Command Responsibility

History

100

What code established some of the early elements of command responsibility? (Hint: think US-specific)

Lieber Code (Art 71)

200

What was the first modern treaty to impose a form of command responsibility as a matter of express international legal obligation?

The Fourth Hague Convention (Art 3 and 1)

300

Which war tribunal established that the law of war does impose an affirmative duty on commanders to control their forces? (Hint: the earliest one)

Yamashita

400

Which protocol first codified command responsibility in the context of IHL? (Double points: name the articles)

Additional Protocol 1, Art 86 and 87

500

What was the most recent codification of command responsibility in the context of IHL? (Double points: name the article)

Rome Statue, Art 28

Command Responsibility Broadly

100

The four general elements of command responsibility 

1. Authoritative relationship to a subordinate

2. Mens rea

3. Actus rea

4. Causal relationship between the commander's mission and the war crimes committed by subordinates

200

True or false: an omission can serve as the actus reus 

True

300

Accountability exists when the commander's action is ________ OR where the ________ between the commander's action and the crimes is _______ 

DIRECT or where the NEXUS between the commander's action and the crime is CLEAR

400

Which two ways (failures) can commanders be found criminally responsible?

Failure to punish and failure to prevent

500

Differentiate liability between accomplice liability and accomplice after the fact. What is the biggest difference?

Accomplice liability means the commander is liable as if they committed the offense. Liability for serving as an accessory after the fact only extends to the attempted cover up, not the offense itself.

Compare and Contrast

100

Where does the mens rea, "had information which should have enabled them to conclude" come from?

Additional Protocol 1, Art 86

200

What is the actus reus for the ICC?

"all necessary and reasonable measures within his power" limited by realities of war (Bemba)

300

What international standard applies to de facto commanders or non-military "superiors"? (Double points: name the article)

ICC Art 28

400

Where does the mens rea, "knew or consciously disregarded information", come from?

ICC for non-military superiors (Art 28)

500

Name a common theme of the different types of command responsibility

1. The unique position a commander holds in a military organization.
2. The axiom that command authority includes both the legal authority and the legal obligation to control subordinate conduct in order to achieve military objectives while respecting the then existing humanitarian limits on the conduct of hostilities.
3. Imposing responsibility on the commander for the conduct of subordinates enhances the probability of such respect.
4. A commander can be held accountable for his subordinates' law of war violations if he was directly involved, or even in some cases if the commander's involvement was less direct or obvious. 

Responsible Commander: US Approach

100

True or false: the US has not formally adopted the doctrine of command responsibility in the UCMJ

True

200

What similar (although not analogous) concept is used to promote command accountability?

Dereliction of duty

300

What alternative approach (which has never been used) could be used to prosecute a commander for an actual law of violation, rather than violation of the UCMJ punitive articles? (Double points: name the article of the UCMJ that would establish jurisdiction)

General court-martial. Art 18.

400

What is the actus reus for dereliction of duty?

WILLFULLY (through neglect or culpable inefficiency) DERELICT in PERFORMANCE of DUTIES

500

What regulation other than Art 92 (Dereliction of Duty) imposes an affirmative duty on Army commanders (Double points: name the regulation number)

Army Regulation 600-20, Army Command Policy

Ensuring Compliance: US Approach

100

True or false: there is only one designated way for commanders to conduct investigations

False

200

True or false: a commander may never investigate a reportable incident. They must direct the allegation to investigative authorities. 

False

300

What type of information is required to make an incident reportable?

Credible

400

Commanders have a duty to _______ and ________ allegations of war crimes.

Investigate and report

500

Name two of the five kinds of investigations that can be conducted. (100 points ea for any additional)

1. Preliminary Inquiry

2. Administrative Investigation

3. Board of Officers

4. Criminal Investigation

5. Inspector General Investigation