The Law of Armed Conflict International Humanitarian Law in War

Chapter 10 looks at command responsibility, the other side of the “obedience to orders” coin. A soldier who knowingly obeys an unlawful order is guilty of the resulting crimes but the superior who gave the order is equally culpable. Like obedience to orders, command responsibility is an ancient concomitant of command authority. The modern establishment of command responsibility arguably started with the case of Japanese General Yamashita, at the end of World War II. His military commission ruled that, although he issued no unlawful order, he knew or should have known of the crimes being committed by his subordinates. He was hanged for his inaction. Nazi generals were hanged or imprisoned for orders they issued or passed on. The commander’s knowledge, actual or constructive, is required for conviction. A commander’s seven routes to trial – the ways in which a combatant leader may be exposed to legal liability for their subordinates’ actions – are explained and illustrated by modern-day cases. The chapter also recites instances of officers themselves disobeying orders they view as unlawful. Today, 1977 Additional Protocol spells out a commander’s responsibility for unlawful acts.