should-have-known

“Never in the field of human interaction has so many been able to publish so much so easily.” - Winston Churchill

It’s been half a century since Yamashita was held responsible for crimes committed by his subordinates under the principle of Command Responsibility. According to the Court, 3 requisites must concur for a superior to be held criminally liable under such mode of incurring liability: first, the superior has effective control over his subordinate; second, the superior knew or should have known that the crime was committed; third, the superior failed to prevent the crime or punish the subordinate.

In most cases of Superior Responsibility under the jurisdiction of the International Criminal Tribunal for the Former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), and other military tribunals, the superior interposes the defense of lack of awareness of the commission of the crimes. In the case of Prosecutor vs. Blaskic, the Appeals Chamber of the ICTR held that ‘a superior will be criminally responsible through the principles of superior responsibility only if information was available to him which would have put him on notice of offences committed by subordinates.’” Simply put, the defense of lack of knowledge is effectively negated by the availability of information.

Moreover, according to Prosecutor vs. Galic, (ICTY Trial Chamber), “It is not required that the superior had actually acquainted himself or herself with the information in his or her possession.” Presence of information presupposes knowledge. A newspaper by the doorstep would have been sufficient to impute awareness of criminal activities to the superior.

In this Information Age where information is as ever-present as the air around us, we don’t even have to consciously breathe in to take it in. It is beyond my imagination how news of atrocities and reports about unlawful enterprises of military subordinates would be ever “unavailable” to high-ranking military commanders. These days, word does not just get around; it is all around. If the Germans can interpose the defense of lack of knowledge because of poor communications and reporting systems, information-saturated superiors these days must be sufficiently blind or deaf to effectively feign ignorance to news, reports, communication channels as the Germans did decades ago. Unfortunately for them, we are in the age of should-have-known. Hence, the burden is shifted; it is for them to prove that they are stupid enough not to have known of the crimes committed right under their noses.

-Crisela Bernardino, entry #14