United States Army Operating Concept

The term “responsible command” is central to the treaty definition of “privileged belligerent” in the 1899 and 1907 Regulations Annexed to each respective Hague Convention,Footnote ² and the related treaty definition of “prisoner of war” included in both the 1929 and 1949 prisoner-of-war conventions – definitions that are generally recognized as linking qualification as a prisoner of war with lawful combatant status.Footnote ³ This linkage was made explicit in 1977, when Additional Protocol I (AP I) provided an explicit definition of combatant,Footnote ⁴ a status reserved for those individuals entitled by law to participate in hostilities. Consistent with the prior treaties on which this definition was based, it also made operating under responsible command a precondition for entitlement to the status of lawful combatant. Thus, lawful combatant status requires a “responsible” command/subordinate relationship. Responsible command is also the foundation for the doctrine of command responsibility, a theory of criminal liability central to ensuring military commanders (and by extension civilian leaders responsible for military decision-making) fulfil their “responsibilities” in a manner that mitigates the risk of subordinates violating international humanitarian law (IHL).Footnote ⁵

But what exactly renders command “responsible”? Considering the centrality of this concept to both the legal authority to engage in mortal combat, and the accountability of those entrusted with leading the business of armed violence, the treatment of this question in scholarship and literature on IHLFootnote ⁶ is surprisingly sparse. What makes this even more perplexing is the importance of effective and responsible command as a genuine “force multiplier” for military units.Footnote ⁷ It is probably not an overstatement to assert that the quality of command is the sine qua non of successful military units. Commanders shape the character of the collective force that is the military unit, and influence every aspect of the unit's operational competence. It is therefore no surprise that the study of leadership is a central component of the professional education and training of officers and non-commissioned officers, and that the concept of mission command is considered a core war-fighting function.Footnote ⁸

Leadership and battle command

Within a military organization there are many individuals who exercise leadership responsibility, ranging from low-level unit leaders such as infantry squad and team leaders to staff officers responsible for supervising the function of subordinates assigned to them. Unit command, however, involves a subtly different form of leadership, for a simple reason: it is the commander who is ultimately responsible for the effectiveness of the unit in executing whatever mission it may be assigned. While other leaders throughout the command play an important role in this process, their contributions will always be subordinate to the direction and priorities established by the commander. Ultimately, it is the commander who is responsible for providing the unit with the purpose, motivation and direction necessary to produce maximum operational and tactical effect.Footnote ⁹

The IHL notion of responsible command is not synonymous with the manifold responsibilities inherent in the function of command. It is, however, inextricably linked to these responsibilities. This is because IHL is unquestionably and intuitively premised on the expectation that the proper exercise of command responsibility is essential to enhancing the probability of IHL compliance in the most physically and morally challenging martial situations.Footnote ¹⁰ Thus, “responsible command” in the IHL sense does not connote a distinct command function, such as the responsibility to train soldiers, or provide clear and effective orders, or ensure equipment is properly maintained, or manage the expenditure of finite unit resources. Instead, the IHL notion of “responsible command” inherently connotes an expectation that all command responsibilities will be conceived and executed in a manner that advances the core objectives of IHL. Preparing a military unit to execute its combat function within the bounds of IHL is therefore an inherent expectation of responsible command, and as such, IHL permeates the entire concept of command and every function performed in the execution of command responsibilities.

Leader and subordinate expectations

Framing the meaning of command responsibility within the architecture of IHL – the law that it is intended to advance – illuminates the rationale of linking lawful combatant status with the requirement that the individual belligerent operatives function under responsible command.Footnote ¹¹ This status qualification within the meaning of IHL requires much more than simply the capacity to engage in armed violence, or even the competence to do so in a tactically effective manner. IHL imposes a higher bar, reflected in the criteria incorporated into the prisoner-of-war definition found in the 1929 and 1949 Geneva prisoner-of-war conventions and the combatant definition found in AP I. Collectively, these “four qualification criteria” indicate an inherent expectation that lawful combatant status carries with it a level of confidence that:

1. 1. the individual execution of tactical violence is subordinated to the will of the military organization – an inherent consequence of being a member of or incorporated into the armed forces of a party to the conflict;

2. 2. the individual fighter is effectively incorporated into the military organization in a manner that clearly signals to the individual that he or she is an agent of a higher authority and not an autonomous actor – an inherent consequence of the requirement that members of militia or volunteer corps “belong” to a party to the conflict;Footnote ¹²

3. 3. most importantly, the higher authority exercises the function of command to ensure that subordinate conduct is consistent with core IHL principles – an inherent consequence of the requirement that lawful combatants operate under responsible command.

Fielding a force that only meets some but not all of these expectations is inconsistent with the IHL notion of responsible command. The essence of command unquestionably necessitates the development of subordinates whose obedience to orders, personal courage and tactical proficiency enables the commander to utilize the military unit to achieve defined outcomes. However, while it might produce a military unit that is effective in its ability to execute the orders of the commander, this is not sufficient to ensure that the unit will execute its mission in a manner that advances the overall objectives of the State or non-State group that it serves. In other words, being tactically effective is not, in and of itself, sufficient to ensure contribution to the strategic end-state driving the use of combat power.

The link between discipline and operational effectiveness

Discipline is essential to create a tactically effective military unit; that is, a unit capable of efficiently executing its combat mission. But to transform a tactically effective military unit into a unit that is considered “responsible” – at least within the implicit meaning of this term as it relates to lawful combatant qualification – involves more than instilling the discipline to obey orders. Instead, meaningful military discipline must produce a dual outcome. First, subordinates must be imbued with an unhesitating willingness to subject themselves to mortal danger in order to execute superior orders; second, they must also be fully committed to respecting the IHL-based legal limitations on their power. Only when a unit manifests this notion of discipline will orders be executed in a manner that advances the core objective of IHL: to bring the opponent into prompt submission in a manner that mitigates to the extent practicable the humanitarian suffering associated with hostilities.Footnote ¹³

Responsible command is the sine qua non in the development of this type of discipline; the type of discipline that genuinely defines a professional military force. The term “responsible command” indicates an exercise of command authority that produces this broader notion of a disciplined and effective fighting force. Thus, an effective military unit is by implication a responsible military unit: a unit competent in tactically executing combat operations in a manner that manifests respect for and compliance with IHL.Footnote ¹⁴

If unquestioning obedience to orders was the exclusive characteristic of a disciplined and tactically effective military unit, then the Japanese forces that captured NankingFootnote ¹⁵ or the German units that murdered thousands of enemy prisoners of war or engaged in collective punishment of civiliansFootnote ¹⁶ could be considered model military units. But this is not the case; instead, such units and the atrocities they committed provide iconic examples of the link between IHL compliance and strategic advantage, and the blunder of allowing subordinates to ignore IHL during the execution of military operations. Indeed, this inherent link between the notion of a responsible military unit – one committed to ensuring respect for IHL in the course of mission execution – and the overall effectiveness of a military unit reveals why these and other military units, all highly effective in a strictly tactical sense, so frequently produced long-term strategic failure.Footnote ¹⁷ These units obeyed orders, assumed mortal risk and leveraged their combat power to efficiently defeat their enemies. However, by doing so in a manner that consistently violated core humanitarian constraints applicable during armed conflict, they compromised the value of their tactical and operational successes, rendering strategic victory far less likely. The blatant abuses by these forces of the then-existing restraints imposed by the laws and customs of war produced profound negative strategic and moral consequences, including the corrosion of their moral integrity. Such negative effects are not unique to the foregoing examples. Even within an armed force whose overall commitment to IHL compliance is the norm, isolated incidents of deviation from this commitment poses immense strategic risks. Incidents such as the My Lai massacre and Abu Ghraib are powerful examples of this reality.Footnote ¹⁸

The responsibility of command, therefore, should be understood as a responsibility to develop military units that are able to impose their will on opponents at the tactical level in a manner that contributes to strategic success. As such, a truly effective military unit is one that executes combat operations consistently with IHL regulatory norms, and truly responsible command creates a sense of discipline that produces this effect.

Why and how responsible commanders ensure compliance with IHL

This conception of “command responsibility” – that a commander is responsible for preparing forces to engage in hostilities in accordance with IHL – may seem self-evident. However, what is not self-evident is exactly why this is so, or how individual commanders may best execute this responsibility. On the first point, it might be legitimate to question the assumption that a military unit cannot be truly effective if widespread IHL non-compliance is a common aspect of mission execution. Although it is not without exception, in general history validates this premise and demonstrates that IHL compliance almost inevitably produces strategic benefit, while widespread (and even isolated) non-compliance produces strategic disadvantage. Indeed, were this not the case, it is unlikely that so many States would agree to bind themselves (and by implication their military personnel) to the constraints inherent in IHL treaty obligations.

There is, of course, a purely humanitarian explanation for demanding that subordinates comply with IHL and for why such a demand is central to the notion of responsible command: it mitigates the human suffering produced by armed conflict. Many will likely consider this the ultimate justification for linking responsible command to IHL compliance. Indeed, the term “international humanitarian law” is a clear reflection of the belief that the central and principle purpose of this body of international law is to protect war victims, most notably civilians.Footnote ¹⁹ Others argue that humanitarian protection is not the primary purpose of the law, but is instead one component of a body of law that is intended to both justify and regulate armed violence; hence the assertion that the “law of armed conflict” is a more accurate characterization of this branch of international law than IHL.Footnote ²⁰ Regardless of where one stands on this debate, there can be no dispute that a link between responsible command and subordinate commitment to IHL serves broader purposes than mitigating the suffering of civilians and other victims of war. The strategic benefit of limiting the brutality of armed conflict, as noted above, is clearly one of these purposes. Such commitment also contributes to the more subtle benefit of protecting the moral integrity of subordinates. This is because IHL provides them with a moral framework that allows them to reconcile their individual participation in the brutal endeavour that is “war” with the innate sense of morality that we hope all individuals will retain as they transition from civilian to soldier and back again.Footnote ²¹

Protecting subordinates from the morally corrosive effects of combat is probably not commonly considered a benefit of IHL compliance or associated with the execution of command responsibility.Footnote ²² And yet, inherent in the responsibility of any military commander is the obligation to protect subordinate forces from the risks associated with combat operations, consistent with the dictates of the mission. Indeed, one of the first leadership principles taught to US Army personnel is the prioritization of effort: “mission, men, equipment”.Footnote ²³ This prioritization includes an inherent obligation to prepare subordinates for the physical, mental and, as addressed in greater detail below, moral challenges inherent in combat. In other words, while mission accomplishment is always the first priority of a military leader, the second is protecting the members of the unit.

Executing this aspect of command responsibility is frequently characterized with concepts such as “force protection”.Footnote ²⁴ But this characterization is somewhat misleading, for it suggests that the exclusive focus of this responsibility is protecting the force from external physical dangers. Such protection is, of course, a vital aspect of effective leadership and effective military command, but not an exclusive one. Commanders bear an equally important obligation to provide subordinates with the tools needed to navigate the moral hazards of military duty, most notably the challenges associated with engaging in lethal violence.Footnote ²⁵

Moral consequences of a duty to kill

In this regard, it is probably unlikely that there are many military veterans who have genuinely contemplated the fundamental consequence of the military superior/subordinate relationship. It is relatively self-evident that this relationship results in an obligation that the subordinate obey the orders of the superior. What is not self-evident is the immense moral consequence this obligation encompasses. For the subordinate, this is ultimately manifested in a duty to take the life of another human being on demand.Footnote ²⁶ This is a profound departure from the peacetime expectations of homicidal justification. In that context, the notion that some extreme situations justify the use of homicidal violence to protect oneself against an imminent threat to life is universally understood. However, it is the imminence of the actual and unlawful threat of extreme violence that permits an individual to engage in homicidal self-help. Such uses of force are exceptional in nature and restricted to those rare instances where an individual confronts a threat of imminent death or grievous bodily harm, triggering a necessity-based right of self-defence.Footnote ²⁷ Thus, the individual acts pursuant to what is arguably a natural human instinct of self-preservation.

Justifiable homicidal action in obedience to military orders may at times also fall into this category, but is much broader in scope. The very nature of armed conflict involves two significant departures from this peacetime justification model. First, homicidal action in lawful combat is justified based on status determinations.Footnote ²⁸ This means that deadly force is routinely ordered absent indicia of an actual imminent threat of death or grievous bodily harm.Footnote ²⁹ This is because each combatant is presumed to be contributing presently or in the future to the collective effectiveness of the enemy force, the neutralization of which is a legitimate State aim. This presumption alone justifies the use of deadly force, which is therefore lawful as the result of the status of the object of attack.Footnote ³⁰ In the simplest of terms, a commander points at another human being, who at that moment is not engaged in any aggressive conduct, and orders a subordinate to attack. Obedience to orders requires the subordinate to align his sights and pull the trigger of a weapon designed to create a high probability of death, and in many cases take the life of the status-based target. This also reveals the second significant departure from peacetime justification for engaging in homicidal self-help: the absence of any requirement to employ less-than-lethal means to incapacitate the object of attack.Footnote ³¹ Hence, the subordinate need not, and indeed in many situations must not, exhaust lesser means to disable the status-based target.

This superior/subordinate influence on the employment of homicidal force is a constant feature of armed conflict: commanders issue orders to employ deadly combat power, and subordinates execute those orders. Both sides of this equation must, therefore, carry the mental and emotional weight of such action through the remainder of their lives. Even for the most hardened combatant, this weight should not be underestimated.Footnote ³² The vast majority of men and women who volunteer or are conscripted into wartime service come to their task with a solid moral foundation and aver the act of killing. So much has been established by empirical studies of the attitudes of front-line combatants in numerous conflicts.Footnote ³³ Indeed, the challenge of overcoming this natural aversion to killing on demand significantly influences the nature of military training, which consistently seeks to prepare the individual to overcome this aversion by substituting a dehumanized conception of enemy for that of a fellow human being. While this is perhaps an unfortunate necessity of preparing men and women for the demands of combat, it is also a powerful confirmation that most soldiers are not “natural born killers”.

Preserving subordinates' human dignity in the chaos of mortal combat

Providing military personnel with a decisional framework that enables them to reconcile their innate sense of morality and humanity with the demands of employing lethal force on demand is therefore an essential responsibility of effective command. Leaders who understand this responsibility produce subordinates who are able to retain the recognition that there is a difference between moral and immoral killing, even in warfare. In other words, they will understand that war does not justify all violence, which is the central concept inherent to the principle of military necessity. This, in turn, produces two vital benefits. First, the commander's unit is much more likely to respect IHL in the most demanding situations, because the distinction between justifiable and unjustifiable violence will have been embedded in the unit culture and the warrior ethos that the commander cultivates. Second, inculcating subordinates with an understanding of the nature and significance of IHL-based constraints on their permissible conduct renders them more capable of navigating the moral challenges associated with the execution of their violent duties.

Reinforcing the line between “right and wrong” in combat is no easy task, and will often require commanders to train subordinates to reject the temptation to adopt a “whatever it takes” mentality. Subordinates – and perhaps most importantly, the junior leaders who direct tactical operations – who realize that respect for the constraints inherent in the law contributes to broader mission accomplishment, even if it might increase tactical-level risk, are more likely to reject such temptation. Instead, they will demand that the combat power entrusted to them is utilized within the framework of the law, thereby advancing both military and humanitarian interests. And by preparing troops for this challenge, leaders increase the probability that the line between moral and immoral violence will be preserved as they transition back into civilian society. This is for the simple reason that justification will remain the central moral and practical consideration associated with the use of force, ideally enabling the individual to appreciate that different contexts justify different levels of violence.

Both legal and military operational experts have highlighted these benefits of responsible command and commitment to IHL compliance. Two of the most compelling articulations are found in Telford Taylor's Nuremberg and Vietnam: An American Tragedy and James McDonough's Platoon Leader. McDonough offered his perspective after serving as an infantry platoon leader in Vietnam, in a memoir that is considered essential reading for junior military leaders in the US Army. Explaining his role as a combat leader, he wrote:

McDonough's perspective seems to be generally overlooked in contemporary IHL scholarly discourse, which focuses primarily on the law's role in protecting civilians and other non-combatants – an important albeit non-exclusive objective. Little attention has been paid, however, to the role of the law in protecting the moral integrity of the soldier; or, as McDonough notes, in aiding the soldier to remain civilized in the context of the most uncivil of human endeavours. This is unfortunate, for it risks diluting a vital function of IHL, and in turn contributes to an under-inclusive understanding of “responsible command”. As McDonough notes, commanders bear a responsibility for protecting subordinates from the moral corrosion inherent in the use of lethal force. IHL gives the commander a vital tool to accomplish this task, as it provides the framework to facilitate the distinction between legal and illegal violence, which will routinely translate to the distinction between moral and immoral individual conduct. Certainly, some may challenge the notion that participating in armed conflict can ever be characterized as a moral endeavour. However, it is undeniable that IHL reflects international consensus on the appropriate and legitimate balance between the necessities of war and humanitarian interest. As such, the law is used by commanders to indicate the line between moral and immoral conduct for those required to participate in armed conflict.Footnote ³⁵

Telford Taylor, the chief US prosecutor at the Nuremberg Tribunal, also recognized this critical morality-reinforcing function of the law. In his book he discussed the many benefits that flow from IHL compliance, including the following observation:

These two insights – coming from both the tactical and legal ends of the military intellectual and experiential spectrum – provide a compelling explanation for the inherent command obligation to ensure that subordinates conduct operations in accordance with IHL.

Perhaps more importantly, these insights illustrate why IHL plays such a vital role in protecting the moral integrity of combatants. IHL provides a legal framework for the permissible use of violence – a framework that reflects the inherent international consensus on the moral limits of military action. By imposing limits on justifiable violence in war, and therefore by implication placing many acts of violence beyond the scope of lawful and moral conduct, the law establishes a profoundly important link between an individual's violent combat actions and the interests of the State for which those actions are taken: violence and the attendant harm it produces are limited to what is necessary to accomplish the collective objectives defined by the State, as implemented through the orders of responsible military commanders.

Accordingly, IHL provides the combatant with a rational framework to subjectively justify the infliction of human suffering. When understood as a duty, and not a right, it becomes easier to understand that this suffering is the consequence of the subordinate implementing the will of the command, and by implication the State. In short, moral beings are able to appreciate the link between their duties as subordinate members of a military unit and the necessity – perhaps an unfortunate necessity – of their violent actions. Of course, scepticism related to the moral foundation of the objectives that the State seeks to achieve may compromise individual confidence in the moral legitimacy of a commander's orders. However, even when soldiers question the legitimacy of their State's strategic objectives, both the risk to their moral integrity and the humanitarian consequences of their actions will almost certainly be mitigated when their military commanders demand respect for IHL when executing missions to achieve these objectives. Thus, even when executing an operation of dubious legitimacy at the jus ad bellum level, IHL provides moral “top cover” for the soldier, allowing her to reconcile her individual conduct with the accepted moral and legal standards applicable to the execution of military operations.

Preserving the distinction between collective and individual necessity

When commanders encourage or even permit subordinates to transform the justification for inflicting suffering from serving the interests of the State to satisfying the individual impulse for revenge, for retribution or, as Taylor suggests, “to put out of the way anyone who appears obnoxious”,Footnote ³⁷ this link to rationality dissipates. This is when the danger of humanitarian suffering and moral corrosion becomes most profound, because such conduct renders the infliction of suffering as a necessary act for achieving a State's legitimate purpose (military necessity) indistinguishable from the infliction of suffering driven by personal motives. At that point there is little to distinguish the soldier from the murderer, a distinction that must be preserved in the interests of both the victims of violence and those asked to inflict harm.Footnote ³⁸

A commander, therefore, cannot be legitimately characterized as “responsible” unless these distinctions are established and reinforced through the exercise of command authority. Doing so mitigates the risk that the violence inherent in armed conflict will exceed that which is linked to the achievement of State purposes. This, in turn, reduces the suffering resulting from armed conflict, suffering which impacts both victims of war and the warriors themselves. Accordingly, this commitment to IHL compliance, and only this, justifies the permission granted by international law for individuals to employ lethal force in the context of armed conflict. This interrelationship between the role of the commander and the imposition of the legal framework within which subordinates are permitted to execute their tasks is bundled in the notion of responsible command, and the requirement that only those who operate under responsible command may qualify for lawful combatant status.

Teaching versus training on IHL

Ensuring that subordinates understand and respect this legal framework and are prepared to execute their combat tasks within it is more complex than many might assume. Relying exclusively or even primarily on classroom education about IHL, perhaps accompanied by the admonishment that IHL violations will result in disciplinary and potentially criminal sanction, will rarely produce truly effective understanding and commitment to the law. Soldiers do not truly learn to effectively perform their battle tasks by classroom instruction; they learn by doing.Footnote ³⁹ And because IHL obligations frame the performance of these tasks, IHL compliance must be integrated into the same training and development process used to produce proficiency in the battle task itself. The threat of a potential criminal sanction for violating IHL is not an adequate substitute for training integration, and will likely provide little or no deterrence when soldiers confront in extremis situations involving pressures to act in violation of the law. At that point, the soldier may be willing to prioritize immediate interests over the risk of future disciplinary sanction. In contrast, when IHL compliance has been integrated into all aspects of training battle tasks, that compliance will become increasingly instinctive and automatic, like the execution of the task itself.

This is not to say that education related to both IHL content and the individual disciplinary consequences for violations of the law are unimportant. Instead, responsible command requires a more nuanced appreciation for how the law implicates virtually every battle task assigned to subordinates and therefore must be integrated into soldier training so that the battle instincts of the soldier include respect for and compliance with the law.

Training is the essential component in preparing soldiers and military units for success in battle and other military operations. Training involves the complex process of building competence from the ground up, starting with individual soldier skills, progression to small unit capabilities, and finally integrating all of this into collective battle simulations. All of this contributes to developing almost instinctual reactions and responses to the myriad of situations that will confront the individual and collective military assets of an armed force. This is explained by US Army doctrine as follows:

Leaders influence training at every step of this process. How leaders conceptualize their responsibilities in relation to training subordinates will in large measure define the nature, quality and focus of that training. Executing this command “responsibly” requires that challenges associated with IHL compliance be fully integrated into the training process. The value and importance of this is almost self-evident: the myriad of operational and tactical challenges likely to confront soldiers and units includes those related to IHL itself. Leaders who understand this will understand why just teaching IHL obligations is insufficient to fully execute their responsibilities, because they will understand that only by training compliance with this law will soldiers be genuinely prepared for their inevitable moments of decision.

The importance of this broader vision of executing the responsibilities of command as it relates to maximizing IHL compliance is perhaps more compelling today than at any time in recent memory. Indeed, as the complexities of the battle space increase as the result of the unconventional and rapidly evolving nature of the contemporary strategic environment, the importance of developing an instinct for IHL compliance also increases. This correlation is articulated by US Army doctrine:

As this doctrinal extract highlights, commanders at all levels must ensure their subordinates genuinely understand how IHL impacts their warrior functions. This understanding is absolutely essential to effective IHL implementation, because it links such implementation to two fundamental responsibilities of the commander: protect the subordinate from the risks inherent in armed conflict, and limit the harm caused by conflict to only that which serves the interests of the State. By developing this understanding, responsible commanders prepare subordinates to walk a proverbial tightrope between employing deadly force on demand and without hesitation, and at the same time respecting the limitations imposed by the law.

Concluding remarks

Preparing subordinates to execute their deadly combat tasks often includes deliberate efforts to minimize the moral consequence of such action. This ranges from training to develop battle response instincts, to emphasis of the collective obligation of each member of the unit to perform effectively in order to accomplish the collective mission, to rewarding subordinates for their aggressiveness and personal courage in battle. It also often involves measures to enable the subordinate to view the opponent more as an object of tactical violence than a fellow human being. This is often done in quite subtle ways – for example, by using faceless silhouettes as targets during marksmanship training. It can also take the form of disparaging characterizations of the enemy writ large.

Whatever the method used to produce this moral minimization, IHL demands that these same subordinates be capable of shifting their attitude toward an enemy in the briefest of time. Once that enemy is captured or subdued – the point at which the captured enemy is at the total mercy of his captors – he is, as a matter of law, no longer allowed to be treated as an object of hostility, but must instead be treated like any other human being. When commanders weave IHL compliance into their training, they prepare subordinates to execute this incredibly demanding mental shift in perspective in the briefest of moments between attack and submission.

Preparing subordinates to navigate this complex challenge is the essence of responsible command. It is also central to the international legal qualification of lawful combatant and the accordant legal privilege to participate in hostilities. That status and privilege is built on the assumption that commanders will discharge this duty “responsibly”. This inextricable link between responsible command, combatant status and humanitarian interests must constantly be emphasized in every aspect of leader training and development. Indeed, societies' best hope for mitigating the detrimental impact of mortal combat is the responsible commander, a reality that has been and will continue to be central to balancing the interests inherent in IHL.