CYIL vol. 13 (2022)

CYIL 13 ȍ2022Ȏ COMMAND RESPONSIBILITY FOR CRIMES COMMITTED BY PRIVATE MILITARY… of his territorial authority. 26 Moreover, according to the military tribunal, he was obliged to “ take adequate steps to prevent their recurrence. ” 27 In this case, the knowledge standard went beyond the actual knowledge, required by the court in the High Command case and for the perpetrators to be found culpable, an indirect proof of knowledge was required. The court connected the knowledge of the crimes especially with ‘daily reports’, 28 which General List and other commanding generals received on a daily basis, thus having the ability to find out ‘what was happening’. Although General List claimed he had no actual knowledge of the war crimes because he was not at headquarters and therefore did not have the ability to receive these daily reports, according to the court, he was presumed to have knowledge of these war crimes. 29 Moreover, he gravely failed to prevent, investigate, and punish them, and was therefore found guilty under the principle of command responsibility. 30 The importance of the High Command case lies also in the fact that based on the factualities of the case, General List received reports on a daily basis. These reports should have alerted him that his subordinates were committing grave violations of international humanitarian law. A reporting system is thus very important for the mens rea element and moreover, it also has importance in regard to the development of a reporting mechanism, which should help combat the commission of atrocities and afterwards punish the perpetrators. These three cases, namely the Yamashita case, the High Command case, and the Hostage case definitely set the foundations of the principle of command responsibility. 31 Nevertheless, due to high number of ‘war crimes trials’ in the post Second World War period and beyond, the doctrine of command responsibility has considerably developed. 2. Further Development of the Doctrine of Command Responsibility Although many cases concerning command responsibility were decided during the Second World War period, there were still many questions left about the exact scope of the doctrine. For these reasons, the doctrine gradually became incorporated into military doctrines of the armed forces of various states 32 and subsequently, also within international humanitarian law instruments. The first international instrument codifying the principle of command responsibility was the Additional Protocol I to the Geneva Conventions (AP I). 33 The AP I contains two important provisions concerning the principle of command responsibility, namely Article 86 and Article 87. Article 86 of the AP I lays down the conditions for a ‘Failure to Act’. According to Article 86, superior responsibility rests upon three basic elements, namely a superior -

26 LIPPMAN, note 17, p. 148. 27 Hostage case, United States v Wilhelm List and others , note 19. 28 NEILSON, note 4, p. 132.

29 The court stated: “ It would strain the credulity of the Tribunal to believe that a high-ranking military commander would permit himself to get out of touch with current happenings in the area of his command during wartime. ” Hostage case, United States v Wilhelm List and others , note 19. 30 WALSH, P., BERRY, J., F. Expanding Command Responsibility Beyond War: The Application of the Doctrine of Command Responsibility to Human Rights Law. Liberty University Law Review . Volume 11. Issue 2, p. 434. 31 Ibid., p. 437. 32 Ibid., p. 436. 33 Check Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the Protection of Victims of International Armed Conflicts (Protocol I) , 8 June 1977, check also FRULI, p. 443.

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