Out of the ashes of World War I1 there rose a desire to further define the responsibility of a commander for war crimes committed by his subordinates, a responsibility recognized by the earliest military scholars. Although the Tribunals after World War I1 sought to establish an international norm, there was of necessity much reliance on domestic standards in resolving questions of knowledge, responsibility, and negligence; and while the post-World War I1 trials from a legal point of view purportedly have no precedental value, the codification of many of the principals contained therein by the 1949 Geneva Convention would indicate that from a practical standpoint the standards formulated are recognized as international norms. All of the law of war is the formal expression of the principle of restraint; and it is to the commander, particularly the commander in the field, that the responsibility for exercise of restraint is most directed, inasmuch as he has control of both the means of destruction and the means of restraint. Throughout the history of warfare the commander has received the glories of victory and the burden of defeat, whether deserved or not.[318] The role of the commander is a lonely one; its authority may be delegated, but never its responsibility. In accepting the position of commander, an officer accepts massive responsibility - responsibility to see that his troops are fed, clothed, and paid; responsibility for their welfare, morale, and discipline; responsibility for his unit’s tactical training and proficiency; responsibility for close coordination and cooperation with adjacent and supported or supporting units; and responsibility for accomplishment of his mission. He is no less charged with the responsibility to accomplish that mission within the limitations of the laws of war, and to exercise due control over his subordinates to insure their compliance.

In order to find a commander responsible, the acts charged must have been committed by troops under his command. Normally this refers to troops of his unit or of another unit over which he has both operational and administrative control; but absent either he may still be responsible if he otherwise had a duty and the means to control those troops and failed to do so. If he has executive authority over a specified occupied territory, he is responsible for all illegal acts occurring within that territory, or at least for controlling or preventing their occurrence. While exclusion of any one of these factors may excuse him from liability under international standards, he may nonetheless be held responsible under domestic standards if he knows of an offense and, possessed of the duty to respond, fails to do everything within his power to prevent or report that offense.

In controlling his men, the commander has a duty to utilize all means available to him to know of and prevent the occurrence of war crimes within his command. In particular, he cannot shun or ignore the obvious and plead ignorance as a defense in an effort to escape liability.

The commander who directly orders the commission of a war crimes shares the guilt of the perpetrator of the offense. So, too, does the intermediate commander who receives an order patently illegal on its face who passes that order to subordinates for execution, although the plea of superior orders may be heard in mitigation, a commander may also be held responsible where he does not necessarily order certain illegal acts but is shown to have encouraged their perpetration or incited his men to act. Where he has neither ordered nor incited his men to carry out war crimes, he may be deemed responsible if by his acts he has acquiesced therein. Only the degree of culpability may distinguish the commander from the actual perpetrators in the instances cited above.

Essential to any allegation of command responsibility is the element of knowledge, either actual knowledge or the means of knowledge which the commander failed to exercise. Actual knowledge may be presumed in two instances: (a) where the commander has executive authority over occupied territory, and the offenses occur within that territory; and (b) where reports of offenses are made to his command, the presumption being that such reports are made for the benefit of the commander. These presumptions may be rebutted, for example, by a showing of absence from the command at the time of the offense or its report, or by illness; but this rebuttal is temporary in nature, extending only for the period of the absence or illness. Any inaction upon resumption of command raises a presumption of acquiescence, knowledge again being presumed.

No theory of absolute liability has found acceptance in either international or domestic law. No man, whether commander or the lowest private, is held responsible for the acts of another absent the establishment of some sharing of the mens rea. The absolute liability theory has been expressly rejected in every case in which it was argued. Only where there has been wanton, immoral disregard amounting to acquiescence in the offense has criminal responsibility attached. The conduct - a wanton disregard of the occurrence of offenses - must be such as to support a finding that the commander is an accomplice in the sense that he shared the criminal intent of his subordinates and that he encouraged their misconduct through a failure to discover and intervene where he had a duty to prevent their action. Absent actual knowledge there must be either (1) such serious personal dereliction on the part of the commander as to constitute wilful and wanton disregard of the possible consequences; or (2) an imputation of constructive knowledge, that is, despite pleas to the contrary the commander under the facts and circumstances of the particular case must have known of the offenses charged and acquiesced therein.

In determining whether the commander either should have known or must have known of the occurrence of the offenses charged, certain subjective criteria may be considered in an effort to determine his means of knowledge: (a) the rank of the commander; (b) the experience of the commander; (e) the training of the men under his command; (d) the age and experience of the men under his command; (e) the size of the staff of the commander; (f) the comprehensiveness of the duties of the staff of the commander; (g) the “sliding probability ratio” of unit-incident-command; (h) the duties and complexities of the commander by virtue of the command he held; (i) communications abilities; (j) mobility of the commander; (k) isolation of the commander; (1) composition of forces within the command; and (m) the combat situation.

In holding a commander responsible under international standards, the commander’s acts of commission or omission must be tantamount to “wanton, immoral disregard” of the acts of his subordinates. This international standard is consistent with municipal standards for which the same maximum penalty of death may be imposed. Where lesser penalties may be exacted, such as for a negligent failure to discover or report an offense, lesser standards of negligence - either culpable or simple – are provided. There municipal standards are defined by the Uniform Code of Military Justice and by duties imposed by existing orders and regulations; international standards are defined by existing treaties and conventions, in particular the 1949 Geneva Conventions which require wilful and wanton conduct in order for there to be a grave breach of those Conventions. Any further definition must depend on the facts of the particular case and the previously-discussed subjective criteria rather than a precisely-defined international definition. The duty is well established, the responsibility well-defined.

A contemporary Marine Corps recruiting poster asserts the principle :

Some men accept responsibility; others seek it,

Neither the principles of command nor the law of war can expect, nor accept, anything less.




[318] General Joseph Joffre, who led the French Army in repulsing the German offensive at the battle of the Marne in 1914, was once asked who had won that battle-he or his subordinate commander, Ferdinand Foch. General Joffre replied that he did not know who had won the battle, “but if it had been lost I know who would have lost it.” A. VANDEGRIFT ONCE A MARINE 9 (1964).