Command Criminal Reeponsibility: A Plea for a Workable Standard

• Author: By Colonel William G. Eckhardt
• Pages: 01

PREFACE

A melor rermor. ai the law of war is tn process. The unusual timing of Matoncd and pol:tical exenis reqxer AIUQI~C~IMto seek a practica! anicilsrion of rhc standard of behanor expected of :hex combsr c o n mw.ders P.e purpose of this micle 1s to constm~r~~el~ panicipate tnthat search

The cornerstone of militan professionahem ie professional cor.duct on the Dattkfield The MlCda1,on of lhar pmfeselond cotduct. m adinion to undQrXOMg the legirmacr of rhe honorable prO!Qssion of m s . would 5bdd commzders fmm vn1u:ored. polirieally morivared allega. tmns oi war c~mesand more ~mpcantly would al!ow the reaching of expeered cocdurr and rhus prevent ~nstirtlon-erttlning m1scond:c: An ex~mlnarlon of rhe cwrfnt and the propad nex standards reveal ar.alarmrr.gly vnserrred and dangeroualp manieulated expression of :he most basic soc:al conrraer 'xireen a so!tcer and rhe citnen~he *ne6

This a.trele con3111 ;!el a plea for soldters to aniculate rhe esaectia. in. gredienw oi rherr pra!emor. and thus return m a cenml role In con. rrolhng ltb d e s Lavers are edmon:shed to "do their dury' aid an:cu.

lately complete the coupling between international and domestic stand. ards. Productive dialogue between commanders and lawyers is stressed. and the need for reordering our training regarding professional conduct on the battlefield is recognized. The hwanitanan and the soldier must "get in step." The more profewional our m e d forces. the more likely that the goals of the humanitarian will be served. I. INTRODUCTION

The war crimes trials of World War n are becoming a part of the history tmks. Nearly ten years have past since the height of the divisive Vietnam conflict. In a process made more difficult by the ideological divisions of the modem world. over one hundred nations under the auspices of the International Committee of the Red Cross participated in drafting proposed new Protocols to the 1949 Geneva Conventions.' A major revmon of the law of war is in process. The unusual timing of hie torical and political events requires us to seek a practical articulation of the standard of beha~oron the battlefield expected of American sol.diers.

Such a standard is the most basic of social contracts It is an attempt to reconcile military needs wth the requirements of humanity. Its ex. pression, ta be effective. must reflect the collective conseience of mankind. It must include implementation of international obligations; its aim will be to force certsin behavior. Practically, it IS a welding point where the raw use of power is joined with the political objective. This standard of combat behavior will unfortunately be written in legal Ian.@age since ultimately it must be enforced by criminal sanctions. Its ex. pression 1s the ultimate test for mibtary discipiine. A standard that is expresred with certainty, with authority, with concensus, and with directness is the foundation for effective training. A properly articulated and understaod standard allows the teaching and preventive functions of the lsw to be appropriately exercised. Such a standard is the vehicle for discussion of the ethical and moral considerations of war. In short.

L

U S Dep't 01 Army, Pamphlet No 27-1-1,

Protatole fo the Gems Conventions of 12Avgusf 1949.p 122 (1979)

[heramafter oted a$ DA Pam 27-1-1,

Protocalel

The Diplamatlc Conference on the Reaffirmation and Development af Interna.tmsl Humsnmnan Law Applicable 10 Armed Conflicur, canrend by the Svlss Federal Couned held four ses~ions m Geneva (from 20 February ta 28 March 1974 from 3 February to 18 April 1976 from 21 Apnl to 11 June 1976 and from 17 Much Lo 10 June 1977) The object of rhe Conference was to study LWD draft Additional Protoeole prepared, sfter affielal and private cansdtatlons, by the In-ternational Commaroe of the Red Crods and intended to supplement the FourGeneva Conventions of 12 Aum8f 1949Id (Thr.pamphlercantain,ihereriofthaPraroeoli 1

an agreed upon standard is the cornerstone for the application of rea- mned moral judgment and the rule of law on the battlefield.

Through the friction and fog of war, it is primarily the authority of the commander which gets things done. Statel, soldiers, and mtizens trust their "ali" to him. Never has so much been expected of a commander. Modern technology demands an almost instantaneous conslderation of milita~necessity, humanity, and chivalry. He must distinguish relevant from irrelevant targets, seeking only the destruction of legitimate objective, He is expected to perform the Solomon-like task of proportioning the amount of military destruction with the military value of the objective. The voices of humanity remind a commander that war is a palitical weapon. Gratuitous unnecessary suffenng or destruction is irrele. "ant to his military purpose and often counter-productive. Somehow he

1s to divine the least coercive method. Adding to the complexity, are the remanents of chvalry or professional courtesy which impose upon a rep. resentative of a proud mllitary profession lineage and tradition which have their own imperatives.

Prior to World War 11, legal standards for commanders were practical articulation of the accepted practice of military professionals Thls CUB-tarnary international law expressed soldier's standards whlch were born on the battlefield and not standards imposed upon them by dilettantes of a different discipline Undoubtedly, the practicality of these rules led to their general acceptance which in turn was responsible far their codification. Such practical rules were understood and enforced. Following the war crimes trials at the conclus~on of World War 11. polmcal im. plications intruded into what had previously been a largely apolitical area. The very words "war cnmes" became politically repulsive. Coun. tries such as the United States. while upholding their intematlonal obligations, refused tc label misconduct an the battlefield war crimes if it could be handled domestically under some common law crime Breaches of international standards were treated a8 internal disciplinary matters. Legal standards, appearing under the commonly used label, law of war, became more idealized and less practical. Apolitical soldiers, sensing a political pitfall, begah t5 shun what was once the accepted practice of professionals. Modern law of war is driven by an idealistic internatland. ly minded community The soldier 8ees his iron law of war sweetened, lawyerned, poiiticalized, third world-ired, and made much less prsctical

If the international standard is Inarticulate, then certainly a soldier should expect his domestic standard ultimately expressed in the Unl. form Code of Military Justice to practically assist him The movement on the domestic law side has been toward civilianizing the Uniform Code of Military Judice. It may be that the country no longer has a soldier's code but a mvihan code for soldiers. The Code codifies, with minimum

necessary allowances for the needs of the military serv~ces, ciwhan crimmal law. The wsdom of civilian law never really contemplated the judging of cnmmal actions in battlefield related circumstances Saldier. ly needs, especially those which run contrary to everyday social stand. ards, should be clearly enunciated Unfortunately, they are not

If there 18 B lack of practicality in the international standard and if that lack of practicality is coupled with silence in our domestic standard, then there should be genmne cause for alarm. If soldiers do not how what is expected of them, they are unable to teach and require campli. ance with vague, unartvulated, impractical standards. Even worse, they will have no way to make these vital matters a part of their profesaional discipline. This article examines both the international and the domestic aspects of expected command behavior m combat in an effort to replace these "ifs" with understanding

U. THE WHAT,WHY, AND RIPENESS OF COMMAND

CRIMINAL. RESPONSIBILITY A. DEFINITION OF COMMAND CRIMINAL RESPONSIBILITY

What iB command crimmal responsibility? Although historically blurred, command cnmmal responsibility means specific criminal re. sponsibility of the commander and not the general responaibility of cam. mand ' Command criminal responsibility is an articulation of an axiomof Justice Oliver Wendel Holmes in descnbing law as ''a statement of the circumstances in which the public force will be brought tc bear upon men through the courts." Command cnmmal responsibility goes beyond personal felonious acts. It m ~ u m e s that a commander does not is. sue illegal orders or in some way personally direct or supervise a prahibited activity: such conduct would make the commander a personal pariimpant It IS not personal criminal activity but criminal responsibility for the actions of subardinates or for command decisions affecting others. Command crimmal responsibility does reqmre criminal mimon-duct by the commander and cannot be equated with everything h-proper that occvrswlthin B command.'

Command crimmal responsibihty. a8 the name Implies. means crimi. nsl and not administrative responsibility It does not mean poar leader. ship or an ineffective trainer. Commanders can be reprimanded, re

heved, and politically or historically censured for conduct that is not climinal. Nor does it mean imputed criminal responsibility which has been 80 publically and emotionally misargued by persons with impressive credentials.> Command criminal responsibility for actions of subordinates reqmres personal involvement, connection, knowledge, or in. tent. The criminal law of civilized nations requires personal involve. ment. Vicarious punishment is repulsive to a mvilized society. Command criminal responsibility does not require that the commander have committed the offense. that he have ordered it done, or that he have enunciated a poiicy requiring others to do it. Under these circumstances, he would be responsible not just as a commander but as a principal. Command criminal conduct is...