A commander who puts charges into the hands of a functioning, non-sham military prosecution system will have done what international humanitarian law demands. “With respect to necessary and reasonable measures to ensure the punishment of suspected war criminals, the [International Criminal Tribunal for the Former Yugoslavia] held in the Kvočka case in 2001 that the superior does not necessarily have to dispense the punishment but ‘must take an important step in the disciplinary process’ [§ 714]. In its judgment in the Blaškić case in 2000, the Tribunal held that ‘under some circumstances, a commander may discharge his obligation to prevent or punish an offence by reporting the matter to the competent authorities’ [§§ 709, 757].” Int’l Comm. of the Red Cross, IHL Database, Customary IHL, R. 153, Command Responsibility for Failure to Prevent, Repress or Report War Crimes, available at https://ihldatabases.icrc.org/customary-ihl/eng/docs/v1_rul_rule153#Fn_ 91BB58A0_00033 (footnotes omitted). See generally Situation in the Central African Republic (Case of Jean-Pierre Bemba Gombo), ICC01/05-01 A (ICC App. Ch. June 8, 2018).
SARGE's July 8, 2020 Supplemental Memorandum observed (at 1-3):
The leading contemporary statement of the doctrine of command responsibility is article 28 of the Rome Statute. It requires that a superior either “take all necessary and reasonable measures within his or her power to prevent or repress” the commission of crimes or “submit the matter to the competent authorities for investigation and prosecution.” Far from demanding that States confer upon commanders the power to require that an offender stand trial, the doctrine plainly recognizes that national legislation in some States does not confer that power. Commanders whose power is confined to sending charges to “the competent authority” for prosecution have fulfilled their duty – unless the process administered by that authority was known to be a sham or not properly functioning. See also Prosecutor v. Boškoski & Tarčulovski, No. IT-04-82-A (ICTY Appeals Chamber May 19, 2010) (¶¶ 234, 268), available at https://www.icty.org/x/cases/boskoski_tarculovski/acjug/en/100519_ajudg. pdf.
In 2016, Trial Chamber III of the International Criminal Court observed in Prosecutor v. Bemba (Situation in the Central African Republic), No. ICC-01/05-01/08 (Trial Chamber III Mar. 21, 2016) (¶ 207), available at https://www.icc-cpi.int/CourtRecords/CR2016_02238. PDF, that if a commander “does not hold disciplinary power, measures which may, depending upon the circumstances, satisfy the commander’s duties include proposing a sanction to a superior who has disciplinary power or remitting the case to the judicial authority with such factual evidence as it was possible to find.” Bemba was acquitted by the ICC’s Appeals Chamber two years later, https://www.icc-cpi.int/CourtRecords/CR2018_02984.PDF, but nothing in that court’s much criticized decision either takes issue with or casts doubt on the language quoted above from the Trial Chamber’s ruling or suggests that military commanders must have the power to compel the trial of serious offenses, as the UCMJ currently provides.
Although the United States is not a party to Additional Protocol I of the Geneva Conventions, it is appropriate to consider article 87 which deals with the “Duty of Commanders.”
Paragraph 3 provides:
The High Contracting Parties and Parties to the conflict shall require any commander who is aware that subordinates or other persons under his control are going to commit or have committed a breach of the Conventions or of this Protocol, to initiate such steps as are necessary to prevent such violations of the Conventions or this Protocol, and, where appropriate, to initiate disciplinary or penal action against violators thereof.
The background is set forth in the authoritative ICRC Commentary. It provides no support for the concern voiced in the white paper:The text of paragraph 3 also requires that any commander “where appropriate”, will “initiate disciplinary or penal action against violators”. Paragraph 1 lays down the obligation for military commanders to prevent breaches “and, where necessary, to suppress and to report [them] to competent authorities”. Thus, these two texts again are complementary. During the course of the discussions some delegations expressed the fear that these provisions would result in an unjustified transfer of responsibilities from the level of the government to that of commanders in zones where military operations are taking place. They also feared that inappropriate prosecutions could take place, and that military commanders might encroach on the judgment of the judicial authorities. These fears, which were the reason for the requests for voting by paragraph on this article, do not seem to be justified. It is not a matter of transferring to military commanders the competence and responsibilities which are those of the judicial authorities, even if this is a military court, whether or not it is represented by a military commission constituted in accordance with the law. The object of these texts is to ensure that military commanders at every level exercise the power vested in them, both with regard to the provisions of the Conventions and the Protocol, and with regard to other rules of the army to which they belong. Such powers exist in all armies. They may concern, at any level, informing superior officers of what is taking place in the sector, drawing up a report in the case of a breach, or intervening with a view to preventing a breach from being committed, proposing a sanction to a superior who has disciplinary power, or – in the case of someone who holds such power himself – exercising it, within the limits of his competence, and finally, remitting the case to the judicial authority where necessary with such factual evidence as it was possible to find. In this way, for example, a commander of a unit would act like an investigating magistrate. Indeed, some delegations remarqued that Article 87 contains provisions which are already found in the military codes of all countries. In Article 87 it is merely a question of ensuring that they are explicitly applicable with respect to the provisions of the Conventions and the Protocol. In fact, all this does not prevent commanders from trying to identify any possible gaps in the law of armed conflict or to put forward consistent interpretations on points which have not been clearly regulated. [Int’l Comm. of the Red Cross, Commentary on Additional Protocol I, ¶ 3562, at 1022-23 (1987) (emphasis added, hyperlinks and footnotes omitted), available at https://ihldatabases.icrc.org/applic/ihl/ihl.nsf/ Comment.xspaction=openDocument&documentId=36FC92EB9E83FBBEC12563CD00437BFB.]
The matter is also usefully addressed in Geoffrey S. Corn & Rachel E. VanLandingham, Strengthening American War Crimes Accountability, 70 Am. U. L. Rev. 309, 324-26, 361-62 (2020).
In summary, as the Editor's October 2, 2020 comments on the Joint Service Subcommittee's unfortunate report pursuant to NDAA FY20 § 540F observed:
It could not be clearer that commanders whose military justice powers over serious offenses are limited to referring charges to a non-sham justice system have no exposure under the doctrine of command responsibility. Please refer in this regard to the definitive International Criminal Law Guidelines: Command Responsibility §§ 8.2-8.3 (Jan. 2016) and GUÉNAËL METTRAUX, THE LAW OF COMMAND RESPONSIBILITY § 188.8.131.52, at 250 & n.97, 252-53 & nn.107 & 110, 255 & n.121 (2009).
As for the danger that a commander's recommendation to the independent prosecutor might be viewed as unlawful command influence, there need be no concern if (1) the Uniform Code of Military Justice or the Manual for Courts-Martial makes express provision for the communication of the commander's recommendation, (2) the prosecutor is afforded the necessary structural guarantees of decisional independence, and (3) any such recommendation is in written form and promptly provided to the accused and any complainant.
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