Editor’s Note: This post is the latest in Just Security’s mini forum” on the new Defense Department Law of War Manual. This series includes posts from Sean Watts, Eric Jensen, Adil Ahmad Haque, Geoffrey Corn, Charlie Dunlap, Jr., John Dehn, Rachel VanLandinghamGary BrownDavid GlazierJoshua Berry and Chris Jenks

The Department of Defense Law of War Manual has reaffirmed the United States view on command responsibility, a mode of liability where commanders and other leaders can be held responsible for the war crimes committed by their subordinates. In this new and improved doctrine, the DOD took a one-paragraph section of the 1956 Army Field Manual and turned it into an exhaustive but not quite all-inclusive eight page discussion of the various ways individuals could be held criminally responsible for the war crimes of others. DOD’s efforts appear intended to do more than just recite the international law principle of command responsibility. They also first seem to affirm the other theories of criminal liability being used at the US Military Commissions to prosecute those being held at Guantanamo Bay and second, to discuss the various ways US military leaders can be held accountable for the war crimes of their subordinates even though the Uniform Code of Military Justice (UCMJ) has no provision for command responsibility. It may be time for Congress to address this important flaw in the UCMJ.

Past and Present Doctrine

The 1956 US Army Field Manual on the Law of Land Warfare (FM 27-10) affirmed the principle of command responsibility outlined a decade earlier in the Yamashita Supreme Court decision. Commanders “may be responsible for war crimes committed by subordinate members of the armed forces, or other persons subject to their control.” In the one paragraph summary of the doctrine recognized in Yamashita, a commander can be held responsible for acts of those he controls if he orders them to commit war crimes, or he knew or should have known they were committing or about to commit a war crime and failed to stop them or punish them. 

The new DOD Law of War Manual cites approvingly to the FM 27-10, but also to statutes and cases from the International Criminal Tribunals for the for the former Yugoslavia (ICTY) and Rwanda (ICTR), and even references the International Criminal Court’s (ICC) Rome Statute. Command Responsibility for the DOD closely mirrors the ICTY, ICTR and ICC statutes, by requiring commanders to take “necessary and reasonable measures” to ensure their Soldiers do not commit war crimes. This is in keeping with FM 27-10, but differs slightly from Article 86 of the First Additional Protocol to the Geneva Conventions, which requires commanders to take “all feasible measures within their power.” While an academic can parse the distinction between “necessary and reasonable” and “feasible within their power,” the DOD manual clearly affirms the international law principle that a military commander must ensure his troops do not commit war crimes.

The section also spends significant time talking about the theories of liability outlined in the Military Commissions Act and the US Code, which furthers the purpose of executive branch doctrine. The DOD Law of War Manual is not exclusively a statement of the DOD’s views on the international law of war. It is primarily an explanation of the DOD’s view on how international and domestic laws of war apply to DOD’s military operations. Unfortunately, in outlining all of the potential ways an individual can be held liable for war crimes of others, the manual makes it hard to distill the key issues military commanders must focus on to ensure their troops comply with the law of war. The emphasis on explaining concepts like aiding and abetting (a domestic theory of liability) next to joint criminal enterprise (a theory outlined in the international criminal tribunal decisions) leaves the military reader confused about what rules apply to the US Military, where they apply and in what forum.

Applying the Doctrine to the US Military

After reviewing the section several times, the reader is left with the idea that the Department of Defense is clear that commanders can be held criminally liable for the war crimes of their subordinates but a little confused about what specific test DOD will apply to enforce this theory of liability.   Perhaps that is intentional. Although the United States has recognized the theory of command responsibility in its doctrine since at least 1956, the Uniform Code of Military Justice (UCMJ) does not have a section on command responsibility. Military prosecutors cannot directly charge a commander who knew or should have known that his or her troops committed war crimes, prosecutors must creatively fashion an alternative theory of liability.

The DOD Law of War Manual outlines the many other ways to use the current US criminal system to ensure that a commander is held accountable for the misconduct of his troops. Perhaps a commander can be prosecuted under a theory of conspiracy, if the commander agreed to commit the war crimes. Or a commander can “aid or abet” a war crime and be held liable under that theory. The closest theory to true command responsibility is UCMJ article 92, dereliction of duty, which provides for punishment for any person who “is derelict in the performance of his duties.” Dereliction of duty could reasonably provide a criminal charge for most conduct that under international law would fall within the theory of command responsibility. However, being derelict in your duty is an insignificant allegation for a war criminal, and the punishment—which in many circumstances could not exceed 6 months—is equally insignificant.

Now It Is Congress’s Turn to Take Necessary and Reasonable Measures

The eight page dissertation of command responsibility in the DOD Law of War Manual is a significant step forward in ensuring the United States is in agreement with the international community on the nature of a commander’s obligation to ensure his soldiers comply with the law of war.   Unfortunately, it is not sufficient to provide clear guidance to military commanders on what variation of command responsibility will apply to them and how the United States will enforce this principle of international humanitarian law on its own soldiers. Perhaps now it is time for Congress to finally amend the UCMJ to include, in some form, the principle of command responsibility so that it can readily be used to hold senior military commanders responsible if they fail in their duties to ensure their subordinates comply with the law of war. After 70 years of enforcing the principle on the rest of the world, it is time that the US Military is given the legal ability to apply this doctrine to its own Service Members.

Major Patrick Walsh, is an Associate Professor in the International and Operational Law Department at the US Army’s Judge Advocate General’s Legal Center and School in Charlottesville, Virginia. The views expressed are those of the author and do not reflect the official policy or position of the US Army, Department of Defense or the US Government.