JURIST Guest Columnist Victor Hansen of New England School of Law says that the recent acquittal of Lieutenant Colonel Stephen Jordan of Abu Ghraib abuse charges reflects a structural failure to adequately incorporate the principle of command responsibility into the US Uniform Code of Military Justice…

The acquittal of Lieutenant Colonel Stephen Jordan on charges relating to the abuse of detainees at Abu Ghraib prison is being roundly criticized as a failure by the military to hold senior officials accountable in the detainee abuse scandal. Much of this criticism focuses on a perceived lack of will to hold senior military and civilian officials accountable for their role in the detainee abuse. There is little doubt that the Bush Administration is not keen to affix responsibility on military and civilian leaders within the Department of Defense for carrying out aggressive interrogation techniques which the Administration itself developed.

There is, however, another reason why the case against Lieutenant Colonel Jordan ultimately failed and why the military has been unable to hold more senior military leaders accountable. The reason is quite simply that under the Uniform Code of Military Justice (UCMJ) there is no adequate mechanism to hold commanders and supervisors criminally accountable for the law of war violations committed by forces under their command. To be sure, if a commander ordered, directed, participated in, or otherwise facilitated the detainee abuse at Abu Ghraib, there are adequate provisions under the UCMJ to affix criminal liability. The fact is, however, that there is simply not sufficient evidence to show that commanders and senior officers engaged in this kind of criminal conduct, hence, the acquittal of Lieutenant Colonel Jordan on these charges.

The more important question is what type of criminal responsibility attaches to a commander who has a duty to control the forces under his command and fails in that duty? What of the Commander for example who does not know, but under the circumstances should have known about detainee abuse? The criminal law concepts of accomplice liability, conspiracy, and the like do not get at these cases, because there is no evidence of shared intent between the commander and the offending forces.

CLICK HERE TO READ THE COMPLETE ARTICLE….

Short URL: http://tinyurl.com/ygm25x6