Жоғарғы лауазым иесінің жауапкершілігі доктринасы

Doctrine of hierarchical accountability

In the practice of international law, command responsibility (also superior responsibility) is the legal doctrine of hierarchical accountability for war crimes, whereby a commanding officer (military) and a superior officer (civil) is legally responsible for the war crimes and the crimes against humanity committed by his subordinates; thus, a commanding officer always is accountable for the acts of commission and the acts of omission of his soldiers. In the late 19th century, the legal doctrine of command responsibility was codified in the Hague Conventions of 1899 and 1907, which are partly based upon the Lieber Code (General Orders No. 100, 24 April 1863), military law that legally allowed the Union Army to fight in the regular and the irregular modes of warfare deployed by the Confederacy during the American Civil War (1861–1865). As international law, the legal doctrine and the term command responsibility were applied and used in the Leipzig war crimes trials (1921) that included the trial of Captain Emil Müller for prisoner abuse committed by his soldiers during the First World War (1914–1918). In the 20th century, in the late 1940s, the Yamashita standard derived from the incorporation to the U. S. Code of the developments of the legal doctrine of command responsibility presented in the Nuremberg trials (1945–1946). Abiding by that legal precedent, the U. S. Supreme Court allowed the U. S. prosecution of the war crimes case against Imperial Japanese Army General Tomoyuki Yamashita for the atrocities committed by his soldiers in the Philippine Islands, in the Pacific Theatre (1941–1945) of the Second World War. The International Military Tribunal for the Far East charged, tried, and judged Gen. Yamashita for "unlawfully disregarding, and failing to discharge, his duty as a commander to control the acts of members of his command, by permitting them to commit war crimes". In the 20th century, in the early 1970s, the Medina standard expanded the U. S. Code to include the criminal liability of American military officers for the war crimes committed by their subordinates, as are the war criminal military officers of an enemy power. The Medina standard was established in the court martial of U. S. Army Captain Ernest Medina in 1971 for not exercising his command authority as company commander, by not acting to halt the My Lai Massacre (16 March 1968) committed by his soldiers during the Vietnam War (1955–1975).

In The Art of War (5th century BC), Sun Tzu said that the duties and responsibilities of a commanding officer were to ensure that in prosecuting a war, his soldiers act in accordance with the customary laws of war, by limiting their operational actions to the military aims of the war.

In 1474, in the Holy Roman Empire (962–1806), the trial of the Burgundian knight Peter von Hagenbach was the first international recognition of the legal doctrine of command responsibility, of a commander's legal obligation to ensure that his soldiers act in accordance with customary law in prosecuting their war. The tribunal tried Hagenbach for atrocities committed by his soldiers during their military occupation of Breisach, and was found guilty of their war crimes, condemned to death, and then was beheaded. The Knight Hagenbach was accused of, tried, and convicted for war crimes that "he, as a knight, was deemed to have [had] a duty to prevent"; in self defense, Hagenbach argued that he was only following the military orders of Charles the Bold, the Duke of Burgundy, to whom the Holy Roman Empire had bequeathed Breisach. Although the term command responsibility did not exist in the 15th century, the tribunal did presume he had a legal responsibility for the war crimes of his soldiers, thus Hagenbach's trial was the first war crimes trial based upon the legal doctrine of command responsibility.

During the American Civil War (1861–1865), the legal doctrine of command responsibility was codified in the Lieber Code – General Orders No. 100: Instructions for the Government of Armies of the United States in the Field (24 April 1863) – the contemporary updating of the 18th century military law of the 1806 Articles of War that allowed the Union Army to lawfully combat the regular and irregular modes of warfare (partisans, guerrillas, spies) deployed by the Confederacy in the mid 19th century. As U. S. military law, the Lieber Code stipulated a commander's legal responsibility for the war crimes and crimes against humanity committed by his subordinate officers, sergeants, and soldiers; and further stipulated the duties and rights of the individual soldier of the Union Army to not commit war crimes – such as the summary execution of Confederate POWs, irregular combatants, and enemy civilians; thus Article 71, Section III of the Lieber Code stipulates that:

Since the 1990s, national governments hire mercenary soldiers to replace regular army soldiers in fighting wars, which replacement of tactical combat personnel (infantry) – by a private military company – raises the legal matter of command responsibility for the war crimes and crimes against humanity committed by mercenaries ostensibly not subject to the military law of any belligerent party. Political scientists and military jurists said that when the operational conduct of mercenary soldiers is indistinguishable from the operational conduct of the combatant soldiers (uniform, weapons, tactics, missions, etc.) that practical likeness renders the mercenary (militiaman or irregular combatant) into a legitimate agent of the belligerent state, who thus is subject to the legal liabilities of command responsibility codified in the Hague and in the Geneva Conventions.

As a legal doctrine of military law, command responsibility stipulates that an act of omission is a mode of individual criminal liability, whereby the commanding officer is legally responsible for the war crimes committed by his subordinates, by failing to act and prevent such crimes; and for failing to punish war criminal subordinates. In late 1945, the war crimes trial of General Tomoyuki Yamashita, Japanese Fourteenth Area Army, was the first instance of a commanding officer formally charged with a criminal act of omission by “unlawfully disregarding and failing to discharge his duty as a commander to control the acts of members of his command by permitting them to commit war crimes” in the Philippine Islands, where his soldiers committed atrocities against Allied prisoners of war, Filipino guerrillas, and civilians during the Second World War. The International Military Tribunal for the Far East who charged, tried, and judged Gen. Yamashita guilty of war crimes established the Yamashita standard of criminal liability, whereby if "vengeful actions are widespread offenses, and there is no effective attempt by a commander to discover and control the criminal acts, [then] such a commander may be held responsible, even criminally liable". In 1946, with the Application of Yamashita, 327 U. S. 1, the U. S. Supreme Court resolved the ambiguous wording of that legal definition of command responsibility, which did not establish the commander's required degree of knowledge of the war crimes committed by his subordinates. At Nuremberg, in the High Command Trial (Case No. 12, 1947–1948), the U. S. military tribunal ruled that in order for a commanding officer to be criminally liable for the war crimes of his subordinates "there must be a personal dereliction", which "can only occur where the act is directly traceable to him, or where his failure to properly supervise his subordinates constitutes criminal negligence on his part" by way of "a wanton, immoral disregard of the actions of his subordinates amounting to [the commander's] acquiescence" to the war crimes. Consequent to the 11 September 2001 terrorist attacks, the U. S. government deployed legalistic arguments to justify torture by way of prisoner abuse, arguing that captured al Qaeda fighters are unlawful combatants – not soldiers – and thus could be subjected to enhanced interrogation methods, because under U. S. law they were classified as detainees and not as prisoners of war (POWs). To justify flouting the Geneva Conventions (1949) protecting prisoners of war, U. S. Attorney General Alberto Gonzáles said that classifying al Qaeda POWs as unlawful combatants "substantially reduces the threat of domestic criminal prosecution under the War Crimes Act of 1996". In the case of Hamdan v. Rumsfeld, 548 U. S. 557 (2006), the U. S. Supreme Court overruled Attorney General Gonzáles' illegal reclassification of POWs as detainees; ruled that Common Article 3 of the Geneva Conventions applies to the Al Qaeda POWs at the Guantanamo Bay prison camp; and ruled that the Guantanamo military commission who tried, judged, and sentenced al Qaeda POWs was an illegitimate military tribunal, because the U. S. Congress did not establish it. Moreover, the Human Rights Watch organization said that, given his superior responsibility of government office, U. S. Secretary of Defense Donald Rumsfeld would be criminally liable for the torturing of the prisoner Mohammed al Qahtani. In "The Real Meaning of the Hamdan Ruling Supreme Court: Bush Administration Has Committed War Crimes" (2006), the writer Dave Lindorff said that in flouting the Geneva Conventions, the Bush Administration were legally liable for war crimes in U. S. occupied Iraq.

In 2006, a prosecutor of the Nuremberg Trials (1945–1946), Benjamin Ferencz, said that the U. S. invasion of Iraq (2003) was a crime against peace that breached international law, and so exposed the superior responsibility of U. S. President George W. Bush for unilaterally launching an aggressive war. In November 2006, the Federal Republic of Germany invoked universal jurisdiction and began legal proceedings against U. S. defense secretary Rumsfeld, U. S. Attorney General Gonzáles, the jurist John Yoo, and CIA chief George Tenet, for their legal liability for U. S. war crimes. Moreover, in legal practice, the Military Commissions Act of 2006 (MCA) functions as an amnesty law for the Bush Administration to flout their superior responsibility and thus their legal liability for war crimes committed when prosecuting the War on Terror, because, by denying POWs the right of habeas corpus, the MCA retroactively rewrote the War Crimes Act of 1996, which defined war crime as any serious violation of the Geneva Convention, which left the POW no means of legal defense. In "Court 'can envisage' Blair Prosecution" (2007), the jurist Luis Moreno Ocampo (ICC, 2003–2012) offered to begin a war crimes enquiry for a war crimes trial of British Prime Minister Tony Blair and U. S. President George W. Bush, for the International Criminal Court to hear. In "History Will Not Absolve Us: Leaked Red Cross Report Sets up Bush Team for International War crimes Trial" (2007), Nat Hentoff said that the report Leave No Marks: Enhanced Interrogation Techniques and the Risk of Criminality (2007), by Human Rights First and Physicians for Social Responsibility, would be evidence of U. S. war crimes at a war crimes trial of the War on Terror. Moreover, by the end of the Bush Administration in 2008, the international community said that the United Nations Convention Against Torture (1985) obligated the U. S. government to prosecute the civilian and military officers who ordered and realized the torture of POWs captured during the War on Terror. The United Nations special rapporteur on torture, Manfred Nowak (in office 2004–2010), said that, as a former president of the U. S., George W. Bush had lost his head of state immunity and that international law obligated the U. S. government to start criminal proceedings against the government officials and military officers who violated the U. N. Convention Against Torture. In support of Nowak's statement, the jurist Dietmar Herz explained that former president George W. Bush is criminally responsible for adopting torture as interrogation, per the legal doctrine of superior responsibility stipulated in of the international laws of war and the U. S. Code. of 16 November 2005 (para. 22–100).

United Nations Security Council Resolution 955 (1994) set up an international criminal tribunal to judge people responsible for the Rwandan genocide and other serious violations of international law in Rwanda, or by Rwandan citizens in nearby states, between 1 January and 31 December 1994; additional later resolutions expanded the scope and timeline of the tribunal. The tribunal has jurisdiction over genocide, crimes against humanity, and war crimes. The judgement against Jean Paul Akayesu established rape as a war crime. Rape was placed in line with "other acts of serious bodily and mental harm" rather than the historical view of rape as "a trophy of war". Akayesu was held responsible for his actions and non actions as mayor and police commander of a commune in which many Tutsis were killed, raped, tortured, and otherwise persecuted. Another case prosecuted persons in charge of a radio station and a newspaper that incited and then encouraged the Rwandan genocide. The defendants were charged with genocide, incitement to genocide, and crimes against humanity for their positions of control and command in the "hate media", although they physically had not committed the acts.

Following several ad hoc tribunals, the international community decided on a comprehensive court of justice for future crimes against humanity. This resulted in the International Criminal Court, which identified four categories. The Bush administration adopted the American Servicemembers' Protection Act and entered into Article 98 agreements in an attempt to protect any US citizen from appearing before this court. As such it interferes with implementing the command responsibility principle when applicable to US citizens.