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I.
INTRODUCTION
This report presents the historical background of command responsibility
and the elements to consider in order to cite a military commander as criminally or
civilly responsible.
Furthermore, this report also cites the principles of command
responsibility in the Philippines and the different laws and issuances citing the
principle of command responsibility.
II.
HISTORICAL BACKGROUND1
In 1439, King Charles VII of Orleans promulgated an ordinance which
states that his military commanders were to be held liable should those under their
command commit crimes against the civilian population, irrespective of the
commander's participation in the crimes.
In the early 1860s, in order to control the behavior of armies in the field,
the United States government worked with Alfred Lieber, a professor at Columbia
University to codify the rules governing warfare. The United States adopted the
results, a document known as the Lieber Code. At the end of World War II, the
doctrine of command responsibility was redefined into todays recognized
standard.
III.
ELEMENTS TO
COMMANDER 2
PROVE
THE
LIABILITY
OF
MILITARY
3)
those committing the atrocities/war crimes were under the command of the
defendant;
the commander knew or should have known, based on the surrounding
circumstances at the time, that the subordinates were engaging
impermissible conduct; and
the commander failed to prevent or punish those responsible for the
commission of such crimes.
In the United States this legal standard was first articulated by the
Supreme Court in the case of Yamashita, 327 U.S. 1(1946). In Yamashita, the
court held that under the laws of war, a commander was responsible for the
actions of his subordinates even if he did not directly order them to commit the
crimes, provided that he knew or should have known that troops under his
command were engaged in wrongful acts. As part of its holding, the court
recognized that military commanders, by virtue of their position, were under an
affirmative duty to act and that a failure to prevent or punish their subordinates
could lead to personal criminal liability.
IV.
PRESIDENTIAL ISSUANCES
COMMAND RESPONSIBILITY
A.
CITING
THE
PRINCIPLES
OF
Anne E. Mahle
2)
3)
4)
5)
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7)
B.
AS PRACTICED
PHILIPPINES
IN
THE
ARMED
FORCES
OF
THE
Executive Order No. 94, dated October 4, 1947, providing for the
reorganization of the Armed Forces of the Philippines. It states,
among other things, the following:
"SEC. 97. The President of the Philippines
is Commander-in-Chief of the Armed Forces of the
Philippines. He exercises command through the
Secretary of National Defense who directly
represents him."
"SEC. 98. The Chief of Staff executes the
President's command functions in relation to
strategy, tactics and operations.
He is the
immediate advisor of the Secretary of National
Defense and is responsible for the planning,
development and execution of the National Defense
program as prescribed by the Secretary of National
Defense. He has command of all elements of the
Armed Forces, and in the discharge of this
responsibility, the Headquarters of National
Defense Forces shall function as a field
Headquarters and prescribe the functions, duties and
powers of the various staffs, services, installations,
and other units of the Armed Forces."
3.
V.
2.
3.