Hays Parks and the Doctrine of Command Responsibility

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| Oct 18, 2021

While he was a graduate student at the Army’s Judge Advocate General’s School in 1973, then-Major Hays Parks wrote a thesis titled “Command Responsibility for War Crimes” that was published in the Military Law Review. To say that this rather simply titled thesis became the seminal article on the doctrine of command responsibility is an understatement. Hays Parks’s thesis became the touch point from which virtually all scholarship and from which most legal development on this important topic in the last 45 years begins.

Influence of “Command Responsibility for War Crimes”

There are a few important reasons his thesis has had such an important and continuing influence on the understanding and development of the doctrine of command responsibility. First and foremost, the thesis was meticulously and thoroughly researched. It focused on the early history of the doctrine but most importantly, it provided detailed analysis of the important war crimes tribunals that took place in the Pacific and European theaters at the conclusion of the Second World War. These tribunals expressed and applied the doctrine for the first time on a broad scale to hold military leaders accountable for the actions of their subordinates.

The most well-known and most frequently-cited case from that time that addressed the issue of command responsibility was the U.S. military trial of General Yamashita for war crimes committed by Japanese forces in the Philippines. The case was controversial at the time and has been used since as an example of misapplication of the doctrine. Many claim that General Yamashita was held strictly liable for the crimes of his subordinates because of his position as the senior military commander. However, Major Parks’s thorough and detailed exploration and explanation of the case, with frequent references to the actual trial record, revealed a much more complicated and nuanced understanding of the facts and the legal standard that the tribunal applied. He clearly and convincingly showed that rather than an aberration, the Yamashita case was an important and defensible step in the development of the command responsibility doctrine.

Major Parks also reported on several war crimes trials that took place in Europe. His research focused not only on high profile cases, but also on many lesser-known trials that took place in the respective occupied sectors of the United States and its allies. He identified an impressive number of cases and effectively and convincingly synthesized the law on command responsibility that emerged from the Second World War.

This herculean research and reporting effort provided future command responsibility scholars the go-to resource for their own research and subsequent analysis. Virtually all scholarship in the past 45-plus years on the doctrine of command responsibility begins with this important work.

Responding to Criticisms of the Doctrine

As important as Parks’s thesis is to legal scholars, its value to the actual development and application of the doctrine of command responsibility over the past half century is what makes his work so significant. A lasting criticism of the post-Second World War military tribunals was the application of ex post facto law. This criticism has applied with particular force to the command responsibility doctrine as a theory of liability. Major Parks’s article effectively rebutted that criticism by demonstrating the long history behind this doctrine. More significantly, the article synthesized the law as it then existed, identified the areas where the law remained unclear—particularly on the question of the degree of knowledge a commander must have before a duty to act is triggered—and it provided clear guidance through the use of real-world examples of how this doctrine should apply to current and future cases.

The most controversial aspect of the command responsibility doctrine as a theory of liability is that military commanders can be held criminally responsible for the war crimes and other atrocities committed by the forces under their command as if they themselves committed those crimes. Certainly the criminal liability for a commander who orders others to commit such crimes or actively participates in their commission is clear. However, the commander who only knows of, or was perhaps willful or derelict in not knowing about crimes being committed by subordinates presents a more difficult case. Major Parks’s thesis grappled squarely with this case and identified a standard of knowledge that had emerged from preceding cases.

Parks’s Articulation of the Legal Standard

In the final part of the thesis, Major Parks articulated that legal standard in all its component parts. He then provided practical examples of how the standard would apply in various factual contexts. While this may not seem so remarkable to us almost 50 years later, it is important to remember that prior to Major Parks’s article, this had never been done. And while it is true that not all legal scholars or jurists would agree with the legal taxonomy that Major Parks developed, no one would disagree that by undertaking this effort, his thesis set the stage for many of the legal developments that followed over the next many years.

Consider for example the 1977 Additional Protocol I (AP I) to the Four 1949 Geneva Conventions. Articles 86 and 87 codified the doctrine of command responsibility, including the standard of knowledge that a commander must possess and the duty of the commander to act in preventing or suppressing war crimes in the face of such knowledge. The standard set forth in AP I follows very closely the standard articulated by Major Parks.

Several years later the Statutes of the International Criminal Tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR) also codified the doctrine of command responsibility used by those tribunals to hold senior leaders to account for the crimes committed by their subordinates. These standards, while differing slightly from the standard set forth in AP I, also incorporated much of the language and legal taxonomy from Major Parks’s 1973 thesis. Major Parks’s prescience was further demonstrated in one of the key command responsibility cases adjudicated by the ICTY in what is commonly referred to as the Čelebići case.  This case involved the prosecution of four individuals for various grave breaches and crimes against humanity relating to the mistreatment of prisoners of war at the Čelebići prison camp.  The ICTY Prosecutor asserted that where actual knowledge could not be proved it could be presumed by the court when the crimes committed by the subordinates are widespread, prolonged, or received public notoriety.  The tribunal rejected this argument but did rule that if knowledge could not be proved by direct evidence it could be proved by circumstantial evidence. The court then considered several factors to determine whether circumstantial evidence existed to prove that the commander had knowledge of his subordinates’ criminal conduct. Many of the factors listed by the court, including the number and type of crimes committed, the scope of the crimes, the geographic location of the crimes in relation to the location of the commander, and the operational tempo of the unit at the time, were the same factors that Major Parks identified in assessing whether the commander had complied with his duty to prevent and suppress war crimes.

Equally indicative of the important influence and prescience of Major Parks’s work is the codification of the command responsibility doctrine by the International Criminal Court. Article 28 of the Rome Statute sets out the elements of the doctrine as it applies to both military and civilian leaders. Here again, like AP I, the ICTY Statute, and the ICTR Statute, Article 28 of the Rome Statute follows very closely both the language and the structure first set out by Major Parks’s 1973 thesis.

None of this is to suggest that Hays Parks alone is responsible for the modern evolution of this doctrine. However, as one of the first legal scholars to exhaustively research the doctrine, particularly as it emerged from the post-Second World War tribunals, as well as one of the first scholars to develop a clear legal structure for how the doctrine should be applied, Hays Parks’s contribution to the development of the law is substantial and enduring.

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Victor Hansen is a Professor of Law and Director of the Criminal Practice and Procedure Certificate Program at New England Law Boston.