Command Responsibility in the Twenty-First Century: the United States Basic Framework and Future Military (And Quasi-Military) Operations
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Erosion of the Rule of Law As a Basis for Command Responsibility Under International Humanitarian Law
Chicago Journal of International Law Volume 18 Number 2 Article 4 1-1-2018 Erosion of the Rule of Law as a Basis for Command Responsibility under International Humanitarian Law Amy H. McCarthy Follow this and additional works at: https://chicagounbound.uchicago.edu/cjil Recommended Citation McCarthy, Amy H. (2018) "Erosion of the Rule of Law as a Basis for Command Responsibility under International Humanitarian Law," Chicago Journal of International Law: Vol. 18: No. 2, Article 4. Available at: https://chicagounbound.uchicago.edu/cjil/vol18/iss2/4 This Article is brought to you for free and open access by Chicago Unbound. It has been accepted for inclusion in Chicago Journal of International Law by an authorized editor of Chicago Unbound. For more information, please contact [email protected]. Erosion of the Rule of Law as a Basis for Command Responsibility under International Humanitarian Law Amy H. McCarthy Abstract Many examples of modern war crimes exhibit a strong link between the institutional breakdown of the rule of law and subsequent commission of humanitarian abuses by service members. Unchecked misconduct, specifically including dehumanizing acts, tends to foster a climate where war crimes are likely to occur. Does the law adequately account for this common thread? This article examines the doctrine of command responsibility in the context of a superior’s failure to maintain discipline among troops, and resulting criminal culpability for violations of the law of armed conflict. While customary international law, as applied by modern ad hoc tribunals, contemplates a wide range of misconduct that may trigger a commander’s affirmative duty to prevent future abuses by subordinates, U.S. -
Defense Primer: Reserve Forces
Updated January 28, 2021 Defense Primer: Reserve Forces The term reserve component (RC) refers collectively to the passes from the governor of the affected units and seven individual reserve components of the Armed Forces. personnel to the President of the United States. Congress exercises authority over the reserve components under its constitutional authority “to raise and support Reserve Categories Armies,” “to provide and maintain a Navy,” and “to All reservists, whether they are in the Reserves or the provide for organizing, arming, and disciplining the National Guard, are assigned to one of three major reserve Militia.... ” (Article I, Section 8) categories: the Ready Reserve, the Standby Reserve, or the Retired Reserve. There are seven reserve components: Ready Reserve Army National Guard The Ready Reserve is the primary manpower pool of the reserve components. Members of the Ready Reserve will Army Reserve usually be called to active duty before members of the Standby Reserve or the Retired Reserve. The Ready Navy Reserve Reserve is made up of three subcomponents: Marine Corps Reserve The Selected Reserve contains those units and individuals within the Ready Reserve designated as “so Air National Guard essential to initial wartime missions that they have priority over all other Reserves.” (DOD Instruction Air Force Reserve 1215.06.) Members of the Selected Reserve are generally required to perform one weekend of training Coast Guard Reserve each month and two weeks of training each year, although some may train more than this. When The purpose of these seven reserve components, as codified reservists are activated, they most frequently come from in law, is to “provide trained units and qualified persons this category. -
Command Responsibility After Bemba
Command Responsibility after Bemba Ray Murphy* 1 Introduction Command responsibility is a subject that has generated significant controversy since its adoption in the post-World War ii trials. It took a long time for omis- sion liability to evolve under international criminal law.1 However, today it is a well established principal that superiors are criminally responsible for the ac- tions of subordinates under their effective command or authority.2 According to Schabas, the topic has generated “more heat than light”.3 This seems an apt description of how this doctrine is interpreted and applied by international tribunals and courts. Command responsibility is a complex form of criminal responsibility and its most recent iteration is Article 28 of the Rome Statute (“icc Statute”), governing responsibility of commanders and other superiors. This contains a lengthy and complex definition of what is a long established modality dealing with individual criminal responsibility under international law.4 For an act or omission to constitute the physical element of a crime, it is not sufficient that a commander be under a mere duty to act; he or she must * Professor, Irish Centre for Human Rights, School of Law, National University of Ireland Galway 1 Antonio Cassese and Paola Gaeta, Cassese’s International Criminal Law (Oxford University Press, 3rd ed, 2013) 180. 2 Otto Triffterer and Kai Ambos (eds), Rome Statute of the International Criminal Court – A Commentary (Beck Hart Nomos, 3rd ed, 2016) 1059; UK Ministry of Defence, The Manual of the Law of Armed Conflict (Oxford University Press, 2004) 436–8. 3 William Schabas, The International Criminal Court (Oxford University Press, 2010) 455. -
Reserve Component Personnel Issues: Questions and Answers
Reserve Component Personnel Issues: Questions and Answers Updated June 15, 2020 Congressional Research Service https://crsreports.congress.gov RL30802 Reserve Component Personnel Issues: Questions and Answers Summary The Constitution provides Congress with broad powers over the Armed Forces, including the power to “to raise and support Armies,” “to provide and maintain a Navy,” “to make Rules for the Government and Regulation of the land and naval Forces” and “to provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States.” In the exercise of this constitutional authority, Congress has historically shown great interest in various issues that bear on the vitality of the reserve components, such as funding, equipment, and personnel policy. This report is designed to provide an overview of key reserve component personnel issues. The term “Reserve Component” refers collectively to the seven individual reserve components of the Armed Forces: the Army National Guard of the United States, the Army Reserve, the Navy Reserve, the Marine Corps Reserve, the Air National Guard of the United States, the Air Force Reserve, and the Coast Guard Reserve. The purpose of these seven reserve components, as codified in law at 10 U.S.C. §10102, is to “provide trained units and qualified persons available for active duty in the armed forces, in time of war or national emergency, and at such other times as the national security may require, to fill the needs of the armed forces whenever more units and persons are needed than are in the regular components.” During the Cold War era, the reserve components were a manpower pool that was rarely used. -
The Evolution of U.S. Military Policy from the Constitution to the Present
C O R P O R A T I O N The Evolution of U.S. Military Policy from the Constitution to the Present Gian Gentile, Michael E. Linick, Michael Shurkin For more information on this publication, visit www.rand.org/t/RR1759 Library of Congress Cataloging-in-Publication Data is available for this publication. ISBN: 978-0-8330-9786-6 Published by the RAND Corporation, Santa Monica, Calif. © Copyright 2017 RAND Corporation R® is a registered trademark. Limited Print and Electronic Distribution Rights This document and trademark(s) contained herein are protected by law. This representation of RAND intellectual property is provided for noncommercial use only. Unauthorized posting of this publication online is prohibited. Permission is given to duplicate this document for personal use only, as long as it is unaltered and complete. Permission is required from RAND to reproduce, or reuse in another form, any of its research documents for commercial use. For information on reprint and linking permissions, please visit www.rand.org/pubs/permissions. The RAND Corporation is a research organization that develops solutions to public policy challenges to help make communities throughout the world safer and more secure, healthier and more prosperous. RAND is nonprofit, nonpartisan, and committed to the public interest. RAND’s publications do not necessarily reflect the opinions of its research clients and sponsors. Support RAND Make a tax-deductible charitable contribution at www.rand.org/giving/contribute www.rand.org Preface Since the earliest days of the Republic, American political and military leaders have debated and refined the national approach to providing an Army to win the nation’s independence and provide for its defense against all enemies, foreign and domestic. -
1 1 US Torture Policy and Command Responsibility James P. Pfiffner Abstract: Civilian Control of the Military and Political Cont
A revised version of this paper was published in Examining Torture: Empirical Studies of State Repression, ed. Tracy Lightcap and James P. Pfiffner (NY: Palgrave Macmillan, 2014), pp. 103-126. US Torture Policy and Command Responsibility James P. Pfiffner Abstract: Civilian control of the military and political control of the executive branch are important constitutional principles upon which the United States government is based. After the 9/11 atrocities, President Bush used his power as president very effectively to pursue policies that would allow and encourage U.S. personnel to use harsh interrogation techniques to obtain intelligence in the war on terror. In implementing these interrogation policies, the Bush administration used legal arguments and the chain of command to ensure that the harsh interrogation policies would be carried out. In this process, the administration failed to heed the warnings of both civilian and military career professionals, and this led to the abuse and torture of detainees in the war on terror. This chapter will examine U.S. policy making on interrogation in the war on terror in light of several important principles of American government and international law: the politics-administration dichotomy, civilian control of the military, and command responsibility. President Bush used his power as president very effectively to pursue a policy direction that would allow and encourage U.S. personnel to use harsh interrogation methods to obtain intelligence in the war on terror. His aides marshaled legal arguments to support his position, despite serious objections from his Secretary of State, Colin Powell, and professional military lawyers in the Judge Advocate General Corps, among others. -
The Commander-In-Chief and the Necessities of War: a Conceptual Framework
Loyola University Chicago, School of Law LAW eCommons Faculty Publications & Other Works 2011 The ommC ander-in-Chief and the Necessities of War: A Conceptual Framework John C. Dehn Loyola University Chicago, School of Law, [email protected] Follow this and additional works at: http://lawecommons.luc.edu/facpubs Part of the Military, War, and Peace Commons Recommended Citation John C. Dehn, The ommC ander-in-Chief and the Necessities of War: A Conceptual Framework, 83 Temp. L. Rev. 599 (2011). This Article is brought to you for free and open access by LAW eCommons. It has been accepted for inclusion in Faculty Publications & Other Works by an authorized administrator of LAW eCommons. For more information, please contact [email protected]. TEMPLE LAW REVIEW © 2011 TEMPLE UNIVERSITY OF THE COMMONWEALTH SYSTEM OF HIGHER EDUCATION VOL. 83 NO. 3 SPRING 2011 ARTICLES THE COMMANDER-IN-CHIEF AND THE NECESSITIES OF WAR: A CONCEPTUAL FRAMEWORK * John C. Dehn While the current Administration has largely abandoned claims of plenary presidential authority to fight the nation’s wars, courts, scholars, and policy makers continue to debate the nature and scope of the powers conferred by the September 18, 2001 Authorization for Use of Military Force. This Article examines primarily Supreme Court precedent to distill the general scope and limits of the President’s powers to fight the nation’s international and non-international armed conflicts. It concludes that the Supreme Court has expressly endorsed and consistently observed (although inconsistently applied) two concepts of necessity attributable to the Commander-in- Chief power. The first is military necessity: the power to employ all military measures not prohibited by applicable law and reasonably calculated to defeat a national enemy. -
Merchant Marine Academy
Military Academy: Merchant Marine Academy Introduction Congress passed the landmark Merchant Marine Act in 1936, and two years later, the U.S. Merchant Marine Cadet Corps was established. The first training was given at temporary facilities until the Academy's permanent site in Kings Point, New York was acquired in early 1942. Construction of the Academy began immediately, and in 15 months it was completed. The Academy was dedicated on September 30, 1943, by President Franklin D. Roosevelt, who noted that "the Academy serves the Merchant Marine as West Point serves the Army and Annapolis the Navy." Most recently, Merchant Marine Academy midshipmen and graduates have been involved in many facets of the war in Iraq. Many graduates were involved in the transportation of supplies during the buildup to the war in 2003. Many graduates in the Naval Reserve have been called to serve supporting naval roles in ports in Iraq and Kuwait. Graduates who have entered other branches of the service have had more direct roles in Iraq. In addition to requiring strong GPA and SAT/ACT scores, the Academy, along with all of the other federal service academies except the United States Coast Guard Academy, requires that the Due to the service of Midshipmen in every major conflict the country has been involved in since World War II, the regiment is privileged to carry a regimental battle standard. The Merchant Marine Academy is the only Federal Service Academy granted the right to do so, and the standard is carried with the colors at all times. Campaign ribbons from all the conflicts Midshipmen have taken part in help to dress the battle standard, and bring honor to the academy Admissions In addition to requiring strong GPA and SAT/ACT scores, the Academy, along with all of the other federal service academies except the United States Coast Guard Academy, requires that the candidate be nominated by a U.S. -
Command Responsibility in International and Domestic Criminal Law
2/24 ZBORNIK ZNANSTVENIH RAZPRAV – LXVIII. LETNIK, 2008 Command Responsibility in International and Domestic Criminal Law Summary The principle of command responsibility establishes the responsibility of mili- tary commanders and non-military superiors for unlawful actions committed by their subordinates or other persons subject to their control. This legal institution was invented by the international criminal law, which initially developed it as an institution of customary international criminal law. Later it also found its way into positive law. The paper discusses command responsibility stricto sensu, also known as indi- rect command responsibility. This type of command responsibility is based on the culpable omission of adequate supervision over subordinate persons who commit international crimes. It should be distinguished from direct command responsibility, i.e. international crimes committed on superiors’ order. In the latter case, superiors are hold responsible according to general rules !as instigators or indirect perpetra- tors), in which case a specific institution of command responsibility is not required. International criminal court practice, International Criminal Tribunal for the former %ugoslavia (the ICTY) in particular, proves that it is much harder to obtain evidence of direct command responsibility (i.e. that a crime has been committed pursuant to an superior’s order), while it is less difficult to prove omission of adequate supervi- sion over subordinate persons. This is the reason why in practice command responsi- bility stricto sensu became an extremely frequently used »backup« or »safety device« to prevent superior persons from escaping unpunished. This solution raised numer- ous questions among interpreters whether international criminal law went too far in its endeavours to create an institution that would enable a more apt conviction of superiors, and that in doing so, it came too close to strict liability. -
MILITARY LAW REVIEW the MILITARY and the COURTS R 0 0 0 W 0 00 INTRODUCTION CIVILIAN COURTS and the MILITARY JUSTICE : COLLATERAL COURTS-MART1 Major Richard D
x=a MILITARY LAW REVIEW THE MILITARY AND THE COURTS r 0 0 0 w 0 00 INTRODUCTION CIVILIAN COURTS AND THE MILITARY JUSTICE : COLLATERAL COURTS-MART1 Major Richard D. Ro F € Major Bruce E. Kasold THE RIGHT OF FEDERAL EMPLOYEES TO SUE THEIR c SUPERVISORS FOR INJURIES CONSEQUENT UPON 9cL CONSTITUTIONAL VIOLATIONS Lieutenant Commander Patrick W,Kelley s 00 Volume 108 Spring 1985 Pamphlet HEADQUARTERS DEPARTMENT OF THE ARMY NO. 27-100-108 Washington, D.C., Spring 1985 MILITARY LAW REVIEW-VOL. 108 The Military Law Review has been published quarterly at The Judge Advocate General’s School, U.S. Army, Charlottesville, Virgi- nia, since 1958. The Review provides a forum for those interested in military law to share the products of their experience and research andfs designed for use by military attorneys in connection with their official duties. Writings offered for publication should be of direct concern and import in this area of scholarship, and preference will be given to those writings having lasting value as reference material for the military lawyer. The Review encourages frank discussion of relevant legislative, administrative, and judicial developments. EDITORIAL STAFF CAPTAIN STEPHEN J. KACZYNSKI, Editor MS. EVA F. SKINNER, Editorial Assistant SUBSCRIPTIONS: Private subscriptions may be purchased from the Superintendent of Documents, United States Government Print- ing Office, Washington, D.C. 20402. Publication exchange subscrip- tions are available to law schools and other organizations which publish legal periodicals. Editors or publishers of such periodicals should address inquiries to the Editor of the Review. Inquiries concerning subscriptions for active Army legal offices, other federal agencies, and JAGC officers in the USAR or ARNGUS not on active duty should be addressed to the Editor of the Review. -
The Superior Orders Defense: a Principal-Agent Analysis
GEORGIA JOURNAL OF INTERNATIONAL AND COMPARATIVE LAW VOLUME 41 2012 NUMBER 1 ARTICLES THE SUPERIOR ORDERS DEFENSE: A PRINCIPAL-AGENT ANALYSIS Ziv Bohrer* TABLE OF CONTENTS I. INTRODUCTION ................................................................................... 3 II. THE CORE PREMISE OF THE CURRENT SUPERIOR ORDERS DEFENSE DISCOURSE .......................................................................................... 7 A. The Balancing Test ....................................................................... 7 B. The State of Applied Law............................................................ 13 1. International Law ................................................................ 14 2. American Military Law ........................................................ 17 III. AGENCY ANALYSIS OF OBEDIENCE TO ORDERS ............................... 19 A. Use of Agency Models ................................................................ 19 B. Agency Model of Obedience to Orders ...................................... 20 C. Command Responsibility Rule .................................................... 23 * Research Fellow, Sacher Institute, Hebrew University Faculty of Law (2012–2013); Visiting Research Scholar, University of Michigan Law School (2011–2012). The ideas in this Article were developed as part of my doctoral thesis, see Ziv Bohrer, The Superior Orders Defense in Domestic and International Law—A Doctrinal and Theoretical Revision (June 21, 2012) (unpublished Ph.D. dissertation, Tel Aviv University) (on file -
Command Responsibility: a Model for Defining Meaningful Human Control
Cite as Miller, 11 J. NAT’L SECURITY L. & POL’Y __ (forthcoming 2021) Command Responsibility: A Model for Defining Meaningful Human Control By Matthew T. Miller* In the relatively near future, the United States and other countries are likely to develop varying levels of artificial intelligence (AI) and integrate it into autonomous weapons.1 There are significant voices, spearheaded by The Campaign to Ban Killer Robots, advocating for a preemptive ban on these weapons.2 The opponents of lethal autonomous weapon systems (LAWS) argue that it is unethical to allow a machine to decide when to kill and that AI will never be able to adhere to International Humanitarian Law (IHL) obligations.3 Although this opposition campaign has not yet achieved its goal of a ban, it has prompted considerable debate over the legality of developing and using LAWS. One of the concepts that has arisen in this debate is a legal requirement for meaningful human control (MHC) over LAWS.4 The idea of MHC has gained traction within discussions at the United Nations Convention on Certain Conventional Weapons (CCW), but the concept has its detractors.5 One of those detractors is the United States, whose delegation to the CCW Group of Governmental Experts continues to warn that MHC is an ambiguous term that “obscures rather than clarifies the genuine challenges” related to LAWS.6 Instead of human control, the U.S. argues that the key issue is ensuring “machines help effectuate the intention of commanders and the operators of weapon systems.”7 The U.S. Department of Defense showed its focus on intent, rather than control, by adopted the policy that “autonomous and semi-autonomous weapon systems shall * Major Matthew Miller is a Judge Advocate in the U.S.