The doctrine of command responsibility in the midst of war : legal fallacy or reflection of reality

O'Sullivan, Carmel (2012) The doctrine of command responsibility in the midst of war : legal fallacy or reflection of reality. The New Zealand and Australian Armed Forces Law Review, 10 and 11, pp. 111-124.

Abstract

The history of war is blighted with astonishing reminders of man’s ability to cast his sense of humanity aside and inflict unspeakable harm upon one another. The ruthless bombing of Dresden, the callousness of the Nazi concentration camps and the massacre of the Tutsis are but a few of the atrocities that have haunted our past. In response to these atrocities, society has imposed an ever-increasing number of laws and rules to regulate warfare. Amongst these is the doctrine of command responsibility. The doctrine of command responsibility states that a commander is criminally liable for the crimes of his subordinates if he knew or should have known of their crimes. This paper will examine whether the doctrine is an appropriate and realistic legal standard to hold commanders accountable to or whether the doctrine is more a reflection of social sentiment and legal rhetoric. If the doctrine, and indeed the law of war in general, is unrealistic then the law cannot fulfil its purpose - that is, the prevention of atrocities. Instead of being solely a reflection of moral authority and social sentiments the law must also be a tool that guides and shapes the decisions and actions of the military through the chaotic and brutal nature of war...

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ID Code: 58697
Item Type: Journal Article
Refereed: Yes
Keywords: command, responsibility, war
ISSN: 1175-6136
Subjects: Australian and New Zealand Standard Research Classification > LAW AND LEGAL STUDIES (180000) > LAW (180100) > International Law (excl. International Trade Law) (180116)
Divisions: Current > Research Centres > Crime & Justice Research Centre
Current > QUT Faculties and Divisions > Faculty of Law
Current > Schools > School of Law
Copyright Owner: Copyright 2012 Armed Forces Law Association of New Zealand and contributors
Deposited On: 13 Jan 2014 05:56
Last Modified: 30 Oct 2014 04:36

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