2014 Joint series: The intersection of battlefield regulation & criminal responsibility

In this penultimate post from the Transatlantic Dialogue on International Law and Armed Conflict series, Geoff Corn (South Texas) discusses the topic of how criminal responsibility relates to battlefield regulation.

Read his post on Lawfare

Here's a taste: 

During our conference, I was asked to generate discussion on issues related to accountability for law of armed conflict/international humanitarian law violations.
Any discussion of this issue must begin with the recognition that international criminal responsibility for serious LOAC/IHL violations is today a firmly entrenched component of the IHL compliance mosaic. Investigation, prosecution, conviction, and punishment of war criminals is expected to produce both retributive and deterrent effects, ostensibly enhancing the probability of legal compliance in on-going and future armed conflicts. Military commanders must be the critical focal point for this accountability; a focal point that is logically aligned with the unique authority of commanders to train, direct, and oversee the conduct of subordinates armed with immense lethal force capability.
While these assumptions may be unremarkable, and perhaps even axiomatic, my discussion questions focused on what I believe are several complex questions that arise in this accountability equation. As a general matter, I sought to highlight what I believe are several evidentiary and institutional complexities associated with subjecting commanders and other operational decision-makers to criminal accountability for battle-command judgments – complexities that will become more significant as cases focus increasingly on complex operational decision-making, particularly in relation to targeting. What follows are several of the discussion questions that highlight these complexities.

Other posts in this series:

Introduction by the ICRC's Tracey Begley

Lawfare's Bobby Chesney on when IHL ceases to apply

Canadian expert, Ken Watkin, on the overlap of IHL and IHRL Part I

Ken Watkin Part II

Columbia Law School's Sarah Cleveland on harmonizing standards in armed conflict

Developing the law of non-international armed conflict