CYIL vol. 13 (2022)

FRANTIŠEK TÓTH CYIL 13 ȍ2022Ȏ Philippines, he was under a (very controversial) “ affirmative duty to take such measures as were within his power and appropriate in the circumstances to protect prisoners of war and the civilian population. ” 16 General Yamashita was therefore found culpable even though the mental element, mens rea , was absent. 17 Such conclusion can be regarded as quite controversial, because there was no evidence that Yamashita either participated in the commission of the acts or had ordered them. His main violation of a ‘responsible command’ was that he had failed to control the operations and acts of his subordinates and in the court’s view, this had allowed his subordinates to commit atrocities. 18 This case can be regarded as the one that started the evolution of the principle of command responsibility. Nevertheless, one has to bear in mind that if the standard in Yamashita would be applied today, there would be far more criminal prosecutions against military commanders than it is nowadays. Besides the Yamashita case, the scope of command responsibility was also developed in other well-known cases, namely in the High Command case 19 and the Hostage case. 20 In the High Command case, the court had rejected the concept of strict liability. Instead, the concept of personal dereliction was highlighted. 21 Personal dereliction, thus, is the result of a failure of proper supervision or control. 22 Subsequently, by failing to supervise or control his subordinates, the commander demonstrated acquiescence with the crimes of his subordinates. Acquiescence or contribution to the crimes committed by his subordinated troops, resulting from his grave personal dereliction, is the decisive factor when deciding whether or not to hold someone responsible. 23 Therefore, the fact of being in a superior position is not sufficient to charge a commander for the acts carried out by their subordinates. 24 Another case, known as the Hostage case, 25 brought to trial under Control Council Law No. 10, concerned the commanding general of occupied territory and charged him with the responsibility for maintaining peace and order. General Field Marshal Wilhelm List was the Commander of German forces in Greece and Yugoslavia and was found culpable because he did not prosecute and punish the perpetrators of crimes, which occurred within the scope 16 In re Yamashita , 327 U.S. 1 (1946) U.S. Supreme Court. No. 61, Misc., 1946. Available at: https://supreme. justia.com/cases/federal/us/327/1/. 17 FRULLI, M. Exploring the Applicability of Command Responsibility to Private Military Contractors. Journal of Conflict & Security Law . Oxford. Oxford University Press. 2010. p. 440. 18 LIPPMAN, M. The Evolution and Scope of Command Responsibility. Leiden Journal of International Law. Volume 13. Issue 1. 2000, p. 143, Available at: http://journals.cambridge.org/abstract_S0922156500000108. 19 United States v. Wilhelm von Leeb et al (The High Command Case) . United States Military Tribunal at Nuremberg, 1948. Available also at: http://www.worldcourts.com/imt/eng/decisions/1948.10.28_United_States_v_Leeb.htm. 20 Hostage case, United States v Wilhelm List and others , Trial Judgment, Case No. 7, 1948. Available at: https://opil. ouplaw.com/view/10.1093/law:icl/491us48.case.1/law-icl-491us48. 21 According to the court, “ 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 part. In the latter case, it must be a personal neglect amounting to wanton, immoral disregard of the action of his subordinates amounting to acquiescence. ” United States v Wilhelm von Leeb et al. note 18, Check also NEILSON, note 4, p. 131. 22 Ibid. 23 METTRAUX, G. Command Responsibility in International Law – the Boundaries of Criminal Liability for Military Commanders and Civilian Leaders, AThesis Submitted for the Degree of Doctor of Philosophy. The University of London. The London School of Economics and Political Science. Law Department, 2008, p. 50. 24 This results directly from the sentence of the decision in the High Command case, where the court stated: “ Criminality does not attach to every individual in this chain of command from the fact alone. There must be a personal dereliction… ” United States v. Wilhelm von Leeb et al , note 18. p. 442. 25 Hostage case, United States v Wilhelm List and others , note 19.

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