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Commentary - Duty of commanders
    [p.1017] Article 87 -- Duty of commanders


    3549 The first duty of a military commander, whatever his rank, is to exercise command. For this purpose the relationship between ranks and responsibilities [p.1018] are, as a general rule, exactly determined within the armed forces, and the authority of each of the different levels of the hierarchy is precisely defined. It is under these conditions that the armed forces can be submitted to a régime of internal discipline; and the way the system is applied is the sole responsibility of the Contracting Parties and the Parties to the conflict. This régime is inseparable from the status of armed forces (Article 43 -- ' Armed forces '). According to this article, the disciplinary system must ensure, in particular, compliance with the rules of international law applicable in armed conflict. In the provision under consideration here, the Protocol enjoins the High Contracting Parties and the Parties to the conflict to ensure that military commanders carry out this task.

    3550 We are concerned here with the very essence of the problem of enforcement of treaty rules in the field. This is why the authors of the Protocol considered it necessary to define more precisely on this point the scope of Article 80 ' (Measures for execution), ' relating to the general measures for the execution of their obligations that the Parties to the Protocol are bound to take. In fact the role of commanders is decisive. Whether they are concerned with the theatre of military operations, occupied territories or places of internment, the necessary measures for the proper application of the Conventions and the Protocol must be taken at the level of the troops, so that a fatal gap between the undertakings entered into by Parties to the conflict and the conduct of individuals is avoided. (1) At this level, everything depends on commanders, and without their conscientious supervision, general legal requirements are unlikely to be effective. (2) Undoubtedly the development of a battle may not permit a commander to exercise control over his troops all the time; but in this case he must impose discipline to a sufficient degree (cf. Article 43 -- ' Armed forces, ' paragraph 1), to enforce compliance with the rules of the Conventions and the Protocol, even when he may momentarily lose sight of his troops. (3)

    3551 There was no provision of this type in the Conventions or in the draft presented by the ICRC to the Diplomatic Conference. The present Article 87 owes its inclusion to an amendment presented during the third session, (4) and was adopted in Committee I with 72 votes in favour, 0 against, and 3 abstentions, (5) before being adopted by consensus in plenary meeting. (6)

    [p.1019] Paragraph 1 -- Responsibility of commanders

    3552 This paragraph obliges the Contracting Parties and the Parties to the conflict to make the control of the application of the Conventions and the Protocol part of the duties of military commanders. For this purpose the text lists a series of measures which commanders are obliged to take, namely, to prevent breaches from being committed, to suppress them when they have been committed, and to report them to the competent authorities. These measures also form the object of paragraphs 2 and 3 of Article 87 , and it is appropriate first of all to try and focus on the concept of "military commanders".

    3553 According to the sponsors of the proposal which was behind the rule under consideration here: "in its reference to "commanders", the amendment was intended to refer to all those persons who had command responsibility, from commanders at the highest level to leaders with only a few men under their command". (7) This is quite clear. There is no member of the armed forces exercising command who is not obliged to ensure the proper application of the Conventions and the Protocol. As there is no part of the army which is not subordinated to a military commander at whatever level, this responsibility applies from the highest to the lowest level of the hierarchy, from the Commander-in-Chief down to the common soldier who takes over as head of the platoon to which he belongs at the moment his commanding officer has fallen and is no longer capable of fulfilling his task.

    3554 This responsibility primarily applies with respect to "members of the armed forces under their command". This term should be understood very specifically, if full practical meaning is to be given to the provision. A commander may, for a particular operation and for a limited period of time, be supplied with reinforcements consisting of troops who are not normally under his command. He must ensure that these members of the armed forces comply with the Conventions and the Protocol as long as they remain under his command. In addition, it is self-evident that the obligation applies in the context of the responsibilities as they have devolved over different levels of the hierarchy, and that the duties of a non-commissioned officer are not dentical to those of a battalion commander, (8) and the duties of the latter are not identical to those of a divisional commander. Within the confines of these areas of competence, the responsibility of each of these applies with respect to all the members of the armed forces under his command.

    [p.1020] 3555 However, the text does not limit the obligation of commanders to apply only with respect to members of the armed forces under their command; it is further extended to apply with respect to "other persons under their control". It is particularly, though not exclusively, (9) in occupied territory that this concept of indirect subordination may arise, in contrast with the link of direct subordination which relates the tactical commander to his troops. Territory is considered occupied when it is actually placed under the authority of the hostile army, and the occupation extends only to the territory where such authority has been established and can be exercised. (10) Consequently the commander on the spot must consider that the local population entrusted to him is subject to his authority in the sense of Article 87 , for example, in the case where some of the inhabitants were to undertake some sort of pogrom (11) against minority groups. He is responsible for restoring and ensuring public order and safety as far as possible, (12) and shall take all measures in his power to achieve this, (13) even with regard to troops which are not directly subordinate to him, if these are operating in his sector. (14) A fortiori he must consider them to be under his authority if they commit, or threaten to commit, any breaches of the rules of the Conventions against persons for whom he is responsible. As regards the commander who, without being invested with responsibility in the sector concerned, discovers that breaches have been committed or are about to be committed, he is obliged to do everything in his power to deal with this, particularly by informing the responsible commander.

    3556 As regards the measures mentioned above, which military commanders must take in the case of a breach or threatened breach of the Geneva Conventions and the Protocol (i.e., to prevent, suppress, and where necessary, report such breaches), these are indicated again in paragraph 3 with a slightly different wording, though without any substantial modification as regards the basic meaning. This will therefore be examined below.

    Paragraph 2 -- Dissemination amongst the armed forces

    3557 Article 82 ' (Legal advisers in armed forces) ' provides that legal advisers must be available when necessary to advise military commanders at the appropriate level on the instruction to be given to the armed forces on the subject of the application [p.1021] of the Conventions and of the Protocol. Moreover, such a provision is included in the context of the general obligation upon the Contracting Parties to disseminate the rules as widely as possible, particularly by including the study thereof in programmes of military instruction (Article 83 - ' Dissemination '). However, legal advisers will never be available at all levels of command. Moreover, they are there to "advise the military commanders" in this field and not to replace them. Under the terms of Article 87 , paragraph 2, it is the commanders themselves who must ensure that members of the armed forces under their command are aware of their obligations under the Conventions and the Protocol.

    3558 Such authority will be exercised, taking into account the responsibilities ensuing from the provisions of Articles 82 ' (Legal advisers in armed forces) ' and 83 ' (Dissemination) ' mentioned above, by the commanders "commensurate with their level of responsibility", i.e., in accordance with the same criteria as those applicable to the instruction of the troops. If, as in many armies, the commander of a unit is responsible for the instruction of his men, it will be up to him to ensure, primarily through the commissioned and non-commissioned officers under his command, thathis unit gets proper training. He will ensure that this is done either periodically or expressly before an engagement by drawing particular attention, where necessary, to the sort of action to be avoided, taking into account the situation or the morale of the troops (15) (the probable presence of civilians in the neighbourhood of the military objective and the conduct to be observed towards them, the attitude towards an adversary wishing to surrender or with regard to recognized signs etc.). It is in fact "in order to prevent and suppress breaches" that military commanders are responsible for such instruction and with the duty to supervise it. This implies that problems are broached in a specific manner. As regards commanders of levels higher than that of company commander, they will have corresponding obligations within the confines of the area of their competence. This may consist, for example, for battalion commanders, of instructing subordinate commanders and the officers of their own headquarters in this field, or for a regimental commander, of ensuring the uniformity and regularity of instruction within the regiment, if necessary calling in the legal adviser who may be permanently attached at a higher level etc. (16)

    Paragraph 3 -- Practical steps

    3559 Paragraph 1 of Article 87 lays down the principle that military commanders are obliged to prevent breaches of the Conventions and the Protocol, and if [p.1022] necessary, to suppress them and report them to the competent authorities. Paragraph 3 lays down similar requirements as regards its purport, though referring to the case where a commander "is aware that subordinates or other persons under his control are going to commit or have committed a breach". Thus these two paragraphs complement each other.

    3560 In adopting these texts, the drafters of the Protocol justifiably considered that military commanders are not without the means for ensuring respect for the rules of the Conventions. In the first place, they are on the spot and able to exercise control over the troops and the weapons which they use. They have the authority, and more than anyone else they can prevent breaches by creating the appropriate frame of mind, ensuring the rational use of the means of combat and by maintaining discipline. Their role obliges them to be constantly informed of the way in which their subordinates carry out the tasks entrusted them, and to take the necessary measures for this purpose. Finally, they are in a position to establish or ensure the establishment of the facts, which would be the starting point for any action to suppress or punish a breach.

    3561 Every commander at every level has a duty to react by initiating "such steps as are necessary to prevent such violations". By way of example, a noncommissioned officer must intervene to restrain a soldier who is about to kill a wounded adversary or a civilian, a lieutenant must mark a protected place which he discovers in the course of his advance, a company commander is to have prisoners of war sheltered from gunfire, a battalion commander must ensure that an attack is interrupted when he finds that the objective under attack is no longer a military objective, and a regimental commander must select objectives in such a way as to avoid indiscriminate attacks.

    3562 The text of paragraph 3 also requires that any commander "where appropriate", will "initiate disciplinary or penal action against violators". Paragraph 1 lays down the obligation for military commanders to prevent breaches "and, where necessary, to suppress and to report [them] to competent authorities". Thus these two texts again are complementary. During the course of the discussions some delegations expressed the fear that these provisions would result in an unjustified transfer of responsibilities from the level of the government to that of commanders in zones where military operations are taking place. (17) They also feared that inappropriate prosecutions could take place, and that military commanders might encroach on the judgment of the judicial authorities. (18) These fears, which were the reason for the requests for voting by paragraph on this article, (19) do not seem to be justified. It is not a matter of transferring to military commanders the competence and responsibilities which are those of the judicial authorities, even if this is a military court, whether or not it is represented by a military commission constituted in accordance with the law. The object of these texts is to ensure that military commanders at every level exercise the power vested in them, both with regard to the provitions of the Conventions and the Protocol, and with regard to other rules of the army to which [p.1023] they belong. Such powers exist in all armies. They may concern, at any level, informing superior officers of what is taking place in the sector, drawing up a report in the case of a breach, or intervening with a view to p reventing a breach from being committed, proposing a sanction to a superior who has disciplinary power, or -- in the case of someone who holds such power himself -- exercising it, within the limits of his competence, and finally, remitting the case to the judicial authority where necessary with such factual evidence as it was possible to find. In this way, for example, a commander of a unit would act like an investigating magistrate. (20) Indeed, some delegations remarqued that Article 87 contains provisions which are already found in the military codes of all countries. (21) In Article 87 it is merely a question of ensuring that they are explicitly applicable with respect to the provisions of the Conventions and the Protocol. (22) In fact,all this does not prevent commanders from trying to identify any possible gaps in the law of armed conflict or to put forward consistent interpretations on points which have not been clearly regulated.

    3563 One last question deserves to be raised. The objection is sometimes made that to require that a military commander devote all his attention to the respect for the Conventions and the Protocol is not realistic, for he should primarily devote himself to the conduct of combat with nothing distracting him from this essential task. (23) One can reply to this as follows: first, the preventive stage, which consists of instructing members of the armed forces and inculcating habits and reflexes which are reconcilable with the requirements of the Conventions, does not take place during combat, but before -- even before war has broken out. (24) Secondly it is appropriate to point out that orders are not only given during combat, but mostly beforehand. All orders given before combat should always and at every level include a reminder of the provisions of the Conventions that are relevant in the particular situation. Finally there is a problem which relates to the very essence of the organization of the armed forces. Although it is true that every military commander is responsible for everything that takes place in his sector, this does not mean that he must do everything himself: for example, members of the military police, medical officers, and specialists in the treatment of prisoners of war should be available at the appropriate levels, in addition to legal advisers, to assume, at the request of the commanders concerned, such tasks as may be assigned them in advance, for which they should be specially prepared, with a view to guaranteeing the best possible application of the Conventions and the Protocol when the time arrives, as well as setting in motion procedures for the suppression of breaches when necessary.

    ' J. de P. '


    NOTES (1) [(1) p.1018] O.R. IX, p. 414, CDDH/I/SR.71, para. 75;

    (2) [(2) p.1018] Ibid., p. 120, CDDH/I/SR.50, para. 68;

    (3) [(3) p.1018] See, in this sense, "Trial of General Tomoyuki Yamashita", in 4 ' Law Reports ', p. 94;

    (4) [(4) p.1018] O.R. III, pp. 329-330, CDDH/I/307, and 307/Rev.1;

    (5) [(5) p.1018] O.R. IX, p. 393, CDDH/I/SR.70, para. 30. The voting on the article as a whole was preceded by a vote by paragraph (ibid., pp. 390-399). The reasons behind the request for voting by paragraph are examined below. For the explanations of vote, see ibid., pp. 399 ff., CDDH/I/ SR.71. For the discussions, see ibid., pp. 119-121, CDDH/I/SR.50, and p. 385, CDDH/I/SR.69;

    (6) [(6) p.1018] O.R. VI. p. 307 CDDH/SR.45;

    (7) [(7) p.1019] O.R. IX, p. 120, CDDH/I/SR.50, para. 70. This statement was not contested. Some delegations would even have wished this clarification to have been included in the text of the Protocol in order to avoid any ambiguity, as the word "commander" is not always understood in the same way in the armies of different countries (for the discussions, see ibid., pp. 119-127);

    (8) [(8) p.1019] See, for example, the reservation made by Switzerland with regard to Art. 57, para. 2. According to this reservation, "these provisions only create obligations for commanders at the level of batallions or groups, and at higher levels. The information available to the commanders at the moment of their decision is the determining factor." (translated by the ICRC; original text: "ces dispositions ne créent des obligations que pour les commandants au niveau du bataillon ou du groupe et aux échelons plus élevés. Sont déterminantes les informations dont les commandants disposent au moment de leur décision.");

    (9) [(9) p.1020] If the civilian population in its own territory is hostile to prisoners of war and threatens them with ill-treatment, the military commander who is responsible for these prisoners has an obligation to intervene and to take the necessary measures, even though this population is not officially under his authority. He is also bound to intervene if prisoners of war threaten their own comrades. The same applies when civilian elements are engaged in his operational sector without being officially subordinated to the military commander;

    (10) [(10) p.1020] Hague Regulations, Art. 42;

    (11) [(11) p.1020] Pogrom: ill-treatment to which a defenceless civilian population is subjected;

    (12) [(12) p.1020] Hague Regulations, Art. 43;

    (13) [(13) p.1020] Ibid;

    (14) [(14) p.1020] On the problem in general, see "Trial of Wilhelm List and Others", 8 ' Law Reports ', in particular, pp. 69-71;

    (15) [(15) p.1021] Interesting remarks on these facts can be found in J. Goldstein, B. Marshall and J. Schwartz in "The MyLay Massacre and its Cover-up: Beyond the Reach of Law?", in ' The Peers Commission Report ', particularly chapter 8: "Significant factors which contributed to the Son My Tragedy" (New York-London, 1976);

    (16) [(16) p.1021] With a view to facilitating such instruction and control, the ICRC has undertaken to give courses on the law of armed conflicts at the International Institute of Humanitarian Law in San Remo;

    (17) [(17) p.1022] See O.R. IX, p. 402, CDDH/I/SR.71, para. 17;

    (18) [(18) p.1022] Ibid;

    (19) [(19) p.1022] See supra, p. 1018, note 5;

    (20) [(20) p.1023] On the fundamental role which the corps of officers is called upon to play to ensure respect for the rules of international law applicable in armed conflicts, see, for example, W. Williams, "The Law of War and 'Personnel Infrastructure'", XV-1-2 RDPMDC, 1976, pp. 19-35;

    (21) [(21) p.1023] In this sense, see O.R. IX, p. 399,
    CDDH/I/SR.71, para. 2;

    (22) [(22) p.1023] Ibid. pp. 400-401, para. 11;

    (23) [(23) p.1023] See W.H. Parks, op. cit., p. 19;

    (24) [(24) p.1023] Cf. Art. 83;