JURIST Guest Columnist Victor Hansen of New England School of Law says that the recent acquittal of Lieutenant Colonel Stephen Jordan of Abu Ghraib abuse charges reflects a structural failure to adequately incorporate the principle of command responsibility into the US Uniform Code of Military Justice...
he acquittal of Lieutenant Colonel Stephen Jordan on charges relating to the abuse of detainees at Abu Ghraib prison is being roundly criticized as a failure by the military to hold senior officials accountable in the detainee abuse scandal. Much of this criticism focuses on a perceived lack of will to hold senior military and civilian officials accountable for their role in the detainee abuse. There is little doubt that the Bush Administration is not keen to affix responsibility on military and civilian leaders within the Department of Defense for carrying out aggressive interrogation techniques which the Administration itself developed.
There is, however, another reason why the case against Lieutenant Colonel Jordan ultimately failed and why the military has been unable to hold more senior military leaders accountable. The reason is quite simply that under the Uniform Code of Military Justice (UCMJ) there is no adequate mechanism to hold commanders and supervisors criminally accountable for the law of war violations committed by forces under their command. To be sure, if a commander ordered, directed, participated in, or otherwise facilitated the detainee abuse at Abu Ghraib, there are adequate provisions under the UCMJ to affix criminal liability. The fact is, however, that there is simply not sufficient evidence to show that commanders and senior officers engaged in this kind of criminal conduct, hence, the acquittal of Lieutenant Colonel Jordan on these charges.
The more important question is what type of criminal responsibility attaches to a commander who has a duty to control the forces under his command and fails in that duty? What of the Commander for example who does not know, but under the circumstances should have known about detainee abuse? The criminal law concepts of accomplice liability, conspiracy, and the like do not get at these cases, because there is no evidence of shared intent between the commander and the offending forces.
At least since the end of WWII, the law has recognized that gap and filled the breach by creating the doctrine of command responsibility. Under this doctrine, liability can be imposed on a commander for the law of war violations committed by his forces, if the commander failed in his duty to prevent, suppress or punish war crimes. The United States was one of the strongest proponents of this doctrine in international law and the doctrine was used successfully in a number of war crimes prosecutions at the conclusion of WWII. Since that time, the doctrine has gained the status of customary international law and has been codified in a number of international treaties and statutes. Interestingly, the doctrine was also codified by the United States in the recently passed Military Commissions Act.
Inexplicably, the doctrine has escaped codification under the UCMJ. The consequences of the failure to incorporate this doctrine could not be more obvious. For all intents and purposes, the military prosecutions arising out of Abu Ghraib are over. The only people successfully court-martialed for their role in the abuse were eleven enlisted soldiers. Lieutenant Colonel Jordan was the only officer to face court-martial charges for his involvement in abuse and he was acquitted. This acquittal came not because a panel of senior officers was unwilling to hold a fellow officer accountable for his conduct. The acquittal came because the military lacks the legal tools necessary to bring someone in Lieutenant Colonel Jordan's situation to account for his failings.
It is long past time for Congress to amend the UCMJ and fully incorporate the doctrine of command responsibility. Incorporation of this doctrine will serve a number of important ends. It will create a clear standard by which to evaluate the conduct of military commanders, as well as give strong legal incentives to commanders to ensure that their forces are obeying the law of war, particularly when those forces are involved in high risk activities, like detainee operations. The doctrine will also create equity in the criminal justice system so that enlisted solders are not the only ones called to account for their failings. And most importantly, it will recognize that the authority of command carries with it an equally important responsibility. Many times it is the military commander alone who can prevent forces under his command from committing war crimes. Victor Hansen was a lieutenant colonel in the United States Army JAG Corps and currently teaches at New England School of Law