By entering this website you agree that we use cookies in order to understand visitor preferences and keep improving our service.
Learn more
I accept
International Committee of the Red Cross
French
Contact
Resource centre
International Committee of the Red Cross
English
Français
Toggle navigation
Donate
Home
Who we are
What we do
Where we work
War & Law
Support us
Home
Who we are
What we do
Where we work
War & Law
Support us
Donate
Treaties, States Parties and Commentaries
Advanced Search
Treaties and Documents
Geneva Conventions of 1949 and Additional Protocols, and their Commentaries
By date
By topic
By State
Historical Treaties and Documents
By date
By topic
By State
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977.
Commentary
of 1987
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, that
his 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;
GVALNWB1/ICRC
Share on Twitter
Share on Facebook
Share on Google+
Share on LinkedIn
Print this page