Friday, May 5, 2017

Blank: Examining the Role of Law of War Training in International Criminal Accountability

Laurie R. Blank (Emory Univ. - Law) has posted Examining the Role of Law of War Training in International Criminal Accountability (Utah Law Review, forthcoming). Here's the abstract:

Since the Hague Convention in 1899, the law has required soldiers to be trained in LOAC. Indeed, disseminating the law of war and training soldiers to fight in accordance with the law is central to the effective implementation of LOAC. Training is, of course, prospective in nature; it is about taking measures in advance of military operations to maximize adherence to the law and minimize violations. At the other end of the spectrum lies accountability — efforts after the fact to identify, prosecute and punish those responsible for international crimes. As in other legal regimes, enforcement and accountability for violations of LOAC are key to effective implementation of and adherence to the law. This article explores the intersection between training and enforcement in the context of international criminal prosecutions. Neither training nor prosecution alone can fulfill the crucial need to maximize compliance with the law. Criminal prosecution, whether at the national or international level, plays a critical deterrent role, but will not be sufficient on its own to ensure protection of civilians. Training and other mechanisms for dissemination and education are key tools to ensure compliance with the law before and during armed conflict, to help prevent crimes from being committed in the first place. In the end, coordinated and concerted efforts across the spectrum of LOAC implementation — from training to accountability — are essential to promote LOAC’s key objectives: protect civilians, minimize unnecessary suffering and enable effective military operations.

At a much more specific level, however, training and accountability intersect directly in the context of criminal prosecutions where LOAC training — the fact of training, the lack of training, or the quality of training — plays a role in the prosecution of, or sentencing for, crimes before an international tribunal. Similarly, LOAC training has also proven to be relevant in assessing a state’s responsibility for violations of LOAC. Although rarely the determinative factor in assessing responsibility, LOAC training factors into the accountability and responsibility paradigms in several different ways. Understanding how and why LOAC training matters in the accountability context — for command responsibility, for mitigation or aggravation in sentencing, and even for state responsibility — is thus one more useful consideration in emphasizing the importance and purpose of training. Ultimately, the intersection between training and accountability highlights that no commander, no state, and no soldier can be a bystander, but rather must take the necessary steps to ensure that anyone under her command or acting on its behalf is equipped and dedicated to applying the law.