Command Responsibility

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By Nomi Bar-Yaacov

In January 1988, barely one month into the Intifada uprising against Israeli occupation of the West Bank and Gaza Strip, Col. Yehuda Meir ordered troops under his command to round up twenty Palestinian men from Hawara and Beita, two Arab villages in the West Bank, bind them in handcuffs and blindfolds, and break their bones. The unit commander reporting to Meir passed on the order to his troops, but told them he did not require them to comply. Some soldiers refrained from doing so, but others carried out the order with such zeal that they broke their truncheons. The defense minister at the time, Yitzhak Rabin, publicly spoke of the need to “break the bones of Intifada rioters.”

Although Meir was not present during the incident, he was the superior commanding officer in the area.

It took some months before military police, following a request by the International Committee of the Red Cross (ICRC), launched an investigation. The army chief of staff summoned Meir and offered him the choice: to appear before a disciplinary military court for a severe reprimand and discharge from the army, or to face a court martial. Meir accepted the first option, under which he was to go to work for the State security service until he could begin retirement on his colonel’s pension.

When word of the behind-the-scenes deal became public, the Association for Civil Rights in Israel petitioned the Israeli High Court of Justice, demanding that Meir be court-martialed.

The High Court ruled unanimously that Meir should be tried in a special military tribunal for torture, intentionally causing bodily harm, grievous assault—all, incidentally, grave breaches of the Geneva Conventions—and unbecoming conduct.  ”These actions outrage every civilized person, and no lack of clarity can cover it up” Justice Moshe Bejski said. “Certainly, if the order is given by a senior officer, that officer must be aware that the morality of the Israeli Defense Forces forbids such behavior.”

Following the High Court’s decision, Meir went on trial before a special military tribunal in Tel Aviv in April 1991. He was found guilty, demoted to private’s rank, and deprived of his colonel’s pension.

Meir’s case points to two critical issues of international humanitarian law (IHL). Can obedience to superior orders be a defense against allegations of war crimes? And how far up the chain of command does “command responsibility” reach?

The answer to the first question is that a claim of superior orders cannot serve as a defense against an allegation of grave breaches or other serious violations of IHL. It should be noted, however, that the illegality of the orders was blatant and undeniable in Meir’s case. In other cases, the illegality may not be so apparent, and a war crimes prosecution may fail if the subordinate is not shown to have acted “willfully” in the sense of knowing or having reason to know that the order was illegal. In addition, although a claim of superior orders cannot serve as an affirmative defense, it may be part of a claim of duress—such as a threat to execute the subordinate for failure to carry out orders—that may be offered in mitigation.

The second issue is how far up the chain of command responsibility may extend for ordering a war crime. Article 86 of Additional Protocol I to the 1949 Geneva Conventions states: “the fact that a breach of the Conventions or of this Protocol was committed by a subordinate does not absolve his superiors from penal disciplinary responsibility as the case may be if they knew, or had information which would have enabled them to conclude in the circumstances at the time that he was committing or was going to commit such a breach and if they did not take all feasible measures within their power to prevent or repress the breach.”

This rule applies to officers. Therefore command responsibility extends as high as any officer in the chain of command who knows or has reason to know that his subordinates are committing war crimes and failed to act to stop them. Although Israel has not ratified Additional Protocol I, it is clear from Israeli Supreme Court practice that its domestic law embraces these internationally recognized standards for superior orders and command responsibility.

Under the 1998 statute of the new International Criminal Court, a military commander is liable for crimes that he “knew or should have known” about under circumstances at the time, and only for those crimes committed by forces under his “effective command and control.” He is liable if he “failed to take all necessary and reasonable measures” to prevent and repress such crimes that subordinates “were committing or about to commit” or for failing to report such crimes to proper authorities.

Various cases have raised difficult questions, starting with the famous Yamashita case heard by the International Military Tribunal in Tokyo following World War II. This Tribunal held a senior enemy commander to what many critics, including a dissenting U.S. Supreme Court opinion, thought to be an extraordinarily high standard of responsibility for actions of subordinates, even under circumstances where Admiral Yamashita had lost almost all command, control, and communications over his subordinates. In practical terms, command responsibility is not taken to extend as far up the chain of command as might logically be implied, that is, to commanders in chief, and is generally confined to officers in some meaningful supervisory capacity.

Meir argued in his own defense that he was acting in accord with his understanding of orders given by his superiors. The tribunal rejected his argument. The judges concluded that political and high-ranking military officials had not given orders to break bones. Consequently, the State prosecutor’s office decided not pursue charges against Ehud Barak, the chief of staff at the time, Rabin, the minister of defense, or Maj. Gen. Yitzhak Mordechai, the commanding officer of the central zone.

Officers and soldiers who carried out Meir’s orders in the Hawara and Beita affair were tried in special military courts. Their arguments that they were merely “obeying orders” were rejected and they served time in prison.

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