The Impact of Military Justice Reforms on the Law of Armed Conflict: How to Avoid Unintended Consequences

This article considers efforts to civilianize the military justice systems in Canada, the United Kingdom and other countries and how these reforms potentially impact the role of the military commander with respect to the commander’s law of war obligations. One consequence of the “civilianization” of the military justice systems in Canada, the United Kingdom and elsewhere potentially impacts the commander’s own personal criminal liability. The doctrine of command responsibility holds that a commander may be criminally liable for the law-of-war violations committed by the forces under his command if a commander fails to prevent, suppress, or punish law-of-war violations that he either knew about or was reckless or negligent in failing to notice, he can be punished as if he committed the underlying offenses.This doctrine is based on the commander’s unique position in a military organization. The commander is the focal point of military discipline and order, and it is the commander’s responsibility to maintain command and control of his subordinate forces. It is the commander who, by use of all the resources and authority available to him, ensures that his forces do not violate the laws of war. If those forces do, it is in large part attributable to the commander’s failings.If, as a result of the civilianization of military justice, commanders lose a significant portion of the disciplinary authority they have traditionally held, do they no longer occupy that critical position of responsibility over the forces under their command? If they have lost that authority, to whom does the law now turn to for accountability? Does the commander, who has lost some of his authority, lose the ability to maintain discipline through the military justice system, and does he find himself in a situation where he is given responsibility to maintain discipline and control without having sufficient authority to meet that obligation? This article raises and addresses these important questions and it provides a framework for considering military justice reforms that preserve the commander’s critical role in law of war compliance.