|A Russian magazine's portrayal of Senegalese Tirailleurs|
fighting for the French military along the Western Front, 1914
Some memorable recent examples include Iranian forces supporting Hezbollah in Lebanon and Syria, Russian commandos backing separatists in eastern Ukraine, and U.S. commandos embedding with the Northern Alliance in Afghanistan and Peshmerga forces in Iraq. The United States in the last decade has broken its State Department's longstanding near-monopoly on funding foreign assistance by granting the Defense Department fiscal authority to advise and equip surrogates through sections 1206 and 1208 of recent defense spending bills.
Surrogate warfare raises the question of the circumstances when the advising force's military justice system should hold its members responsible for surrogate crimes. In a recent article in the Harvard National Security Journal, Captain Gregory Bart, a U.S. Navy JAG Corps officer with extensive experience advising American special operations units, considers this challenge.
Command responsibility theory won't work, Captain Bart concludes after considering analogous caselaw from the International Criminal Tribunal for the former Yugoslavia (ICTY). In most cases there isn't a responsible command link between advisers and surrogates.
Advising forces might be liable under aiding and abetting theory if the advising forces have actual knowledge or willful ignorance of surrogate misdeeds.
Other potential theories of criminal liability include joint criminal enterprise, conspiracy, and contribution.
Advising forces may have requirements under national military codes to investigate, report, or even intervene to stop surrogate war crimes. The paper examines U.S. military caselaw and concludes that U.S. advisers would not be criminally liable for failing to intervene. Short of intervention, the paper discusses persuasion, appeals to self-interest, and threats to withdraw assistance as means to prevent surrogates from committing war crimes.
The topic is ripe for further scholarship. Kudos to Captain Bart for starting the conversation.