Erosion of the rule of law as a basis for command responsibility under international humanitarian law
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Chicago journal of international law, Vol. 18, no. 2, 2018, p. 553-593
Amy H. McCarthy
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. law does not. This article examines the contours of the command responsibility doctrine as it relates to this duty to prevent, and assesses its efficacy in averting humanitarian atrocities.