This article presents a “theoretical framework, rooted in expressivist conceptions of harm, for holding a commander criminally responsible for an atrocity of his subordinates. More specifically, this Article argues that, where a commander’s failure to punish an atrocity of his troops can be read as an expression of his support for his subordinates’ act or the message it conveyed, his failure comes to constitute part of the injury. As such, he may be held criminally liable for the atrocity, and not just for neglecting his duty to punish.” Amy J. Sepinwall, Failures to Punish: Command Responsibility in Domestic and International Law, 30 Mich. J. Int’l L. 251, 255 (2009) (footnote omitted). The article includes a discussion of the Haditha courts-martial. Id. at 275-80.

10 Responses to “Article argues for enhanced criminal accountability of commanders whose subordinates commit war crimes”

  1. John O'Connor says:

    You mean, like, dereliction of duty? I missed my class on expressivist legal theory at NJS.

    Of course, this theory would significantly undermine prosecutorial discretion because, under this theory, if you pick wrong, someone else gets to decide whether to exercise prosecutorial discretion on you.

  2. Phil Cave says:

    I think this is a new way of saying condonation as a legal theory of liability. It resonates more in the international law community. Condonation being the defense that the Abu Ghraib soldiers were trying or should have made.

  3. Cloudesley Shovell says:

    Ugh. One could spend a lot of time criticizing the false assumptions and selective facts, but I think that Mr. Cave summed it up nicely with “it resonates more with the international law community.” That was her target audience.

    There is a general failure to recognize that war is hell and war crimes violations will happen no matter what, and that efforts to address those violations will be criticized no matter what. That doesn’t mean that for every violation, the entire chain of command ought to be sent to Leavenworth.

    The law of war also recognizes that a fighting force that makes a habit of violating the laws of war is liable for the results thereof–even if the results are that the opposing force commits violations (intentional or unintentional) in response. If one side makes a habit of not carrying arms openly, intermingling with the civilian population, fighting in civilian clothes, etc., it is that force that is liable for civilian deaths. Too bad the author either didn’t address or failed to comprehend that very significant aspect of the realities of combat.

    Anyway, glad to see I’m not the only one unimpressed with this article.

  4. Anonymous says:

    Prosecutions won’t be happening, but I don’t know if Yoo Bybee et al will see their law licenses survive this term.

  5. Mike "No Man" Navarre says:

    How is this concept not already recognized in US military policy? I think it is. US Army Field Manual 27-10, section 501:

    501. Responsibility for Acts of Subordinates
    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 insure compliance with the law of war or to punish violators thereof.

    Thia has always been the policy and is one of the reasons Art. 2(a)(10) is so dangerous as it puts commanders on the hook for the conduct of twice the troops, without any additional oversight resources in DoD personnel to monitor their conduct.

  6. Phil Cave says:

    Mike, I do think you are correct. But there is more willingness to enforce that in the international community.
    I’ve always been supportive of the ICC. The reasons given by the U.S. for non-support have in my mind been cynical and self-serving. The reasons given are that the ICC would lessen protections of US troops from prosecutions by foreign governments. That’s just not true based on the principle of complimentarity in the ICC. I think the real reason is that under the ICC not just military but civilian leaders can be held accountable for war crimes. Assuming civilian leaders aren’t prosecuted under the UCMJ, there is less an argument for complimentarity. Thus, the civilians were afraid of having to be accountable under the ICC.

    I think your last point is a good one. Perhaps that should have been part of the “discussion” when Article 2 was amended.
    Oooops, I’m sorry, did you say there was no discussion, that it was just inserted by Senator Graham. How odd, you’d think that would be something they’d want to discuss ahead of time.

  7. Mike "No Man" Navarre says:

    Allow me to get even further into the weeds why the surrent MilJus system contains this type of enforcement procedure, making this somewhat old news. OPNAVINST 3300.52 requires:

    6.c. Each officer in command, ware that the behavior of a subordinate or other person under his/her control indicates that person may constitute an appreciable risk of violating the law of armed conflict, shall take the necessary
    steps, for example under paragraph 5 of reference (h), or articles 3410100 or 3420260 of reference (i), as appropriate, to remove that person from the combat zone.

    6.d. Each person in the U.S. Navy who knows, or who has information that should enable him/her to conclude in the circumstances at the time, that a subordinate is committing a violation of or is about to violate the law of armed conflict, shall take all feasible measures within his/her power
    to prevent such violation.

    OPNAVINST 3300.52 para. 7 makes violation of 6.c. and 6.d. a punishable offense. So let’s see, is there any recent guidance on this subject? Yep, let’s go to the Army OPLAW handbook, an indispensible guide for commanders, I only have the 2006 one handy, so I wil quote that:
    B. Command Responsibility.
    1. Commanders are legally responsible for war crimes committed by their subordinates when any one of three circumstances applies:
    a. The commander ordered the commission of the act;
    b. The commander knew of the act, either before or during its commission, and did nothing to prevent or stop it; or
    c. The commander should have known, “through reports received by him or through other means, that
    troops or other persons subject to his control [were] about to commit or [had] committed a war crime and he fail[ed] to take the necessary and reasonable steps to insure compliance with the LOW or to punish violators thereof.” (FM
    27-10, para. 501).

    Hmm, all seems suspiciously consistent. Lest our Marine bretheren feel left out, here is SECNAVINST 3300.1B:

    8.d. Commanders and commanding officers receiving reports
    of noncompliance with or breaches of the law of armed conflict
    shall report the facts promptly up their operational chain of
    command and up their Service chain of command to the CNO or
    CMC, as appropriate in accordance with the applicable provisions of references (h), (i), (j), (k), or (l), and, as appropriate, submit amplifying reports of investigation and ultimate disposition.
    9. Punitive Application. Violations of reporting
    requirements of paragraph 8 of this instruction are punishable
    in accordance with reference (m). In addition, violations of
    the law of armed conflict are punishable under references (m)
    and (n).

    I don;t see how the US military doean’t have all the right pieces in place already. Maybe we haven;t seen as many prosecutions as the anti-war crowd would like, but that’s prosecutorial discretion. And how many informal action have occurred that we don’t know about?

  8. Anonymous says:

    I agree with Mike. See In re Yamashita, 327 U.S. 1, 15-16 (1946).

  9. Anonymous says:

    I disagree. None of these statements of command “accountability” or “responsibility” in themselves provide the basis for imposing vicarious criminal liability on a commander for the substantive offenses committed by his troops. Under the UCMJ, a commander’s vicarious liability is governed by same articles (e.g. 77,81) as any other accused’s.

  10. John O'Connor says:

    I agree with Anon 1941, although these sources can supply a basis for a dereliction of duty charge.