Command Responsibility: The Anatomy of Proof in Romagoza v. Garcia
36 U.C. Davis L. Rev. 1213 (2003)
47 Pages Posted: 8 Nov 2019
Date Written: June 1, 2003
This article discusses the legal and evidentiary challenges of proving the doctrine of command responsibility through a close read of two cases in U.S. federal courts (Romagoza et al. v. Garcia et al. and Ford et al. v. Garcia et al.) These cases are significant as the first modern command responsibility cases in U.S. federal court 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 (ICTY). 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 the 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 and the strategic and evidentiary challenges it presents. This Essay deconstructs the formulation of the doctrine of command responsibility in the jury instructions employed in the two Salvadoran cases. It will then discuss 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.
Keywords: El Salvador, human rights, command responsibility, international criminal law
JEL Classification: K10, K14, K33, K37, K42, K41, N40, N46
Suggested Citation: Suggested Citation