A Short Response to Fidell & Cave on Command Responsibility

Yesterday, we cross-posted a piece I wrote for Articles of War examining the ways that military justice reform might affect law of war compliance. To summarize my basic point, by removing a commander's convening authority over all serious crimes, the current version of S.1520 will also (inadvertently) narrow field commanders' existing authority to "prevent or punish" war crimes committed by subordinates. And that power to "prevent or punish" has been a key feature of the U.S. approach to the "responsible" prong of the "responsible command" under which armed forces must operate to comply with international law.

Does removing convening authority violate international law? No. As I said in the piece, "Countries have different systems of military justice and some countries have no military justice system at all." But it would, by design, dilute commanders' ownership over their subordinates conduct. And as written, S.1520's revision to Article 22, combined with the UCMJ's broader prohibition on unlawful command influence, could perversely prohibit commanders from pressing for any particular subordinate's prosecution for war crimes.

Gene Fidell offered a well-sourced rejoinder to say that my concerns are largely unfounded. Though, starting with our point of agreement, he does agree that S.1520 should be amended to  ensure that commanders can support prosecutions without running afoul of UCI prohibitions.

The point of our evident disagreement is whether removing the direct power to punish will undermine the commander's sense of accountability. Gene principally cites the training afforded to senior commanders on their LOAC obligations and the practices of other nations to say it will not.  Some sources even suggest LOAC compliance could be enhanced.

I don't gainsay any of those. If anything, as I wrote, letting independent military prosecutors take the lead in war crimes cases may be preferable for all the reasons lawmakers have deemed it preferable for other serious crimes. But is equally true that when lines of accountability are shared, they can get blurry, and when they are blurry, accountability can become muddled.

As Phil Cave noted in a comment, the alleged victims of German military operations in Afghanistan have spent much of the past decade suing Germany because civilian prosecutors opted not to pursue charges. Germany has no military justice system, meaning that it fell to civilians to investigate and make prosecutorial decisions about the conduct of the German armed forces.

The European Court of Human Rights recently upheld the decision not to prosecute, but not because investigators had decisively concluded that the German military complied with the laws of armed conflict. Rather, the ECHR ruled that the investigation was adequate - even if flawed and inconclusive - because of the "special features" doctrine, which recognizes that a country's ability (and therefore obligation) to investigate is diminished by the circumstances of armed conflict. As Marko Milanovic wrote in EJIL:Talk! "the applicability of the [European Charter of Human Rights] Article 2 procedural obligation [to investigate] ... can be applied with significant flexibility on the merits."

Color me skeptical that this kind of "flexibility" when it comes to the rigor of war crimes investigations is a good thing. Again, that is not a challenge to S.1520's broader reform effort. But it is a reason for lawmakers to think about the unique problem of war crimes accountability with specificity. I offered a few ways to do that in my piece for Articles of War. I'm sure there are others. But whatever they are, lawmakers should ensure that commanders retain a credible power - and concomitant duty - to "prevent and punish" war crimes because the U.S. military's ability and willingness to enforce the law of armed conflict against its own (while not perfect) is a key feature of its legitimacy and effectiveness.

Michel Paradis

LOAC Editor