CYIL vol. 13 (2022)

CYIL 13 ȍ2022Ȏ COMMAND RESPONSIBILITY FOR CRIMES COMMITTED BY PRIVATE MILITARY… question whether a commander is responsible for crimes committed by his subordinates 7 is still disputed and raises numerous questions. The roots of the current form of command responsibility originate in the Hague Regulations from 1907, according to which militia and volunteer corps have to be “ commanded by a person responsible for his subordinates ” in order to be classified as belligerents. 8 The doctrine has, however, especially since the Second World War, considerably progressed, mainly due to high number of case law dealing with command or superior responsibility. 9 This practice, elaborated in case law of international criminal tribunals, has in fact developed several elements of this doctrine. 10 In the Yamashita 11 case, which is widely considered to be the first and one of the most important cases concerning command responsibility, 12 Gen. Tomoyuki Yamashita was indicted because he allegedly violated the laws of war in that he “ 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 United States and of its allies and dependencies. ” 13 Furthermore, what is more important, “ the accused neither knew of, condoned, excused or ordered them. ” 14 The strategy of the defense, pleading for Yamashita, was to deny knowledge of the crimes and to discredit any evidence directly linking Yamashita with any of them. On the other hand, the prosecution argued that the atrocities were so widespread and numerous that Yamashita must have known of them, unless he was affirmatively avoiding knowledge. 15 As a result, General Yamashita was found culpable because he had failed to have effective control over his units, which committed brutal atrocities on the civilian population. In Yamashita, a very broad standard of liability (in regard to the culpability of General Yamashita) was applied. In fact, only by virtue of his position as a commander of the Japanese armed forces during the invasion in the 7 O’BRIEN, M. The Ascension of Blue Beret Accountability: International Criminal Court Command and Superior Responsibility in Peace Operations . Journal of Conflict & Security Law . Oxford University Press. 2010, p. 536. 8 NEILSON, note 4, p. 122, For more information check also : Hague Regulations Respecting the Laws and Customs of War on Land (opened for signature 18 October 1907, entered into force 26 January 1910), Art. 1. Available at: https://ihl-databases.icrc.org/ihl/INTRO/195. 9 O’BRIEN, note 6, p. 536. 10 O’BRIEN, note 6, p. 536. 11 Yamashita (In re), 327 U.S. 1 (1946) U.S. Supreme Court. No. 61, Misc., 1946. Available at: https://supreme. justia.com/cases/federal/us/327/1/. 12 HART, F., A. Yamashita, Nuremberg andVietnam: Command Responsibility Reappraised . International Law Studies – Volume 62. The Use of Force, Human Rights, and General International Legal Issues. Richard B. Lillich & John Norton Moore (editors) p. 399. Available at: https://digital-commons.usnwc.edu/cgi/viewcontent. cgi?article=1798&context=ils. 13 Ibid. 14 Under the term “them” is meant “violations of the laws of war”. Information concerning Human Rights Arising from Trials of War Criminals. Report. Prepared by the United Nations War Crimes Commission. In Accordance with the Request Received from the United Nations. United Nations. Economic and Social Council. Available at: https://digitallibrary.un.org/record/669294. 15 Major LANDRUM, B., D. The Yamashita War Crimes Trial: Command Responsibility Then and Now. United States Marine Corps. Advocate Office Graduate Course. 1. The Influence of Case Law on the Development of the Doctrine of Command Responsibility

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