Yamashita, Medina, and Beyond: Command Responsibility in Contemporary Military Operations

• Author: Major Michael L. Smidt
• Pages: 03

2000] YAMASHITA, MEDINA, AND BEYOND 155

YAMASHITA, MEDINA, AND BEYOND: COMMAND RESPONSIBILITY IN CONTEMPORARY MILITARY

OPERATIONS

MAJOR MICHAEL L. SMIDT1

The honor of a general consists . . . in keeping subalterns under his orders on the honest path, in maintaining good discipline. . . .2

I. Introduction

This article examines the customary international law3 doctrine of command responsibility. Its origins and development are traced, as well as the United States practice in applying the doctrine. Ultimately, this article considers the application of the doctrine in the context of contemporary military operations. More specifically, the article looks at U.S. policy in terms of charging U.S. soldiers with war crimes-how U.S. domestic po

icy may impact the implementing of the international standards of command responsibility in the domestic setting. The article recommends an amendment to the Uniform Code of Military Justice (UCMJ) to facilitate assimilating the international standard into domestic courts-martial practice. Finally, because an amendment is not likely in the foreseeable future, this article advocates the use of a relatively untapped but existing basis of jurisdiction as a modality of incorporating the international standard in the interim.

The primary anticipated benefits in adopting the international standard are threefold. First, and most importantly, because the international standard is arguably a higher standard than the one currently followed by domestic courts-martial applying the UCMJ, adopting the international standard should result in the commission of fewer war crimes and war crime-like acts. Second, the prophylactic qualities of the broader international standard in preventing war crimes should also serve to strengthen the legitimacy of operations that the United States participates in across the entire conflict spectrum because of the anticipated reduction in war crime-like acts. Finally, adopting the international standard will support the notion that the United States is serious about conforming to the law of nations.

1. Proper Military Leadership

   Ten good soldiers wisely led, will beat a hundred without a head.4

   1. Combat Operations

   The key to success on the battlefield has always been, and will continue to be, the ability of one party to a conflict to destroy the other's will to fight. Destruction of the enemy's determination to win is often accomplished by massing overwhelming combat power against the adversary.5 In most cases, destroying an opponent's physical capability to conduct aggressive warfare has the attendant collateral benefit of extinguishing the

   enemy's resolve to continue the fight.6 Therefore, the best-equipped, largest force, with the most advanced training and tactics typically wins.

   However, in history, the examples of poorly equipped, outnumbered units overcoming "superior forces" are legion. Where a "less powerful" force beats the "more formidable" one, it can often be traced to the leader inducing or influencing soldier discipline, attitude, motivation, and endurance. The thread that links successful military organizations from the time of the bow and arrow to the days of the Multiple Launch Rocket System (MLRS) is superior leadership and motivated soldiers.7

   No matter how advanced military tactics and technology become, success on the battlefield will continue to be primarily dependent on the human dimension. Ultimately, one human being must convince another human being to take, or participate in, extraordinary acts to be victorious in warfare. A successful battlefield commander is one who can influence his subordinates, in a very difficult and unusual environment, to do as he or she asks no matter what the personal cost may be, no matter how uncomfortable the subordinates may be with the task involved. "The most essential dynamic of combat power is competent and confident officer and non-commissioned officer leadership."8

   It is through effective military leadership that a soldier can be influenced to perform acts that transcend the norms of human nature. Only a successful and skilled motivator of troops can inspire a combatant to charge a machine gun position, contrary to the most powerful of human instincts, that of self-preservation, in order to acquire a small and seemingly insignificant piece of turf. Powerful and persuasive leaders are required to build and maintain the degree of commitment necessary to successfully execute an armed conflict.

   Just as dynamic military commanders can induce their subordinates to accomplish heroic acts beyond the pale of traditional human limitations, they also, unfortunately, possess the power and means of ordering, encouraging, or acquiescing to, acts that are inhumane in the extreme. Through

   an abuse of legitimate military leadership and authority, a commander may condone, or even direct, conduct that goes far beyond even the relaxed standards of acceptable violence associated with warfare. Under the direction of persuasive leadership, soldiers have committed acts so atrocious as to exceed any possible rational application of military force.9

   It is to the leader that a young soldier looks for guidance in terms of distinguishing appropriate and inappropriate uses of force during military operations.

   For the common soldier, at least, war has the feel, the spiritual texture, of a great ghostly fog, thick and permanent. There is no clarity. Everything swirls. The old rules are no longer binding, the old truths no longer true. Right spills over into wrong. Order blends into chaos, love into hate, ugliness into beauty, law into anarchy, civility into savagery. The vapor sucks you in. You can't tell where you are, or why you're there, and the only certainty is overwhelming ambiguity . . . . You lose your sense of the definite, hence your sense of truth itself.10

   In combat, where soldiers are routinely asked to participate in conduct that under normal conditions would be labeled as immoral or unlawful, often the leader becomes the soldiers' surrogate conscience.

   Soldiers learn to rely on the commander's guidance as the soldier surrenders some of his own discretion, judgment, and inhibitions to play a role in the collective success of the unit and to further the higher cause in which they are engaged. The soldier learns, to a degree, to subordinate his instincts for survival and his ideas of right and wrong to his leader's orders. The soldier has a general obligation to obey a superior's orders and to presume that the orders received from the superior are lawful.11

   Even the law supports the need for strict obedience on the part of subordinates. In some cases, adherence to an unlawful order that results in violating the law of war may form the basis for a defense in a subsequent

   war crimes trial if certain conditions are present.12 The leader is the individual that establishes the command climate-the unit's collective sense of right and wrong.

   2. Contemporary Military Operations, Legitimacy of the Force, and the Operation

   In contemporary military operations, specifically Military Operations Other Than War (MOOTW),13 members of the military do not ordinarily find themselves in high intensity combat.14 Therefore the service member is seemingly less likely to operate in a scenario where the service member's moral compass is off its normal azimuth. Right and wrong are less ambiguous because the participants are less likely to be asked to apply destructive forces at levels routinely required to take lives and destroy property. The line between acceptable and unacceptable conduct is less blurred therefore, in low intensity conflicts. However, there are other cir-

   cumstances, some very significant, that impact on a participant's ability to choose correctly when faced with difficult issues in MOOTW.

   Consider for example, the Canadian experience in Somalia. In December 1992, paratroopers from the prestigious Canadian Airborne Regiment began arriving in Somalia to participate in humanitarian relief efforts. Their mission was to secure an area around the central Somali town of Belet Huen. Once secure, humanitarian relief workers would be better able to distribute food to starving Somalis.15

   In the beginning, these motivated professional soldiers performed their mission with enthusiasm. Although they were a combat unit ready for battle, the paratroopers truly wanted to help the Somali people. Over time, however, many lost their motivation, and discipline started to slip. Somalis began to throw rocks at the food convoys. The paratroopers were harassed by the local citizens even while they tried to repair roads and hospitals. However, the greatest cause for the loss of morale was the "incessant stream of desperate Somalis sneaking into the Canadian compound at night to steal food and anything else they could scrounge."16

   The Canadians felt a deepening sense of frustration and despair. They were upset and felt that they were spending too much time routing out thieves rather than performing their mission.17 Various members of the unit began to consider how they might deter the infiltrating thieves. One officer gave an order that soldiers who caught Somalis in the compound were to "abuse" them.18 Another officer directed the men to shoot fleeing looters below the waist if they refused to stop after being ordered to do so.19

   A team of soldiers, including a sniper, wearing night vision goggles, began setting traps using food as bait. When Somalis grabbed the food, they were ordered to halt. If they ran, they were shot. There was some evidence that perhaps a few Somalis had been shot at point blank range and killed after being brought to the ground. The Canadian officers felt the

   rules of engagement were vague and believed the men were only doing their job.20

   The most infamous incident linked to the Canadian paratroopers in Somalia involved the torture and murder of a Somali man caught stealing in the compound. He was beaten, burned...