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18 Chi. J. Int'l L. 553 (2017-2018)
Erosion of the Rule of Law as a Basis for Command Responsibility under International Humanitarian Law

handle is hein.journals/cjil18 and id is 561 raw text is: Erosion of the Rule of Law as a Basis for Command Responsibility under International Humanitarian Law Amy H. McCarthy* Abstract 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 responsibilit in the context ofa superior's failure to maintain discailine 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 responsibiliy doctrine as it relates to this duty to prevent, and assesses its efficacy in averting humanitarian atrocities. Table of Contents I. Introduction ....................................................... 555 II. Introduction To Command Responsibility........................556 A. A Brief History of Command Responsibility Beginning Post-WWII.......557 B. Codification of Command Responsibility and Customary Law................. 560 III. Command Responsibility under International Law ....... . .................563 A. International Criminal Tribunal for the former Yugoslavia ..... ..... 563 B. International Criminal Tribunal for Rwanda ..................... 568 Assistant Professor, Department of Law, United States Military Academy, West Point. The author is a former active duty Army Judge Advocate. Many thanks to Lieutenant Colonel Scott Vansweringen for helpful comments and suggestions. The views expressed here are the author's personal views and do not necessarily reflect those of the Department of Defense, the United States Army, the United States Military Academy, or any other department or agency of the United States Government. 553

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