Collective responsibility in Themiclesian armed forces
Collective responsibility in Themiclesian armed forces (連坐, rjan-dzar) punished officers, and sometimes men, of crimes committed by officers in their purview. Originating during the Hexarchy during a period of mass mobilization and military discipline, Themiclesian civil and military officers were held answerable to monitor the conduct of both superiors and subordinates, with varying types of responsibility for breaches of the law. While the law generally did not punish the ignorant, it did presume knowledge for a wide range of official actions; ignorance of them was sometimes a crime itself.
Limits of collective responsibility
The Themiclesian penal codes divided crimes into private and public crimes. These terms' application are distinct from those in Casaterran judicial systems. Only a public crime is generally punished collective. Generally, a private crime was one which did not involve the use of state power, and a public crime, one that did. The theoretical differences are often considered difficult to analyze by scholars, but the Themiclesian legal system gives explicit definitions in ambiguous cases. Depending on the identity of the criminal, some crimes may be both private and public. In the main, those who commit public crimes must leverage their office in some way to perpetrate what may otherwise be a private crime. The criminality (or taint) of the final act is extended to other individuals through the organization. A. A. Ascott, in his Reference History of the Themiclesian Forces, considers the difference to be that private crimes "can be committed by anyone", while public crimes were "abetted by the power or property the state has in the criminal vested". To illustrate the difference, the following minimal examples are used:
- A soldier kills an unarmed civilian with the latter's own rope (private, because this soldier can commit the same crime without being a soldier)
- A soldier kills an unarmed civilian with a government-issued rope (public, because the rope is given to the soldier for some public purpose)
The examples are more revealing with official power involved.
- An officer kills an unarmed civilian by himself (private)
- An officer orders a subordinate to kill an unarmed civilian (the officer commits a crime by means of the power vested in him by the state, which makes the crime public)
In general, it is thought that since all official acts are synthetic and of public record, which have a wide audience in the transmission of official documents, it must have been known by more than the perpetrator himself. Any crime arising out of it are traceable to all those who have enabled it. Furthermore, it was thought that since all public power stemmed from the Emperor, who is the fount of the law, any wrong committed in his name was not only a personal crime, but a betrayal of parliamentary confidence.
Operational principles
The system of collective responsibility as described below represents the doctrine in the 18th century, when its operation reached a zenith in scope and severity. Ascott describes three manners in which "the taint spreads", vertical, lateral, and sporadic. While the scenarios used below all presume major crimes, such as murder, the principle was equally applicable to minor crimes.
Knowledgeable culpability
The Themiclesian army unit possesses a commander, his second-in-command (and sometimes a third and fourth), his subordinate officers, and men. The law deems any officer and men involved in a public crime to be thereof equally guilty. If it happened that a colonel in charge of a regiment orders someone be murdered, then the colonel, the murderer, and any officer in between who have subvented the order would be equally guilty of the same murder. The law does not distinguish between the initial issuance of the order and its propagation. This is the "vertical" operation of the principle, since it implicates the hierarchy. Since the law required any decision taken by a superior sent not only to the subordinate to carry it out, but also his second or deputy, those who knew of the order but did not prevent it were abettors in the immediate degree. In some other cases, the officer in charge may be required to share the order with others. In either case, whether these individuals actually knew about the order is immaterial to the operation of collective responsibility, since they were required by law to have knowledge. This is the "lateral" operation of the rule. Any officer who heard of such an order (and could reasonably believe it to be real) and failed to prevent it would be guilty as abettors. This is the "sporadic" operation of the rule.
In more complex cases, the implicated extent could be larger. If a regimental commander had ordered two subordinates to carry out the same crime, both subordinates are deemed responsible for preventing each other from perpetrating the criminal act. If one ignores the order but fails to prevent the other from carrying it out, the one who ignored it is guilty as an abettor. The second-in-command to the one ignoring the illegal order is still required, per his knowledge of the order issued by the regimental colonel (which legally reaches him), to prevent the crime; failure to do so results in criminal taint as an abettor.
Ignorant culpability
Not only did the system punish those who performed or instigated the crime and those who knew but did nothing to prevent it, it so did for officers entirely ignorant of what was happening and had no responsibility of awareness. This sort of responsibility was more general than the one above and applied to private and public crimes. Since any crime was regarded as a flaw in the character of the person who perpetrated it, an officer was punished for the crimes committed by anyone he recommended. It was construed as a lapse of judgment on the part of the recommender. The resulting punishment was less severe than if the officer had otherwise known about the crime. The effects of this form of responsibility was perhaps more a threat to senior officers, who might make many recommendations over their careers; in some eras, this was the most common cause for a senior officer to be dismissed. In the Navy, the appointment of admirals customarily required the acclamation of several captains, submitted through appraisal documents to the Ministry of Administration. Thus, in the event the new admiral commits a crime, his original sponsor in the admiralty and those captains who submitted positive appraisals of him would be punished according to this principle.
Culpability of suggestions
In certain eras, not only were crimes punishable, a recommendation to commit a crime was likewise punishable. This principle, which punishes superiors for not reporting their subordinates' wrongful suggestions, has been described as the opposite of "vertical" responsibility, where subordinates are punished for the wrongdoing of their superiors.
Historical impetus
It is debated whether this system originated in the civil service and spread to military use, or the reverse. Proponents of the latter believed that it was first instituted to prevent wrongdoing or mutiny by military officers in a period of frequent large-scale mobilization, and it subsequently was imposed on the civil service for its restrictive effects. Those of the latter believe that the only direction possible is from the civil service to the military, since the country had a stable civil service but no standing military. For much of Themiclesian history, the military was not an entity distinct form the civil service. In war, men who performed periodic militia service were assembled, and many of its officers were seconded from the civil service during times of war and returned in peace. A handful of dedicated military offices, with geographic jurisdictions for defensive installations and administration, did exist, and even such officers were filled with those with civil experience. Indeed, an identical responsibility system was in practice in the civil service, though its impact there was far less severe for structural reasons (as shall appear below).
Ascott summarizes it as potestas delegans est, culpa non deleganta est, "power can be delegated, responsibility cannot". That is, any crime resulting from the delegation of power is cognizable not only on the person who commits it, but the person who empowered the person who committed it. Powell writes that "the criminal law is blind to the institution that collectively enables the crime and punishes every minute contributor as though he personally committed the crime. This is called immediate criminal responsibility, as it cannot be mediated, diluted, or absolved by institutional rules."
Comparison with modern military law
Some scholars have assessed collective responsibility in the armed forces as an early form of law of war, but this has proven controversial. Many modern legal scholars instead believe collective responsibility was imposed not for the protection of enemy soliders and civilians but to control Themiclesian armed forces and prevent mutinies in them, though the sheer number of actionable offences and lack of protection have definitely made Themiclesian officers more aware of legal consequences than those in contemporary armies. Foreign civilians were, indeed, allowed to sue at the court in Kien-k'ang against any Themiclesian officer, and at least a few have been convicted through the centuries; however, the degree of protection so offered is not comparable to modern militaries, since the plaintiff had to traverse all geographical, linguistic, and economic barriers to sue, and there was little guarantee the court was impartial to the plaintiff's case. Other scholars conclude that foreign civilians were allowed to sue because they were assumed to be hostile to Themiclesian officers and thus inclined to monitor their wrongdoing (to end their careers). Similarities between the collective responsibility system and modern laws of war thus appear to be accidental, not motivated by the same beliefs or international circumstances.
Contrasts with modern laws of war are elucidated when Themiclesian became a signatory to the Bataviae Convention of 1899. The collective responsibility system was abolished in consequence of the convention,