JusT Cogens

Commander Discretion, Hampered Unacceptably by the Media?

Photo: FunkMonk, 2011


By Elysia Gelavis

We all know that media coverage of civilian casualties in Syria and Iraq has been constant and incredibly graphic. It seems as if more and more of the media we consume revolves around conflict and terrorism. The introduction of round-the-clock media broadcasting, in conjunction with the mass adoption of social media platforms, has resulted in war becoming a ‘live’ phenomenon. This shift in information availability creates a significant difficulty for military commanders enlisted in the fight against organisations such as ISIS. This is because the ongoing conflicts in both Syria and Iraq often involve close-quarters combat operations within dense, urban environments. The consequences of this form of conflict often and tragically involve civilian casualties. Unfortunately, fact that so many of these victims are a result of this form of conflict is rarely noted in media coverage.

Advances in mobile phone technology have enabled witnesses to become conduits for real-time media, which is made swiftly available to news organisations, or streamed live on social media websites, such as Facebook.[1] This means that commanders are, in many cases, forced to perform their missions as if broadcasting live to the entire world. The idea that this phenomenon could potentially influence the decision-making capabilities of commanders in the field is a given and, consequently, begs the question: does this phenomenon constrain the discretion of field-commanders to an unacceptable degree?

To assess this we must ascertain what level of commander discretion is needed. The Australian Approach to Warfare (AAW) emphasizes the importance of force mobility and the swift resolution of conflict .[2] But the AAW also cites morality, cohesion and teamwork as core qualities needed.[3] Arguably, it would be difficult for commanders to effectively utilise their discretion in conflict situations without moral integrity as they need their subordinates to willingly follow their leadership.  Australia ‘s view therefore is that there is a ‘moral component’ to a successful approach to warfare. Similarly, the UK approach includes similar common moral components.[4] Despite this, any constraint from a moral and legal angle must still allow for the aforementioned qualities of commander discretion such as being quick, decisive and use their own initiative in order to achieve the best outcome for their state.

The media’s approach to coverage of criminal acts by soldiers illustrates how commander discretion can be constrained. Carrying out missions in front of a global audience means that potential crimes can be immediately reported and evidenced.[5] Furthermore, the legal process of a trial and the way the mass media makes it available to all screens perhaps shocks existing commanders into not acting for fear of being criminally prosecuted and/or not making the decisions that they need to be making as commanders.

A study done by a Major in the British Army in 2007 found that 49 percent of 214 of those surveyed from the 3 branches of the British Armed Forces responded ‘yes’ to the question of whether they feared being branded a ‘war criminal’ after being involved in a serious incident or incident involving harms to or the death of a civilian and whether this fear causes added stress.[6] Furthermore, 77 percent of respondents believed that commanders and subordinates were ‘much more likely to be investigated and charged with war crimes than ever before’. [7]

It is arguable that this fear hampers commander discretion during armed conflicts as it may prevent them from committing to more ‘vigorous’ and decisive approaches that seize on opportunity.

Conversely, there is a strong argument that the advent of the mass media actually helps commanders to carry out their missions effectively. The combined effect of the law and media does discourage commanders from committing war crimes. As evidenced above, the high possibility of criminal prosecution for wrongful conduct does play on the minds of those in the Armed Forces. As the commander maintains moral integrity this promotes moral cohesion of the commander’s subordinates and so provides a most important foundation for commanders to use effective discretion. Therefore the ‘burden’ imposed really is acceptable as it supports the discretion required by, for example, the AAW. Even if one was to argue that all of this fear simply constrains the discretion of commanders too greatly, surely if it is in effort to adhere to the legal and moral standards of the society they are representing it is not ‘unacceptable’?

Altogether the moral component to warfare provides the foundation and conditions for commanders in the use of their discretion during armed conflict. To maintain cohesion in a world of mass public oversight the military must adhere to the old adage that justice must not just be done but be seen to be done.

Elysia Gelavis is a final-year Juris Doctor student at the University of Western Australia. She is interested in public international law and political science and prides herself on having seen every episode of The West Wing at least half a dozen times.

[1] William H. Boothby,     Conflict Law: The Influence of New Weapons Technology, Human Rights and Emerging Actors (T.M.C Asser Press, 2014), 391.

[2] The Australian Approach to Warfare, Defence Force 24.

[3] Ibid.

[4] UK Defence Doctrine, Ministry of Defence.

[5] William Boothby,  ‘War in the Spotlight’ (Lecture delivered at LAWS5529, University of Western Australia, Thursday 8 July 2016).

[6] W. G. L McKinlay, ‘Perceptions and Misconceptions: How are International and UK Law Perceive to Affect Military Commanders and Their Subordinates on Operations?’ (2007) 7(1) Defence Studies 111,126.

[z] Ibid, 134.