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.
36 U.C. Davis L. Rev. 1213