United States of America
Practice Relating to Rule 152. Command Responsibility for Orders to Commit War Crimes
The US Field Manual (1956) provides that the responsibility of military commanders for war crimes “arises directly when the acts in question have been committed in pursuance of an order of the commander concerned”.
The US Air Force Pamphlet (1976) states: “Command responsibility for acts committed by subordinates arises when the specific wrongful acts in question are knowingly ordered or encouraged.”
The US Naval Handbook (2007) states:
A naval commander may delegate some or all of his authority; however, he cannot delegate his accountability for the conduct of the forces he commands. Under the law of armed conflict, a commander may be held criminally responsible for ordering the commission of a war crime.
In its judgment in the Dostler case
in 1945, in which a German commander was accused of having ordered, in March 1944, the shooting of 15 American POWs in violation of the 1907 Hague Regulations, the US Military Commission at Rome held that commanders were responsible for the orders they gave and therefore if the orders were unlawful they were responsible in law as those who carried out the orders.
In its judgment in the Von Leeb case (The German High Command Trial) in 1945, the US Military Tribunal at Nuremberg noted that the principles established in the Yamashita case were not entirely applicable, since many of the alleged war crimes were committed in accordance with the policies and orders of their superiors. Noting that field commanders were soldiers and not lawyers, and that they may “presume, in the absence of specific knowledge to the contrary, that the legality of such orders has been properly determined before their issuance”, the Tribunal held:
It is therefore considered that to find a field commander criminally responsible for the transmittal of such an order, he must have passed the order to the chain of command and the order must be one that is criminal upon its face, or one which is shown to have [been] known was criminal.
In the Ford v. García case in 2000, a civil lawsuit dealing with acts of torture and extrajudicial killing committed in 1980 in El Salvador, the US Federal Court of Florida gave instructions to the jury as follows:
A commander may be held liable for torture and extrajudicial killing committed by troops under his command under two separate legal theories. The first applies when a commander takes a positive act, i.e
., he orders torture and extrajudicial killing or actually participates in it.
In 1992, a report on Iraqi war crimes (Desert Shield/Desert Storm) prepared under the auspices of the US Secretary of the Army noted: “Criminal responsibility for violations of the law of war rests with a commander, including the national leadership, who … orders or permits the offenses to be committed.”
In 1992, in its final report to Congress on the conduct of the Gulf War, the US Department of Defense stated:
Criminal responsibility for violations of the law of war rests with a commander, including the national leadership, if he (or she):
- Orders or permits the offence to be committed.
The crimes committed against Kuwaiti civilians and property, and against third party nationals, are offences for which Saddam Hussein, officials of the Ba’ath Party, and his subordinates bear direct responsibility. However, the principal responsibility rests with Saddam Hussein. Saddam Hussein’s C2 of Iraqi military and security forces appeared to be total and unequivocal. There is substantial evidence that each act alleged was taken as a result of his orders, or was taken with his knowledge and approval, or was an act which he should have known.