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Published online by Cambridge University Press: 05 May 2015
Operating under responsible command is an essential requirement to qualify as a lawful combatant, and is also central to the doctrine of command responsibility. This reveals the inextricable link between the role of the commander and the effective implementation of the international humanitarian law (IHL). Understanding this linkage is vital to ensuring that commanders and other military leaders fulfil their obligation to prepare subordinates to navigate the chaos of mortal combat within the legal and by implication moral framework that IHL provides. Few commanders would question the proposition that responsible commanders prepare their military units to effectively perform their combat missions. However, operational effectiveness is only one aspect of developing a “responsible” command. Because this term is grounded in the expectation of IHL compliance, a truly responsible command exists only when the unit is prepared to execute its operational mission in a manner that fully complies with IHL obligations. This broader conception of a disciplined and effective military unit reflects the true nature of the concept of responsible command, as only military units built on this conception of discipline advance the complementary objectives of military effectiveness and humanitarian respect. Accordingly, the requirement that lawful combatants operate under responsible command is an admonition to all military leaders that truly effective military units are those capable of executing their missions with maximum operational effect within the framework of humanitarian constraint that defines the limits of justifiable violence during armed conflict.
1 See US Department of the Army, The United States Army Operating Concept, 2016–2018, TRADOC Pamphlet 525-3-1, 19 August 2010, p. 36, available at: https://fas.org/irp/doddir/army/opcon.pdf (all internet references were accessed in December 2014).
2 See Hague Convention (II) with Respect to the Laws and Customs of War on Land and its Annex: Regulations Concerning the Laws and Customs of War on Land, 29 July 1899 (entered into force 4 September 1900), Art. 43. See also Hague Convention (IV) Respecting the Laws and Customs of War on Land and its Annex: Regulations Concerning the Laws and Customs of War on Land, 18 October 1907 (entered into force 26 January 1910) (Hague Convention IV), Art. 43.
3 See Geneva Convention Relative to the Treatment of Prisoners of War, 27 July 1929, 118 LNTS 343 (entered into force 19 June 1931), Art. 1. See also Geneva Convention (III) Relative to the Treatment of Prisoners of War of 12 August 1949, 75 UNTS 135 (entered into force 21 October 1950), Art. 4 (defining the term “prisoner of war” and outlining categories into which prisoners of war fall, under this provision).
4 See Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, 8 June 1977, 1125 UNTS 3 (entered into force 7 December 1978) (AP I), Art. 43. (“Members of the armed forces of a Party to a conflict (other than medical personnel and chaplains covered by Article 33 of the Third Convention) are combatants, that is to say, they have the right to participate directly in hostilities.”).
5 For an excellent summary of the history of this doctrine and recent developments, see Smidt, Michael L., “Yamashita, Medina, and Beyond: Command Responsibility in Contemporary Military Operations”, Military Law Review, Vol. 164, 2000Google Scholar; see also Shany, Yuval and Michaeli, Keren R., “The Case Against Ariel Sharon: Revisiting the Doctrine of Command Responsibility”, New York University Journal of International Law and Politics, Vol. 34, No. 4, 2002Google Scholar; Hansen, Victor, “What's Good for the Goose Is Good for the Gander – Lessons from Abu Ghraib: Time for the United States to Adopt a Standard of Command Responsibility Towards its Own”, Gonzaga Law Review, Vol. 42, No. 3, 2007Google Scholar.
6 “International humanitarian law”, also known as the “law of armed conflict”, refers to the body of international treaty and customary law regulating the methods and means of warfare and establishing protections for the victims of war.
7 See Joint Chiefs of Staff, Joint Operations: Joint Publication 3-0, 11 August 2011, A-2, available at: www.dtic.mil/doctrine/new_pubs/jp3_0.pdf (defining the term “unity of command” with a single responsible commander as a primary element).
8 US Department of the Army, Army Leadership, ADP 6-22, 1 August 2012, p. 1, para. 2, available at: http://armypubs.army.mil/doctrine/DR_pubs/dr_a/pdf/adp6_22_new.pdf. (“An Army leader is anyone who by virtue of assumed role or assigned responsibility inspires and influences people to accomplish organizational goals. Army leaders motivate people both inside and outside the chain of command to pursue actions, focus thinking, and shape decisions for the greater good of the organization.”)
9 See ibid., p. 2, para. 8.
10 See AP I, above note 4, Art. 87; Sandoz, Yves, Swinarski, Christophe and Zimmermann, Bruno (eds), Commentary on the Additional Protocols of June 8 1977 to the Geneva Conventions of 12 August 1949, ICRC, Geneva, 1987Google Scholar, para. 1017.
11 See Hague Convention IV, above note 2, Arts. 1, 43. Article 1 indicates that a lawful belligerent is “[t]o be commanded by a person responsible for his subordinates”. Article 43 further indicates that to achieve compliance with the law of armed conflict, individuals must be subject to military command: “The armed forces of a Party to a conflict consist of all organized armed forces, groups and units which are under a command responsible to that Party for the conduct of its subordinates, even if that Party is represented by a government or an authority not recognized by an adverse Party. Such armed forces shall be subject to an internal disciplinary system which, inter alia, shall enforce compliance with the rules of international law applicable in armed conflict.”
12 See VanLandingham, Rachel, “Meaningful Membership: Making War a Bit More Criminal”, Cardozo Law Review, Vol. 35, No. 1, 2013Google Scholar.
13 Sassòli, Marco, Bouvier, Antoine A. and Quintin, Anne, How Does Law Protect in War?, 3rd ed., Vol. 1, ICRC, Geneva, 2011Google Scholar, p. 1.
14 US Department of the Army, above note 1, para. 20.
15 “Scarred by History: The Rape of Nanjing”, BBC News, 11 April 2005, available at: http://news.bbc.co.uk/2/hi/asia-pacific/223038.stm (all internet references were accessed in July 2014).
16 Michael Reynolds, “Massacre at Malmédy During the Battle of the Bulge”, World War II, 12 June 2006, available at: www.historynet.com/massacre-at-malmedy-during-the-battle-of-the-bulge.htm.
17 For another example, see “My Lai Massacre”, available at: www.history.com/topics/vietnam-war/my-lai-massacre.
18 See Robert Rielly, “The Inclination for War Crimes”, Military Review, May–June 2009, available at: http://usacac.army.mil/CAC2/MilitaryReview/Archives/English/MilitaryReview_20090630_art006.pdf; see also Anthony R. Jones, Army Regulation 15-6 Investigation of the Abu Ghraib Prison and 205th Military Intelligence Brigade, 2004, available at: http://library.uoregon.edu/ec/e-asia/reada/abugrab.pdf.
19 See M. Sassòli, A. Bouvier and A. Quintin, above note 13, p. 139.
20 See Schmitt, Michael N., “Military Necessity and Humanity in International Humanitarian Law: Preserving the Delicate Balance”, Virginia Journal of International Law, Vol. 50, No. 4, 2010Google Scholar.
21 See Taylor, Telford, Nuremberg and Vietnam: An American Tragedy, Quadrangle, Chicago, IL, 1970, pp. 40–41Google Scholar; McDonough, James R., Platoon Leader: A Memoir of Command in Combat, Random House, New York, 1985Google Scholar.
22 See generally Grossman, Dave, On Killing: The Psychological Cost of Learning to Kill in War and Society, Back Bay Books, New York, 2009Google Scholar.
23 This is a common catchphrase among US military leaders, used to emphasize the priority of leadership responsibility at all levels of command: first accomplish the mission, then take care of your personnel, then take care of your equipment.
24 See Joint Chiefs of Staff, above note 7, III-30–III-31. “Force protection includes preventive measures taken to prevent or mitigate hostile actions against DOD personnel (to include family members), resources, facilities, and critical information. These actions preserve the force's fighting potential so it can be applied at the decisive time and place and incorporate integrated and synchronized offensive and defensive measures that enable the effective employment of the joint force while degrading opportunities for the adversary. Force protection does not include actions to defeat the enemy or protect against accidents, weather, or disease. Force health protection (FHP) complements force protection efforts by promoting, improving, preserving, or restoring the mental or physical well being of Service members. Force protection is achieved through the tailored selection and application of multilayered active and passive measures commensurate with the level of risk. Intelligence sources provide information regarding an adversary's capabilities against personnel and resources, as well as information regarding force protection considerations. Foreign and domestic law enforcement agencies can contribute to force protection through the prevention, detection, response, and investigation of crime, and by sharing information on criminal and terrorist organizations” (emphasis in original).
25 See generally D. Grossman, above note 22.
26 See T. Taylor, above note 21, pp. 40–41.
27 LaFave, Wayne R. and Scott, Austin W. Jr., Substantive Criminal Law, West Publishing, St Paul, MN, 1986Google Scholar, p. 649.
28 See Dinstein, Yoram, The Conduct of Hostilities Under the Law of International Armed Conflict, 2nd ed., Cambridge University Press, Cambridge, 2010CrossRefGoogle Scholar.
29 See Schabas, William A., “Parallel Applicability of International Humanitarian Law and International Human Rights Law: Lex Specialis? Belt and Suspenders? The Parallel Operations of Human Rights Law and the Law of Armed Conflict, and the Conundrum of Jus Ad Bellum”, Israel Law Review, Vol. 40, No. 2, 2007, p. 604CrossRefGoogle Scholar.
30 See Y. Dinstein, above note 28.
31 See Leslie Green, The Contemporary Law of Armed Conflict, 2nd. ed., Melland Schill Studies in International Law, 2000, pp. 122–125.
32 See David Wood, “Moral Injury: A Warrior's Moral Dilemma”, Huffington Post, 2014, available at: http://projects.huffingtonpost.com/moral-injury (covering a three-part series that investigates and analyzes the ethical uncertainties of war and the lasting effects of moral wounds).
33 See John Whiteclay Chambers II, “S.L.A. Marshall's Men Against Fire: New Evidence Regarding Fire Ratios”, Parameters, 2003, available at: http://strategicstudiesinstitute.army.mil/pubs/parameters/articles/03autumn/chambers.pdf.
34 J. R. McDonough, above note 21, p. 77.
35 This equation of law with morality is controversial, of course, because as the long-standing natural law versus positivism debates reflect, simply because something is legal does not mean it is moral. Yet in the context of modern warfare, IHL is used by commanders as a substitute for personal morality in order to buffer their subordinates from the moral corrosiveness of killing. The question of whether this represents a “brainwashing” of individuals to do their government's bidding, or a reinforcement of their individual moral codes that is necessary to translate individual self-defence concepts to an armed conflict setting, is inextricably linked to the morality of war itself.
36 T. Taylor, above note 21, pp. 40–41.
37 See Id.
38 States do, of course, receive the ultimate benefit from characterizing their soldiers as morally and legally correct; it is the States' ends that are being served by this IHL paradigm. Regardless of the important collateral effects of minimizing civilian and combatant suffering, IHL is a tool of states to ensure they can continue to effectively wage war in pursuit of state interests, regardless the legitimacy of those interests.
39 US Department of the Army, above note 1, p. 35 (placing emphasis on training programmes and experience as keys to learning the skills necessary to be an effective solider).
40 Ibid.
41 Ibid., pp. 35–36 (footnotes omitted).
