Global Policy Forum

By Christian Ahlund *

The high-level panel led by James Schlesinger that delivered its report this week implicitly faults Defense Secretary Donald Rumsfeld for not exercising sufficient oversight over a confusing array of policies and interrogation centers in Afghanistan, Iraq and Guantánamo Bay, Cuba. Although the panel recommended that Rumsfeld stay in his position, it put the question of accountability of America's military leadership back in the spotlight, particularly with regard to the debacle at the Abu Ghraib prison.

According to established principles of international law, both civilian and military commanders may be held responsible for acts committed by their subordinates in times of war. This does not apply to random and individual acts by persons under their control. "Responsibility of superior command" applies in cases where there is a widespread criminal activity that the commander knew about or should have known about.

In practice it has been considered that a cabinet minister is responsible for the existence of a functioning system of reporting, so that the authorities under his control are able to detect and prevent unlawful practices. A presumption of knowledge has been established in such cases.

American courts have traditionally shown little tolerance for this type of negligence in times of war. The war crimes tribunal that was established by the United States in Japan after World War II found Japan's prime minister, Tojo Hideki, and foreign minister, Hirota Koki, guilty of not having prevented atrocities committed by Japanese soldiers against American prisoners. Tojo and Hirota were hanged on Dec. 23, 1948.

The principle of superior responsibility has been confirmed in several cases after World War II and in the tribunals dealing with war crimes in the former Yugoslavia and Rwanda. However, the Statute of the International Criminal Court has, with regard to civilian commanders, watered down this principle.

The criminal responsibility for "commanders and other superiors" is regulated in article 28 of the statute. With regard to military commanders, the rule still remains that they can be held responsible for crimes committed by forces under their control, where they "knew, or owing to the circumstances, should have known" about the criminal activity carried out by the forces, but failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission.

But under the international court statute a civilian superior can be held responsible only if it can be proved that "the superior knew, or consciously disregarded information, which clearly indicated that the subordinates were committing or about to commit" these types of crimes. It is obviously more difficult for a prosecutor to show that someone consciously disregarded certain information, than to convince a court that the suspect should have known what was going on.

Even if the extent of the abuses in Abu Ghraib prison and in other American military detention centers is not yet known, there is already sufficient evidence of a practice of systemic and criminal abuse of prisoners - an abuse that violates the third and fourth Geneva conventions about the treatment of prisoners of war and protection of civilians in time of war, respectively. The Geneva conventions are part of U.S. law - after being ratified by Congress and signed by the president. So is the case law on the principle of superior responsibility, established by various ad hoc tribunals during more than 50 years. (International Herald Tribune) The Better Approach to War Crimes Trials Christian Ahlund IHT Thursday, August 26, 2004

The high-level panel led by James Schlesinger that delivered its report this week implicitly faults Defense Secretary Donald Rumsfeld for not exercising sufficient oversight over a confusing array of policies and interrogation centers in Afghanistan, Iraq and Guantánamo Bay, Cuba. Although the panel recommended that Rumsfeld stay in his position, it put the question of accountability of America's military leadership back in the spotlight, particularly with regard to the debacle at the Abu Ghraib prison.

According to established principles of international law, both civilian and military commanders may be held responsible for acts committed by their subordinates in times of war. This does not apply to random and individual acts by persons under their control. "Responsibility of superior command" applies in cases where there is a widespread criminal activity that the commander knew about or should have known about.

In practice it has been considered that a cabinet minister is responsible for the existence of a functioning system of reporting, so that the authorities under his control are able to detect and prevent unlawful practices. A presumption of knowledge has been established in such cases.

American courts have traditionally shown little tolerance for this type of negligence in times of war. The war crimes tribunal that was established by the United States in Japan after World War II found Japan's prime minister, Tojo Hideki, and foreign minister, Hirota Koki, guilty of not having prevented atrocities committed by Japanese soldiers against American prisoners. Tojo and Hirota were hanged on Dec. 23, 1948.

The principle of superior responsibility has been confirmed in several cases after World War II and in the tribunals dealing with war crimes in the former Yugoslavia and Rwanda. However, the Statute of the International Criminal Court has, with regard to civilian commanders, watered down this principle.

The criminal responsibility for "commanders and other superiors" is regulated in article 28 of the statute. With regard to military commanders, the rule still remains that they can be held responsible for crimes committed by forces under their control, where they "knew, or owing to the circumstances, should have known" about the criminal activity carried out by the forces, but failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission.

But under the international court statute a civilian superior can be held responsible only if it can be proved that "the superior knew, or consciously disregarded information, which clearly indicated that the subordinates were committing or about to commit" these types of crimes. It is obviously more difficult for a prosecutor to show that someone consciously disregarded certain information, than to convince a court that the suspect should have known what was going on.

Even if the extent of the abuses in Abu Ghraib prison and in other American military detention centers is not yet known, there is already sufficient evidence of a practice of systemic and criminal abuse of prisoners - an abuse that violates the third and fourth Geneva conventions about the treatment of prisoners of war and protection of civilians in time of war, respectively.

The Geneva conventions are part of U.S. law - after being ratified by Congress and signed by the president. So is the case law on the principle of superior responsibility, established by various ad hoc tribunals during more than 50 years.

What is not part of U.S. law is the statute of the International Criminal Court, with its reduced responsibility for civilian "superiors."

So for U.S. commanders, regardless of whether they are military or civilian, the stricter standard -whether they "knew or should have known" - still applies.

Most likely, it is not possible to prove that Rumsfeld personally approved of the aggressive interrogation techniques, of which the abuses appear to have been part, or even that he knew about their existence. It would also be difficult to prove that he consciously disregarded information about the abuses, as required by the international court statute. But according to the Schlesinger panel, Rumsfeld has failed to exercise sufficient oversight over the system. In other words, he should have known, which in accordance with established case law, would be sufficient for establishing criminal responsibility.

In conclusion, a civilian commander under prosecution for events like those in Abu Ghraib, would have a considerably stronger defense on the basis of the statute of the International Criminal Court than on the basis of the case law, which was applied by the United States against the Japanese cabinet members after World War II.

Maybe the time has come for the United States to join the International Criminal Court?

* About the Author: Christian Ahlund is executive director of the International Legal Assistance Consortium and chairman of the Human Rights Committee of the Council of Bar Associations and Law Societies in the European Union.