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18.23 THEORIES OF INDIVIDUAL CRIMINAL LIABILITYIndividuals may be held liable for violations of the law of war whether they havecommitted them directly or are complicit in the commission of such crimes. 328The theories of liability that apply to a law of war violation may vary depending on theparticular forum (e.g., U.S. Federal court, U.S. military commission, International CriminalTribunal for the Former Yugoslavia) in which the violation is being adjudicated. Modes ofliability for law of war offenses may include ordering, instigating or directly inciting, commandresponsibility, aiding and abetting, conspiracy, and joint criminal enterprise.In some cases, these theories of liability may be viewed as ways of attributing an offensethat is committed by one person to another person. In other cases, these theories of liability maybe viewed as distinct offenses; for example, a first offense is committed by one person and asecond offense is committed by another person that is somehow related to the first offense.18.23.1 Ordering. A person who orders another person to commit an offense is generallypunishable as though that person had committed the offense directly.This principle is reflected in the Uniform Code of Military Justice. 329international criminal tribunals have also reflected this mode of liability. 330Statutes of18.23.2 Instigating or Directly Inciting. Instigating or direct incitement of an offense ispunishable. 331 Statutes of international criminal tribunals have also reflected this mode ofliability. 332328 U.N. International Law Commission, Principles of International Law Recognized in the Charter of the NürnbergTribunal and in the Judgment of the Tribunal, in Report of the International Law Commission on its Second Session,5 June to 29 July 1950, (Document A/1316), reprinted in II YEARBOOK OF INTERNATIONAL LAW COMMISSION 1950,374, 377 U.N. Doc. A/CN. 4/SER.A/1950/Add. 1 (Jun. 6, 1957) (“PRINCIPLE VII Complicity in the commission of acrime against peace, a war crime, or a crime against humanity as set forth in Principle VI is a crime underinternational law.”).329 10 U.S.C. § 877 (“Any person punishable under this chapter who— (1) commits an offense punishable by thischapter, or aids, abets, counsels, commands, or procures its commission; or (2) causes an act to be done which ifdirectly performed by him would be punishable by this chapter; is a principal.”).330 See ICTY STATUTE art. 7(1) (“A person who planned, instigated, ordered, committed or otherwise aided andabetted in the planning, preparation or execution of a crime referred to in articles 2 to 5 of the present Statute, shallbe individually responsible for the crime.”); ICTR STATUTE art. 6(1) (“A person who planned, instigated, ordered,committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in Articles2 to 4 of the present Statute, shall be individually responsible for the crime.”).331 1956 FM 27-10 (Change No. 1 1976) 500 (“Conspiracy, direct incitement, and attempts to commit, as well ascomplicity in the commission of, crimes against peace, crimes against humanity, and war crimes are punishable.”).332 See ICTY STATUTE art. 7(1) (“A person who planned, instigated, ordered, committed or otherwise aided andabetted in the planning, preparation or execution of a crime referred to in articles 2 to 5 of the present Statute, shallbe individually responsible for the crime.”); ICTR STATUTE art. 6(1) (“A person who planned, instigated, ordered,committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in Articles2 to 4 of the present Statute, shall be individually responsible for the crime.”).1122