Institutional ethics drawing lines for militant democracies

Joint Force Quarterly, July, 2009 by Harvey Rishikof

Paradigms for Commander Responsibility

Our domestic legal codes and international conventions set the framework for our views of the rule of law and individual responsibility. On the individual level, take, for example, the contrast between the UCMJ and Protocol I under the Geneva Conventions when malfeasance takes place in a military command. How do these two regimes institutionally hold military commanders responsible? What is the standard of culpability under the two legal regimes? Victor Hansen points out that in cases stemming from the Vietnam era and the My Lai massacre, the prosecution of the Charlie Company commander, Captain Ernest Medina, established the classic criminal standard for culpability under the common law. (3) As Hansen notes, the evidence at trial established that Captain Medina was within a few hundred yards of the village for some 3 hours while his subordinates were killing unarmed civilians. There was no evidence, however, that he either took part in the killings or issued direct orders to his Soldiers to kill the villagers.

Under criminal common law as stipulated by the UCMJ, the judge in the case rejected an intentional murder charge and reduced the charge to involuntary manslaughter, which required showing that Captain Medina had a legal duty to take some action to prevent the unlawful killing and to prove that he possessed actual knowledge of his Soldiers' law of war violations when he failed to act. The actual panel charge from the judge is quoted in the Hansen article as follows:

In relation to the question pertaining to the supervisory responsibility of a Company Commander, I advise you that as a general principle of military law and custom a military superior in command is responsible for and required, in the performance of his command duties, to make certain the proper performance by his subordinates of their duties assigned by him. In other words, after taking action or issuing an order, a commander must remain alert and make timely adjustments as required by a changing situation. Furthermore, a commander is also responsible if he has actual knowledge that the troops or other persons subject to his control are in the process of committing or are about to commit a war crime and he wrongfully fails to take the necessary and reasonable steps to insure compliance with the law of war. You will observe that these legal requirements placed upon a commander require actual knowledge plus a wrongful failure to act. Thus, mere presence at the scene without knowledge will not suffice. That is, the commander-subordinate relationship alone will not allow an inference of knowledge. While it is not necessary that a commander actually see an atrocity being committed, it is essential that he know that his subordinates are in the process of committing atrocities or are about to commit atrocities [emphasis added]. This actual knowledge standard resulted in the acquittal of Captain Medina.

Compare this mens rea (guilty mind) and actus rea (guilty act) and actual knowledge obligation under the UCMJ to Protocol I, where Articles 86 and 87 represent the codification of the command responsibility doctrine. The articles state both a standard for failure to act and duty to act: