Investigations into the abuses at Abu Ghraib prison have, until now, primarily focused on whether the junior military personnel seen in the now-infamous photographs broke the law. But the scandal should also serve as a reminder to U.S. military commanders regarding their exposure to potential prosecution under the doctrine of "command responsibility." This is the doctrine under which both the U.S. military justice system and international law hold military commanders criminally responsible for the illegal acts of their subordinates.
There are at least six inquiries underway that may assign responsibility for the abuses at Abu Ghraib to senior military officers. One of these, a panel headed by former Defense Secretary James Schlesinger, is due to report to the Pentagon soon. Among the subjects of that investigation is Brig. Gen. Janis Karpinski, former commander of the Army Reserve's 800th Military Police Brigade at Abu Ghraib.
Karpinski received a letter of reprimand in January and was harshly criticized in the Army's initial investigative report for leadership failures, but she has not at this point been charged criminally. She has been suspended from her command while the military decides whether further punishment is warranted. But one of the big problems facing the military as it tries to determine what action to take against Karpinski and other commanders is that the rules regarding command responsibility are not perfectly clear.
There is nothing on the subject in the Uniform Code of Military Justice, the reference most commanders use when they want to understand their potential military criminal liability. There is discussion of the subject in Army Field Manual 27-10, and military courts refer to it when crafting instructions for military juries. Military officers are given training on the manual, which provides that a commander is responsible if he knew or should have known that his troops or other persons subject to his control were violating the law of war.
But although the manual offers guidance on the subject, it is somewhat uncertain guidance. For example, the courts-martial system tried to assign command responsibility for the massacre of Vietnamese civilians by American soldiers at My Lai. One interpretation of the manual's language was given to the jury during the platoon commander's trial; a different interpretation was given at the company commander's trial. That may have explained the different verdicts that resulted.
Japanese Gen. Tomoyuki Yamashita is probably the most well-known defendant tried according to the manual's standard. In the fall of 1945, he was convicted by a U.S. military commission and hanged for war crimes in connection with his command of the Japanese army in the Philippines. The crimes committed by his subordinates included the slaughter of thousands of Filipino civilians and the abuse of American prisoners of war. Yamashita was not charged with participating in the acts or being present for them, and there was no evidence submitted at his trial that he had personally ordered the atrocities or that he was explicitly aware of them. He was convicted essentially for failing to make an "effective attempt" to discover and control the lawless acts of his troops.
Karpinski concedes that she did not have effective control over all of her troops. Her ultimate liability, if she is judged by the same standard the U.S. used against Japan in 1945, may turn on the proof of and the quality of her attempts to control the situation at Abu Ghraib. Should she have known that her subordinates were breaking the law? That's what needs to be determined.
We expect a lot of our uniformed military commanders these days. They have to know how to transition from war-making to nation-building, and how to distinguish between the civilians they must protect and those who have taken up arms. And notwithstanding complicated lines of strategic responsibility on a battlefield increasingly crowded with contractors and CIA personnel, they absolutely have to know where the chain-of-command lines lie. There is no room for uncertainty when it comes to ultimate responsibility.
The Abu Ghraib debacle shows us what can happen when there is confusion as to who is ultimately in charge. If nothing else, the trials, hearings and reports that are coming in its wake should more sharply define command responsibility liability and raise the awareness of all military leaders to their potential liability.