We have discussed at length the ability of the United States government to prosecute international crimes in terms of chargeable crimes and bases of jurisdiction. Ryan Goodman recently called attention to the fact that these U.S. laws should be employed to hold U.S. citizen Gotabaya Rajapaksa accountable for international crimes committed during the long-running and brutal civil war in Sri Lanka. Ryan’s post argued that Gotabaya may be directly liable as a principal for certain acts but also indirectly liable for the criminal depredations of his subordinates on the basis of the doctrine of superior responsibility.
Given how well established the superior responsibility doctrine is under international law and its importance as an accountability tool, it is only natural that people assume that the United States can prosecute superiors for failing to properly supervise their subordinates when the latter commit mass crimes. The utility of the doctrine of superior responsibility is obvious: it allows prosecutors to charge civilian or military leaders for crimes committed by their subordinates when such superiors knew, or should have known, that their subordinates were committing offenses and they failed to prevent or punish them.
As it stands, however, the U.S. penal code (contained in Title 18 of the U.S. Code) does not contain a standalone superior responsibility provision. As such, individuals suspected of participating in the commission of international crimes can only be charged as principals (for committing, commanding, inducing, aiding or abetting the offence, 18 U.S.C. § 2) or by virtue of the accessory after-the-fact (18 U.S.C. § 3) or conspiracy statutes (18 U.S.C. § 371). As a result, unless prosecutors can prove that a particular superior ordered a crime directly, participated in a conspiracy aimed at its commission, or was otherwise complicit in the crime, responsible superiors will enjoy impunity under U.S. penal law.
Strangely, and as set forth in greater detail below, the doctrine of superior responsibility is an available theory of responsibility in multiple other areas of U.S. law. For example, the clearest articulation of the doctrine appears in the Military Commission Act of 2006, which allows military commissions (but not federal courts) to prosecute certain enemy combatants whose subordinates commit offenses. Individuals can be sued in tort under superior responsibility theories of liability under the Alien Tort Statute or the Torture Victim Protection Act. And, under immigration law, alien superiors can be excluded from the United States if they failed to prevent or punish crimes committed by their subordinates. The doctrine is also well established in
- international criminal law (being prosecutable before all the international criminal tribunals);
- international humanitarian law, particularly as set forth in Articles 86-87 of Protocol I to the 1949 Geneva Conventions;
- customary international law (see Rule 153 of the International Committee of the Red Cross’s CIL study); and
- foreign and comparative law.
The lack of a general superior responsibility provision in U.S. law thus amounts to an unfortunate accountability gap. President Obama’s atrocities prevention initiative offers the perfect opportunity to rectify this blindspot.
Superior Responsibility as an Atrocities Prevention Imperative
In 2012, President Obama announced a comprehensive strategy to prevent atrocities around the world and approved a set of recommendations toward this end that was generated by a comprehensive interagency review of the U.S. government’s capabilities mandated by Presidential Study Directive 10 (PSD-10) of 2011. Since that time, the U.S. government, through the inter-agency Atrocities Prevention Board, has worked to amass and sharpen a range of legal, diplomatic, military, and financial tools for atrocity prevention.
Denying impunity to perpetrators is a central pillar of this new framework. Indeed, a 2012 White House Fact Sheet announced that
DOJ, DHS, and State will develop proposals that would strengthen the United States Government’s ability to prosecute perpetrators of atrocities found in the United States, and permit the more effective use of immigration laws and immigration fraud penalties to hold accountable perpetrators of mass atrocities.
Proposing a superior responsibility statute, as either a standalone statute or in connection with existing crimes already within Title 18, should be a top priority of the Atrocities Prevention Board. Such legislation would extend the reach of U.S. law to individuals like Gotabaya Rajapaksa who may not commit atrocities themselves but instead allow their subordinates to do so with impunity. A superior responsibility statute would give federal prosecutors the tools they need to confront perpetrators in our midst and better harmonize the U.S. legal framework addressed to atrocity crimes in light of the fact that superior responsibility exists in U.S. tort, military, and immigration law. It would also bring U.S. law into alignment with international criminal law, the law of armed conflict, and the law of our closest allies and other states, many of which have incorporated superior responsibility into their domestic legal framework. And, it would ensure that the United States can prosecute superiors—and not just the rank-and-file—particularly given that the former are more likely to have the financial and other means to travel to the United States.
Superior Responsibility Elsewhere in U.S. Law
As mentioned above, although the Department of Justice cannot charge an individual under the doctrine of superior responsibility, this theory of liability appears in multiple places elsewhere in U.S. law.
The Military Commissions Act of 2009 (§ 950q Principals):
Any person punishable under this chapter who… (3) is a superior commander who, with regard to acts punishable by this chapter, knew, had reason to know, or should have known, that a subordinate was about to commit such acts or had done so and who failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof, is a principal.
The U.S. Department of Defense draft instructions for guidance to military commissions provides that: “A person is criminally liable for a completed substantive offense if that person commits the offense, aids or abets the commission of the offense, solicits commission of the offense, or is otherwise responsible due to command responsibility.” It identifies the following as elements of the doctrine:
The accused had command and control, or effective authority and control, over one or more subordinates;
One or more of the accused’s subordinates committed, attempted to commit, conspired to commit, solicited to commit, or aided or abetted the commission of one or more substantive offenses triable by military commission;
The accused either knew or should have known that the subordinate or subordinates were committing, attempting to commit, conspiring to commit, soliciting, or aiding and abetting such offense or offenses; [and]
The accused failed to take all necessary and reasonable measures within his or her power to prevent or repress the commission of the offense or offenses.
The Torture Victim Protection Act (TVPA) & Jurisprudence Thereunder: The doctrine of superior responsibility has been applied pursuant to the Alien Tort Statute and the TVPA by the
- Sixth (Chavez v. Carranza, 559 F.3d 486, 499 (6th Cir. 2009)),
- Ninth (Hilao v. Estate of Marcos, 103 F.3d 767, 777 (9th Cir. 1996)), and
- Eleventh Circuits (Ford v. Garcia, 289 F.3d 1283, 1286, 1289-89 (11th Cir. 2002)), as well as
- several district courts (see, e.g., Doe v. Qi, 349 F.Supp.2d 1258, 1332-33 (N.D. Cal. 2004); Xuncax v. Gramajo, 886 F.Supp. 162, 172, 173 n. 4 (D. Mass. 1995)).
Immigration and Nationality Act Cases: Section 212 (a)(3)(E) of the INA bars as inadmissible any alien “who, outside the United States, has committed, ordered, incited, assisted, or otherwise participated in” an act of torture or any extrajudicial killing. For example, in In re D-R-, 25 I. & N. Dec. 445 (B.I.A. Apr. 6, 2011), the Board of Immigration Appeals ruled that a police officer of the Republic of Srpska was subject to removal because as a commander,
he knew, or, in light of the circumstances at the time, should have known, that subordinates had committed, were committing, or were about to commit unlawful acts,
including extrajudicial killings.
Suspension of Entry: Presidential Proclamation 8697 states that individuals responsible for human rights offenses, including via superior responsibility, are excluded from the United States.
Section 1. The entry into the United States, as immigrants or nonimmigrants, of the following persons is hereby suspended:
(a) Any alien who planned, ordered, assisted, aided and abetted, committed or otherwise participated in, including through command responsibility, widespread or systematic violence against any civilian population based in whole or in part on race; color; descent; sex; disability; membership in an indigenous group; language; religion; political opinion; national origin; ethnicity; membership in a particular social group; birth; or sexual orientation or gender identity, or who attempted or conspired to do so.
(b) Any alien who planned, ordered, assisted, aided and abetted, committed or otherwise participated in, including through command responsibility, war crimes, crimes against humanity or other serious violations of human rights, or who attempted or conspired to do so.
U.S. Supreme Court: In In re Yamashita, 327 U.S. 1, 14-16 (1946), the U.S. Supreme Court heard a habeas petition by a Japanese general convicted of atrocities committed by his subordinates. The Court found the general’s detention lawful based on the doctrine of superior responsibility. The Court noted that
the law of war presupposes that its violation is to be avoided through the control of the operations of war by commanders who are to some extent responsible for their subordinates…
The decision, however, has been widely criticized for establishing what amounted to a strict liability that did not require a showing of any mens rea or any ability to exercise effective control over subordinates.
U.S. Military Tribunals: Following World War II, a number of U.S. military tribunals invoked the doctrine of superior responsibility to prosecute mid-level Nazi defendants who were not indicted by the Nuremberg Tribunal. In the Hostage Case (United States v. Wilhelm List et al.), for example, the U.S. Military Tribunal held that “a corps commander must be held responsible for the acts of his subordinate commanders in carrying out his orders and for acts which the corps commander knew or ought to have known about.” The Tribunal went on to explain that
[w]ant of knowledge of the contents of reports made to him is not a defense. Reports to commanding generals are made for their special benefit. Any failure to acquaint themselves with the contents of such reports or a failure to require additional reports where inadequacy appears on their face, constitutes a dereliction of duty which he cannot use on his own behalf.
In the High Command Case (United States v. Wilhelm von Leeb et al.), the U.S. Military Tribunal held that for a superior to be held criminally liable for the acts of his subordinates, “[t]here must be a personal dereliction. That can occur only where the act is directly traceable to him or where his failure to properly supervise his subordinates constitutes criminal negligence on his part.”
U.S. Army Field Manuals and Regulations: FM 27-10, Section 501:
In some cases, military commanders may be responsible for war crimes committed by subordinate members of the armed forces, or other persons subject to their control. Thus, for instance, when troops commit massacres and atrocities against the civilian population of occupied territory or against prisoners of war, the responsibility may rest not only with the actual perpetrators but also with the commander. Such a responsibility arises directly when the acts in question have been committed in pursuance of an order of the commander concerned. The commander is also responsible if he has actual knowledge, or should have knowledge, through reports received by him or through other means, that troops or other persons subject to his control are about to commit or have committed a war crime and he fails to take the necessary and reasonable steps to insure compliance with the law of war or to punish violators thereof.
Superior Responsibility in International Law and Before the International/Hybrid Tribunals
The Geneva Conventions: In IHL, the doctrine is spelled out in Articles 86 and 87 of Protocol I to the 1949 Geneva Conventions.
Article 86(2): The fact that a breach of this Conventions or of this Protocol was committed by a subordinate does not absolve his superiors from penal or disciplinary responsible, as the case may be, if they knew or had information which should have enabled them to conclude in the circumstances at the time, that he [a subordinate] was committing or was going to commit such a breach and if they did not take all feasible measures within their power to prevent or repress the breach.
Article 87(2): The High Contracting Parties and Parties to the conflict shall require any commander who is aware that subordinates or other persons under his control are going to commit or have committed a breach of the Conventions or of this Protocol, to initiate such steps as are necessary to prevent such violations of the Conventions or of this Protocol, and, where appropriate, to initiate disciplinary or penal action against violators thereof.
Although the United States has articulated several criticisms of this treaty (mostly concerned with the standard for granting combatant status to certain fighters), it has not taken issue with the treaty’s formulation of superior responsibility, which is indeed consistent with the Army Field Manual provisions set forth above.
Rule 153, ICRC CIL Study: The ICRC identifies the doctrine as a customary international law (CIL) rule:
Commanders and other superiors are criminally responsible for war crimes committed by their subordinates if they knew, or had reason to know, that the subordinates were about to commit or were committing such crimes and did not take all necessary and reasonable measures in their power to prevent their commission, or if such crimes had been committed, to punish the persons responsible.
Article 6, International Convention for the Protection of All Persons from Enforced Disappearance: This 2006 treaty mirrors the CIL standard by providing that
Each State Party shall take the necessary measures to hold criminally responsible at least:
(a) Any person who commits, orders, solicits or induces the commission of, attempts to commit, is an accomplice to or participates in an enforced disappearance;
(b) A superior who:
(i) Knew, or consciously disregarded information which clearly indicated, that subordinates under his or her effective authority and control were committing or about to commit a crime of enforced disappearance;
(ii) Exercised effective responsibility for and control over activities which were concerned with the crime of enforced disappearance; and
(iii) Failed to take all necessary and reasonable measures within his or her power to prevent or repress the commission of an enforced disappearance or to submit the matter to the competent authorities for investigation and prosecution…
International Criminal Tribunal for the Former Yugoslavia (ICTY)/International Criminal Tribunal for Rwanda (ICTR): All the international criminal tribunals allow for the prosecution of superiors who fail to properly supervise their subordinates. For example, Article 7(3) of the Statute for the ICTY states:
The fact that any of the acts referred to in articles 2 to 5 of the present Statute was committed by a subordinate does not relieve his superior of criminal responsibility if he knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.
The ICTY and ICTR statutes were promulgated by the U.N. Security Council, and the United States was instrumental in their drafting. This provision has been interpreted and applied in a range of cases involving military and civilian superiors.
International Criminal Court (ICC): Article 28 of the Rome Statute of the ICC adopts a slightly different test for military and non-military superiors.
In addition to other grounds of criminal responsibility under this Statute for crimes within the jurisdiction of the Court:
(a) A military commander or person effectively acting as a military commander shall be criminally responsible for crimes within the jurisdiction of the Court committed by forces under his or her effective command and control, or effective authority and control as the case may be, as a result of his or her failure to exercise control properly over such forces, where:
(i) That military commander or person either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes; and
(ii) That military commander or person failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.
(b) With respect to superior and subordinate relationships not described in paragraph (a), a superior shall be criminally responsible for crimes within the jurisdiction of the Court committed by subordinates under his or her effective authority and control, as a result of his or her failure to exercise control properly over such subordinates, where:
(i) The superior either knew, or consciously disregarded information which clearly indicated, that the subordinates were committing or about to commit such crimes;
(ii) The crimes concerned activities that were within the effective responsibility and control of the superior; and
(iii) The superior failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.
Articulation of Superior Responsibility in Comparative/Foreign Law
Many of our key allies have incorporated the doctrine of superior responsibility into their penal codes or military manuals. (The ICRC has compiled these foreign codes here). By way of example, the U.K. Law of Armed Conflict Manual (2004) provides:
16.36. Military commanders are responsible for preventing violations of the law (including the law of armed conflict) and for taking the necessary disciplinary action. A commander will be criminally responsible if he participates in the commission of a war crime himself …, particularly if he orders its commission. However, he also becomes criminally responsible if he “knew or, owing to the circumstances at the time, should have known” that war crimes were being or were about to be committed and failed “to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authority for investigation and prosecution.