Anybody around here remember Tomoyuki Yamashita?
He was an Imperial Japanese Army general during World War II. In terms of battles he was most famous for conquering the British colonies of Malaya and Singapore.
But his historical legacy comes from being tried in late 1945 by an American military tribunal in Manila for war crimes relating to the massacre of civilians in Manila, and atrocities in Singapore against civilians and prisoners of war, such as the Sook Ching massacre.
Even though the massacre in the Philippines was carried out by a subordinate commander, Imperial Japanese Navy Rear Admiral Sanji Iwabuchi, against Yamashita's specific order — and without his knowledge or approval — a U.S. military tribunal held Yamashita responsible for the conduct of his troops. He was executed on February 23, 1946.
Nowadays most legal scholars acknowledge that Yamashita's execution was a case of victor's, not legal, justice. Nevertheless his case become a precedent regarding the command responsibility for war crimes and is known as the Yamashita Standard.
An interesting tidbit of history, you're thinking, but what's its relevance to today's U.S. military?
The exercise of authority by military superiors over their subordinates in wars or stability operations, as some like to euphemistically call them, is an essential tool to ensure respect of international humanitarian law, and to prevent the commission of serious crimes.
Thus, for starters, those serving in the regular military, whether active or reserve, understand that they are all part of a strict chain of accountability and that people at the top can suffer severe consequences for the actions of those beneath them. Thus, people in leadership positions have an understandable interest in ensuring people at the bottom of the combat food chain act properly, so the people at the top don't suffer Yamashita's fate.
Admittedly, nowadays a general or admiral would be more likely to be demoted and reduced in rank than face a gallows or firing squad. Certainly, there have been cases since then, from My Lai and numerous other barbarities during the Vietnam War, to Abu Ghraib in Iraq, where atrocities took place and those in command suffered no consequences. Nevertheless the principle is established, understood, and accepted.
However, when you add in the secret sauce of today's modern U.S. military establishment, private military and security contractors (PMSC) that bright, shining principle becomes murky.
Regardless of what side you are on in the eternal PMSC debate, everyone agrees that private contractors are not state officials or employees. That can make it difficult to prosecute and punish their acts, especially when committed on foreign soil.
Despite attempted workarounds — changes to the Uniform Code of Military Justice, modifications to the Military Extraterritorial Jurisdiction Act, criminal prosecutions of PMSCs for alleged wrongdoing are scant.
Micaela Frulli, Aggregate Professor of International Law, University of Florence, Italy, wrote in a 2010 article in the Journal of Conflict and Security Law:
Accordingly, it has for the moment proven impossible to punish those 'in command' (whether high-ranking State officials or PMSCs ' managers or senior employees acting in the field) for not preventing the commission of grave crimes by their privately contracted subordinates nor punishing them.
Although it dates back centuries, the concept of command responsibility was firmly established following World War II, when the process of criminalizing the most serious violations of international humanitarian law gained momentum.
According to Frulli, there may be may be a way to make the command/superior responsibility doctrine relevant to PMSC use.
Skipping over the legalese, the debate rages on among international criminal lawyers as to "whether command/superior responsibility may be considered as a form of imputed liability for the crimes of the subordinates or as a separate and distinct responsibility by omission, which renders superiors liable for failure to perform a given act, that is, for violating the obligation to prevent or punish crimes committed by their subordinates." [emphasis added].
It is here submitted that the latter interpretation is to be preferred for a number of reasons. First of all, it seems that the dereliction of duty approach allows for a more flexible interpretation of the effective control test and may render the doctrine a useful legal and prosecutorial tool to enforce responsible command in its modern multi-faceted aspects. In fact, if one follows this orientation, it is easier to exclude the need to prove a causal link between the crimes and the omission: if liability is limited to omission it is not to be proven that the crimes would not have been committed but for the failure to control.
He also notes that "command responsibility as a form of responsibility by omission seems more appropriate also in light of the fact that there may be more than one superior having the material ability to control a group of subordinates and each superior could be held liable for failure to prevent or punish the crimes committed by such subordinates." When you consider how often PMSCs are the last link in a lengthy contracting chain, you can see the obvious appeal of that point.
To those that argue that PMSC are civilians, and as such are outside the concept of command responsibility, Frulli notes that Geneva Convention Protocol I "establishes that the duty to prevent and repress the breaches of the Conventions and the Protocol itself is incumbent upon military commanders 'with respect to members of the armed forces under their command and other persons under their control' and leaves room for a flexible interpretation."
One may quote, for instance, the Memorandum issued by the US Secretary of Defense in March 2008, which clearly gives authority to military commanders over the civilian contractors in their areas of operation, thus spelling out some of the possible ambiguities as to the 'chain of command'. The Memorandum sketches out how commanders should respond to civilian contractors who break federal laws, including granting jurisdiction to courts-martial, although only in cases in which the Department of Justice decides that it will not initiate criminal proceedings. This authority seems to be limited to Department of Defense (DoD) contractors and is not extended to include Department of State contractors, such as were, for instance, the notorious Blackwater employees in Iraq at the time of the 2004 Fallujah incident. However, it is expressly stated in the Memorandum that 'Commanders possess significant authority to act whenever criminal activity may relate to or affect the commander's responsibilities, including situation in which the alleged offenders' precise identity or actual affiliation is to that point undetermined.' In a case like this, it is made clear through the issuance of domestic guidelines that commanders are supposed to exercise control and possess a sufficient degree of authority over private contractors as well as precisely defined duties to supervise and to report the crimes committed by private subordinates.
The same guidelines should apply, in this author's opinion, to senior private contractors acting as superiors in the field and exercising their actual authority over lower ranking PMSCs employees. It may be recalled, as stressed by several authors, that PMSCs have often a hierarchical structure bearing a strong resemblance to military structures, more than any other private company, not to mention that they are frequently staffed by former military officers. In situations where senior private contractors work in close cooperation with the military, the supervisory and disciplinary authority of senior PMSC contractors operating in the field is comparable-if not equivalent-to the authority exercised in the same context by military commanders. In cases such as those supposed above, at least some sort of expectation of obedience, a criterion suggested as relevant by a distinguished author should be satisfied. Military officers and PMSCs employees work closely and do not respond, while acting in the field, to different and separate structures or hierarchies. It seems that often even a more stringent condition, as for instance the existence of an organizational structure within which the contractor personnel is operating, could be satisfied in similar situations.
In some respects, the Pentagon already has parts of the legal framework in place to make this work.
In recent years, it has issued official documents outlining certain duties of private contractors as to the prevention of violations of the laws of war and/or duty to report alleged violations of the laws of war.
U.S. DoD Directive 2311.01E (2006), containing the DoD Law of War Program, states that Pentagon superiors must ensure, among other things, that contract work statements for contractors comply with the policies contained in the Directive itself. Additionally, they are to require contractors to institute and implement effective programs to prevent violations of the laws of war by their employees and subcontractors, including laws of war training and dissemination. It establishes for commanders in the field, as well as for contractor personnel, the duty to report any alleged violation of the laws of war to the competent authorities, which must include the duty to report crimes committed by de jure or de facto subordinates.
In Frulli's view, recent practice has shown that there has been a decline in the use of the doctrine of superior responsibility However, he concludes:
Building on past episodes and drawing some hypothetical cases, it is possible to argue that there may often be sufficient basis to prove that those in command — whether State officials or PMSCs employees — at least failed to duly supervise their subordinates who committed serious crimes or failed to report them to competent judicial authorities. As far as PMSCs managers are concerned, it could also be contended that they may be responsible for failure to prevent the commission of serious violations of international humanitarian law by not providing adequate training for their employees to whom delicate tasks are assigned, and for failure to report in cases where they did not provide for a functioning and effective reporting system. Indeed, recent domestic guidelines clearly establish precise duties of training, supervision and monitoring that are incumbent not only upon State officials but also upon private contractors.
Bottom line for contractors: better be careful out there.