Abstract

http://ssrn.com/abstract=1007794
 


 



Command Responsibility: The Anatomy of Proof in Romagoza v. Garcia


Beth Van Schaack


Santa Clara University - School of Law


Santa Clara Univ. Legal Studies Research Paper No. 07-35
UC Davis Law Review, Vol. 36, No. 1213, 2003

Abstract:     
This Essay discusses two significant Alien Tort Statute (ATS) cases in the 11th Circuit involving the doctrine of superior responsibility: Ford v. Garcia and Romagoza v. Garcia. Both cases were brought in the same courtroom against two former Ministers of Defense of El Salvador. Together, the Romagoza and Ford cases are significant as the first modern command responsibility cases in which a defendant testified in his own defense and was judged by a lay jury, as opposed to by a professional judge or military officers staffing a military tribunal. These are also the first cases in which a domestic tribunal closely considered the modern doctrine of command responsibility as articulated and clarified by the International Criminal Tribunal for the former Yugoslavia through the vehicle of jury instructions. Furthermore, the Romagoza case is the first case in which civil plaintiffs proved liability under the doctrine of command responsibility in an adversarial setting under federal rules of evidence and procedure. As such, the Romagoza proceedings themselves deserve close attention for what they can teach about the application of the doctrine of superior responsibility and the strategic and evidentiary challenges it presents.

Accordingly, this Essay deconstructs the formulation of the doctrine of command responsibility in the jury instructions employed in the two Salvadoran cases. It then discusses the challenges the doctrine poses with reference to the legal and evidentiary strategies employed by the Romagoza plaintiffs to prove command responsibility under the applicable rules of procedure and evidence. In particular, the Essay focuses on the element of "effective command" established by the 11th Circuit as a predicate for the application of the doctrine.

Accepted Paper Series


Not Available For Download

Date posted: August 19, 2007  

Suggested Citation

Van Schaack, Beth, Command Responsibility: The Anatomy of Proof in Romagoza v. Garcia. Santa Clara Univ. Legal Studies Research Paper No. 07-35; UC Davis Law Review, Vol. 36, No. 1213, 2003. Available at SSRN: http://ssrn.com/abstract=1007794

Contact Information

Beth Van Schaack (Contact Author)
Santa Clara University - School of Law ( email )
500 El Camino Real
Santa Clara, CA 95053
1 (408) 554 2349 (Phone)
1 (408) 554 4426 (Fax)
HOME PAGE: http://law.scu.edu/faculty/profile/van-schaack-beth.cfm
Feedback to SSRN


Paper statistics
Abstract Views: 566

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo1 in 0.235 seconds