 Teminology: Law of war or the use of force

 The law of war is a body of law concerning acceptable

justifications to engage in war (jus ad bellum) and the
THE USE OF FORCE limits to acceptable wartime conduct (jus in bello).
 The law of war is considered an aspect of public
international law (the law of nations) law of a particular
belligerent to a conflict,
 that may also provide legal limits to the conduct of the state,
or,
 justification of war.

The modern law of war

 Today issues involve :-  Two principal sources:
 declarations of war,  Lawmaking treaties -"International treaties on the laws of war".
 acceptance of surrender and  Eg. Positive international humanitarian law -affect the laws of war by binding
 the treatment of prisoners of war, consenting nations and achieving widespread.
 military necessity  Custom - which can refer to the continuing importance of customary
 distinction
law.
 Eg. Nuremberg War Trials.
 and proportionality, and
 These laws define both the permissive rights of states as well as prohibitions
 the prohibition of certain weapons that may cause unnecessary suffering on their conduct when dealing with irregular forces and non-signatories.
 Attempts to define and regulate the conduct of individuals,  "The Law Relating to War Crimes and Crimes Against Humanity" held, under
 Attempts to define and regulate the conduct nations, and the guidelines Nuremberg Principles, widely accepted by "all civilised
 Attempts to define and regulate the conduct of other agents in war and nations" for about half a century, were by then part of the customary laws of
war and binding on all parties whether the party was a signatory to the
 to mitigate the worst effects of war specific treaty or not.

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 Purposes of the laws
• Some of the central principles underlying laws of war
are:
• Wars should be limited to achieving the political goals
that started the war (e.g., territorial control) and should
not include unnecessary destruction;
• Wars should be brought to an end as quickly as
possible;
• People and property that do not contribute to the war
effort should be protected against unnecessary
destruction and hardship
substantive laws of war
• the laws of war place substantive limits on the
lawful exercise of a belligerent’s power.
– Generally speaking, the laws require that belligerents
refrain from employing violence that is not reasonably
necessary for military purposes and that belligerents
conduct hostilities with regard for the principles of
humanity and chivalry.
• However, because the laws of war are based on
consensus, the content and interpretation of such
laws are extensive, contested, and ever-changing.
• laws of war are intended to mitigate the evils of war
by:
• Protecting both combatants and noncombatants
from unnecessary suffering;
• Safeguarding certain fundamental human rights of
persons who fall into the hands of the enemy,
particularly prisoners of war, the wounded and sick,
and civilians;
• Facilitating the restoration of peace.
Examples of some of the substance of the
laws of war
 Declaration of war
 The UN charter (1945) Article 2, and some other articles in the charter, seek to curtail
the right of member states to declare war;
 The Kellogg-Briand Pact of 1928 for those nations who ratified it. Which formed the
main basis for the charges against Germany after the war at Nuremberg
 Lawful conduct of belligerent actors
 Modern laws of war regarding conduct during war (jus in bello)
 the 1949 Geneva Conventions
 provide that it is unlawful for belligerents to engage in combat without meeting certain
requirements,
 among them the wearing of a distinctive uniform or
 other distinctive signs visible at a distance, and


the carrying of weapons openly.
Impersonating soldiers of the other side by wearing the enemy's uniform is allowed, though fighting in that uniform
is unlawful perfidy, as is the taking of hostages
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 Applicability to states and individuals
 The law of war is binding upon States also upon individuals
and, in particular, the members of their armed forces.
 Parties are bound by the laws of war to the extent that such
compliance does not interfere with achieving legitimate
military goals.
 For example, they are obliged to make every effort to avoid
damaging people and property not involved in combat, but they are
not guilty of a war crime if a bomb mistakenly hits a residential area.
 By the same token, combatants that intentionally use
protected people or property as shields or camouflage are
guilty of violations of laws of war and are responsible for
damage to those that should be protected.
Sources of the law on the use of armed
force
• Customary international law
• General principles of law common to
nations, e.g. necessity, proportionality,
reasonableness, humanity.
• “Just war theory”
• The Kellogg/Briand Pact, 1928
• The United Nations Charter, 1945
International treaties on the laws of war


1880 Manual of the Laws and Customs of War at Oxford
1899 Hague Conventions
 1909 London Declaration concerning the Laws of Naval War
 1928 Kellogg-Briand Pact


1945 United Nations Charter (entered into force on October 24, 1945)
1946 Judgment of the International Military Tribunal at Nuremberg
 1947 Nuremberg Principles. formulated under UN General Assembly Resolution 177 21 November 1947
 1948 United Nations Convention on the Prevention and Punishment of the Crime of Genocide.
 1977 Geneva Protocol I Additional to the Geneva Conventions of 12 August 1949, and Relating to the
Protection of Victims of International Armed Conflicts
 1977 Geneva Protocol II
 1996 The International Court of Justice advisory opinion on the Legality of the Threat or Use of Nuclear
Weapons
 2000 Optional Protocol on the Involvement of Children in Armed Conflict, entered into force on 12 February
2002
Right to use force/law of armed conflict
 Right to use force is called the jus ad bellum
 Laws governing the manner of conducting armed
operations is called the jus in bello (law of armed
conflict/international humanitarian law)
 This presentation confined to jus ad bellum
 War as an instrument of national policy
 Failure of the League of Nations to outlaw war (League
Covenant, 1919)
 Kellogg-Briand Pact, 1928 declared war to be inadmissible
 Germany, Italy and Japan declare war 1939-41
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 The United Nations Charter, 1945
 A new beginning: “to save succeeding generations from
the scourge of war”
 Charter establishes a system of collective security and
forbids unilateral resort to force
 However, preserves the right of self-defence
 Collective Security
 Consists of three pillars:
 Prohibition of use of force (article 2(4))
 Powers of the Security Council to deal with breaches of the
peace or threats to peace (articles 39-42)
 Reservation of the right of individual and collective self-defence
until Security Council can act effectively
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Powers of the Security Council
 Article 39
 “The Security Council shall determine the existence of any threat
to the peace, breach of the peace, or act of aggression and shall
make recommendations, or decide what measures shall be
taken in accordance with articles 41 and 42 to maintain or
restore international peace and security.”
 Article 41
 “The Security Council may decide what measures not involving
the use of armed force are to be employed to give effect to its
decisions, and it may call upon the Members of the United
Nations to apply such measures. These may include complete or
partial interruption of economic relations and of rail, sea, air,
postal, telegraphic, radio, and other means of communication,
and the severance of diplomatic relations.”
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“War”: Is the word still valid?
• The effect of the UN Charter is to abolish the legal
significance of the word “war”.
• Instead, the neutral term “armed conflict” is used.
• Usual now to refer to the jus in bello as “the law of
armed conflict’ (LOAC)
• The prohibition – article 2(4)
– “All Members shall refrain in their international relations from
the threat or use of force against the territorial integrity or
political independence of any State, or in any other manner
inconsistent with the Purposes of the United Nations”.
14
Powers of the Security Council
• Article 42
– “Should the Security Council consider that
measures provided for in article 41 would be
inadequate or have proved to be inadequate, it
may take such action by air, sea, or land forces
as may be necessary to maintain or restore
international peace and security. Such action
may include demonstrations, blockade, and
other operations by air, sea, or land forces of
Members of the United Nations.”
16
4
 Self-defense Security Council
• Article 51 • 15 Members
– “Nothing in the present Charter shall impair the • Permanent five with Veto power
inherent right of individual or collective self- – China, France, Russia, UK, USA
defence if an armed attack occurs against a
Member of the United Nations, until the Security • Decisions made binding by Charter, article
Council has taken measures necessary to 25
maintain international peace and security….” • Reform proposals
– Enlarge to 21, 25?
– Abolish the Veto?
17 18

Powers of the Security Council Test before Art 39 can be activated

• Article 24 : the Security Council primary responsibility for • In considering whether to make the determination, the
the maintenance of international peace and security. governments of the members of the Council in practice
• the Council has the power to impose legally binding measures on all ask themselves essentially political questions:
UN members. • Does something really have to be done?
• Most Council resolutions contain only exhortations or • If so, what? Could it really be effective?
recommendations under that chapter the Council cannot impose
legally binding measures. • Even if it would not be effective, do we still have to be seen to be
doing something?
• The combined effect of Articles 25 and 48 is to place a legal
obligation on all UN Members to carry out the measures. • The Council has taken action in what would have been seen in 1945
as essentially internal matters.
• A ‘Chapter resolution’ has therefore become shorthand for a legally • The best example
binding measure , it needs to be adopted unanimously for it to carry – UNSC Res. 836 (1993) establishing the ‘safe areas’ around certain Bosnian towns,
any real weight. including Srebrenica.
• In contrast, a Chapter resolution needs only nine votes in favour, and – The Council against the white rebel regime in Southern Rhodesia
no veto, for it to be legally binding. – the apartheid government of South Africa.
• Before the Council can decide to impose a measure, Article 39 requires it to determine first the
existence of a threat to the peace, breach of the peace or act of aggression.

5

• Although Article 2(7) prohibits the United Nations from intervening in matters
that are ‘essentially within the domestic jurisdiction’ of a state, this does not
apply to enforcement measures.
• In the 1990s, when the Council was considering whether to intervene in
situations which could well have been seen as essentially internal, a threat to
international peace and the destabilising effect on neighbouring states of civil
wars or other internal disturbances
• Resolutions 713 (1991) (Yugoslavia),
• 794 (1992) (Somalia) and
• 841(1993) and 917 (1994) (Haiti))
Security Council Res. 661
Iraq (6 August 1990)
• “The Security Council …decides that all states shall
prevent:
• (A) the import…of all commodities …originating in Iraq or Kuwait…
• (B) any activities by their nationals which … promote the export or
transshipment of any commodities … from Iraq or Kuwait …
• (C) the sale or supply of any commodities …including weapons or any
other military equipment …but not including supplies intended strictly
for medical purposes, and in humanitarian circumstances, foodstuffs,
…to Iraq or Kuwait…”
• Resolution 662 (1990), which declared the annexation of Kuwait
without legal validity and so null and void.
The Security Council in action:
Iraq
• The Council has the power to demand, prohibit or
authorise.
• SECURITY COUNCIL RESOLUTION 660 (2 AUGUST 1990):
– “The Security Council…determining that there is a breach of the peace by the
Iraqi invasion of Kuwait…
– 1. Condemns the Iraqi invasion…
– 2. Demands that Iraq withdraw immediately…”
• Although UNSC Res. 660 (1990) condemned Iraq’s
invasion of Kuwait, it did not describe the invasion
as aggression.
• Even though objectively there was no doubt that Iraq’s action
would fall squarely within any definition of aggression, there is
no satisfactory internationally agreed definition.
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Security Council Res. 665
Iraq (25 August 1990)
• “The Security Council …
– 1. Calls upon states …deploying maritime forces to
the area to use such measures commensurate to
the specific circumstances as may be necessary
under the authority of the Security Council to halt
all inward and outward maritime shipping … to
inspect and verify their cargoes and destinations to
ensure strict implementation of Res. 661.”
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 Security Council Res. 678
(29 November 1990)
• “The Security Council:
– Recalling and reaffirming its resolutions 660, 661,
662, 664, 665, 666, 667, 669, 670, 674, and 667,
– Noting that, despite all efforts by the United Nations,
Iraq refuses to comply with its obligations to
implement resolution 660 (1990) and subsequent
resolutions, in flagrant contempt of the Council …”
Security Council Res. 678
(29 November 1990)
“2. Authorizes Member States cooperating with
the Government of Kuwait, unless Iraq on or
before January 15, 1991, fully implements … the
foregoing resolutions, to use all necessary
means to uphold and implement Security
Council resolution 660 and all subsequent
relevant resolutions and to restore international
peace and security in the area; …”
Security Council Res. 678
(29 November 1990)
• “Acting under Chapter VII of the Charter of the
United Nations,
– 1. Demands that Iraq comply fully with … all relevant
resolutions and decides, while maintaining all its
decisions, to allow Iraq one final opportunity as a
pause of good will to do so;
Security Council Res. 678
(29 November 1990)
“3. Requests all states to provide appropriate
support for the actions undertaken in pursuance
of paragraph 2 of this Resolution …”
[See also Charter, article 49: “The Members of the
UN shall join in affording mutual assistance in
carrying out the measures decided upon by the
Security Council.”]
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 “Coalitions of the Willing and Able”
• The scheme for a permanent UN force (Charter,
articles 43-47) has not been put into effect.
• Forces must be assembled ad hoc from those states
willing and able to provide armed forces personnel
and equipment
• Political considerations
• Kuwait Airways v. Iraqi Airways [2002] 2 AC 883;
[2002] 2 WLR 1353; [2002] 3 All ER 209; 125 ILR 602.
Special cases for use of armed force?
• There is argued to be “wriggle room” in the
wording of both articles 2(4) and 51.
• 1. Does article 2(4) forbid a use of force to
prevent gross abuses of human rights (the so-
called right of humanitarian intervention)? E.g.
Kosovo, 1999
Self-defence
• What is an “armed attack”?
• Must the aggressor strike the first blow?
• Interpreting the Charter in the light of modern
weapons capability
• What Security Council action ends the right of
self-defence?
– Example - the Falklands/Malvinas conflict
Special cases (cont’d)
• 2. Do articles 2(4) and 51 allow for the use of force to
protect nationals as a last resort? E.g. Entebbe (1976);
Grenada (1983).
- “Territorial integrity/political independence”: does
mere incidental violation matter?
- Customary law of self-defence applies to nationals, not
article 51.
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 Special cases (cont’d)
3. Reprisals
(e.g. Tripoli raids)
• Forbidden by the UN Charter?
• Or justifiable as self-defence, even though not
immediate (“defensive reprisals” – Professor
Dinstein)?
• But not against civilians.
Iraq (cont’d)
• US justification as an act of pre-emptive self-
defence against the feared future use by Iraq of
WMDs.
• British justification: authorized by the Security
Council by implication from the wording of
previous resolutions.
The invasion of Iraq 2003
• Absolutely illegal?
– Article 2(4) of the Charter;
– No prior Iraqi attack justifying immediate self-
defence;
– No authorization by the UN Security Council.
Iraq (cont’d)
• A possible alternative justification on basis of
the “wriggle room” in the interpretation of
article 2(4) of the Charter:
– Was the invasion aimed at the territorial integrity
and political independence of Iraq or at the removal
of a tyrant who was defying Security Council
resolutions?
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Activating Res. “Uniting for Peace”
• If because of disagreement among the permanent members
the Council is unable to act to maintain international peace
and security, the General Assembly can make
recommendations to the membership as a whole for collective
measures, including the use of force.
• Although this course is occasionally suggested, it has been
• taken only twice
• 1956 illegal Suez adventure by France, Israel and the United Kingdom, and
British and French vetoes in the Security Council, the General Assembly
established the UN Emergency Force (UNEF) to secure and supervise the
ceasefire
• In 1960, the General Assembly instructed the Secretary-General to assist
the Government of the Congo, which later led to military operations against
Katangan secessionists.42
Sanctions
• Article 41 contains examples: the interruption of
economic relations and means of communication and
the severance of diplomatic relations.
– 1990, the prohibition of imports - Trade embargoes
• (Resolution 713 (1991) on Yugoslavia) – arms dealings only
• Libya -(Resolutions 748 (1992) and 883 (1993)). Imports of oil –
Libya’s main export
– Financial sanctions
• Resolution 757 (1992) for the FRY) – to avoid smuggle foods
– Sequestration and impounding of assets
• Resolution 778 (1992) broke new ground in requiring the taking
possession – oil ridgs in Iraq
– Flight restrictions

The Responsibility to Protect

• Diplomatic and similar sanctions • Doctrine developed by International Crisis Group
• Weapons of mass destruction in 2001 (www.icg.org).
• Compensation • Aims to urge upon the Security Council its
• Border demarcation responsibility to protect populations against
• International criminal tribunals genocide and other gross abuses of human
• Sanctions committees rights, disregarding irrelevant differences of
• Termination of sanctions opinion between the Permanent Members on
– Sanctions are usually terminated, wholly or partly, by other matters.
another Chapter resolution
» Resolution 1306 (2000) (Sierra Leone),
» Resolution 1330 (2000) (Iraq)

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 Responsibility to Protect (cont’d) “Just War” Theory
• But what if the veto paralyses the Council in • Elements
such a case? – Legitimate authority
• Can individual states, or coalitions of states, take – Just cause
action to protect people against vicious regimes? – Right intention
• Is this a “slippery slope” of interpretation leading – Proportionality
to unwarranted interference in the affairs of • Does the responsibility to protect revive just war
other states? theory?

Remedies for violations

• During conflict, punishment for violating the laws of
war may consist of a specific, deliberate and limited
violation of the laws of war in reprisal.
– Soldiers who break specific provisions of the laws of war lose
the protections and status afforded as prisoners of war, but
only after facing a "competent tribunal" (GC III Art 5).
– At that point they become an unlawful combatant but they
must still be "treated with humanity and, in case of trial, shall
not be deprived of the rights of fair and regular trial",
because they are still covered by GC IV Art 5
• 1976 foreign soldiers fighting for FNLA(rebels) were
captured by the MPLA(government ) in the civil war
that broke out when Angola gained independence
from Portugal in 1975.
– In the Luanda Trial (Portugal Court), after "a regularly
constituted court" found them guilty of being
mercenaries, three Britons and an American were shot
by a firing squad on July 10, 1976. Nine others were
imprisoned for terms of 16 to 30 years.

11
 Spies and terrorists
 Spies and terrorists may be subject to civilian law or military tribunal for their acts
and in practice have been subjected to torture and/or execution.
 The laws of war neither approve nor condemn such acts, which fall outside their
scope.
 The UN Convention Against Torture have committed themselves not to use torture
on anyone for any reason.
 Citizens and soldiers of nations which have not signed the Fourth Geneva
Convention are also not protected by it (Article 4: "Nationals of a State which is not
bound by the Convention are not protected by it".)
 Citizens and soldiers of nations which have not signed and do not abide by the Third
and Fourth Geneva Conventions are not protected by Common Article 2: "[The High
Contracting Partiesshall furthermore be bound by the Convention in relation to [a
Power which is not a contracting party,”
 After a conflict has ended, persons who have committed or
ordered any breach of the laws of war, especially atrocities, may be
held individually accountable for war crimes through process of
law.
 Nnations which signed the Geneva Conventions are required to
search for, then try and punish, anyone who has committed or
ordered certain "grave breaches" of the laws of war. (see GC III,
Art. 129 and Art. 130)
 History has shown that the laws of war are traditionally more
strictly applied to those defeated, as the victorious faction are
placed in the role of policing themselves.
 If someone is a citizen or soldier of a nation which has signed or
abides by the Fourth Geneva Convention (see Art. 2 and Art. 4
citations above), or is a "prisoner of war" (POW) per the
definitions of such "protected persons" in the Third Geneva
Convention (see Art. 4 and Art. 5),
 A POW who breaks specific provisions of the laws of war may be penalized,
but not penalized worse than the tribunal would penalize its own soldiers
for the same offense (and usually a disciplinary, not judicial, punishment if
its own soldiers normally wouldn't be brought to trial for a particular
offense) and
 POW's may not be penalized based on rank or gender, nor with corporal
punishment, collective punishments for individual acts, lack of daylight, or
torture/cruelty (GC IV, Art. 82 through Art. 88).
Basis of prosecution
 Under international law, the mens rea element is knowledge, not
intent that the crimes be carried out.
 This opens the door not only to hold private security contractors
liable, but also other kinds of corporations which employ violent
mercenary or terrorist groups as private security forces.
 Although conflict zones often lack functioning legal systems, and
government may even have passed laws immunizing private
mercenaries from criminal liability, aiding and abetting a war crime
can still be the basis for civil liability in a foreign court with
jurisdiction over the defendant which is could be a corporation.
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 Procesution Case
• Establishing the “Command Responsibility Test”
– sometimes referred to as
• theYamashita standard or
• the Medina standard
• Command responsibility, is the doctrine of hierarchical
accountability in cases of war crimes
– The doctrine of “command responsibility” was established by
the Hague Conventions IV (1907) and X (1907)
– Applied for the first time by the German Supreme Court in
Leipzig after World War I, in the 1921 trial of Emil Muller
Developing accountability on the military
commander
 In The Art of War, written during the 6th century BC, Sun Tzu argued that
it was a commander's duty to ensure that his subordinates conducted
themselves in a civilised manner during an armed conflict,
 The Hague Convention (IV) of 1907 was the first attempt at codifying the
principle of command responsibility on a multinational level.
 It was not until after WWI that the Allied Powers’ Commission on the
Responsibility of the Authors of the War and on the Enforcement of
Penalties
 They recommended the establishment of an international tribunal
 which would try individuals for "order[ing], or, with knowledge thereof and with
power to intervene, abstain[ing] from preventing or taking measures to prevent,
putting an end to or repressing, violations of the laws or customs of war”.
 The "Yamashita standard" is based upon the precedent set by the United
States Supreme Court in the case of Japanese General Tomoyuki
Yamashita in 1945, for atrocities committed by troops under his
command in the Philippines.
 Charged : "unlawfully disregarding and failing to discharge his duty as a
commander to control the acts of members of his command by permitting them
to commit war crimes
 The "Medina standard" is based upon the 1971 prosecution of US Army
Captain Ernest Medina in connection with the My Lai Massacre during
the Vietnam War.
 Charge : The commanding officer, being aware of a human rights violation or a
war crime, liable when he does not take action.
 However, Media was acquitted of all charges
What is command responsibility
accountability?
 Introducing responsibility for an omission
 Command responsibility is an omission mode of individual criminal
liability:
 the superior is responsible for crimes committed by his subordinates and for
failing to prevent or punish (as opposed to crimes he ordered).
 In Re Yamashita before a United States Military Commission, General Yamashita
became the first to be charged solely on the basis of responsibility for an
omission.
 He was commanding the 14th Area Army of Japan in the Philippines when some
of the Japanese troops engaged in atrocities against thousands of civilians.
 As commanding officer, he was charged with "unlawfully disregarding and failing
to discharge his duty as a commander to control the acts of members of his
command by permitting them to commit war crimes.
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 Re Yamashita 327 U.S. 1 (1946)
 The Commission adopted a new standard, :
 "vengeful actions are widespread offences and there is no effective
attempt by a commander to discover and control the criminal acts, such a
commander may be held responsible, even criminally liable."
 The ambiguous wording resulted in a debate about the amount of
knowledge required to establish command responsibility.
 The matter was appealed, and was affirmed by the United States Supreme
Court .
 After sentencing, Yamashita was executed.
 Following In re Yamashita, courts clearly accepted that a
commander’s actual knowledge of unlawful actions is sufficient to
impose individual criminal responsibility
the Hostage Case
• In the Hostage Case, the US Military Tribunal
seemed to limit the situations where a
commander has a duty to know to instances
where he has already had some information
regarding subordinates’ unlawful actions
The High Command Case
• In the High Command Case
– the United States Military Tribunal argued that
• in order for a commander to be criminally liable for the actions
of his subordinates "there must be a personal dereliction"
which "can only occur where the act is directly traceable to
him or
• where his failure to properly supervise his subordinates
constitutes criminal negligence on his part," based upon "a
wanton, immoral disregard of the action of his subordinates
amounting to acquiescence
the Nürnberg tribunals
• After the World War II, the parameters of command
responsibility were thus increased,
– imposing liability on commanders for their failure to
prevent the commission of crimes by their subordinates.
– the Nürnberg tribunals,
• discussed explicitly the requisite standard of mens rea, and
• were unanimous in finding that a lesser level of knowledge
than actual knowledge may be sufficient
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 Codification
• The Additional Protocol I (“AP I”) of 1977 to the Geneva
Conventions of 1949.
• Article 86(2) states that:
– “the fact that a breach of the Conventions or of this Protocol
was committed by a subordinate does not absolve his
superiors from …responsibility … if they knew, or
– had information which should have enabled them to
conclude in the circumstances at the time,
– that he was committing or about to commit such a breach
and if they did not take all feasible measures within their
power to prevent or repress the breach”
The term “command” refer to :-
 In the discussion regarding "command responsibility" the term
"command" can be defined as
 A De jure (legal) command, which can be both military and civilian.
 The determining factor here is not rank but subordination.
 Four structures are identified:
 Policy command: heads of state, high-ranking government officials, monarchs
 Strategic command: War Cabinet, Joint Chiefs of Staff
 Operational command: military leadership; in Yamashita it was established that
operational command responsibility cannot be ceded for the purpose of the
doctrine of command responsibility – operational commanders must exercise the
full potential of their authority to prevent war crimes, failure to supervise
subordinates or non-assertive orders don’t exonerate the commander.
 Tactical command: direct command over troops on the ground
• Article 87 :
– obliges a commander to "prevent and, where necessary,
to suppress and report to competent authorities" any
violation of the Conventions and of AP I.
• In Article 86(2) for the first time :
– Had a provision would includes …. "explicitly address the
knowledge factor of command responsibility”
 International case law has developed two special types of
"de jure commanders."
 Prisoners-of-war (POW) camp commanders:
 the ICTY established in Aleskovski that POW camp commanders are
entrusted with the welfare of all prisoners, and subordination in this
case is irrelevant.
 Executive commanders:
 supreme governing authority in the occupied territory
 their responsibility is the welfare of the population in the territory
under their control,
 Later established in the High Command and Hostages cases after World War
II.
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  De facto (factual) command, which specifies effective control, as opposed to formal  De facto (factual) command, which specifies effective control, as opposed to formal
rank. This needs a superior-subordinate relationship. Indicia are:[4][5] rank.
 This needs a superior-subordinate relationship.
 Capacity to issue orders  There are 3 situations :
 Power of influence: influence is recognized as a source of authority in the Ministries  Capacity to issue orders
case before the US military Tribunal after World War II.  Power of influence:
 influence is recognized as a source of authority in the Ministries case before the US military Tribunal
 Evidence stemming from distribution of tasks: the ICTY has established the Nikolic after World War II.
test – superior status is deduced from analysis of distribution of tasks within the  Evidence stemming from distribution of tasks:
 the ICTY has established the Nikolic test – superior status is deduced from analysis of distribution of
unit, it applies both to operational and POW camp commanders. tasks within the unit, it applies both to operational and POW camp commanders.
 Additional Protocol I and the Statutes of the ICTY, the ICTR, and the ICC makes  Additional Protocol I and the Statutes of the ICTY, the ICTR, and the ICC makes
prevention or prosecution of crimes mandatory prevention or prosecution of crimes mandatory

Application of Command Responsibility International Criminal Tribunal for the

 Nuremberg Tribunal former Yugoslavia (ICTY)
 The Nuremberg Charter determined the basis to prosecute people for offences such as :
 The Article 7 (3) ICTY - that crimes "were committed by a subordinate
 Crimes against peace
 the planning, preparation, initiation or waging of a war of aggression, or a war in violation of
does not relieve his superior of criminal responsibility if he knew or had
international treaties, agreements or assurances, or participation in a common plan or conspiracy reason to know that the subordinate was about to commit such acts or
for the accomplishment of any of the foregoing. had done so and the superior failed to take the necessary and reasonable
 War crimes measures to prevent such acts or to punish the perpetrators
 violations of the laws and customs of war. A list follows with, inter alia, murder, ill-treatment or
deportation into slave labour or for any other purpose of the civilian population of or in occupied  In The Prosecutor v. Delalić et al. (“the Čelebići case”)
territory, murder or ill-treatment of prisoners of war or persons on the seas, the killing of hostages,  the command responsibility - "had reason to know" means that a commander
the plunder of public or private property, the wanton destruction of cities, towns or villages, or must have "had in his possession information of a nature, which at the least,
devastation not justified by military necessity.
would put him on notice of the risk of … offences by indicating the need for
 Crimes against humanity additional investigation in order to ascertain whether … crimes were committed
 murder, extermination, enslavement, deportation, and other inhuman acts committed against any or were about to be committed by his subordinates
civilian population, before or during the war, or persecutions on political, racial or religious grounds
in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or
not in violation of the domestic law of the country where perpetrated.
 The jurisdiction ratione personae is considered to apply to "leaders, organisers, instigators and
accomplices" involved in planning and committing those crimes

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 In The Prosecutor v. Blaškić ("the Blaškić case") this view was corroborated.
 However, it differed regarding mens rea required by AP I.
 The Blaškić Trial Chamber concluded that "had reason to know," as defined by the ICTY
Statute, also imposes a stricter "should have known" standard of mens rea.
 The conflicting views of both cases were addressed by the Appeals Chambers in
Čelebići and in a separate decision in Blaškić.
 Both rulings hold that some information of unlawful acts by subordinates must be available
to the commander following which he did not, or inadequately, discipline the perpetrator.
 The concept of command responsibility has developed significantly in the
jurisprudence of the ICTY.
 One of the most recent judgements that extensively deals with the subject is the Halilović
judgement of 16 November 2005
References
• Professor Ivan Shearer; international Law and the
Use of force, seminar on law of war, University
Bristol, UK,2009
• Goodrich, Hambro and Simons, Charter of the
United Nations, 3rd edn, New York, 1969
• Bailey and Daws, The Procedure of the United
Nations Security Council, 3rd edn, Oxford, 1998
• Simma (ed.), The Charter of the United Nations,
2nd edn, Oxford, 2002
 War in Darfur
 Human Rights Watch commented - stating thatindividual commanders and civilian officials
could be liable for failing to take any action to end abuses by their troops or staff. ......”
 The principle of command responsibility is applicable in internal armed conflicts as well as
international armed conflicts
 The International Criminal Court's chief prosecutor, Luis Moreno-Ocampo, announced on July
14, 2008, ten criminal charges against President Omar al-Bashir, accusing him of sponsoring
war crimes, genocide and crimes against humanity.
 The ICC's prosecutors have charged al-Bashir with genocide because he "masterminded and
implemented a plan to destroy in substantial part" three tribal groups in Darfur because of
their ethnicity.
 Zimbabwe
 For his conduct as President of Zimbabwe, including allegations of torture and murder of
political opponents, it is suggested Robert Mugabe may be prosecuted using this doctrine.[40]
Because Zimbabwe has not subscribed to the International Criminal Court's jurisdiction it
may be authorised by the United Nations Security Council.
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