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January 06, 2023

Military Command, Responsibility, and Legitimacy: An Enduring Equation

By: Geoffrey S. Corn
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Perhaps the most important lesson related to the law of armed conflict that has been learned over the past decade is as old as organized warfare itself: the central role responsible commanders play in effective and legitimate military operations. Responsible leadership or command is the sine qua non for fielding military units that achieve the nation’s strategic objectives while walking the tight rope between justified violence and humanitarian protections.

Focusing on the lesson of the importance of responsible command may seem surprising in an era of operational complexity. Such complexity results from the evolving nature of contemporary armed conflicts against enemies that range from traditional forces of nation-states to widely dispersed non-state groups operating across borders. Additionally, it is driven by technological advances in the means and methods of warfare, such as remotely piloted vehicles (or drones), cyber tools, and artificial intelligence. Observers might expect that issues related to any one of these developments would be identified as the focus of the most critical “lessons learned.” But in reality such developments and the complexity they create are not new in the abstract, only in the details.

The ongoing armed conflict in Ukraine that began when Russia occupied and annexed Crimea in 2014 and evolved into a much “hotter” war with the February 2022 Russian invasion is providing a powerful reminder of this complex reality. Russia has invested huge resources and efforts to develop what it expected would be military power that could not be resisted by its neighbors. See Mike Eckel, Russian Officials Predicted a Quick Triumph in Ukraine. Did Bad Intelligence Skew Kremlin Decision-Making? RadioFreeEurope, Mar. 11, 2022; see also International Institute for Strategic Studies, An Introduction to Russia’s Military Modernisation, Sep. 30, 2020. But the combat capabilities Russia has fielded have failed to produce the outcomes it expected. This failure is in large measure because Russia seemed to forget an axiom of military conflict: the enemy gets a vote. See Eliot A. Cohen, Why Can’t the West Admit That Ukraine Is Winning? The Atlantic, Mar. 21, 2022. Indeed, the world has been surprised and inspired by the tenacity of Ukraine. Russian operations in Ukraine are not only spotlighting the operational weaknesses of the Russian military but also highlighting the strategic consequences of fielding forces that are not led by responsible commanders who discharge their fundamental obligation to conduct operations consistent with law and morality.

“Command responsibility” is a term used by international lawyers to denote a mode of liability that holds commanders accountable for the war crimes committed by their subordinates. See Harmen van der Wilt, Command Responsibility, Oxford Bibliographies, Sep. 30, 2013. The tenet of international criminal law is certainly important, but discussions of command responsibility often miss the mark by failing to drill deeper into the significance of the term and the broader concept. Responsible command means that leaders will command military units in a manner that makes prosecution for war crimes – whether of the perpetrator or the commander – a rare necessity. See Geoffrey S. Corn, Contemplating the True Nature of the Notion of “Responsibility” in Responsible Command, Int’l Rev. of the Red Cross, IRRC No. 895/896 (Dec. 2015).

This aspect of responsible command – that commanders develop military units that are not only tactically and technically competent but also willing and able to engage in hostilities in a way that comports with law and morality – is not self-evident. After all, if military discipline means that subordinates will obey orders, no matter how dangerous or unpleasant those orders may be, and if the commander’s responsibility is to develop a disciplined force, then arguably obedience to any order would be a mark of responsible command. But absolute obedience is not now, nor has it ever been, the touchstone of what responsible command truly means. If it were, then the execution of civilians and prisoners of war by Japanese and German forces during World War II, see Britannica, Nanjing Massacre; Kim Guise, Justice After the 1944 Malmedy Massacre, National WWII Museum, Jul. 16, 2021, or the deliberate attack of civilians, schools, and hospitals by Russian forces in Ukraine in 2022, see Keith Collins et al., Russia’s Attacks on Civilian Targets Have Obliterated Everyday Life in Ukraine, N.Y. Times, Mar. 23, 2022, would be indicators of responsible command. They are not.

Instead, the true indicators of responsible command are military forces, commanders and subordinates, who preserve the line between legal and illegal use of force in war; who strive to achieve their objectives in a way that mitigates the risk to civilians and civilian property; and who respect the legal limitations on their conduct in armed conflict. And the commander who fails to prepare subordinates; who is either complicit in or indifferent to subordinates’ actions that cross the line; or who knows or should know that subordinates have committed war crimes is irresponsible, no matter how obediently those subordinates may follow orders.

Why does this matter? Why is responsible command – command that demands respect for the international legal limits of wartime conduct – such a critical aspect of contemporary military operations? One answer might be, “Well, the law is the law and it must be obeyed.” But that answer is too simplistic. Yes, international law imposes obligations on combatants and their commanders; yes, violation of this law means potential criminal liability. But in the moments of extreme mortal danger that happen in armed conflict, it is naïve to assume that decisions will be primarily dictated not by human nature but by the fear of subsequent criminal responsibility. Instead, soldiers must understand that restraining their human instincts for revenge, retribution, or sometimes even survival itself is essential for achieving their ultimate strategic objectives. Accordingly, responsible command is critical because it is central to the concept of genuine military discipline: the discipline to subordinate the human instincts of fear, anger, revenge, indifference, and even self-preservation to the collective objectives of the mission; the discipline to understand that every military act of violence must be done only for collective and, in many cases, national goals; and the discipline to realize that compliance with the law of armed conflict at all levels of military operations is essential to mission accomplishment and the accordant strategic end-state.

The connection between responsible command, respect for law, and strategic success is reflected both implicitly in the international legal criteria for claiming the “privilege” to participate in hostilities and explicitly in contemporary U.S. military doctrine. First, the implicit. It is self-evident that a member of a military unit sent into combat will be called upon to engage in violent acts that, in any other context, would be criminal: most notably killing and wounding human beings, destroying property, and seizing and detaining individuals. International law immunizes lawful combatants from criminal liability when they engage in such violence but only if they satisfy the four requirements to claim the “combatant’s privilege.” See Int’l Comm. of the Red Cross, How Does Law Protect in War? Immunities. The four requirements date back to 1899 and are found in international treaties. The requirements are that the belligerent operative carry arms openly; wear a distinctive emblem recognizable at a distance (a uniform); conduct operations in accordance with the laws of war; and operate under responsible command. See Medecins Sans Frontieres, The Practical Guide to Humanitarian Law. The implicit connection follows: the international legal privilege to engage in hostilities is contingent on the commander whose responsibility extends to training subordinates to respect international law and taking appropriate disciplinary action for failures to do so.

Perhaps in 1899, the primary interest advanced by these “combatant qualification” criteria was to solidify the state’s monopoly on organized warfare. At that time, the general understanding was that only states could engage in war. Over time, however, responsible command as a foundation for genuinely disciplined military forces and a barrier against unjustified brutality in war – in short a critical facilitator of humanitarian protection – grew in importance. Indeed, the primary logic for the criminal-liability doctrine of command responsibility was to enhance the protection of civilians and other protected individuals in times of war by subjecting commanders to liability for the illicit brutality of subordinate units. See Yamashita v. Styer, 327 U.S. 1 (1946); see also Guénaël Mettraux, The Law of Command Responsibility (2009).

As both conflict and law evolved, limiting the suffering of war by mitigating the infliction of harm on civilians and civilian property is the primary humanitarian rationale for both the laws of war and the imperative of responsible command. But respect for international humanitarian law (or the law of armed conflict) is also a – if not the singular – touchstone for the legitimacy of a military operation. Legitimacy, in turn, is a central tenet of effective military operations, especially for democratic nations committed to respect for the rule of law and the protection of fundamental human rights.

The connection between responsible command, respect for law, and strategic success is explicit in foundational U.S. military doctrine. Joint Publication 3-0, Joint Operations establishes U.S. military doctrine for joint, or multi-service, operations. According to the publication, “Joint doctrine recognizes the nine principles of war. Experience gained in a variety of situations has reinforced the value of three additional principles—restraint, perseverance, and legitimacy. Together, they comprise the 12 principles of joint operations.” Joint Publication 3-0, Joint Operations I-2 (Oct. 22, 2018). The principle of legitimacy is defined as follows:

Legitimacy, which can be a decisive factor in operations, is based on the actual and perceived legality, morality, and rightness of the actions from the various perspectives of interested audiences. These audiences will include our national leadership and domestic population, governments, and civilian populations in the [operating area], and nations and organizations around the world. Id. at A-4.

Two aspects of this definition of legitimacy warrant emphasis. First, there is the recognition that legitimacy “can be the decisive factor in operations.” Decisive in what sense? Certainly not for a tank or infantry platoon engaged in direct combat with an enemy. For such a small unit, it is the effective employment of combat power – the ability to close with and destroy the enemy through fire and maneuver – that will prove decisive. The impact of legitimacy is not likely realized at the tactical level of operations; it is realized at the strategic level. From a strategic perspective, joint doctrine reflects the profoundly important recognition that U.S. forces can “win the fight but lose the war” if the manner of operations is actually or perceived inconsistent with law and morality. In other words, if the execution of military operations is perceived as illegal or immoral, the war is lost regardless of how many battles are won. Second, legitimacy turns on both the actual and perceived respect for law and morality. Thus arises an important axiom for U.S. forces committed to achieving strategic success in war: perceived legitimacy is contingent on actual legitimacy, but actual legitimacy does not guarantee perceived legitimacy.

If legitimacy is a critically important principle of U.S. joint operations, what is the decisive enabler of legitimacy? Leadership or responsible command. The lesson learned in the past decade and the past century-plus is that competent, moral, and honorable leaders, or responsible commanders, are the decisive factor in successful military operations.

The degradation of U.S. strategic credibility and legitimacy in the 20-plus years of combat operations since September 11, 2001 can almost always be traced back to failures of U.S. leaders to execute their command responsibility effectively. Whether it was the endorsement by the Secretary of Defense of “enhanced interrogation techniques” that, in the opinion of most experts and observers, amounted to torture, see Lucy Madison, Rumsfeld: Mistake to End Enhanced Interrogation, Face the Nation, May 8, 2011; the dereliction of senior ranking soldiers who allowed subordinates to abuse detainees at Abu Ghraib, Iraq, see Seymour M. Hersh, Torture at Abu Ghraib, New Yorker, Apr. 30, 2004; or the neglect of critical procedures to minimize the risk to civilians that resulted in the attack on a non-governmental organization’s hospital in Kunduz, see Phil Stewart, U.S. Military Punishes 16 Over 2015 Afghan Hospital Bombing, Reuters, Apr. 28, 2016, leaders failed in their most fundamental command responsibility: to ensure subordinates conducted operations in a manner that reflected a genuine respect for the humanitarian dictates of the law of armed conflict.

Today, the conduct of Russian forces in Ukraine serves to reinforce the link between responsible command, legitimacy, and strategic success or failure. President Vladimir Putin’s decision to launch a war of aggression against Ukraine in February 2022 was a blatant violation of international law, as were his 2014 land grab in Crimea, see Steven Pifer, Crimea: Six Years After Illegal Annexation, Brookings, Mar. 17, 2020; his aggressive actions against Georgia in 2008, see Sarah Pruitt, How a Five-Day War With Georgia Allowed Russia to Reassert Its Military Might, History, Sep. 4, 2018; and his use of “little green men” in an effort to gobble up eastern Ukraine in 2019. See Ray Furlong, The Changing Story of Russia’s ‘Little Green Men’ Invasion, RadioFreeEurope, Feb. 25, 2019. All of these illegal acts generated international protest, but none generated a level of condemnation and a coalescence of opposition anywhere close to what we are witnessing today. Certainly, the scale of the Russian violence against Ukraine in 2022 has played a role in the united response of many countries against Russia. But there is arguably another consideration: this conflict, unlike prior Putin adventures, involves the widespread and pervasive illegality of the manner in which Russian forces are conducting operations in Ukraine. See, e.g., BBC, Ukraine Conflict: What War Crimes is Russia Accused Of?, Nov. 14, 2022.

It cannot be known whether the international condemnation of Russia and support for Ukraine would be as robust were Russian forces operating under responsible command. But as headlines are filled with stories about the brutal and indiscriminate tactics of Russian forces, see id., it seems impossible to ignore the consequences of Russian conduct. Undoubtedly, Russia’s aggression would be condemned and Ukraine would be supported by certain members of the international community, but it is the near-daily deluge of visual and visceral evidence that Russian forces are engaged in illegal conduct that has led to Russia paying the diplomatic and military price of international isolation imposed on Russia and military resources provided to Ukraine.

The price Russia is paying is not, however, limited to international condemnation and support for Ukraine. Indeed, the conflict in Ukraine is an iconic example of why responsible command demands respect for law and the line between lawful and unlawful violence: because respect or lack of it impacts enemy resolve. See, e.g., Liz Sly and Kostiantyn Khudov, In Ukraine’s Capital, Putin’s Attacks Don’t Dim The Resolve To Fight Russia, Wash. Post, Dec. 1, 2022. Responsible commanders have always understood that the objective of bringing about the prompt submission of the enemy will be undermined by actions that ignore the legal limits on the military’s authority to employ force and inflict suffering.

The lesson that responsible command means leadership that ensures the actual and perceived legitimacy of military operations is being reinforced daily in the Russia-Ukraine conflict, as it has been learned in armed conflict of the past decade of military operations and long before. International law requires — and the United States and fellow members of the international community demand — that responsible commanders lead units ready, willing, and able to employ decisive combat power while also mitigating unnecessary suffering. Circumstances, be they technological developments or the nature of the enemy, will never change this enduring axiom of genuinely effective military operations. The most important lesson for the U.S. military to learn and embrace, therefore, is to develop leaders who understand the depth and significance of their command responsibility, discharge their duties in even the most complex and demanding military environments, demonstrate operational legitimacy, and achieve strategic success.

Geoffrey S. Corn

Lieutenant Colonel (Retired), U.S. Army

Geoffrey Corn, Lieutenant Colonel (Retired), U.S. Army, is the George R. Killam, Jr. Chair of Criminal Law and Director of the Center for Military Law and Policy, Texas Tech University School of Law.

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The views expressed herein represent the opinions of the authors. They have not been approved by the House of Delegates or the Board of Governors of the American Bar Association and, accordingly, should not be construed as representing the position of the Association or any of its entities. Nothing contained in this publication is to be considered as the rendering of legal advice for specific cases, and readers are responsible for obtaining such advice from their own legal counsel. This publication is intended for educational and informational purposes only.

The material in all ABA publications is copyrighted and may be reprinted by permission only. Request reprint permission here.