Quote of note:
American courts have already accepted the doctrine of command responsibility. In July 2002, for example, a federal court in Miami found two retired Salvadoran generals liable for torture — even though neither man had committed or ordered the crimes in question. The jury held that they were nonetheless guilty, since as El Salvador's minister of defense and head of its national guard at the time of the torture, they knew (or should have known) about it and could have stopped it.For their part, Secretary of Defense Donald Rumsfeld and other Pentagon officials recently told Congress that they didn't know and couldn't have known about a few instances of sexual abuse in Iraq. But this claim is contradicted by the officer formerly in charge of Abu Ghraib, who has said that her superiors were warned about the abuses months before they were exposed. And the Red Cross documented widespread abuses in Iraq last year and raised them with the White House in January.
An American in The Hague?
By JONATHAN D. TEPPERMAN
The Bush administration has yet to accept much responsibility for the torture at Abu Ghraib prison. True, the president has apologized for the abuse on Arab television, and several top military officials in Iraq — including the general in charge of the prison and her boss — have been quietly suspended or will soon be transferred. But so far, legal responsibility has fallen exclusively on the seven court-martialed soldiers who were directly involved. Administration officials have argued that they themselves are not liable, since the incidents were the work of a few bad actors.
This may or may not be true. Even if no smoking gun is ever found to directly link American officials to the crimes, however, they could still find themselves in serious jeopardy under international law. Under the doctrine of command responsibility, officials can be held accountable for war crimes committed by their subordinates even if they did not order them — so long as they had control over the perpetrators, had reason to know about the crimes, and did not stop them or punish the criminals.
This doctrine is the product of an American initiative. Devised by Allied judges and prosecutors at the Nuremberg tribunals, it was a means to impute responsibility for wartime atrocities to Nazi leaders, who often communicated indirectly and avoided leaving a paper trail.
More recently, the principle has been fine-tuned by two other American creations: the international tribunals for Yugoslavia and Rwanda, which were established in the last decade by the United Nations Security Council at the United States' behest. These tribunals have held that political and military leaders can be found liable for war crimes committed by those under their "effective control" if they do nothing to prevent them.
Posted by P6 at June 10, 2004 09:31 AM
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