Erosion of the Rule of Law as a Basis for Command Responsibility under International Humanitarian Law

Sun Tzu advised military leaders that soldiers are to be treated “in the first instance with humanity, but kept under control by means of iron discipline.”11

Such an approach, he claimed, would lead to certain victory.22 Fifteen hundred years later, in describing a unit of American service members responsible for guarding detainees at Abu Ghraib prison, an investigator quipped that it was analogous to the movie Animal House.33 In the years since, numerous international tribunals have affirmed the important nexus between unaddressed misconduct among soldiers and the subsequent commission of war crimes.44 Examining the wider backdrop of many modern law of war violations, it becomes apparent that the maintenance of good order and discipline among troops is essential to upholding the ideals entrenched in international humanitarian law. In fact, negligent supervision and failure to punish past wrongs in combat can have a unique “death spiral” effect on lawlessness and dehumanizing behavior. By failing to address early—sometimes minor—misconduct, a superior contributes to the degradation of the rule of law, which commonly lies at the root of modern humanitarian abuses. This article explores the extent to which the international legal framework accounts for a commander’s role in the erosion in the rule of law and its consequences, and the subsequent assignment of criminal liability under the doctrine of command responsibility.

The current international legal framework permits military leaders to be held criminally responsible for the failure to address known past misconduct in two distinct ways.55

First is the failure of a commander to discipline subordinate troops for law of war violations, or a failure to punish. Crimes that may trigger this responsibility include grave breaches of the Geneva Conventions, crimes against humanity, and other offenses under the law of war.66 Second is the commander’s failure to prevent future crimes when that leader is on notice that previous misconduct has gone unpunished and future crimes are likely to occur. The two are undeniably linked, but form distinct theories of criminal responsibility.

This article is primarily focused on the failure to avoid future crimes under the failure to prevent doctrine.77

Minor misconduct—including acts that do not constitute law of armed conflict violations in themselves—can lead to a degradation of the rule of law and give rise to more serious war crimes.88 A failure to remedy these low-level infractions may not be chargeable under the failure to punish theory. A commander’s continued inaction, however, may be sufficient for criminal liability under the failure to prevent doctrine. The current exploration seeks to determine the extent to which notice of past unaddressed bad behavior can give rise to legal liability of a superior for subsequent crimes. The article will also assess whether the international legal framework governing command responsibility, interpretation by international courts, and domestic application by the U.S., adequately address the culpability of these rule of law breakdowns within commands.

Military leaders hold positions imbued with significant levels of public trust and great responsibility.99

Although high-ranking superiors are commonly ensconced far from the fields of conflict, the theory of command responsibility ensures that even those without battle-scarred hands are accountable for humanitarian abuses that they order, implement, or incite.1010 In some cases, however, superiors play a more indirect role in the commission of war crimes. Permitting unchecked behavior of soldiers in war-time creates a substantial risk of humanitarian violations.1111 The authority possessed by military leaders places them in the best position to prevent war crimes committed by subordinates.1212 For these reasons, and because of the unique nature of military command, in some circumstances leaders may be criminally culpable for failing to act.1313

Under a modern understanding, the doctrine of command responsibility for superior omissions is generally comprised of three distinct elements: an authoritative relationship to a subordinate; mens rea, or an incriminating state of mind; and a failure to take steps to prevent or punish misconduct.1414

Definitions of these elements differ between international and domestic legal codes and have changed over time.

Following World War II, international tribunals, various national military commissions, and domestic courts tried thousands of defeated Axis war criminals. Among those prosecuted by U.S. military commission was General Tomoyuki Yamashita—former commander of the Japanese Army in the Philippines.1515

General Yamashita’s troops had undoubtedly committed massive atrocities in the Philippines, including the rape and murder of tens of thousands of civilians.1616 However, many have questioned the legal standard under which he was convicted and later executed.1717 According to the tribunal:

It is absurd [ ] to consider a commander a murderer or rapist because one of his soldiers commits a murder or a rape. Nevertheless, where murder and rape and vicious, revengeful actions are widespread offences, and there is no effective attempt by a commander to discover and control the criminal acts, such a commander may be held responsible, even criminally liable, for the lawless acts of his troops . . . .1818

18

Verdict and Sentence, Trial of General Tomoyuki Yamashita, in 4 Law Reports of Trials of War Criminals 35 (U.N. War Crimes Commission ed., 1948) [hereinafter 4 Trials of War Criminals].Hide

Throughout his defense, Yamashita maintained that he did not order nor knew of the war crimes that were being committed by his soldiers.1919

In fact, the evidence showed he had inherited his command position at a particularly tumultuous time in the Pacific theater, and the Allies had made major efforts to disrupt his communications with subordinate Japanese commanders.2020 The plain language of the judgment indicates a finding of command liability when a commander should have known about the lawless actions of subordinates, despite the lack of evidence that he or she actually knew about or condoned them. Some suggest that the American approach to command responsibility in In re Yamashita2121 is a glaring example of victor’s justice.2222 The Yamashita holding has been highly criticized in intervening years, as the tribunal failed to articulate the precise standard of mens rea it applied.2323

Complicating this issue is a prior discussion by the tribunal in which it is doubted that General Yamashita could not have known about the atrocities being committed by his subordinates.2424

According to the tribunal, General Yamashita must have known about the conduct of his subordinates, as it was so egregious and widespread.2525 In other words, the court may have been inferring knowledge by Yamashita based on circumstantial evidence, despite his claims to the contrary.2626 As will be discussed below, the modern understanding of command responsibility under a failure to act theory distinguishes between actual or constructive knowledge, on one hand, and an affirmative duty to discover such knowledge under certain conditions, on the other. Both are distinctive bases for assignment of criminal liability under the modern approach. The U.S. Supreme Court reviewed Yamashita in 1946, but did not overturn the military’s findings or sentence.2727

The Nuremberg Trials are perhaps better known from this era. Dozens of high-ranking Nazi war criminals, including government officials and senior military officers, were prosecuted at Nuremberg in a joint effort by the Americans, British, Soviets and French. Charges included conspiracy and crimes against peace, including participation in the planning and waging of a war of aggression in violation of numerous international treaties and rules for waging war, as well as crimes against humanity, including murder, enslavement and other inhumane acts.2828

In the so-called “High Command Case,” which consolidated the cases of more than a dozen Nazi leaders including Willhelm von Leeb, the court articulated its standard for command responsibility. Only when a crime directly resulted from a commander’s action, or from the commander’s failure to properly supervise subordinates—amounting to a “wanton, immoral disregard”2929 —could criminal liability attach. Central to the court’s definition was the idea that criminal liability may only be assigned as the result of some personal guilt.3030 Mere failure on the part of a superior to investigate or take precautions would not be sufficient to reach this standard of culpability.

The International Military Tribunal for the Far East, also known as the Tokyo War Crimes Trial, was the major trial of high-ranking Japanese war criminals, corresponding to the Nuremburg Trials in Germany. This was another joint effort by the Allied powers, and over twenty alleged war criminals were tried.3131

Many cases involved humanitarian abuses over detained persons.3232 In these cases, commanders charged with authority over prisoners could be held criminally liable for acts of their subordinates if they knew or failed to attain information about abuse through negligence.3333 The verdicts also indicated that commanders were duty-bound to take preventative measures to ensure that mistreatment of prisoners did not occur following a discovery of prior abuse.3434 The command responsibility standard in this instance indicated that, presuming knowledge of past offenses, the onus was on commanders to take preventative actions to stop future bad acts. As described below, this articulation echoes more modern international tribunals in establishing the threshold for command responsibility in failures to prevent, particularly involving prior misconduct of service members.

Precedents set by World War II cases influenced the later codification of command responsibility doctrine in international law.3535

Although the notion of command responsibility was nominally referred to in preceding treaties governing the laws of war,3636 the most definitive legal obligation was first outlined in Article 86(2) of Additional Protocol I to the 1949 Geneva Conventions:

The fact that a breach of the Conventions or of this Protocol was committed by a subordinate does not absolve his superiors from penal or disciplinary responsibility, as the case may be, if they knew, or had information which should have enabled them to conclude in the circumstances at the time, that he was committing or was going to commit such a breach and if they did not take all feasible measures within their power to prevent or repress the breach.3737

37

Additional Protocol I, supra note 5, at art. 86(2) (emphasis added). There is a slight variation in phrasing in the French translation. See Commentary To Additional Protocol I, supra note 33, at ¶ 3545 (noting that the French version’s wording—“information enabling them to conclude”—constitutes a significant discrepancy from the English version). Article 87 then states:

1.The High Contracting Parties and the Parties to the conflict shall require military commanders, with respect to members of the armed forces under their command and other persons under their control, to prevent and, where necessary, to suppress and to report to competent authorities breaches of the Conventions and of this Protocol.

2.In order to prevent and suppress breaches, High Contracting Parties and Parties to the conflict shall require that, commensurate with their level of responsibility, commanders ensure that members of the armed forces under their command are aware of their obligations under the Conventions and this Protocol.

3.The High Contracting Parties and Parties to the conflict shall require any commander who is aware that subordinates or other persons under his control are going to commit or have committed a breach of the Conventions or of this Protocol, to initiate such steps as are necessary to prevent such violations of the Conventions or this Protocol, and, where appropriate, to initiate disciplinary or penal action against violators thereof.

 Additional Protocol I, supra note 5, at art. 87.

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The U.S. signed but has never ratified Additional Protocol I.3838

The command responsibility doctrine, as outlined by Additional Protocol I, is considered to reflect international customary law.3939 Although by its wording the treaty specifically applies to international conflicts, most provisions—including its superior responsibility doctrine—are also understood to apply to internal conflicts through customary law.4040 Many states have adopted similar definitions in their domestic legal codes, although exact standards do vary.4141 Since its drafting, there has been much debate regarding the mens rea requirement in Article 86, as viewed through the standards of criminal law jurisprudence,4242 as well as the practical and doctrinal challenges to prosecuting such cases,4343 but such discussions are beyond the scope of this paper. Modern international tribunals have been reluctant to classify command responsibility under conventional criminal law theories of negligence.4444

A breakdown in the rule of law can be comprised of various forms of misconduct—some of which may not constitute violations of the law of war that trigger a duty to repress or punish. However, this article is primarily concerned with the duty to prevent future crimes, where a superior lacks actual knowledge that those crimes will occur. In its commentary on Article 86, the International Committee of the Red Cross (ICRC) notes various factors that may be considered in determining whether a superior had information which should have enabled that person to predict that war crimes were about to be committed.4545

Information in this context may refer to the tactical situation at the time, the level of training on laws of war and international humanitarian law received by subordinates, and relative character traits of service members.4646 Additionally, commanders are assumed to be aware of the risks of attacking densely populated areas, and of the scarcity of medical services available to treat prisoners of war.4747 Every case must be considered on a situational basis.4848 Modern war crimes tribunals have referred to this commentary in applying international customary norms in command responsibility cases.4949

The Nuremburg and Tokyo War Trials were examples of internationally sanctioned ad hoc tribunals. Tribunals of this nature established by the United Nations have been increasingly used in the past two decades to address war crimes committed in various regional conflicts. As will be discussed below, ad hoc tribunals have largely adopted the Additional Protocol I standard for command responsibility, and have interpreted it according to customary international law.

Between 1991 and 2001, over 100,000 people lost their lives in the Yugoslav Wars, including the wars in Bosnia and Kosovo—a series of ethnic conflicts leading to the break-up of the former Yugoslavia.5050

Reports of widespread ethnic cleansing, civilian and detainee abuse, and sexual violence by Serb forces surrounded these conflicts.5151 As a response, the U.N. Security Council established the International Criminal Tribunal for the former Yugoslavia (ICTY), based in The Hague. This ad hoc court’s jurisdiction covers four categories of crimes: grave breaches of the Geneva Conventions, violations of the laws and customs of war, genocide, and crimes against humanity.5252 Its charter also gives the tribunal jurisdiction to prosecute superiors who fail to punish or prevent these abuses.5353 The court has charged over 160 persons since its inception—primarily Serbs, but also Croats, Bosnian Muslims and Kosovo Albanians. Cases are ongoing as of 2017.5454

The governing statute for ICTY dictates a knew or had reason to know standard for superior liability, and otherwise generally mirrors Additional Protocol I, Article 86:

The fact that any of the acts referred to in articles 2 to 5 of the present Statute was committed by a subordinate does not relieve his superior of criminal responsibility if he knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.5555

55

ICTY Statute, supra note 5, at art. 7(3) (emphasis added). Like Additional Protocol I, the ICTY Statute contemplates criminal liability for all military superiors, not just commanders.Hide

The court has interpreted the command responsibility standard in the ICTY statute as congruent with that of Additional Protocol I and customary international law.5656

Jurisprudence has indicated a preference for superiors to prevent future crimes. Where a superior knew or had reason to know that a subordinate was going to commit a war crime but failed to prevent the action, the superior cannot rectify that failure by then punishing the subordinate.5757 These cases, discussed below, explore the extent of this duty to prevent.

Under ICTY holdings, actual knowledge may be inferred from circumstantial evidence.5858

However, the more nuanced issue is when a superior has a duty to prevent crimes, short of actual knowledge that such crimes are being, or will be, committed. In the Ćelebici case (Prosecutor v. Delalić5959 ), ICTY substantively articulated the command responsibility standard under the reason to know framework.6060 The appeals chamber clarified that general information in possession of a commander—provided to that person or otherwise available—which would put the superior on notice about possible unlawful acts by subordinates, is sufficient to fulfill the requirement.6161 The court rejected a strict-liability duty to discover misconduct standard for superiors.6262 In other words, some information must trigger a commander’s duty to halt possible future wrongdoing. In addition to citing the factors listed in the ICRC commentary on Additional Protocol I,6363 the appeals tribunal identified information that may trigger a duty to prevent. This data need not be specifically regarding the nature of the future unlawful acts, and may include information that subordinate service members “have a violent or unstable character, or have been drinking prior to being sent on a mission.”6464 The trial chamber in Ćelebici also noted a “likely” causal link between the failure of a commander to punish past crimes and the commission of future crimes.6565 In Ćelebici, the ICTY chambers opened the door for a finding of superior responsibility where prior unresolved bad acts of subordinates are sufficient to put the commander on notice of the risks of future crimes, thereby triggering a duty to prevent. It also identified particular character traits and patterns of behavior that would tend to indicate the lawless nature of a commander’s troops, which may also prompt a legal duty to act. In other ICTY cases, the appeals chamber further explored the reason to know standard in conjunction with a superior’s duty to prevent.

In Prosecutor v. Krnojelac,6666

the appeals chamber broadened the possibility of command criminal liability when previous unaddressed misconduct escalates into more serious crimes. In that case, the court considered a situation in which a prison warden was charged under a theory of command responsibility for the torture of detainees by his subordinates. At issue was whether knowledge of prior unpunished prisoner mistreatment was sufficiently alarming information to put Milorad Krnojelac on notice of a future risk of torture by subordinates and a corresponding duty to prevent.6767 Torture, as interpreted by ICTY, requires a showing of the infliction of severe pain or suffering in order to obtain information or a confession, or to punish, intimidate or coerce the victim or another person, or to discriminate against the victim or another.6868

The Krnojelac appeals chamber rejected a formulaic approach to the reason to know standard advocated by the prosecution in that knowledge of a lesser included offense was automatically sufficient to create criminal liability over the subsequently committed greater offense.6969

Instead, the court reiterated its position in Ćelebici that sufficient information, even of a general nature, must have been possessed by Krnojelac that would have adequately put him on notice that there was a risk his subordinates would commit the act of torture.7070 The appeals chamber found such information in the underlying facts of the case: the warden knew that individuals were being detained solely because they were non-Serb; he was aware of the deplorable conditions at the prison; he knew that Muslim prisoners had suffered beatings and had otherwise been mistreated; and he had witnessed the beating of a prisoner after an escape attempt.7171 Knowledge of the mistreatment and discriminatory conduct was adequate to place Krnojelac on notice for the future risk of beatings being inflicted for one of the purposes outlined in the prohibition against torture, and make him criminally liable for failing to prevent that torture.7272 In short, Krnojelac had reason to know of the future occurrence of torture, and failed in his duty to prevent it.

In a case against Pavle Strugar, a high-ranking commander of the Yugoslav People’s Army,7373

ICTY further clarified the reason to know standard within the duty to prevent theory of command responsibility. Strugar was assessed criminal responsibility in the unlawful shelling of a town by subordinates, which resulted in civilian deaths and damage to cultural property.7474 Importantly, this was the second such incident that occurred under his command. The appeals chamber considered the following circumstances as controlling in its analysis: (1) Strugar had known of the military unit’s previous unlawful shelling of the same town; (2) the previous attack, which resulted in indiscriminate strikes, had gone unpunished; and (3) the subsequent ordered attack would likewise involve shelling.7575 In considering the duty Strugar had to re-enforce already-existing orders to prevent the unlawful shelling by his troops, the trial chamber had found it “very relevant” that the unit had widespread disciplinary problems, including “unauthorized opening of fire, refusal to carry out orders, looting, arson and drinking” in addition to “wanton arson and destruction of facilities, plundering, violent behavior, drunkenness and refusal to carry out orders.”7676 This generalized rule of law breakdown among his soldiers was a factor in the trial court’s satisfaction that Strugar was sufficiently on notice that his troops would likely violate orders again. Strugar was found criminally responsible for the subsequent shelling, as he had not heeded the numerous warning signs displayed by his soldiers and failed to adequately prevent the second instance of indiscriminate strikes.

In the Kubura case (Prosecutor v. Hadžihasanović7777

), the appeals chamber took a relatively narrow view of the reason to know standard in a commander’s duty to prevent war crimes. That case involved a commander who failed to address unlawful plunder committed by his subordinates, who then repeated the misconduct five months later.7878 In outlining the standard for command responsibility, the court reiterated that a superior’s failure to punish prior crimes is relevant to the determination of whether the superior possessed enough information that was “sufficiently alarming” to put the superior on notice that additional crimes might be likely in the future.7979 The appeals chamber noted that the failure of the commander to adequately address the first instance of plunder likely encouraged future misconduct.8080 In assessing Kubura’s liability for later repeated plunder, however, several considerations weighted against a finding of liability.8181 Much time had passed between the two instances.8282 Although the unlawful activities were widespread on both occasions, they were generally infrequent occurrences under Kubura’s command.8383 The two events also occurred more than 40 kilometers apart.8484 None of the other warning signs discussed in Strugar, including generally lawless actions and attitudes by subordinates, were evident in Kubura’s ranks. Therefore, the information available to Kubura did not sufficiently provide him a reason to know of the second instance of plunder.8585 The appeals chamber rejected the reasoning of the trial court that the previous unaddressed misconduct automatically subjected Kubura to command liability for failing to prevent the later crimes.8686 Familiarity with his subordinates’ previous incidents of plunder, while relevant, was not sufficient to give Kubura a reason to know of the future crimes, based on other surrounding circumstances.

Thus, while knowledge of past misconduct does not necessarily establish that a commander knew of the future misconduct, it can be sufficient to establish that the commander had a duty to prevent under the reason to know standard.8787

The specific circumstances of the case must be considered in any analysis.8888 Relevant to this consideration is whether the misconduct was of a nature to put the commander on notice that future similar actions were likely.8989 Evidence of the generalized lawlessness of subordinates, as shown in Strugar, is a relevant factor in this analysis. The fact that a commander failed to address the earlier known misconduct is instructive to the court because such inaction may be seen as acceptance or encouragement, and may serve to increase the risk of future crimes.9090 The reason to know and corresponding duty to prevent jurisprudence developed in the ICTY cases has similarly been followed by other ad hoc tribunals.

During an approximate one hundred-day period in 1994, in the midst of the Rwandan Civil War, the Hutu majority in Rwanda slaughtered between 800,000 and 1,000,000 Tutsis and moderate Hutus.9191

Maiming and rape were also widespread and accompanied the genocide.9292 In response, the U.N. established the International Criminal Tribunal for Rwanda (ICTR), based in Tanzania, to try Rwandan government and military officials responsible for these extensive war crimes.9393 Its jurisdiction is limited to acts committed in Rwanda or by Rwandan nationals in neighboring states during 1994 and covers three categories of crimes: genocide, crimes against humanity, and violations of Article 3 common to the 1949 Geneva Conventions and Additional Protocol II, which governs non-international armed conflicts.9494 The jurisdiction also extends to failures of omission by leaders when subordinates have committed one of the listed crimes, under a command responsibility theory.9595 The court has indicted 93 individuals since opening in 1995.9696

Like ICTY, ICTR uses a knew or had reason to know standard for command responsibility.9797

Its case law reflects a similar openness to consider prior unaddressed misconduct in a duty to prevent analysis. In Prosecutor v. Nahimana,9898 the tribunal considered the scope of this duty. Ferdinand Nahimana was co-founder of Radio Television Libre des Mille Collines—a Rwandan radio station.9999 He was prosecuted in the ICTR partly on the basis of superior responsibility, based on the radio station’s incitement of violence against Tutsis. According to the trial judgment, the broadcasts “engaged in ethnic stereotyping in a manner that promoted contempt and hatred for the Tutsi population” and advocated physical force.100100 According to evidence, Nahimana had received notice by a government office that his station had been broadcasting messages that advocated ethnic hatred and included false propaganda.101101 These factors contributed to the appeals court holding that Nahimana had, at a minimum, reason to know that radio broadcasters would likely incite serious crimes against that group.102102 He failed in his duty to prevent future misconduct and was found criminally responsible.103103 In this case, ICTR followed similar rulings from ICTY in finding knowledge of past unpunished wrongs giving rise to notice of future, escalating crimes.104104 Other tribunals have similarly interpreted the modern command responsibility doctrine.

The civil war in Sierra Leone raged from 1991 until 2002.105105

Rebel groups within Sierra Leone were bolstered by Liberian Special Forces at the behest of Liberian President Charles Taylor, and attempted to overthrow the Sierra Leone government. These groups forcibly recruited thousands of child soldiers and massacred tens of thousands of civilians, in addition to raping and maiming many more.106106 The U.N. established the Special Court for Sierra Leone (SCSL) in 2000 to prosecute war crimes related to these events. The court was a hybrid tribunal located in Sierra Leone and jointly run by that country’s government. It indicted a total of 13 persons and fulfilled its U.N. mandate in 2013, closing shortly thereafter.107107

Like ICTY and ICTR, SCSL used a knew or had reason to know standard for command responsibility.108108

The SCSL tribunal used guidance on the customary law standard of command responsibility as formulated in ICTY jurisprudence.109109 In a case involving criminal liability of a commander whose soldiers had committed widespread forced marriage, the SCSL appeals chamber drew an interesting link between criminal misconduct committed by subordinates and similar crimes occurring in the same geographic area by other soldiers:

Having reasonably found that RUF [Revolutionary United Front] fighters throughout Sierra Leone and specifically in Kono District were committing the crime of forced marriage . . . the commission of the crime was so widespread and obvious, that Kallon was on notice of the risk that similar crimes would be carried out by RUF members over whom he exercised effective control in Kono District, including Kissi Town.110110

110

Id. at ¶ 861.Hide

Criminal liability was upheld against Kallon for failing to prevent future crimes by his subordinates based on the knowledge that the misconduct was common among nearby troops.111111

Here the court relied on the broader operational context and prevailing norms to infer the likely behavior of a specific group of soldiers. It is possible, at least under this jurisprudence, for a commander to have reason to know a crime is about to be committed by subordinates, solely on the basis that such types of war crimes are so widespread in the conflict. In other words, a large-scale breakdown in the rule of law, which includes certain humanitarian violations, was sufficient notice to trigger a duty to prevent. The Kallon decision seems to reflect a broadening of the command responsibility framework as explored by ad hoc tribunal rulings.

The command responsibility of Additional Protocol I has not been uniformly adopted by other domestic and international courts. The International Criminal Court (ICC) is an example of one such venue. The ICC, created by treaty, has jurisdiction to try all war crimes as it defines them, including serious violations of the Geneva Conventions, genocide and crimes against humanity.112112

All 124 states party to the Rome Statute are subject to its jurisdiction.113113 The ICC is a court of last resort, and it is generally used when the internal state justice systems fail or are not appropriate.114114 To date, the ICC has considered twenty-three war crimes cases.115115

The Rome Statute outlines a unique mens rea standard for command responsibility. A military commander or person effectively acting as a military commander shall be criminally responsible for crimes within the jurisdiction of the court committed by forces under his or her effective command and control, or effective authority and control as the case may be, as a result of his or her failure to exercise control properly over such forces, where:

(i) That military commander or person either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes; and

(ii) That military commander or person failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.116116

116

Rome Statute, supra note 112, at art. 28(a) (emphasis added). The statute requires a stricter version of mens rea for civilian leaders. Id. at art. 28(b).Hide

The ICC standard is dissimilar to the customary law and Additional Protocol I standard used by the ad hoc courts in several important ways. First, the Rome Statute requires a causal nexus between a commander’s inaction and the subsequent war crime. Customary law, as interpreted by the ad hoc tribunals, requires no such causal relationship.117117

The causation requirement may pose a problem in assessing liability for a superior’s having permitted misconduct to go unchecked. By wording of the statute, the court would have to be satisfied that a punishment available to the superior would have been adequate to prevent the future crimes.

More importantly, the should have known language is vastly more expansive than the customary legal standard as interpreted by the ad hoc tribunals. The difference in definition was intentional by the drafters of the statute to ensure a higher degree of accountability than is required by customary international law.118118

The ICC has yet to fully explore the contours of this standard, however. In the Bemba case, the court was poised to make its first substantive pronouncement regarding the command responsibility provision in the Rome Statute. Bemba was the president of the Movement for the Liberation of Congo and served as commander in chief of the Armée de Libération du Congo.119119 His soldiers committed massive atrocities against the civilian population in the Central African Republic, including widespread pillaging, rape, and murder.120120 However, as the court found that Bemba had actual knowledge of war crimes being committed by subordinates, an exploration of the should have known standard was unnecessary.121121

Although the requirement for superiors to address past misconduct by subordinates is intended to aid in preventing future abuses, there is no requirement for a showing of causality under customary law.122122

The international tribunals have drawn a close relationship between failure to address misconduct and future humanitarian crimes.123123 However, in a commitment to ensure no element of causation is inserted into the command responsibility doctrine, courts have been careful to omit such a requirement of proof.124124 In other words, in neither cases of failure to punish nor failure to prevent is the prosecution required to show causation between the commander’s omission and the relevant crimes committed by subordinates. It would be illogical, in fact, to require causation in a failure to punish case, as the omission by the commander after the incident bears no causal connection to the original crime perpetrated by the subordinate.

In cases of failing to prevent, courts have been clear that information tending to put the superior on notice of the future risk of crimes triggers the requirement to investigate and prevent. This is consistent with the ICRC commentary’s guidance that knowledge of a subordinate’s lack of training on the law of war, for example, is instructive information for which the commander cannot plead ignorance, and is relevant in a command responsibility analysis. In other words, both previous unpunished misconduct and the failure to train soldiers adequately provide warning signs that future bad acts may occur. It is not the failure to rectify past misconduct itself that gives rise to liability under failure to prevent, but the superior’s knowledge of it and the fact that it makes future bad acts more likely.

International case law is nuanced and fact-specific on the issue of appropriate sentencing for superiors found criminally liable under the theory of command responsibility. Historically, courts have ascribed full liability for the actual war crimes committed by a subordinate to the commander under this doctrine. In the modern ad hoc tribunals, this practice has been largely followed, but some case law is mixed.125125

The standard for determining an appropriate punishment for leaders is twofold: a consideration both of the seriousness of the underlying war crime, and the gravity of the leaders’ involvement.126126 Some international courts have stated that superiors should bear a heavier sentence for their role in war crimes because of the high level of responsibility that customary law places on them.127127 Even in cases involving a commander’s omissions, the ad hoc tribunals have ascribed full criminal culpability for the underlying crimes.128128 However, several tribunals have rejected this level of liability for commanders who failed to act in particular circumstances.129129 In these cases, criminal liability still attached under the command responsibility doctrine for the failure, but the mode of liability was through something akin to dereliction of duty.130130

Because of the nature of the superior’s breach and the relative gravity of its consequences, courts have stated that some instances of command omission warrant disciplinary sanctions, rather than criminal punishment.131131

As for conduct by a superior that falls short of statutory and customary law standards of command responsibility, the ad hoc courts have fervently maintained that it would be unfair to hold such a person criminally liable.132132 Omissions by superiors falling short of the standard as outlined by the international tribunals may also still be subject to disciplinary action for failing to abide by Additional Protocol I Article 87.133133

Although international tribunals have recognized a relatively inclusive scope of superior criminal liability in humanitarian abuses, the U.S. has not shown a similar tendency in prosecution of its own service members. War crimes trials from the Vietnam War era highlight a troubling trend in U.S. domestic application of the Geneva Conventions. In March 1968, a company of U.S. soldiers massacred the village of Son My, Vietnam—marked as My Lai on Army maps—intentionally killing approximately 350 unarmed civilians, many of them women and children.134134

Although over a dozen service members were initially charged with the murders, only one, First Lieutenant William Calley, was convicted. Calley had personally shot dozens of civilians, and had ordered his soldiers to line up and execute dozens more.135135 He was found guilty of the premeditated murder of over twenty persons and sentenced to life in prison at court martial.136136 However, President Nixon had Calley released from armed custody two days later, and put under house arrest pending his appeal, which was later unsuccessful in military court. In 1971, Calley's sentence was reduced by a military commander to twenty years of confinement. He would eventually only serve three-and-a-half years under house arrest, because his sentence was further reduced by the Secretary of the Army in 1974.137137

Calley’s commanding officer, Captain Ernest Medina, was originally charged with intentional murder under a theory of command responsibility.138138

The prosecution argued that he was in constant radio contact with the unit while the atrocities were taking place and knew that his men were firing on a village that had failed to return any fire in kind.139139 Charges against Medina were reduced to manslaughter by the trial judge.140140 To support the manslaughter charge, the prosecution had to prove that Medina had a legal duty to prevent the killings, a duty not clearly articulated by military law.141141 Medina was ultimately acquitted of all charges at his court martial.142142 Many critics point to My Lai as the quintessential example of partiality in the military justice system when meting out justice to American soldiers—the reluctance of military commanders, jury panels and high-ranking officials to punish soldiers for crimes committed in warzones. 143143

The trial judge’s instructions in Medina’s case regarding command responsibility for the atrocities are particularly telling:

[A]s a general principle of military law and custom a military superior in command is responsible for and required, in the performance of his command duties, to make certain the proper performance by his subordinates of their duties assigned by him. In other words, after taking action or issuing an order, a commander must remain alert and make timely adjustments as required by a changing situation. Furthermore, a commander is also responsible if he has actual knowledge that the troops or other persons subject to his control are in the process of committing or are about to commit a war crime and he wrongfully fails to take the necessary and reasonable steps to inure compliance with the law of war. You will observe that these legal requirements placed upon a commander require actual knowledge plus a wrongful failure to act . . . While it is not necessary that a commander actually see an atrocity being committed, it is essential that he know that his subordinates are in the process of committing atrocities or are about to commit atrocities.144144

144

United States v. Medina, C.M. 427162 (1971), reprinted in Kenneth A. Howard, Command Responsibility for War Crimes, 21 J. Pub. L. 7, 16 (1972) (emphasis added).Hide

The judge thus used an actual knowledge standard for command responsibility under the failure to prevent doctrine, rather than a reason to know standard as used by modern international courts. Since that time, it has been suggested that the test as articulated in Medina may partly explain why so few military leaders were criminally punished for war crimes occurring in the Vietnam era.145145

The prosecution of Ernest Medina highlights a troubling contradiction in the U.S.’s standard for prosecuting cases under a theory of command responsibility.146146

Although military warfare doctrine outlines quite broad categories of conduct that may subject leaders to liability, this standard is not reflected in the Uniform Code of Military Justice (UCMJ)—the criminal law to which all U.S. military personnel are subject.147147 According to the doctrinal military field manual that explains the contours of command responsibility for U.S. Army officers:

In some cases, military commanders may be responsible for war crimes committed by subordinate members of the armed forces, or other persons subject to their control. Thus, for instance, when troops commit massacres and atrocities against the civilian population of occupied territory or against prisoners of war, the responsibility may rest not only with the actual perpetrators but also with the commander. Such a responsibility arises directly when the acts in question have been committed in pursuance of an order of the commander concerned. The commander is also responsible if he has actual knowledge, or should have knowledge, through reports received by him or through other means, that troops or other persons subject to his control are about to commit or have committed a war crime and he fails to take the necessary and reasonable steps to ensure compliance with the law of war or to punish violators thereof.148148

148

U.S. Dep’t of the Army, Field Manual 27-10, The Law of Land Warfare, ¶ 501 (1956), https://perma.cc/52HC-AP47[hereinafter Field Manual] (emphasis added). Hide

The Army Field Manual—still in effect—effectively adopts a broad standard of command responsibility that exceeds even international custom. Problematically, however, the manual is itself not a basis for punitive action. The UCMJ, under which the U.S. prosecutes war crimes committed by its own service members, is relatively silent on the issue of command responsibility. Instead, culpability under this theory must be charged as a separate crime, with the element of command responsibility “bootstrapped” in.149149

Importantly, the UCMJ does not allow for a prosecution based on superior omission for the actual crime committed by a subordinate. Article 77 of the UCMJ outlines the requirements to charge someone as a principal to a crime:

Any person punishable under this chapter who—

(1) commits an offense punishable by this chapter, or aids, abets, counsels, commands, or procures its commission; or

(2) causes an act to be done which if directly performed by him would be punishable by this chapter; is a principal.150150

150

10 U.S.C. § 877 (1956). The president has authority to make rules and regulations regarding the UCMJ. 10 U.S.C. § 836 (2006). These rules are set forth in the Manual for Courts Martial. The Manual for Courts Martial, which incorporates statutory definitions of military crimes, states that, regarding a principal: “[i]n some circumstances, inaction may make one liable as a party, where there is a duty to act. If a person (for example, a security guard) has a duty to inter­fere in the commission of an offense, but does not interfere, that person is a party to the crime if such a noninterference is intended to and does operate as an aid or encouragement to the actual perpetrator.” Dep’t of Def., Manual for Courts Martial §1(b)(2)(a) (2012), https://perma.cc/RD98-FKPM[hereinafter MCM]. To qualify under a “duty to act” standard, then, requires intent. Even if it were clear that leaders did have a legal duty to act in law of war violations by subordinates, the “intent” requirement makes this standard ill-fitting for command responsibility failures of omission.  Hide

A person who qualifies as a principal under this framework can be charged and sentenced exactly as the person who physically committed the crime.151151

However, the elements as written would not allow for a prosecution under a theory of superior responsibility by omission. The mens rea requirement to be charged as a principal in the UCMJ context is much higher than is reflected in international command responsibility doctrine, and requires more than knowing about misconduct, or having reason to know of it. An American commander cannot be charged as a principal—which carries the same potential sentence as the actual perpetrator of the crime—under a knew, had reason to know, or should have known standard. The inability to hold a commander fully culpable for a serious war crime, in the case where that superior knew about yet failed to prevent it, is inconsistent with historical practice and modern international jurisprudence.

There are other potential charges that a leader may face based on the theory of command responsibility under the UCMJ. A military leader who fails to prevent a war crime committed by subordinates may, for example, be criminally charged with dereliction of duty,152152

or failing to follow an order or regulation.153153 However, these offenses carry vastly lower criminal penalties than does acting as a principal to a crime.154154 The mens rea for these offenses is also not consistent with international custom regarding command responsibility. For instance, the dereliction of duty charge requires that the perpetrator knew or reasonably knew of a duty to act.155155 It is not sufficient under this framework that a leader had reason to know of a crime about to be committed and failed to prevent it. And none of these offenses specifically incorporate a command responsibility theory of culpability. It is unlikely that a pattern of unaddressed misconduct by subordinates could ever form the basis for a true failure to prevent theory of prosecution under the UCMJ. Where superiors facing trial at international ad hoc tribunals have received sentences commensurate with the underlying crimes committed by subordinates based on a command responsibility through omission theory, the same does not seem possible for U.S. military members.

Compounding the shortfalls in U.S. military law for holding commanders fully accountable for failures to act is a position taken by high-ranking officials regarding a recent humanitarian tragedy. In the early morning of October 2, 2015, an American AC-130 gunship fired multiple times on the Médicins Sans Frontières (MSF) hospital in Kunduz, Afghanistan.156156

Lasting over 30 minutes, the attack killed forty-two patients, staff, and caretakers and injured dozens more.157157 The military’s internal investigation noted numerous failures, both mechanical and human, that contributed to the catastrophic incident.158158 These included an accelerated departure for the aircraft because of an emergency threat, multiple equipment failures, as well as poor communication, coordination and situational awareness by the air and ground crews.159159 Specifically, service personnel failed to abide by the cardinal rule of distinction mandated by the Geneva Conventions—they failed to visually identify the target of the attack and neglected to distinguish between combatants and civilians. Nonetheless, the U.S. military did not deem it a war crime, noting that:

[C]ertain personnel failed to comply with the rules of engagement and the law of armed conflict. However, the investigation did not conclude that these failures amounted to a war crime. The label “war crimes” is typically reserved for intentional acts—intentionally targeting civilians or intentionally targeting protected objects. The investigation found that the tragic incident resulted from a combination of unintentional human errors and equipment failures, and that none of the personnel knew that they were striking a medical facility.160160

160

Id. at 2. Hide

No criminal charges were filed as a result of the incident, although some personnel did receive adverse disciplinary actions.161161

Many reacted to this outcome with incredulity.162162 Especially concerning is the definition of “war crimes” used in the report, as it is directly at odds with U.S. military doctrine. Army Field Manual 27-10 defines war crimes quite broadly as the “technical expression for a violation of the law of war by any person or persons, military or civilian.”163163 It further states that every violation of the law of war is a war crime.164164

The official report on Kunduz indicates that the U.S. may be generally unwilling to criminally prosecute law of war violations that are non-intentional. This position casts doubt on future war crimes prosecutions based on command responsibility failures to punish or prevent.

Contrary to the stated standard in the Kunduz report, the international understanding of the term “war crime” is generally not limited to intentional acts.165165

International tribunals, including those described above, have found persons criminally responsible for reckless conduct and failures to act.166166 The term “war crime” itself is relatively unhelpful in discussing international standards of prosecution as it carries different meanings across national boundaries and legal frameworks.167167 As mentioned above, the charters for ad hoc tribunals outline the types of war crimes over which the tribunal has jurisdiction, generally described as “serious violations of the law of war.”

The Geneva Conventions mandate that some violations of the laws of war be criminally prosecuted by signatory states.168168

The enforcement requirement hinges on whether the underlying misconduct qualifies as a “grave breach,” which includes murder, torture, causing great suffering or injury, inhuman treatment, conducting medical experiments, and other bad acts.169169 The commission of a grave breach triggers certain obligations for member states, namely: the obligation to pass laws criminalizing grave breaches; the requirement to actively search for any person accused of a grave breach; and the obligation to prosecute such a person (or, alternatively, extradite and allow prosecution by another nation).170170 A failure in command responsibility does not specifically qualify as a grave breach.

For violations that do not amount to grave breaches, or so-called “simple breaches,” including all other violations of the Geneva Conventions, nations have the duty to “take measures necessary for the suppression of such acts.”171171

Article 86 of Additional Protocol I dictates that states are to “take measures necessary to suppress all other breaches, of the [Geneva] Conventions or this Protocol which result from a failure to act when under a duty to do so.”172172 This may include a criminal prosecution, but could also include something less severe such as adverse disciplinary action. Command responsibility failures of omission, regardless of whether the subordinate’s underlying crime was a grave breach, do not trigger a duty to prosecute on behalf of the state. They do, however, trigger a duty to suppress. The duties to prosecute or suppress are considered customary law in both international and non-international armed conflicts.173173

Although the U.S. does not violate its treaty obligations when it fails to prosecute commanders in failing to prevent war crimes, the framework of the UCMJ which disallows prosecution on the basis of principal culpability, and a state practice of not prosecuting unintentional war crimes, makes the country fall far short of international norms and practice. The U.S. standard for command responsibility for its own soldiers is also markedly different from the criminal standard used for enemy combatants.

The U.S. used military commissions quite liberally throughout the European and Pacific theaters to try lower-level war criminals following WWII.174174

The Geneva Conventions themselves contemplate member states using military commissions to try prisoners of war.175175 Since the advent of the War on Terror, public attention has increasingly focused on the U.S. military’s contemporary use of military commissions for enemy combatants. Beginning shortly after its invasion of Afghanistan, the U.S. detained hundreds of detainees at the Guantanamo Bay Naval Base in Cuba. As of 2017, the U.S. military has completed five commission cases.176176 Six cases are currently pending, including the prosecution of Khalid Shaikh Muhammad (KSM), alleged mastermind of 9/11.177177

Procedures for military commissions have varied greatly over time. Evidentiary rules and sentencing limitations at the WWII-era commissions may be characterized as quite relaxed,178178

whereas the procedures used at the Guantanamo Bay Commissions are currently similar to those of courts martial as delineated by the UCMJ.179179 Interestingly, however, the standard for command responsibility for those tried at military commissions differs significantly from that used for domestic prosecutions of U.S. service members. In the regulations governing the current military commissions, a “principal” to a war crime includes “a superior commander who, with regard to acts punishable by this chapter, knew, had reason to know, or should have known, that a subordinate was about to commit such acts or had done so and who failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.”180180 Such a superior may be subject to the full criminal liability of the offense, as much as the actual perpetrator. The U.S. legal standard for command responsibility in tribunals for enemy combatants seems, along with the ICC definition, to be one of the most expansive.181181 Conversely, as discussed above, the U.S. standard for prosecuting its own service members as principals to a crime is much more restrictive.182182 It is difficult to reconcile the conflict between these two standards.

The standard of command liability pertaining to the duty to prevent war crimes is particularly important in the context of rule of law breakdowns. Bad actions that do not themselves constitute law of war violations may nonetheless play a role in the emergence of more serious crimes. The importance of maintaining a command climate that quickly responds to minor misconduct cannot be denied.183183

Stretching back years before the advent of modern psychology, behavioral science, or “broken windows theory,” military leaders and scholars have consistently espoused the importance of maintaining a high level of discipline among troops.184184 Although usually couched in terms of battlefield success, this priority is also evidently essential to ensuring that soldiers uphold high standards of conduct and obey humanitarian precepts. As postulated in the ad hoc tribunals, when a leader fails to punish bad deeds, that inaction can serve to encourage other subordinates to similarly take part in misconduct.

Military units can form their own moral norms, especially when isolated in a deployed environment.185185

In a highly stressful environment such as combat, soldiers may be more likely to choose loyalty to their friends and comrades over obedience to the larger organization.186186 Unit norms become an even more powerful force when there are unclear rules governing conduct or when there is a weak chain of command.187187 Unaddressed misconduct can nurture an atmosphere of lawlessness, negatively affecting the behavior of other unit members.188188 Compounding the problem, service members may come to believe that the emerging attitudes and behaviors are optimal to accomplish a military function or mission.189189 For example, a soldier may come to believe that mistreating a detainee is helpful to the military’s war-fighting mission, or will help to save the lives of fellow soldiers.190190 Thus, a service member’s actions, even if repugnant, become morally justifiable through the eyes of the service member.191191 Patterns of misconduct from military deployments confirm the notion of unit-wide influences on behavior. In documented court cases from overseas operations, it is more common that soldiers commit law of war violations in groups than in isolation.192192

Maintaining the strict observance of good order and discipline is particularly important when the underlying misconduct tends to dehumanize detainees or civilians in the battle space. The notion of dehumanization is central to understanding soldier abuses and law of war violations. Dehumanization occurs when people view others as being outside of the human moral order.193193

The idea has been instrumental in understanding the nature of prejudice and racism,194194 as well as the abhorrent actions of relatively normal people involved in the Holocaust, Rwandan genocide, and other atrocities.195195 The use of degrading and derogatory language, especially, tends to facilitate violence against individuals and groups of persons.196196 Such disparaging language against local nationals is often prohibited by U.S. military regulation in combat zones, and may subject a service member to disciplinary measures.197197 Research has shown that individuals are likely to treat “dehumanized” subjects more aggressively than non-dehumanized persons.198198 In this way, the dehumanization of persons can be cyclical and may lead to further escalation of abusive conduct.

In understanding the unique social dynamics at work in the military operational context, the relationship to the process of dehumanization, and the unique risks at issue, it is instructive to look at analogous patterns in law enforcement organizations. There does appear to be a strong link between the breakdown of the institutional rule of law, dehumanizing behavior, and the outbreak of police misconduct. The Christopher Commission was formed in 1991 to investigate the inner workings of the Los Angeles Police Department (LAPD) in the wake of the Rodney King beating. The commission discovered that overall, the interactions between LAPD officers and citizens were “overly contentious and violent” due to the organizational factors at work.199199

One of the commission’s findings was that the department leadership had allowed widespread “crude, violent and racist language and attitudes” among the officers, in violation of a department policy against racist practices. 200200 The commission proposed a link between the acceptance of this behavior, and the violence towards racial minorities and gay citizens that officers displayed while on duty.201201 These attitudes and behaviors went unchecked by the “deliberate indifference” of LAPD leadership.202202 As a result, law enforcement officers faced little deterrence in engaging in bad behavior, as these actions were seen as acceptable by superiors. The investigation highlighted a slippery slope of unethical behavior, rooted in dehumanizing language and attitudes, that culminated in full-blown physical violence against certain groups.203203 This phenomenon can be seen as a gradual erosion of the rule of law, widespread dehumanization of persons, and an accompanying rise of humanitarian abuses.

The erosion of the rule of law, then, has two compounding effects on military units in combat. When commanders fail to punish misconduct by subordinates, it tends to encourage future misbehavior by other soldiers, and may have the effect of allowing unit norms to degrade. Secondly, when the underlying misconduct involves dehumanizing attitudes, words, or actions, the result may be more widespread or more escalated personal abuses. The investigation into the unit from the My Lai massacre, for example, revealed many problems that were evident before the incident, including unit norms that permitted soldiers to beat and threaten others and grope local women.204204

It was common for personnel in the unit to refer to Vietnamese nationals in racially disparaging terms.205205 Moreover, a number of soldiers from the unit were involved in illegal acts against Vietnamese individuals prior to the My Lai incident.206206 These acts included mistreatment, rape and possible murder, and were met with no negative repercussions.207207 As in the LAPD example, the unit appeared to be influenced by the rampant dehumanizing acts of others and the corruption of group norms. Failure to exercise adequate discipline by superiors allowed this unchecked behavior to continue and escalate.

More modern examples further illustrate this pattern. For example, the self-proclaimed “Kill Team,” a group of U.S. Army soldiers who murdered multiple unarmed Afghan civilians in 2010, was rife with illicit drug use, and unit service members commonly referred to local nationals as “savages” prior to the commission of the crimes.208208

Similarly, rampant drug abuse and the frequent use of racially disparaging terms were predecessors to the 2006 rape and murder of an Iraqi girl, and the slaying of her family—acts that were committed by several U.S. service members.209209 Other wartime atrocities in Iraq, including the murders in Haditha, confirm the notion that unchecked dehumanizing conduct towards civilians often precedes later humanitarian violations.210210 These findings highlight the essential role of leaders in suppressing misconduct, particularly actions that have the effect of dehumanizing others, and the role this unaddressed behavior can play in the commission of more serious war crimes. This phenomenon can also be illustrated by the war crimes committed at Abu Ghraib.

Perhaps the most notorious instance of humanitarian abuse committed during the war on terror was the torture at Abu Ghraib. In 2003, news outlets began reporting on the inhumane conditions of Abu Ghraib prison in Iraq. Pictures released months later revealed the horrific extent of the abuse of Iraqi detainees by U.S. soldiers.211211

Investigations showed that soldiers had physically and sexually abused male and female detainees at the prison. Eleven soldiers were eventually convicted at court martial for their actions, most receiving sentences between six months and ten years of confinement and dishonorable discharges.212212 Several officers within the chain of command were also relieved of duty, reduced in rank and reprimanded.213213 Only one officer was criminally charged for the torture at Abu Ghraib for failing to train and supervise the soldiers involved.214214 He was later convicted for failing to obey an order, and punished with a formal reprimand.215215

The degradation of the rule of law was both a cause and effect of the torture that occurred at Abu Ghraib prison. According to detailed investigations conducted by the Army, the reserve Military Police (MP) unit at the center of the most serious abuses at Abu Ghraib was riddled with serious command and culture problems.216216

The MP guards did not receive adequate training on the Geneva Conventions, had unclear standing operating procedures for detention operations, and also lacked an involved chain of command.217217 There was widespread lack of respect for a senior female commander, as well as dangerous, overcrowded and filthy living conditions.218218 Enforcement of military standards had been lax—it was common for unit members to wear improper or incomplete uniforms and display undue familiarity between soldiers of different rank.219219 There was also frequent sexual activity between soldiers, in direct violation of Army rules,220220 and at least one on-going adulterous affair between guards.221221 Other MPs were eventually reprimanded for gratuitously firing their weapons, unintentionally hitting a fuel tank.222222 One officer took nude photos of his female soldiers without their permission.223223 An investigator described the situation as analogous to Animal House.224224 According to an official investigation, the unit did not “articulate or enforce clear and basic Soldier and Army standards.”225225 Moreover, leaders failed to take corrective actions when needed.226226

The MP guards were in frequent contact with Military Intelligence, CIA personnel and contracted interrogators who regularly used humiliating, degrading and abusive tactics when dealing with detainees.227227

These outsiders would also request help from the MPs in their dealings with detainees.228228 The intelligence and interrogation teams were not in the chain of command of the MPs, yet perhaps had a disproportionate effect on them. The teams allowed the guards to view some of their interrogations, though it was not allowed by military policy.229229 Detainees were frequently stripped of clothes, thus inculcating a dehumanizing atmosphere.230230 A military investigation stated that, among the guards, witnessing the abuses by interrogation teams spurred “speculation and resentment . . . out of a lack of personal responsibility, of some people being above the laws and regulations . . . . The resentment contributed to the unhealthy environment that existed at Abu Ghraib.”231231 This general breakdown in the rule of law, characterized by frequent humanitarian abuses and a general aura of lawlessness almost certainly affected the MPs, who later committed the atrocious acts of physical and sexual abuse against detainees.232232 By failing to address the widespread disciplinary problems within the unit and abusive conduct by outside actors, leaders opened the door for more egregious conduct. Unfortunately, they were not adequately held criminally responsible for failing to prevent the resulting instances of torture.

A generalized breakdown in the rule of law within a military unit, when unaddressed, increases the risk of more, and potentially escalating misconduct among service members. The concern is particularly strong when the underlying misconduct involves acts that may tend to dehumanize civilians on the battlespace, or enemy detainees. The command responsibility provision of Additional Protocol I, and similar statutory constructions as used in the ad hoc tribunals, do offer a means to punish superiors for failing to prevent war crimes after previous unaddressed instances of bad behavior among soldiers. These prior bad acts may be dehumanizing or otherwise tend to degrade group conduct. As applied by the tribunals, the command responsibility doctrine constitutes a forceful deterrent for negligence by commanders in disciplinary matters.

Under Additional Protocol I and the tribunal statutes, superiors must have a reason to know that law of war violations will be committed by subordinates in order to have a legal duty to act. As interpreted by the international tribunals, a duty to prevent is triggered when a leader has information which is “sufficiently alarming” to put the superior on notice that the future commission of a violation of the law of war by a subordinate is likely.233233

Through various holdings, these courts have stated that knowledge of prior unpunished misconduct may, in some circumstances, constitute sufficient notice. Examples from ICTY jurisprudence include the prior indiscriminate shelling of an area by soldiers that went unaddressed and triggered criminal liability when the superior ordered a subsequent attack by the same soldiers.234234 Generalized lawless attitudes and behavior by subordinates have also been relevant considerations for tribunals.235235 Importantly, disciplinary problems such as failing to follow orders, the unauthorized firing of weapons, looting, and arson may also indicate the future commissions of war crimes.236236 Additional factors include whether soldiers have been drinking prior to a mission or have a violent or unstable character.237237 In one case, a commander was held criminally responsible for torture committed by subordinates when he failed to address prior reports of prisoner mistreatment and discriminatory conduct.238238 An ICTR case identified criminal culpability when a superior ignored escalating dehumanizing and inciting language by radio journalists.239239 In Kallon, the SCSL appeals tribunal affirmed a finding that knowledge of widespread humanitarian abuse committed by soldiers outside of a unit was sufficient to put a commander on notice that subordinate soldiers were at risk for the same behavior.240240 Additionally, the tribunals have been willing to adopt ICRC guidance that information regarding soldiers’ inadequate training on the law of war and tactical considerations should be considered in this analysis.241241

Taken together, these guidelines appear to anticipate a wide range of conduct which may indicate a breakdown in the rule of law and put a commander on notice of future crimes. More specifically, general lawless conduct, including low-level infractions and dehumanizing behavior, such as mistreatment of prisoners, is potentially sufficient to support a charge under the duty to prevent theory of command responsibility, as established by the relevant international jurisprudence. Although yet unexplored by the court, the Rome Statute gives the ICC even broader authority to criminally sanction superiors who fail to heed disciplinary warning signs that subordinates may commit future war crimes.

These international courts have been willing, however, to set limits on types of prior bad acts that are adequate to put a commander on notice. In Kubura, the ICTY appeals tribunal noted that knowledge of one occasion of plunder committed by subordinates did not warrant criminal liability on the part of the commander for failure to prevent, when the second incident of plunder was separated by both time and geography.242242

Isolated incidents, such as the example in Kubura, are unlikely to constitute adequate warning for a superior—a rational limitation considering the mens rea requirement for criminal culpability. Furthermore, in Krnojelac, the ICTY appeals chamber was careful to lay out the wide-ranging and escalating abuses that gave rise to the presumed notice of the future torture of detainees.243243 There, the chamber rejected an absolutist approach that knowledge of any prisoner’s mistreatment would trigger a reason to know duty to prevent torture, without an indication of some prohibited purpose. The tribunals have been careful to outline the individual factors at play that give superiors a reason to know of future crimes, all of which are fact and situation-specific.

No language from these holdings indicates that the prior misconduct in question must include violations of the law of war in order to qualify as sufficient notice. In fact, these decisions indicate that low-level misconduct such as drinking and general disobedience can be meaningful considerations. However, in all of these tribunal cases, the prior bad acts did include law of war violations. This fact may be partly based on the premise that the international courts have been primarily concerned with defendants who were involved in multiple egregious wartime atrocities. The ad hoc tribunals have yet to decide a case that explores the limits of prior misconduct, which are solely constituted by bad acts that do not violate the laws and customs of war. These bad acts may include drinking, violations of military orders, using racially disparaging language, or other generally offensive conduct. It is unclear to what extent, and in what situations, these types of misconduct would be sufficient, in themselves, to put a commander on notice of future crimes, thereby triggering a duty to prevent.

Unfortunately, the U.S. standard for command responsibility, as nominally codified in the UCMJ, does not seem at all adequate in capturing the dangers of an eroding rule of law. The U.S. domestic practice fails to appreciate the serious potential repercussions of ignoring disciplinary breakdowns, especially when they involve dehumanizing conduct by service members. Dereliction of duty, the most apt charge, carries a maximum punishment of only six months of confinement.244244

Based on recent comments by officials, moreover, it is unclear to what extent the U.S. military will be willing to criminally prosecute leadership crimes of omission in the future. This is juxtaposed with official U.S. Army doctrine, which, at least in theory, dictates a quite expansive view of superior culpability.

This article has been particularly concerned with superiors’ failure to prevent war crimes following a degradation of the rule of law. Customary international humanitarian law, as interpreted by the ad hoc tribunals, offers an effective framework for accountability over superiors who fail to heed warning signs that undisciplined subordinates will continue to take part in criminal misconduct and potentially escalate their unlawful behavior. The framework may be used to attach liability to commanders who ignore activities that tend to degrade or dehumanize civilians or prisoners, although such conduct might not, in itself, be subject to a duty to punish. International tribunals appear largely willing to criminally sanction superiors who ignore deteriorating conditions within units due to the serious corrosion of good order and discipline.

Where the U.S. has shown a willingness in recent years to criminally prosecute superiors who directly order subordinates to commit intentional war crimes,245245

the same cannot be said for leaders who commit crimes of omission. U.S. law and practice, in fact, do not adequately account for the potential for escalating misbehavior within a unit, which commanders are uniquely positioned to halt. Although international doctrine and tribunal rulings have recognized this potential through generally inclusive mens rea definitions for criminal command liability, the U.S. has not, at least not when American service members are involved. By neglecting to establish robust standards for command responsibility in failure to prevent crimes, the U.S. military has lost an opportunity to emphasize the importance of vigilance towards dehumanizing conduct and rule of law breakdowns while in positions of authority. At present, U.S. practice is inadequate in setting strong criminal disincentives to maintain law and order within units in combat environments.