 12, 1948, he was sentenced to hang as a war criminal by an international tribunal in Tokyo.(AP Photo)
In 1907, the Hague Convention, one of the first steps in writing down the laws of war, included the stipulation that to be a lawful combatant, a unit, whether it was an army or a company, must be "commanded by a person responsible for his subordinates."

After the Second World War, prosecutors took that one phrase and used it to hold both German and Japanese officers responsible for war crimes committed, creating the concept of "command responsibility."

In the case of Japan, the Tokyo war crimes trial took it a step further by also making military and civilian government ministers responsible for crimes committed on their watch.

The Yugoslav and Rwanda tribunals expanded the concept even more. Faced with the fact that many of the accused were civilians who were not part of the military chain of command but still gave orders, the tribunals used the new phrase "superior responsibility." That way, the tribunals could hold accountable those civilians who either gave orders or influenced others in a way that resulted in war crimes or crimes against humanity.

"Just following orders"


Brig.-Gen. Telford Taylor, the United States' chief of counsel for war crimes, is shown delivering opening statements to an all-American court charging Farben officials with war crimes and crimes against humanity in this September 1947 photo. Taylor prosecuted Nazi war criminals at Nuremberg and helped lay the foundation for the principle that governments must be held accountable for mistreating their citizens. (AP Photo)
The idea that a soldier uses "I was just following orders" as an excuse has become a clich´┐Ż since the Nuremberg trials.

The fact is that both military law and international law require subordinate soldiers to obey the "lawful orders" of their superiors.

The problem facing a soldier at any level is deciding when an order is lawful. An officer may sometimes be in a position to repudiate illegal orders and, in fact, during the Second World War a few high-ranking German officers did just that. The lower ranking the soldier, the fewer options they have. In many armies, soldiers who refuse orders are executed.

In general, international and modern military law recognize the soldier's dilemma. So the law has now come to the conclusion that while "following orders" is not a defence for the crime itself, the fact that the soldier was obeying superior orders can be taken into consideration and may lessen the sentence.

It may be that one of the soldiers now facing a court martial for events in Abu Ghraib did question his orders. Lawyer Gary Myers, who represents Staff Sergeant Chip Frederick, has told the media that: "He did inquire as to what was the appropriate protocol, given the fact that he didn't have training. He was told to go back and do exactly what he's been doing because he was doing a wonderful job for his unit and his country."



POLITICAL RESPONSIBILITY
Politicians who either order or encourage war crimes or crimes against humanity are as responsible as those who actually carry them out.

When the Allies prosecuted the Germans at Nuremberg, they successfully based their case, in part, on the idea that Adolf Hitler and the key Nazi leaders were a bunch of gangsters. So they used conspiracy law developed in the 1930s by the United States for use against bootleggers and drug dealers.

At Tokyo, this theory did not work, because, unlike the core of Nazis around Hitler, the Japanese defendants had held different ministerial and military roles at different times. The prosecutors could not prove an overall conspiracy. So the Tokyo tribunal instead applied a strict interpretation of the parliamentary concept of ministerial responsibility.

Under the Tokyo precedent, in theory, politicians can be prosecuted for crimes carried out in their area of responsibility or if they were aware of crimes and did nothing to stop them.

In reality, only those defeated in war, such as the leaders of Germany and Japan as well as Slobodan Milosevic in Yugoslavia and the leaders of the Rwandan genocide, have ever faced international tribunals – one reason that critics charge that war crimes trials are "victors' justice."



NEXT: Command liability




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