What's Good for the Goose is Good for the Gander Lessons from Abu Ghraib: Time for the United States to Adopt a Standard of Command Responsibility Towards its Own

Abstract

This article addresses the need to establish a standard of criminal accountability under U.S. domestic law for commanders whose soldiers violate the law of war. In the wake of the detainee abuse scandals, the military responded by subjecting only lower ranking service members to military courts-martial. Mid-level and senior military commanders did not face criminal sanctions in spite of the fact that under international law there is a well recognized criminal law doctrine of command responsibility. The article explores the theoretical basis of the command responsibility doctrine, its origins, and its development in the 20th Century as part of the customary international law. The article examines the United States' failure to incorporate a similar doctrine under U.S. domestic law as reflected in the Uniform Code of Military Justice. The article illustrates the serious adverse consequences stemming from the United States' failure to have a legal mechanism to affix criminal responsibility on commanders. The article proposes a comprehensive amendment to the Uniform Code of Military Justice in order to fully incorporate the doctrine of command responsibility into U.S. domestic law. The proposal also offers ways to remedy specific aspects of the doctrine that have remained a source of confusion under international law.

Keywords: Command Responsibility, Law of War

JEL Classification: K14, K33