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there is no absolute or automatic requirement under international law to punish particularoffenders within their armed forces in a specific way. 3718.4.3 Duty to Investigate Reports of Alleged Law of War Violations. Commandershave a duty to investigate reports of alleged law of war violations committed by persons undertheir command or against persons to whom they have a legal duty to protect. 3818.4.4 Issuance of Guidance, Training of Subordinates, and Other Preventive orCorrective Measures. Apart from disciplinary measures, a variety of other measures may beappropriate to prevent or address violations of the law of war by subordinates. For example,commanders should ensure that members of the armed forces under their command are,commensurate with their duties, aware of their duties under the law of war. 39 After violationshave occurred, retraining personnel or revising procedures may be appropriate, particularlywhere the underlying facts or nature of the violations do not warrant punitive measures.18.5 ROLE OF JUDGE ADVOCATES AND LEGAL ADVISERS18.5.1 Legal Advisers. The United States has provided for legal advisers to advisemilitary commanders on the law of war. 40 For example, DoD policy has required that each headof a DoD component make qualified legal advisers available at all levels of command to provideadvice about law of war compliance during planning and execution of exercises and operations. 4118.5.1.1 Review of Plans, Policies, Directives, and Rules of Engagement by LegalAdvisers. DoD policy has required that commanders of the combatant commands ensure that allplans, policies, directives, and rules of engagement, and those of subordinate commands and37 United States v. von Leeb, et al. (The High Command Case), XI TRIALS OF WAR CRIMINALS BEFORE THE NMT524 (“With regard to the second aspect of this order, that is the obligation to prosecute soldiers who commitoffences against the indigenous population, this obligation as a matter of International Law is considered doubtful.The duty imposed upon a military commander is the protection of the civilian population. Whether this protectionbe assured by the prosecution of soldiers charged with offences against the civilian population, or whether it beassured by disciplinary measures or otherwise, is immaterial from an international standpoint.”).38 Refer to § 18.13 (National Investigations of Alleged Violations of the Law of War).39 Consider AP I art. 87(2) (“In order to prevent and suppress breaches, High Contracting Parties and Parties to theconflict shall require that, commensurate with their level of responsibility, commanders ensure that members of thearmed forces under their command are aware of their obligations under the Conventions and this Protocol.”).40 Consider AP I art. 82 (“The High Contracting Parties at all times, and the Parties to the conflict in time of armedconflict, shall ensure that legal advisers are available, when necessary, to advise military commanders at theappropriate level on the application of the Conventions and this Protocol and on the appropriate instruction to begiven to the armed forces on this subject.”).41 DOD DIRECTIVE 2311.01E, DoD Law of War Program, 5.1 (May 9, 2006, Certified Current as of Feb. 22, 2011)(“The Heads of the DoD Components shall: … [5.7.3] Make qualified legal advisers at all levels of commandavailable to provide advice about law of war compliance during planning and execution of exercises and operations;and institute and implement programs to comply with the reporting requirements established in section 6.”); DODDIRECTIVE 5100.77, DoD Law of War Program, 5.3 (Dec. 9, 1998) (“The Heads of the DoD Components shall: …[5.3.3] “Ensure that qualified legal advisers are immediately available at all levels of command to provide adviceabout law of war compliance during planning and execution of exercises and operations; and institute andimplement programs to comply with the reporting requirements established in section 6., below.”).1061

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