6
The Evolution of Command Responsibility in Law and how it applies to a Contemporary Nato Commander
THE EVOLUTION
OF COMMAND
RESPONSIBILITY
IN LAW AND HOW
IT APPLIES TO A
CONTEMPORARY
NATO COMMANDER
Major John Harris, British
Army
Introduction
There is a long standing convention that
makes officers responsible for actions com-
mitted by soldiers under their command. How
is this applied in a multinational context? The
international law on this area has developed
through the trials post WW I in Germany, the
Nuremberg and Tokyo trials post WW II, the
tribunals dealing with the Former Yugoslavia
and Rwanda and the formation of the Inter-
national Criminal Court. In this article I will look
at the development of the law of Command
Responsibility and its application to a modern
NATO commander.
Development
In 1439 Charles VII of Orleans ordered that
“Captains and Lieutenants be held responsi-
ble for the abuses, ills and offences committed
by members of his company. If, because of his
negligence or otherwise, the offender escapes
and thus evades punishment the Captain
shall be deemed responsible as if he commit-
ted it himself 1 ” The first documented practical
application of Command Responsibility was
with the trial of Peter van Hagenbach, a Knight
from Alsace, in 1474. He was tried by the Holy
Roman Empire for atrocities committed during
the occupation of Breisach and was convicted
of crimes “he as a Knight was deemed to have
a duty to prevent” 2 .
This concept continued to be honoured through
the American war of Independence 3 , US Civil
War 4 and WW I 5 , and was included in the Hague
Conventions of 1907 6 . Command Responsibility
played a significant role in the Nuremberg and
Tokyo trials following World War II where political
and military leaders from Germany and Japan
were put on trial for the actions of themselves
and those that they commanded.
Competing Narratives in Hybrid Warfare
The lead WW II case was USA v Yamashita 7 ,
Yamashita was tried by a US Military Com-
mission at Tokyo and the case was reviewed
by the US Supreme Court. The Court found
that commanders had a clear responsibility
to control subordinates and