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  • Print publication year: 2016
  • Online publication date: May 2018

10 - Command Responsibility and Respondeat Superior

from LAW OF ARMED CONFLICT AND INTERNATIONAL HUMANITARIAN LAW: BATTLEFIELD ISSUES

Summary

Introduction

Command responsibility, also referred to as “superior responsibility,” is the other side of the obedience to orders coin. The soldier who obeys a manifestly unlawful order is culpable for any violation of the law of armed conflict (LOAC) resulting. The superior who gave the unlawful order is equally culpable for the subordinate's violation by reason of having given the unlawful order. In the past, it was viewed as a form of the crime of aiding and abetting. No longer. Today, most authorities accept that “[command responsibility] does not mean … that the superior shares the same responsibility as the subordinate who commits the crime … but that the superior bears responsibility for his own omission in failing to act.” The superior is not responsible as an aider and abettor, but is responsible for his neglect of duty in regard to crimes that he knew were committed by his subordinates. “The superior's criminal responsibility flows from the neglect of a specific duty to take the measures that are necessary and reasonable in the given circumstances.”

Respondeat superior, “let the master answer,” is a broader legal concept than command responsibility. In case law and in most LOAC/international humanitarian law (IHL) texts there is no distinction between command responsibility and respondeat superior, and the distinction is thematic rather than doctrinal. Command responsibility, as the term suggests, indicates the criminal liability a commander bears for illegal orders that he or she issues. Respondeat superior is the same concept applied when the commander is criminally responsible, but did not actually order the wrongful act done. Respondeat superior liability is based on accomplice theory; although there was no order, the commander is responsible because in one way or another he/she initiated or acquiesced in the wrongdoing, or took no corrective action upon learning of it. Prosecutors rarely make a command responsibility/respondeat superior distinction. In practice, respondeat superior versus command responsibility is a differentiation more pedagogical in nature than substantive.

In militarily themed movies and television dramas, a subordinate often asks a superior, “Is that a direct order?” There are no direct orders or indirect orders. There are only orders: written or oral directives from a senior to a subordinate to do, or refrain from doing, some act related to a military duty.

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The Law of Armed Conflict
  • Online ISBN: 9781316471760
  • Book DOI: https://doi.org/10.1017/CBO9781316471760
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