[1] Napoleon to Marshal Berthier, June 8, 1811, CORRESPONDENCE DE NAPOLEON, Corres. No. 17782, vol. XXII, 215 (32 Vols. Paris 1858-70)).
[2] Leslie Greene, Command Responsibility in International Humanitarian Law (1995) 5 Transnational Law & Contemporary Problems 319 at 320
[3] X I Trials of war Criminals Before the Nuremberg Military Tribunals Under Control Council Law No. 10 at 1259 (1948)
[4] Andrew D. Mitchell, Failure to Halt, Prevent or Punish: The Doctrine of Command Responsibility for War Crimes, 22 Sydney L. Rev. (September, 2000) 381 at 387, (citing H. Victor Conde, A Handbook of International Human Rights Terminology (1999) at 146
[5] Roberts, Land Warfare, From Hague to Nuremberg, in The Laws of the War: Constraints Warfare in the Western World 116, 119 (Michael Howard et al. eds. 1994)
[6] Louis Guillaume de Vilevault & Louis de Brequigny (eds.) Ordonances des Rois do France de la Troisieme Race (1782) cited in Leslie Greene, Command Responsibility in International Humanitarian Law (1995) 5 Transnational Law & Contemporary Problems 319 at 321
[7] William Winthrop, Military Law and Precedents (2nd ed. 1920) at 910
[8] William H. Parks, Command Responsibility for War Crimes, 62 Mil. L. Rev. 1 at 5 (quoting from Articles of War, Provisional Congress of Massachusetts Bay, April 5,1775)
[9] Martin v Mott, 25 U.S. (12 Wheat.) 1
[9] (1827)
[10] Ibid, 30
[11] Ibid
[12] Mitchell v Harmony, 54 U.S. (13 How.) 115
[13] Ibid at 137
[14] Instructions for the Government of Armies of the United States in the Field, General Orders 100, 24 Apr 1863
[15] The Trial of Captain Henry Wirz for Conspiracy and Murder, Washington DC, 1865 in American State Trials, Vol. VIII, 657 at 808
[16] Ibid 832
[17] Ibid, 662
[18] Ibid, 832
[19] Ibid, 667
[20] Hague Convention (IV) Respecting the Laws and Customs of War on Land, Annex (Regulations), October 18, 1907, 36 Stat. 2277, 1 Beavens 631
[21] See infra note 1 at 122
[22] Hague Convention, (IV) (1907) Supra, note 10, Article 3
[23] www.geocities.com/Athens/Crete/9782/people.htm, " I want no prisoners, I want you to kill and burn, the more you kill and burn the better it will please me.... Kill everyone over the age of ten."
[24] Andrew D, Mitchell, Failure to Halt, Prevent or Punish: The Doctrine of Command Responsibility for War Crimes, (2000) Sydney L. Rev. 381, 383
[25] Mathew R. Lippman, Humanitarian Law: The Development and the Scope of the Superior Orders events, (2001) 20 Penn St. Int'l, L. Rev. 153 154.
[26] Ibid
[27] Ibid
[28] Commission on the Responsibility of the Authors of the War and on the Enforcement of Penalties, (1919) 14 Am. J. Int'l L. 95, (1920)
[29] Ibid, 116
[30] Ibid 121-123
[31] Ibid 122
[32] Ibid, 117
[33] Treaty of Peace Between the Allied and Associated Powers and Germany, June 28, 1919, 2 Beavens 43
[34] Treaty of Versailles, Ibid, Article 227.
[35] Ibid Articles 228 and 229
[36] M. Cherif Bassiouni, From Versailles to Rwanda in Seventy-Five Years: The Need to Establish a Permanent International Court. 10 Harv. Hum. Rts. J. (1997), 11 at 17. Note Bassiouni suggests that the Commission relied on the Martens Clause form the preamble to the Hague Convention of 1907 which stated, " Until a more complete code of the law of wars has been issued, the High Contracting Parties deem it expedient to declare that in cases not included in the Regulations adopted by them, the inhabitants and the belligerents remain under the protection of the principles of the law of nations, as they result from the usages established among civilized people, from the laws of humanity, and the dictates of public conscience.. See. Convention Respecting the Laws and Customs of war on Land, October 18, 1907, preamble,
[36] Stat. 2277, 2279-2280, 1 Beavens 631, 632
[37] 3 of the Peace Between the Allied Powers and Turkey, August 10 1923, reprinted in 15 Am. J. Int'l L. 179 (Supp.1921)
[38] Ibid
[39] M. Cherif Bassiouni, Supra note 31 at 16
[40] James F. Willis, Prologue to Nuremberg: The Politics and Diplomacy of Punishing War Criminals of the First World War, (1982) 142
[41] Claude Mullins, The Leipzig Trials: An Account of the War Criminals' Trials and a Study of German Mentality 36-37 (1921)
[42] Ibid 36
[43] Judgment in the case of Commander Karl Neumann, Hospital, Ship "Dover Castle" (1921), 16 Am. J. Int'l. L. 704 at 705 -- 706
[44] Ibid
[45] Ibid at 707
[46] Judgment in Case of Lieutenants Dithmar and Boldt (July 16, 1921), 16 Am. J. Int'l. L. 708 ET sub.
[47] Ibid at 721
[48] Ibid at 721
[49] Ibid
[50] Ibid at 722
[51] James F. Willis, Prologue to Nuremberg, The Politics and the Diplomacy of Punishing War Criminals of the First World War, 146 (1982). At a closed session of the Penal Senate these particular convictions were annulled.
[52] Claud Mullins, The Leipzig Trials: An account of the War Criminals' Trials and a Study of German Mentality 151, 164
[53] Ibid at 162
[54] Ibid
[55] Ibid at 157-160, 163-164
[56] Ibid 161-165
[57] Ibid
[58] Ibid at 166
[59] Judgment in the Case of M. Emil Muller (May 30, 1921), 16 Am. J. Int'l. L. (1922) 684 at 685-686
[60] Ibid at 686
[61] Ibid at 687
[62] Ibid at 689
[63] Ibid at 691
[64] Matthew Lippman, Conundrums of Armed Conflict: Criminal Offences to Violations of the Humanitarian Law of War, 15 Dick. J. Int'l. L. (1996) 1 at 12
[65] The Inter-Allied Declaration, January 13, 1942
[66] United Nations War Crimes Commission; History of the United Nations War Crimes Commission and the Development of the Laws of War (1948) 280
[67] Ibid at 508-509
[68] Agreement for the Prosecution and the Punishment of the Major War Criminals of the European Axis, August 8, 1945,n59 Stat. 1544, 82 U.N.T.S. 279,
[69] Note: " at the time upgrading of any armistice to any government which may be set up in Germany, those German officers and men and members of the Nazi party who had been responsible or who have taken a consenting part in the above atrocities, massacres and executions will be sent back to the countries in which their abominable deeds were done in order that they may be judged and punished according to the laws of these liberated countries and free governments which will be erected therein." Joint Four-Nation Declaration, The Moscow Conference; October 1943, see The Avalon Project at Yale Law school
[70] Note: "Article 8. The fact that the Defendant acted pursuant to order of his government or of the superior shall not free him from responsibility, but shall be considered in mitigation of punishment if the Tribunal so requires." Charter of the International Military Tribunal October 6, 1945 Supra 63
[71] Implying permissive rather than compulsory
[72] United Nations War Crimes Commission, supra, 275-277
[73] Ibid.
[74] XIX Trial of the Major War Criminals Before and Nuremberg Military Tribunal 424 (1948)
[75] XXII Trial of Major War Criminals Purport the International Military Tribunal 466 (1948)
[76] Charter of the International Military Tribunal, supra 63 "Crimes against Peace: namely, planning, preparation, initiation or waging wars of aggression, or war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing.
[77] XXII Trials of the Major War Criminals, supra 69 at 533-535
[78] Order No 003830/42g.KdosOKW/WST found at http://www.combinedops.com/Hitlers_Commando_Order.htm Note: "from now on all men operating against German troops in so-called Commando raids in Europe or Africa, are to be annihilated to the last man. This is to be carried out whether they are soldiers in uniform, or saboteurs, with or without arms; and whether fighting were seeking to escape; and is equally immaterial whether they come into action from Ships and Aircraft or whether they land by parachute. Even if these individuals on discovery make obvious their intention of giving themselves up as prisoners, no part in years on any account to be given"
[79] Ibid "I will hold all Commanders and Officers responsible under Military Law for any omission to carry out this order, whether by failure in their duty to instruct the unit accordingly, or it if they themselves act contrary to it."
[80] XXII Trials of the Major War Criminals, supra 69 at 536
[81] Ibid
[82] Ibid at 568
[83] Ibid at 569-670
[84] Ibid at 571
[85] Ibid at 570 See note 72f
[86] Ibid at 568
[87] Ibid at 571
[88] Ibid at 5
[89] Ibid
[90] Allied Control Council Law No 10, Punishment of Persons Guilty of War Crimes, Crimes Against Peace, and Against Humanity, 20 December 1945, Official The Gazette of the Control Council for Germany No 3, Berlin, January 31, 1946
[91] Ibid, article 4
[92] Trials of War in Criminals Before the Nuremberg Militarily Tribunals Under Control Council Law No 10, XI, 1230 (1950)
[93] Note: the order stated "Measures taken up to now to counteract this general Communist insurrection movement have proven themselves to be inadequate. The Fuhrer now has ordered the severest means are to be employed in order to break down this movement in the shortest time ... The following directives are to be applied here: (a) each incident against the German Wehrmacht, regardless of individual circumstances, must be assumed to be of communist origin. (b) In order to stop these intrigues at their inception, severest measures must be applied immediately at the first appearance, in order to demonstrate the authority of the occupying power, in order to prevent further progress. One must keep in mind their human life frequently counts for naught in the effective countries and a deterring effect can only be achieved by unusual severity. In such a case the death penalty for 50 to 100 communists must in general be deemed appropriate as retaliation for the life of a German soldier. The manner of execution must increase the deterring effect. The reverse procedure-to proceed at first with relatively easy punishment and to be satisfied with the threat of increased severity as a deterrent does not correspond with his principles and is not to be applied."
[94] Supra 86. at 1256
[95] Ibid
[96] Ibid
[97] Ibid at 1260
[98] Ibid at 1271
[99] Note: "Ruthless any immediate measures against the insurgents, against their accomplices and their families. (Hanging, burning down the villages involved, seizure of more hostages, and deportation of relatives, etc, into concentration camps)"
[100] Supra 86 at 1270
[101] Ibid
[102] Ibid at 1271
[103] Ibid
[104] Ibid at 1272
[105] Ibid at 1286
[106] United Nations War Crimes Commission. Law Reports of Trials Of War Criminals, Volume V11I, 1949, case No 47, Trial of Wilhelm List and Others, United States Military Tribunal, Nuremberg, Part I . P. 45 et sub
[107] United States v Otto Ohlendorf, IV Trials of War Criminals Before the Nuremberg Military Tribunals Under Control Council Law No 10 (1950)
[108] Ibid. At 336-3 37
[109] Ibid at 470
[110] Ibid
[111] Ibid at 471
[112] Ibid at 517-518
[113] Ibid at 470
[114] Ibid at 470-471
[115] Ibid at 473
[116] Ibid at 481
[117] Ibid at 339-340, 342-343
[118] Ibid at 517
[119] Ibid at 309
[120] Ibid at 518
[121] Ibid at 519
[122] Ibid
[123] Ibid
[124] United States v Wilhelm von Leeb, XI Trials of War Criminals Before the Nuremberg Military Tribunal Under Control Council Law No. 10, (1950) 462h
[125] See Note 84 et sub.
[126] Supra, note 118 at 543
[127] Ibid
[128] Ibid
[129] Ibid.
[130] Ibid at 547. Note: The Tribunal found, as a matter of fact, that in a number of instances\, Einsatzgruppen atrocities had taken place a substantial distance from a headquarters and that reports had been forwarded via the SS chain of command with no copies being sent to the territorial commander.
[131] Ibid. at 512
[132] Ibid. at 662-693
[133] Ibid. at 557
[134] Ibid at 517
[135] Ibid. at 557-558
[136] Ibid.
[137] Ibid. 558-560
[138] Ibid. at 566
[139] Ibid. at 567
[140] Ibid.
[141] Ibid.
[142] Ibid. at 597
[143] Ibid.
[144] Ibid.
[145] Ibid. at 598
[146] Ibid. at 650-651
[147] Trials of War Criminals Before the Nuremberg Military Tribunals Under Control Council Law No 10, II 171 (United Stares v Brandt)
[148] Ibid. at 193-194
[149] Ibid. at 193
[150] Ibid.
[151] Trials of War Criminals Before the Nuremberg Military Tribunal's Under Control Council Law No 10, VIII 1081
[152] Ibid 1169-1170
[153] Ibid
[154] Ibid.
[155] Ibid.
[156] Ibid. Note "The growth is quite convincing that large quantities of Cyclon-B recent flies of the SS by Degesch (which was control by Farben) and only was used in mass extermination of inmates of concentration camps, including Auschwitz. But neither volume of production nor the fact that large shipments were destined to concentration camps would alone be sufficient to lead us to conclude that those who knew of such facts must also have had knowledge of criminal purpose to which the substance was being put. Any such conclusion is refuted by the well-known need for insecticides were ever large numbers of displaced persons, brought in from widely scattered regions, are confined in congested quarters lacking adequate secretary facilities."
[157] United Kingdom v Tesch, Vol I L.R.T.W.C. (1947) 93
[158] Ibid at 125
[159] Note: Tesch along with his deputy was sentenced to death.
[160] France v Roechling et al, Trials of War Criminals Before the Nuremberg Military Tribunals Under Control Council Law No 10,XIV (1952) 1097
[161] Ibid.
[162] Ibid.
[163] Ibid. at 1135
[164] Ibid. at 1136
[165] Ibid
[166] Sea United States V Flick
[167] See note 31, Supra at 31
[168] Activities of the Far Eastern Commission, Report by the Secretary General, separate 26-Jul 10, 1947, 16DEP't St. Bull. 804-806 (1947) Article 6 (a)
[169] Special Proclamation: Establishment of an International Military Tribunal for the Far East, Jan. 19,1946 T.I.A.S. No. 1589 at 3, 4 Bevans 20
[170] Instrument of Surrender by Japan, Sept. 2, 1945,9 Stat. 1733, 1735, 3 Bevans 1251, 1252
[171] See note 31, Supra at 36e
[172] Trial of General Tomoyuki Yamashita (United States Military Commission, Manila, October 8-December 7, 1945) IV Law Rep. Trials War Crim. 1 (UN War Crimes Comm'n, 1948)
[173] Ibid. at 35-37
[174] Re Yamashita, 327 U.S. 1 (1945)
[175] See note 168, supra at 5
[176] Ibid. at 68
[177] Ibid. at 69
[178] Ibid. at 5
[179] Ibid.
[180] See note 168, supra, at 340
[181] Ibid at 89
[182] Ibid at 72
[183] Ibid. at 72-74
[184] Ibid. at 18
[185] Ibid. at 73
[186] Ibid. at 17
[187] Ibid at 81-82
[188] General Headquarters United States Army Forces, Pacific Office of the Theatre Judge Advocate, Review of the Record of Trial by a Military Commission of Tomoyuki Yamashita, General Japanese Army (December 26, 1945), reprinted in Courtney Whitney, The Case of General Yamashita: A Memorandum 60 (1950)
[189] Ibid. at 60
[190] Ibid.
[191] Chief Justice of United States Supreme Court
[192] See note 168, supra, at 347
[193] Ibid at 347-348
[194] Ibid at 353-359
[195] Ibid. at 358
[196] Ibid at 359
[197] International Military Tribunal for the Far East, The Tokyo War Crimes Trial (November, 1948), reprinted in The Law of War: A Documentary History II 1029
[198] Charter of the International Military Tribunal for the Far East, T.I.A.S No. 1589.
[199] Ibid
[200] International Military Tribunal for the Far East, The Tokyo War Crimes Trial (November, 1948) at 1039
[201] Francisco Martin & Richard Wilson, The Rights International Companion to Criminal Law & Procedure, An International Human Rights and Humanitarian Law Supplement, 74, citing William H. Parks, Command Responsibility, 62 Mil. L. Rev. 1, 72 (1973)
[202] See note 192 at 1038
[203] Ibid at 1038-1039
[204] Ibid at 1038-1040
[205] Note: The Bataan Death March was a forced march of approximately seventy thousand American and Filipino prisoners of war captured by the Japanese. Starting out from Mariveles on the southern end of the Bataan Peninsula, on April 9, 1942, they were forced-marched fifty-five miles to San Fernando, and then taken by rail to Capas, from where they were again force-marched the last eight miles to Camp O'Donnell. They were starved and mistreated, and many of those who collapsed were bayoneted. Only fifty-four thousand prisoners reached the end destination. It was estimated that between seven to ten thousand perished en route, with a substantial number escaping into the jungle.
[206] See note 198, supra, at 1154-1155 The Tribunal in convicting Tojo seemed to use as a touchstone the fact that since so many prisoners of war had perished that the same constituted notice to this accused and that he did not take the necessary or 'proper steps to care for them.'
[207] Note: often referred to as the 1937 'Rape of Nanking,' it is estimated that approximately three hundred thousand Chinese men and women and children were indiscriminately tortured rate and killed during a six-week timeframe as the Japanese forces occupied the then capital city of China
[208] Ibid at 1134, 1061-1063
[209] See note 198, supra, at 1142
[210] Ibid at 1144
[211] Melinski v Chief Military Prosecutor, see Kafr Qassem: A Civilian Massacre, Palestine Yearbook of International Law, Vol 2, 1985 at p. 69
[212] Ibid. But see U s V Kinder, 14 C.M.R. 742 (1954), USAF Board of Review and U.S. V Schreiber, 16 C.M.R. 639 (1954), USAF Board of Review.
[213] Ibid.
[214] See note 204 at 112
[215] Ibid
[216] Ibid
[217] Ibid
[218] Ibid. at 542
[219] Ibid
[220] Ibid
[221] Ibid. at 544
[222] Ibid at 547
[223] See Note 47 Supra
[224] Judge Howard's Summary Of Evidence found at http://www.law.umkc.edu/faculty/projects/ftrials/mylai/MYL_MEDT.HTM
[225] See Prosecution Brief on the Law of Principles in United States v Captain Ernest L. Medina detailing the duties of a combat commander found at http://www.law.umkc.edu/faculty/projects/ftrials/mylai/MYL_LAW3.HTM
[226] L.C. Green, Command Responsibility in International Humanitarian Law, (1995) Transnat'l L. & Contemp. Probs. 319 at 353 citing Joseph Goldstein et al. The My Lai Massacre and Its Cover-Up: Beyond the Reach of Law? 467 (1976)
[227] Ibid at 353
[228] Ibid and 353,354
[229] Protocol Additional to the Geneva Convention's That of 12 Aug 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol 1), June 8, 1977, Article 86, 1125 U.N.T.S. 3, 16 I.L.M. 1391 (1977)
[230] Ibid. Article 86(2)
[231] Ibid. Article 86 (2) and (3)
[232] Ibid Article 91
[233] Final Report of the Commission of Inquiry Into the Events at the Refugee Camps in Beirut, Final Report, 22 I. L. M. 473 (1983) See also http://www.mfa.gov.il/mfa/go.asp?MFAH0ign0 . The figure of seven hundred killed was an Israeli estimate. The Red Cross estimated as many as three thousand were killed.
[234] Ibid at 495
[235] Ibid at 481
[236] See note 220, supra (The Kahan Commission)
[237] Ibid
[238] Ibid at 442
[239] Ibid at 498 and 502
[240] Ibid at 463-464. See also Mathew Lippman, Humanitarian Law: The Uncertain Contours of Command Responsibility, (Fall, 2001) 9 Tulsa J. Comp. & Int'l L. 1 at 50
[241] Ibid at 509 et sub.
[242] Ibid
[243] Ibid at 511-512
[244] Ibid
[245] Ibid at 501 (Personal Responsibility-The Prime Minister, Mr. Menachem Begin)
[246] Ibid at 501-502 (Personal Responsibility, The Minister of Defence Mr. Ariel Sharon)
[247] Ibid
[248] Ibid
[249] Ibid
[250] Ibid at 504 (see Personal Responsibility, The Foreign Minister, Mr. Yitzhak Shamir)
[251] Ibid.
[252] Ibid. at 505-506 (see Personal Responsibility, The Chief of Staff, Lieutenant-General Rafael Eitan)
[253] Ibid.
[254] Ibid.
[255] Ibid.
[256] Ibid at 511 (see Personal Responsibility G.O.C. Northern Command, Major-General Amir Drori)
[257] Ibid at 511-512
[258] Ibid at 509 (see Personal Responsibility, Director of Military Intelligence, Major-General Yehoshua Saguy
[259] Ibid at 511
[260] Nomi Bar-Yaacov, Command Responsibility in Crimes of War -- The Book, found at http://www.crimesofwar.org/thebook/command-respon.html
[261] Ibid
[262] Ibid
[263] Ibid
[264] Ibid
[265] R v Finta, (1994) 112 D.L.R. (4th) 513
[266] R v Seward (1996) 36 C.R.R. (2d) 294 (the Court panel was made up of three Justices of the Federal Court of Appeal)
[267] Report of the Somalia Commission of Inquiry, found at http://www.dnd.ca/somalia/vol0/indexe.htm
[268] see note 265, supra, at 514-515
[269] Ibid at 617-618
[270] Ibid at 609-610
[271] R v Finta (1994) 1 SCR 701 at 779
[272] R v Finta, (1994) 112 D.L.R. (4th) 513 at 614
[273] The equivalent of an army company. In this case members of 2 Commando were made up entirely from the ranks of the Princess Patricia's Canadian Light Infantry. It is arguable as to whether or not the deployment of Canadian forces was as part of a peacekeeping mission in the traditional sense of the word. At the Commission of Inquiry hearings there was evidence lead to the effect that this mission was more akin to peacemaking rather than peacekeeping
[274] R v Seward (1966) 36 C.R.R. 294 at 296 et sub.
[275] Ibid, Paras. 68-69
[276] Ibid at Para 78
[277] Ibid at Para. 80
[278] Ibid
[279] Executive Summary, Chain of Command, Report of the Somalia Commission of Inquiry, found at http://www.dnd.ca/somalia/vol0/indexe.htm
[280] Major-General Lewis McKenzie
[281] The acronym given to Land Forces Central Area. The Canadian Airborne Regiment was one of the units comprising the Special Service Force.
[282] Ibid
[283] Ibid
[284] Security Council Resolution 780 U.N. SCOR, 47th Session, U.N. Doc. S/Res/780 (1992)
[285] Ibid
[286] Security Council Resolution 808, U.N. SCOR, 48 Session U.N. Doc., S/Res/808 (1983)
[287] Ibid. Article 1
[288] Security Council Resolution 935, U.N.SCOR, 49th Session U.N. DOC. S/Res/935 (1994)
[289] Security Council Resolution 955, U.N. SCOR, 49th Session, U.N. Doc. S/Res/955 (1994)
[290] Ibid, Article 4
[291] Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia Since 1991, found athttp://www.un.org/icty/basic/statut/statute.htm#6
[292] Ibid, Article 7
[293] Prosecutor v Erdemovic, IT-96-22-T (sentencing) (Int'l. Crim. Trib. Yug., Trial Chamber 1, (1996) I.L.R. found at http://www.un.org/icty/erdemovic/trialc/judgement/erd-tsj961129e.htm
[294] Ibid at Para. 79
[295] Ibid at Para 80
[296] Ibid
[297] Ibid at Para. 14
[298] Ibid at Pera 18
[299] Ibid at Para 95
[300] Prosecutor v Erdemovic. IT-96-22-T (sentencing appeal) (Int'l Crim. Trib. Yug., App. Chamber 1997) 111 I.L R. 298 found also at http://www.un.org/icty/erdemovic/appeal/judgement/erd-aj971007e.htm
[301] Ibid at Para.34
[302] Ibid at Para 34 - 35
[303] Ibid
[304] Prosecutor v Erdemovic, IT-96-22-T, (sentencing judgment) (Int'l. Crim. Trib. Yug.,) Trial Chamber II, (1988) 37 I.L.M. 1182 (1998) found at http://www.un.org/icty/erdemovic/trialc/judgement/erd-tsj980305e.htm
[305] Ibid at Para. 14
[306] Ibid at Para. 15
[307] Prosecutor v Delalic et al, IT 96-21-T (1998) found at http://www.un.org/icty/celebici/trialc2/judgement/index.htm
[308] Ibid at Para 354
[309] Ibid at Paras. 333-334
[310] Ibid at Para 354
[311] Ibid
[312] Ibid at Paras. 355-363
[313] see note 155, supra
[314] Ibid at Para 363
[315] Ibid at Para.377
[316] Ibid
[317] In Re Yamashita, 327 US 1, 14-16 (1945). This case was brought before the Supreme Court on petition for writ of habeas corpus, and presented the Court with the limited issue of whether the Military Commission in Manila possessed lawful jurisdiction to try Yamashita. It was alleged that such jurisdiction was lacking, inter alia, on the ground that the charges preferred against Yamashita failed to allege a violation of the laws of war. In rejecting this contention the Court described "the gist of the charge" against Yamashita as one of an unlawful breach of duty as an army commander to control the operations of his command by permitting them to commit a number of atrocities.
[318] United States v Soemu Toyada, Official Transcript Record of Trial, P 5006. In greater detail, the Tribunal declared the essential elements of command responsibility to be: 1. [...] that atrocities were actually committed; 2. Notice of the commission thereof. This notice me be either: (a) Actual, as in the case of an accused who sees that their commission or was informed thereof shortly thereafter; or (b) Constructive. That is, the commission of such a great number of offences within his command that a reasonable man could come to no other conclusion then and that the accused must have known of the offences or of the existence of an understood and acknowledged routine for their commission; 3. Power of command. That is, the accused must be proved to have the actual authority over the offenders to issue orders to them not to commit illegal acts, and to punish offenders; 4. Failure to take such appropriate measures as are within his power to control the troops under his command and to prevent acts which are violations to the laws of war; 5. Failure to punish offenders. (See United States v Wilhelm von Leeb et al., Vol. XI, TWC, 5005-5006
[319] Prosecutor v Delalic et al, supra at Para. 383
[320] Ibid at Para 387.
[321] Ibid.
[322] Ibid at 394
[323] Ibid at Para. 395
[324] Ibid at Para. 395
[325] Ibid at Para 400
[326] Ibid at Para 657
[327] Ibid at Pera 669
[328] Ibid at Paras 692-700
[329] Ibid at Para 736
[330] Ibid at Para 750
[331] Ibid at Para 764
[332] Ibid at Para. 765
[333] Ibid at Paras. 768-770
[334] Ibid at Paras. 771-774
[335] Ibid at Para 1250
[336] Prosecutor v Delalic et al, IT 96-21-T (2001) Para 198, found at http://www.un.org/icty/celebici/appeal/judgement/index.htm
[337] Prosecutor v Aleksovski, IT-95-14/1-T Int'l. Crim. Yug., (1999) found at http://www.un.org/icty/aleksovski/trialc/judgement/index.htm
[338] Ibid at Para 93
[339] Ibid at Paras 100-101
[340] Ibid at Paras 103-105
[341] Prosecutor v Blaskic Judgment, IT-95-14 (2000) found at http://www.un.org/icty/blaskic/trialc1/judgement/index.htm
[342] Ibid at Para. 300
[343] Ibid at Para 302
[344] Ibid at Para 303
[345] Ibid at Para 307
[346] Ibid
[347] Ibid
[348] Ibid at Para 308
[349] As envisioned in Article 7(3)
[350] Ibid at Para 322
[351] Ibid at Para 329
[352] Ibid at Para 332
[353] Ibid (the 'commander' referred to in the latter part of the above was the defendant, General Blaskic)
[354] Prosecutor v Kordic and Cerkez, IT-Ibid95-14-2 (2001) Int'l Crim. Trib. Yug., Paras. 454-556 found athttp://www.un.org/icty/kordic/trialc/judgement/index.htm
[355] Ibid at Para. 556
[356] Ibid at Paras. 364-365
[357] Ibid at Para 367
[358] Ibid
[359] Ibid
[360] Ibid at Para 387
[361] Ibid
[362] Ibid
[363] Ibid at Para. 388
[364] Ibid
[365] Ibid (However in certain common law jurisdictions, in a criminal matter circumstantial evidence to be accepted must not only be consistent with the act to be proved, but must be inconsistent with any other.)
[366] Ibid
[367] Ibid
[368] Ibid at Para. 397 (although this plurality of persons need not be organized into a particular military, political or administrative structure)
[369] Ibid (There is no necessity for this plan, design or purpose to have been either arranged or formulated before. The common plan, design or purpose may come about in a spontaneous fashion. Its formulation may be inferred from that fact that a plurality of persons act in unison to put into effect a joint criminal enterprise.)
[370] Ibid (This participation refers to the common design of one of the enumerated offences in the ICTY Statute. The participation need not be to a specific crime. It is sufficient that the participation be in some form of either assistance or contribution to the carrying out of the common plan or purpose of the group
[371] Ibid at 398
[372] Ibid (creating a two stage process)
[373] Ibid at Para 390
[374] Ibid at Para 401
[375] Ibid at Para 418
[376] Ibid at Para 421 (such as a chief of staff in a military organization routinely signing orders on behalf of the commander)
[377] Ibid at Para 422.
[378] Ibid
[379] Ibid at Para, 423
[380] Ibid at Para 424
[381] Ibid
[382] Ibid at Para 426
[383] Ibid at Para 427
[384] Ibid at Para. 437
[385] Ibid at Para 445.
[386] Ibid
[387] Ibid at Para 446
[388] Ibid
[389] Prosecutor v Avoca et al, IT can he98-30/1 Int'l Crim. Trib. Yug. (2001) found at http://www.un.org/icty/kvocka/trialc/judgement/index.htm
[390] Ibid at Para. 316
[391] Ibid at Para. 317.
[392] Ibid
[393] Ibid at Para. 318
[394] Ibid.
[395] Ibid. that it has to
[396] Prosecutor v Krnojelac, IT-97-25 Int'l. Crim. Trib. Yug., (2001) found at http://www.un.org/icty/krnojelac/trialc2/judgement/index.htm
[397] Ibid at Para 62
[398] Ibid Paras 387-393
[399] Ibid at Para 390
[400] Ibid.
[401] Ibid at Para 391
[402] Ibid (Note that this judgment does not qualify the term 'substantial')
[403] Ibid
[404] Ibid at Para 387, " 7(1) A person who planned, instigated ordered committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in articles 2 to 5 of the present statute shall be individually responsible for the crime."
[405] Ibid at Para 392
[406] Ibid
[407] Ibid at Para 393
[408] Ibid Paras. 394-399
[409] Ibid at Para. 396
[410] Ibid (Note that the judgment does not define the term 'material'}
[411] Ibid at Para 398
[412] Ibid at Para. 398
[413] Ibid
[414] Ibid
[415] Ibid at Para. 399
[416] Ibid at Paras. 96-107
[417] Ibid at Paras 108-127
[418] Ibid at Paras 128-173
[419] Ibid at Paras. 147-320
[420] Ibid at Paras. 321-348
[421] See note 79 supra
[422] Ibid, Article 6
[423] Prosecutor v Jean-Paul Akayesu, ICTR-96-4-T (1998) Int'l Crim. Trib Rwanda, found at http://www.ictr.org/
[424] Ibid at Paras. 51-54
[425] Ibid at Paras. 61-77 (note: the Trial Chamber noted that this role was similar to a 'maire' in France)
[426] Ibid at Para. 63
[427] Ibid at Para 64
[428] Ibid at Para. 65
[429] Ibid at Para. 71
[430] Ibid at Para.73
[431] Ibid at Para. 77
[432] Ibid
[433] Ibid at Paras. 488-489
[434] Ibid at Para 489
[435] Ibid at Para 491
[436] Prosecutor v Clement Kayishema et al, ICTR 951-T Int'l. Crim. Trib. Rwanda (1999) found at http://www.ictr.org/
[437] Ibid at Para 29
[438] Ibid at Para 202
[439] Ibid at Para. 213
[440] Ibid at Para. 214
[441] Ibid at Para 216
[442] Ibid at Para. 218
[443] Ibid
[444] Ibid at Para. 220
[445] Ibid at Para. 220
[446] Ibid at Para. 222
[447] Ibid at Para. 225
[448] Ibid at Para 227
[449] Ibid at Para 228
[450] Ibid at Paras. 230-231
[451] Prosecutor v Ignace Bagilishema ICTR-95-1A-T Int'L. Crim. Trib. Rwanda (2001) found at http://www.ictr.org/
[452] Ibid at Para 40
[453] See Section 8.1.2
[454] See not427 supra at Para 43.
[455] Ibid
[456] Ibid
[457] Ibid at Para 47
[458] Ibid at Para. 49
[459] Ibid at Para 50
[460] Matthew Lippman, Humanitarian Law: The Uncertain Contours Of Command Responsibility, 9 Tulsa J. Comp. & Int'l. L. 1 (2001) 85
[461] Rome Statute of the International Criminal Court, Doc No. A/Conf U.N. Doc. No. 183/10 (July 17, 1998) found at found athttp://www.un.org/law/icc/statute/romefra.htm
[462] Ibid
[463] Ibid
[464] Note: Article 28(a) creates the responsibility for the actions of 'forces' while Article 28(b) uses the word 'subordinate'.
[465] Ibid
[466] The Yamashita case. See Trial of General Tomoyuki Yamashita, (1948)L. Rep. War Crim. 1 and In Re Yamashita, 327 U.S. 1 (1945) But there
[467] United States v Hermann Goering Trial of the Major War Criminal's Before the International Military Tribunal, XXII (1948)
[468] Trials of War Criminals Before the Nuremberg Militarily Tribunal's Under Control Council Law Number 10, XI
[469] International Military Tribunal for the Far East, The Tokyo War The Crimes Trial
[470] Protocol Additional to the Geneva Convention's That of 12 Aug 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol 1), June 8, 1977, Article 86, 1125 U.N.T.S. 3, 16 I.L.M. 1391 (1977)
[471] Final Report of the Commission of Inquiry Into the Events at the Refugee Camps in Beirut, Final Report, 22 I. L. M. 473 (1983) See also inhttp://www.mfa.gov.il/mfa/go.asp?MFAH0ign0