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164 Mil. L. Rev. 155 (2000)
Yamashita, Medina, and beyond: Command Responsibility in Contemporary Military Operations

handle is hein.journals/milrv164 and id is 165 raw text is: YAMASHITA, MEDINA, AND BEYOND YAMASHITA, MED INA, AND BEYOND: COMMAND RESPONSIBILITY IN CONTEMPORARY MILITARY OPERATIONS MAJOR MICHAEL L. SMIDTI The honor of a general consists... in keeping subalterns under his orders on the honest path, in maintaining good discipline ... 2 I. Introduction This article examines the customary international law3 doctrine of command responsibility. Its origins and development are traced, as well as the United States practice in applying the doctrine. Ultimately, this arti- cle considers the application of the doctrine in the context of contemporary military operations. More specifically, the article looks at U.S. policy in terms of charging U.S. soldiers with war crimes-how U.S. domestic pol- l. Professor, International and Operational Law, U.S. Army Judge Advocate Gen- eral's School. LL.M, 1998, The Judge Advocate General's School; J.D. magna cum laude, 1987, California Western School of Law; B.B.A. cum laude, 1985, National University. The author would like to thank University of Virginia School of Law Professors John Norton Moore and Robert F. Turner, and Commander Brian Bill, Lieutenant Colonel Rob- ert Burrell, and Major Geoffrey S. Corn, The United States Army Judge Advocate Gen- eral's School for their invaluable assistance. 2. LLOYD J. MATHEWS & DALE E. BROWN, THE CHALLENGE OF MILITARY LEADERSHIP 23 (1989) (quoting Napoleon to Marshal Berthier, June 8, 1811, CORRESPONDENCE DE NAPO- LEON, Corres. No. 17782, vol. XXII, 215 (32 Vols.; Paris 1858-70)). 3. Because there is no supranational legislature with prescriptive jurisdictional power over the various independent national sovereigns that make up the international community, the law of nations is, to a large extent, created by custom. See infra note 181. Customary international law, results from a general and constant practice of states fol- lowed by them from a sense of legal obligation .... RESTATEMENT THIRD, THE FOREIGN RELATIONS LAW OF THE UNITED STATES, § 102 (1987). The first step then in determining the normative aspect of a particular custom then, is to look to the actual practice of states in terms of their conduct in the international commu- nity. Second, if the custom is to rise to the level of law, binding on all states, a determina- tion must be made that the state conduct involved is based on an apparent belief that compliance with the practice is required. Evidence that a particular custom has become a shared international community expectation requiring compliance can be found in the practice of states, including policy pronouncements, general principles of law applied in domestic systems of law, interna- tional and domestic judicial decisions... applying international law, and the teachings of the most highly qualified publicists of the various nations.... . The Statute of the Inter- national Court of Justice, art. 38, June 26, 1945, 59 Stat. 1055, 1066 (1954). 20001

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