A Commanding Problem: Striking an Appropriate Balance of Liability for Military Commanders Under the Doctrine of Command Responsibility - Aligning Theory Policy and the Law

Abstract

The modern doctrine of command responsibility within the military context has constantly undergone reformation since its emergence post-World War II. A uniform articulation has not yet been reached in international criminal law. One of the key problems when it comes to formulating the law of command responsibility is striking an appropriate balance between international criminal law imposing responsibilities on commanders due to their special position and recognising that commanders cannot and should not be held responsible for every action of their subordinates. This paper presents the case for using the theory of command and the policy underpinning the legal doctrine, as a framework for developing the law of command responsibility to strike an appropriate balance. The author argues that when this framework is applied the gap is bridged between the doctrine as conceptualised in the legal abstract and the doctrines practical implications. The ICTY jurisprudence is used to illustrate the benefits of alignment between theory, policy and the law, as well as the detriments of misalignment. The argument is then advanced for an interpretation of Article 28 of the Rome Statute of the International Criminal Court that sets a higher standard of conduct required of commanders under the doctrine of command responsibility, in the military context, in a manner that aligns the legal doctrine with theory and policy.