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conferences of International Government Experts
held during 1971 and 1972. Article 82 appeared
therein as Article 71.
The basis for its inclusion within the Protocol was
that it was observed by the world community that
many violations of humanitarian law arose from
unfamiliarity with the rules involved. In the words of
Mr. Martin of the International Committee of the Red
Cross, many experts considered that the Geneva
Conventions and the draft protocols would be better
applied if the commanders of military units were
accompanied by legal advisors whose main task
would be to ensure that the armed forces received
appropriate instructions and to answer any questions
put to them.
Thus, the International Law specifically requires
that the commander be provided with a legal advisor
who will be available to advise him of Law-of-War
implications during the planning and execution of
tactical operations. It implies that the Commander's
Judge Advocate will be available to assist in instructing
the members of the Command on the Conventions
and the Protocols. Article 82 thus provides clear
guidance to the commander which, if implemented,
should result in heightened sensitivity to the provisions
of the Conventions and the Protocol. Article 82 to
Protocol-I represents a novel approach to the problem
of assuring that members of military units consider the
applicability of the conventions and the protocols
during the conduct of the tactical operations. Article
82 accomplishes this by providing the Commander
with a legal advisor whose purpose is to advice him
of the conventions and protocol as they relate to a
particular operation, and by requiring that the advisor
provide appropriate advice on the instructions to be
given to the members of the Command on the Law
of War.
Article 82 can be characterized as a procedural
provision in that it obligates the military parties to seek
and obtain legal advice relating to the conventions
and the Protocol, and to supervise appropriate Lawof-War
instructions.
Commanders Responsibilities
Protocol-I bears duly upon the commander to
prevent breaches of the conventions and the Protocol.
It also requires him to personally intervene to limit
breaches by his subordinates. Further, it holds him
liable for their breaches in those instances in which
he fails to take appropriate action in consonance with
the conventions and the Protocol.
Article 86 of the Protocol concerns the
commander's failure to act. It requires the parties to
the conflict to suppress all breaches of the conventions
and the Protocol which result from a "failure to act
when under a duty to do so".
Provisions of Article 86 of Protocol-I
• The High Contracting Parties and the
Parties to the Conflict shall repress gave
breaches, and take measures necessary to
suppress all other breaches, of the conventions
or of this Protocol which result from a failure to
act when under a duty to do so.
• The fact that a breach of the conventions
or of this Protocol was committed by a
subordinate does not absolve his superiors from
penal or disciplinary responsibility, as the case
may be, if they knew, or had information which
should have enable them to conclude in the
circumstances at the time, that he was
committing or was going to commit such a
breach and if they did not take all feasible
measures within their power to prevent or
repress the breach.
The aforesaid codifies the existing Law of War
norm relating to Command responsibility. It clearly
announces that the superior will be held responsible
in those instances where he knew or should have
known about real or potential breaches of the Law of
War but failed to act.
Article 57 is an important article which is worth
mentioning when the responsibilities of commander
is being discussed. Article 57 entitles precautions in
attack, sets forth uniform guidance for the
commander or his responsibility to civilians and to the
civilian population in carrying out attacks against
military objectives.
Article 82 and the Judge Advocate's Role
Article 82 provides the Legal Advisor / Judge
Advocate a responsibility to significantly increase the
impact he may have on advising the Command to
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