5cjxburmr

18.3.2.2 Commands and Orders Should Not Be Understood as ImplicitlyAuthorizing Violations of the Law of War. Commands and orders should not be understood asimplicitly authorizing violations of the law of war where other interpretations are reasonablyavailable. 28For example, if a commander issues an order to attack a town, one should assume that theorder directs attacks on military objectives located in that area. 29 Similarly, speeches bycommanders before combat operations to rally members of their command should not beunderstood to authorize implicitly law of war violations against the enemy. 3018.4 COMMANDERS’ DUTY TO IMPLEMENT AND ENFORCE THE LAW OF WARMilitary commanders have a duty to take appropriate measures as are within their powerto control the forces under their command for the prevention of violations of the law of war. 3128 See Basic Course in the Geneva Conventions of 1949 and Hague Convention No. IV of 1907: Lesson Plan—Second Hour, 5b, Appendix A in DEPARTMENT OF THE ARMY SUBJECT SCHEDULE 27-1, The Geneva Conventionsof 1949 and Hague Convention No. IV of 1907, 11 (Aug. 29, 1975) (“You should not presume that an order iscriminal. If you think it is criminal, it is probably because the order is unclear. For example, while on patrol wecapture a prisoner. On our return the patrol leader questions him. When the patrol leader finishes the questioning hetells you ‘get rid of that man.’ That order is not clear. The patrol leader undoubtedly means to take the man to theDetainee Collection Point. … Rather than presume that an unclear order directs you to commit a crime, ask yoursuperior for a clarification of the order. Above all, remember that if you are the leader, make your order clear andunderstandable. Don’t put your subordinates in the position where they may think you are giving a criminalorder.”).29 For example, Prosecutor v. Gotovina and Markač, ICTY Appellate Chamber, IT-06-09-A, Judgment, 77 (Nov.16, 2012) (“More specifically, the Trial Chamber relied on the Impact Analysis to discount Witness Rajčić’sassertion that the 2 August Order called for shelling only lawful military targets. In addition, neither WitnessKonings nor Witness Corn suggested that the only interpretation of the 2 August Order was as an instruction tocommence indiscriminate attacks on the Four Towns. Given that the relevant portion of the 2 August Order wasrelatively short, and did not explicitly call for unlawful attacks on the Four Towns, the text of the 2 August Ordercould not, alone, reasonably be relied upon to support a finding that unlawful artillery attacks took place.”).30 For example, L.C. GREEN, SUPERIOR ORDERS IN NATIONAL AND INTERNATIONAL LAW 131-32 (1976) (“Thecontroversy arose over Patton’s prepared remarks, which included these statements: ‘The fact we are operating inenemy country does not permit us to forget our American tradition of respect for private property, non-combatants,and women. …Attack rapidly, ruthlessly, viciously and without rest, and kill even civilians who have the stupidity tofight us.’ Several days after the operation began, during which time the fighting was extremely fierce, a CaptainCompton, who had lost several of his men, lined up forty-three captured Germans, some of whom were wearingcivilian clothes, and had them executed by machine gun. At about the same time and in the same general location, aSergeant West (of another company) shot and killed thirty-six Germans whom he was escorting to the prisoner-ofwarcage in the rear. When General Patton learned of these incidents, he ordered both men court-martialed oncharges of premeditated murder. At their trials, the two men asserted as a defence the orders issued by GeneralPatton on June 27, 1943 in his preparatory speech. … The defence’s assertions prompted a subsequent inquiry intothe speech given by Patton in which he was ultimately exonerated after producing the prepared text of the speechand delivering it orally to a board of investigating officers. Captain Compton and Sergeant West, however, wereconvicted as charged.”) (first ellipsis in original).31 See In re Yamashita, 327 U.S. 1, 16 (1946) (“The question, then, is whether the law of war imposes on an armycommander a duty to take such appropriate measures as are within his power to control the troops under hiscommand for the prevention of the specified acts which are violations of the law of war and which are likely toattend the occupation of hostile territory by an uncontrolled soldiery, and whether he may be charged with personalresponsibility for his failure to take such measures when violations result. … These provisions [of the Hague IVReg., the Hague X, and the 1929 GWS] plainly imposed on petitioner, who at the time specified was military1059