Title

The Last Line of Defense: The Doctrine of Command Responsibility, Gender Crimes in Armed Conflict, and the Kahan Report (Sabra & Shatilla)

Abstract

“THE LAST LINE OF DEFENSE” addresses using the doctrine of command responsibility - the doctrine according to which military and non-military leaders can be held individually criminally responsible for the crimes committed by their subordinates - before the International Criminal Court (ICC) as a way to prevent gender crimes in armed conflict. The prevention of gender crimes in armed conflict is an important issue for a variety of reasons. One extremely important reason is the connection that the United Nations has cited between the AIDS pandemic in Sub-Saharan Africa and rape in armed conflict. In addition, in the August 25, 2003 issue of NEWSWEEK, Fareed Zakaria draws a link between the Chechen female suicide bombers and the routine rape of Chechen women by Russian soldiers (see http://www.msnbc.com/news/953555.asp?0sl=-11).

There are three prerequisites to the imposition of criminal command responsibility: 1) a commander/subordinate relationship; 2) “knowledge” that subordinates are committing or about to commit a crime; and 3) failure to prevent or punish the crime. It is the knowledge prerequisite that I think prevents the doctrine from functioning effectively. Commanders can, in most cases, easily claim that they lacked knowledge that their subordinates were committing or about to commit violations of international humanitarian law. Only with respect to gender crimes in armed conflict, I propose that the widespread knowledge that gender crimes have occurred historically in internal and international armed conflict be used to satisfy the knowledge prerequisite before the ICC. Meaning, given the prevalence of gender crimes in armed conflict (see Bosnia and Rwanda), I contend that it is no longer plausible or acceptable for commanders to claim that they were unaware that their subordinates were committing or going to commit gender crimes. Knowledge should be assumed and the emphasis placed on the measures that the commander took to prevent the commission of gender crimes or punish the perpetrators. My proposal, I hope, will result in the burden shifting to where it needs to be; on taking all necessary and reasonable measures to prevent the commission of gender crimes.

Precedent for my proposal can be found in a report, the KAHAN REPORT, prepared by an Israeli Commission of Inquiry into a massacre which occurred at two largely Palestinian refugee camps (Sabra & Shatilla) in Beirut, Lebanon in 1982. The Commission found Ariel Sharon, among others, “indirectly” responsible for the massacre committed by a Lebanese Christian armed force, in part, because of the widespread, historical knowledge of the enmity and the violence which occurred between the Lebanese Christian armed force and the Palestinians in Lebanon. Based on that historical information, and common or public knowledge, the Commission found that Sharon should have foreseen the likelihood of violence and should have taken measures to guard against it.

Likewise, with respect to gender crimes in armed conflict, I argue that based on historical information, and common or public knowledge that gender crimes are routine in internal and international armed conflict, commanders have a duty to take measures to guard against the commission of gender crimes in armed conflict - if not, they could be prosecuted before the ICC which should provide the appropriate amount of incentive.

Disciplines

Criminal Law | Criminal Procedure | Human Rights Law | International Law | Military, War and Peace | Women

Date of this Version

September 2003