Law of War Workshop Deskbook - Higgins Counterterrorism ...

D. Army Policy. “The commander is responsible if he ordered the commission ofthe crime, has actual knowledge, or should have knowledge, through reportsreceived by him or through other means, that troops or other persons subject tohis control are about to commit or have committed a war crime and he fails totake the necessary and reasonable steps to insure compliance with the law ofwar or to punish violators thereof.” FM 27-10, 501; see also TC 27-10-3 at19-21.E. Protocol I, art. 86. Represents the first attempt to codify the customary doctrineof command responsibility. The mens rea requirement for commandresponsibility is “knew, or had information, which should have enabled them toconclude” that war crimes were being committed and “did not take all feasiblemeasures within their power to prevent or repress the breach.”F. The International Criminal Tribunals for the Former Yugoslavia & Rwanda.1. “Individual Criminal Responsibility: The fact that any of the acts referred toin articles 2 to 5 of the present Statute was committed by a subordinate doesnot relieve his superior of criminal responsibility if he knew or had reason toknow that the subordinate was about to commit such acts or had done so andthe superior failed to take the necessary and reasonable measures to preventsuch acts or to punish the perpetrators thereof.” Rept of the Secretary-General; Statute for Rwanda, art. 6(3).2. Indictments against Radovan Karadzic (as founding member and President ofSerbian Democratic Party) and Gen. Ratko Mladic (Commander of JNABosnian Serb Army) highest ranking Bosnian-Serb military leaders.(command responsibility)3. Indictments against Theoneste Bagosora (assumed official and de factocontrol of military and political affairs in Rwanda during the 1994 genocide)and Jean Paul Akayesu (bourgmestre (mayor), responsible for executivefunctions and maintenance of public order within his commune), highranking civilian officials in the Rwandan national and local governments,respectively. (superior responsibility)G. Operations Other Than War.1. Law of War may not apply. The operation may involve an internal armedconflict or no conflict at all.203Chapter 8War Crimes and Command Responsibility