Do Not Tell Me Soldier… A review of the requirement for knowledge in the Command Responsibility doctrine

Sammanfattning: Command responsibility is a mode of criminal responsibility that developed mostly during the 20th century and provides the opportunity to charge military commanders and other superiors for war crimes and crimes against humanity committed by their subordinates by proving three criteria. To begin with, the commander must have exercised effective control over the subordinate, moreover the commander must have had a degree of knowledge about the crime being committed and lastly he or she must have failed to prevent and /or punish the crime. The knowledge criterion provides that a commander can be charged with actual or imputed knowledge of a crime that is about to be or has been committed. Within international criminal law there are two different interpretations of imputed knowledge. The International Criminal Tribunals of Rwanda and former Yugoslavia stands behind the so called had reason to know standard and the Rome Statute of the International Criminal Tribunal stands behind a should have known standard. The main dilemma of imputed knowledge is to provide a standard that is efficient in that it can be used to charge those commanders who can be considered at fault for not discharging their duty to supervise and control their subordinates diligent enough, without violating any of the basic legal principles designed to protect individuals from excessive criminalization. This thesis sets out to analyze imputed knowledge to find if either of the two standards provides a balanced solution, being efficient without transgressing the border into excessive criminalization. To reach a conclusion, the development and purpose of command responsibility has been investigated as well as the obligations of a commander to wield responsible command as provided for by international humanitarian law. Furthermore, case law from foremost The International Criminal Tribunals of Rwanda and former Yugoslavia and the International Criminal Tribunal provides an in-depth analysis of the knowledge criterion. Finally, argumentation that supports either the need for more efficiency or less to promote the adherence to legal principles has been put forth. By presenting a comprehensive base of facts I have been able to find the should have known standard to represent a more balanced solution than the had reason to know standard however the deficiencies of this standard has been addressed as well and suggestions to improve the balance has been given.