On Stretching the Boundaries of Responsible Command

2015

War Crimes: Accountability in Armed Conflict (2 nd Edition) North Carolina Academic Press, forthcoming (2016) (lead author).

The passive response of peacekeeping commanders to genocidal acts committed in Rwanda and Srebrenica has raised questions regarding their individual responsibility. With the confirmation of state responsibility for the Netherlands and an interim decision in Belgium confirming responsibility for both the Belgian state and the military officials, the possibility that military commanders may face legal consequences after a failed peacekeeping mission becomes more likely. This paper explores whether international law imposes a duty to act on peacekeeping commanders. It furthermore looks into the question whether international (criminal) law provides a form of legal responsibility for a failure to fulfill that duty. Two foundations for a duty act are distinguished. First, a duty based on the moral duty to safeguard life and provide aid when the physical integrity of the civilian population is at risk, that requires that the commander had the ability to act. Second, the commander may have had a duty to act based on his profession, which would be classified as a duty by contract or law. A failure to fulfil a duty to act could amount to omission liability, whereas criminal responsibility in the form of aiding and abetting by encouragement or tacit approval may apply if such a duty to act is absent. The latter form of responsibility is referred to as ‘bystander responsibility.’ By concluding that international law leaves sufficient space to attach criminal responsibility to the commander’s failure to act, this paper argues that the Responsibility to Protect doctrine has undergone a significant change: our perceptions of legal duties and criminal responsibilities are increasingly determined by moral norms and values. As such, the state and the international community are not necessarily central to the international legal spectrum. Instead, the international community may be perceived as a community of actors rather than a community of states. The individual is nowadays recognised as an actor that may have the ability to influence the course of events. This development of the Responsibility to Protect doctrine may have a transformative effect on international law. That effect is not necessarily perceived as advantageous for specific aspects of international law. For example, attaching criminal consequences to a failure to protect the civilian population may have a negative effect on peacekeeping as such. If countries are less willing to contribute to peacekeeping operations, the expansion of the Responsibility to Protect doctrine may defeat its own purpose: the protection of civilian populations from mass atrocities.

2013

The article deals with the responsibility for a crime committed by command. In international criminal law exists two types of responsibilities. The first is the so called direct or active command responsibility, when the commander displays an active behavior in regards of the crime committed by subordinates, for example, by ordering them to commit a crime. These cases should be judged based on the traditional individual responsibility and the commander should be considered as a perpetrator based on the Statute of the International Criminal Court (hereinafter: ICC), and as an indirect perpetrator based on the dogmatics of the Hungarian criminal law. The second type – the command responsibility proper – is the indirect or passive one, the point of which is the special behavior of the commander in being guilty of negligence. As the task of proving whether a particular order for committing a crime was given or not is usually a difficult one, this indirect form of the command responsibil...

Michigan journal of international law, 2008

Military spokespeople and upper echelon commanders routinely maintain that wartime atrocities are the acts of a few "bad apples." Yet, while disclaimers of responsibility from higher-ups in the chain of command often beg credulity, the law provides safe harbor for those holding command positions since it is frequently powerless to ensnare anyone but the atrocity's immediate perpetrators. This Article spans international and domestic law, and it addresses one of the doctrinal constraints on holding commanders criminally liable: the doctrine of command responsibility as it applies where commanders fail adequately to investigate or punish atrocities of their troops.As a theoretical matter, there are two ways to respond to such failures: First, the commander may be held responsible solely for dereliction of duty; alternatively, she may be held criminally liable for her subordinates' atrocity. Currently, both domestic and international tribunals have adopted the former ...

International Review of the Red Cross, 2014

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 compli...

Many examples of modern war crimes exhibit a strong link between the institutional breakdown of the rule of law and subsequent commission of humanitarian abuses by service members. Unchecked misconduct, specifically including dehumanizing acts, tends to foster a climate where war crimes are likely to occur. Does the law adequately account for this common thread? This article examines the doctrine of command responsibility in the context of a superior's failure to maintain discipline among troops, and resulting criminal culpability for violations of the law of armed conflict. While customary international law, as applied by modern ad hoc tribunals, contemplates a wide range of misconduct that may trigger a commander's affirmative duty to prevent future abuses by subordinates, U.S. law does not. This article examines the contours of the command responsibility doctrine as it relates to this duty to prevent, and assesses its efficacy in averting humanitarian atrocities.

Criminal Law and Philosophy, 2017

International criminal law (ICL) is arguably still in its infancy. Although it has several isolated precedents (mainly during the twentieth century), it is only since the establishment of the ad hoc Tribunals for the former Yugoslavia and Rwanda in the early 1990s, and particularly since the creation of the permanent International Criminal Court, that it consolidated institutionally into a prominent practice. This practice has attracted vast academic interest, which has helped to consolidate ICL into a vibrant discipline. One important strand of research in ICL has focused on its underlying theoretical and philosophical foundations. 1 Jurists and philosophers have examined, inter alia, the justifications for imposing legal punishment across borders, the way in which certain crimes can be said to harm or concern humanity as a whole, and the conditions for complicit liability in the context of coordinated violence. They have also inquired into the conditions for legitimate authority, or at least standing, to conduct trials of this kind. Significant attention has been given to certain objections such as claims of tu quoque, clean hands, victors' justice, or the labelling of such proceedings as show trials. 2 One notable gap in this literature has to do

Journal of Palestine Studies, 2016

ONE OF THE MANY REASONS for the humbling of the mighty Israel Defense Forces (IDF) during the 2006 Lebanon War was an Israeli combat doctrine named Systemic Operational Design, better known by its perhaps aptly abbreviated acronym SOD. The brainchild of a group of military intellectuals clustered around the IDF's Operational Theory Research Institute (OTRI), SOD was first mooted in 1995. It was an operational doctrine that drew on U.S. studies and postmodern French philosophical and textual analysis to develop an integrative critical and creative approach to the battlefield and generate new means of addressing old problems. The basic paper outlining SOD was signed by then incoming Chief of Staff Dan Halutz and formally adopted as the IDF's operational doctrine in April 2006. 1 Put to almost immediate test in southern Lebanon, the IDF's experience with SOD in July 2006 was disastrous. Not only did its intellectual content challenge senior officers' understanding, but its somewhat rarified Foucauldian precepts sowed confusion rather than clarity on the battlefield, with the consequence that orders were misunderstood, misinterpreted, or altogether ignored. Rather than help to "integrate" operations, SOD played a significant part in the tactical disorder that marked the IDF's performance over the thirty-three days of the war. 2 The results were predictable. SOD was rapidly dropped, as the Israeli high command grappled with its shortcomings and failures as revealed by the war, and Halutz's successive replacements (Gabriel "Gabi" Ashkenazi and Benjamin "Benny" Gantz) launched a long process of organizational and doctrinal reevaluation that passed through the 2007 Meridor Commission, the 2008 Winograd Commission, and finally culminated in the 2015 IDF Strategy of Lt. Gen. Gadi Eisenkot (hereafter ED, short for Eisenkot Document), made available in English for the first time here, by the Journal of Palestine Studies (JPS).