* The author wishes to thank for their support Professor Dominic McGoldrick, University of Liverpool, Dr. Danesh Sarooshi, University College London, Dr. John Patterson and Susan Nash, University of Westminster, as well as the University of Westminster for its generous grant in support of this paper.

¹ The Commission on the Responsibility of the Authors of the War and Enforcement of Penalties proposed that a tribunal be established to prosecute those who ordered or abstained from either preventing or repressing violations of the laws or customs of war to be committed. Report Presented to the Preliminary Peace Conference, Versailles, March 29, 1919, reprinted in 14 AJIL 95 (1920).

² See id.

³ See id. at 152. See also Leslie C. Green, Command Responsibility in International Humanitarian Law, 5 Transnat’l L. & Contemp. Probs. 319, 323 (1995).

⁴ In the Trial of Emil Müller, a camp commander was acquitted for the poor condition of his camp because he reported the situation and made some improvement. Liability thereafter rested with his superiors. Similarly, the commander of the German U-boat involved in the sinking of the Llandovery Castle was found liable for failure to punish. British Parliamentary Command Paper No. 1450. See The British Cases, 16 AJIL 635,639 (1922) Judicial Decisions Involving Questions of International Law, id. at 682, 684.

⁵ [Hague] Convention [No. IV] Respecting the Laws and Customs of War on Land, Oct. 18, 1907, 2 AJIL, Supplement 90-117 (1908), Art. 43 of the Annex of regulations [hereinafter Hague Convention No. IV].

⁶ [Hague] Convention [No. X] for the Adaptation of the Principles of the Geneva Convention to Maritime War, Oct. 18,1907,Art. 19, reprinted in The Hague Conventions and Declarations of 1899 And 1907,at 157–62 (John B. Scott ed., 1918).

⁷ William H. Parks, Command Responsibility for War Crimes, 62 Mil. L. Rev. 1, 11 (1973). See also Christopher N. Crowe, Command Responsibility in the Former Yugoslavia: The Chances for Successful Prosecution, 29 U. Rich. L. Rev. 191, 197 (1994).

⁸ General Iwane Matsui, who was in charge of the Japanese forces that perpetrated the “Rape of Nanking,” was convicted for having failed to discharge his duty to control his troops from rampaging through Nanking. See The Hirota Case, 3 Judgments of the International Military Tribunal For the Far East 1 (1948); 20 Record of Proceedings of the International Military Tribunal for the Far East (1946–1949) (Lib. of Cong, microfilm, reel 37 of 37) 49,816 [hereinafter Official Transcripts of the Tokyo Trial] , reprinted in The Tokyo War Crimes Trial (John R. Pritchard et al. eds., 1981). It was, however, the criminal liability of leading political Japanese figures for acts perpetrated outside Japan that is of greater interest. Hence, Foreign Minister Koki Hirota was convicted for the Nanking incident because, although he received ample information, he disregarded his duty to observe the laws of war. 20 Official Transcripts of the Tokyo Trial, supra, at 49, 791.

⁹ United States v. Von Leeb [hereinafter High Command case], 11 Trials of war Criminals Before the Nuremberg Military Tribunals Under Control Council Law No. 10, at 1,462 (1950) [hereinafter Trials].

¹⁰ United States v. List et al., 11 Trials, supra note 9, at 759 1230 (1951) [hereinafter Hostage case].

¹¹ United States v. von Weizsaecker, 14 Trials, supra note 9, at 308 (1952) [hereinafter Ministries case].

¹² In Government Commissioner of the General Tribunal of the Military Government for the French Zone of Occupation in Germany v. Roechling, Judgment on Appeal to the Superior Military Government Court of the French Occupation Zone in Germany, 14 Trials, supra note 9, at 1097 [hereinafter Roechling case], the accused were convicted for having permitted slave labor and ill-treatment and for not having done their best to end the abuses. Id. at 1136. Similarly, in United States v. Flick, the accused were leading industrialists who were charged with war crimes and crimes against humanity for their involvement in plans concerning the enslavement and deportation of civilian and POW slave labor in their industrial enterprises. Of the six accused, only Flick and his inferior, Weiss, were held accountable; the former under the theory that he had a duty to prevent the criminal acts of his subordinate, Weiss. United States v. Flick, 6 Trials, supra note 9, at 1187, 1202 (1952).

¹³ Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (Geneva Convention No. I), Aug. 12, 1949, 6 UST 3114, 75 UNTS 31; Convention for the Amelioration of the Condition of the Wounded, Sick, and Shipwrecked Members of Armed Forces at Sea (Geneva Convention No. II), Aug. 12, 1949, 6 UST 3217, 75 UNTS 85; Convention Relative to the Treatment of Prisoners of War (Geneva Convention No. III), Aug. 12,1949, 6 UST 3316, 75 UNTS 135; Convention Relative to the Protection of Civilian Persons in Time of War (Geneva Convention No. IV), Aug. 12,1949, 6 UST 3516, 75 UNTS 287.

¹⁴ For example, Captain Medina was convicted only for involuntary manslaughter arising from the murder of over 100 Vietnamese civilians by troops under his command, in accordance with Article 119(b) (1) of the Uniform Code of Military Justice (U.C.MJ.), 10 U.S.C. §919(b)(1) (1970). The test given to the jury by the presiding judge was whether the accused was “actually aware” that his men were doing the killings and, thereafter, did nothing to put an end to them. United States v. Medina, 43 C.M.R. 243 (1971). See Note, Command Responsibility for War Crimes, 82 Yale L.J. 1274 (1973).

¹⁵ Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, June 8, 1977, 1125 UNTS 3 [hereinafter Protocol I].

¹⁶ Prosecutor v. Delalić Judgment No. IT-96-21-T (Nov. 16,1998), (visited Aug. 19,1999) <> [hereinafter Čelebićijudgment].

¹⁷ Prosecutor v. Blaškić, No. IT-95-14. Bosnian-Croat General Blaškić has been accused of tolerating various widespread crimes committed by combat units acting within his geographical area of command.

¹⁸ See The Rome Statute of the International Criminal Court, July 17, 1998, Art. 28, UN Doc. A/CONF. 183/9 (visited June 28,1999) <>, reprinted in 37 ILM 999 (1998) [hereinafter ICC statute].

¹⁹ See Mahnoush H. Arsanjani, The Rome Statute of the International Criminal Court, 93 AJIL 22, 37 (1999); Danesh Sarooshi, The Statute of the International Criminal Court, 48 ICLQ 387 (1999).

²⁰ Indictment of May 22, 1999, paras. 55–89 (visited May 25, 1999) <>.

²¹ Most civil law jurisdictions recognize also a general duty of rescue. See John C. Smith & Brian Hogan, Criminal Law 55 (8th. ed. 1996).

²² See sec. 1(1) English Children and Young Persons Act 1933. See also R. v. Gibbins and Proctor (1918) 13 Crim. App. 134.

²³ See Rex v. Pittwood [1902] 19 T.L.R. 37.

²⁴ See R. v. Arthur [1981] 12 B.M.L.R. 1.

²⁵ See R. v. Stone and Dobinson, [1977] 2 All E.R. 341.

²⁶ See R. v. Miller, [1983] 1 All E.R. 978.

²⁷ The formulation of the doctrine of command responsibility in ICTY Statute Article 7(3) was reaffirmed as Article 6 of the International Law Commission’s (ILC) Draft Code of Crimes. The ILC was of the view that the doctrine extends also to civilian superiors, only to the extent that they exercise such a degree of control over their subordinates comparable to that of military commanders. See ILC Draft Code Commentary on Article 6, Report of the ILC on the work of its 48th session, GAOR, 51st. sess., Supp. No. 10, UN Doc. A/51/10 (1996), reprinted in 18 Hum. Rts. L.J. 96, 108 (1997) [hereinafter ILC Draft Code Commentary].

²⁸ International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, Statute, UN Doc. S/25704, annex (1993), reprinted in 32 ILM 1192 (1993) [hereinafter ICTY Statute].

²⁹ International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and other such Violations Committed in the Territory of Neighbouring States, between 1 January 1994 and 31 December 1994, SC Res. 955, annex UN SCOR, 49th Sess., Res. & Dec, at 15, UN Doc. S/INF/50 (1994), reprinted in 33 ILM 1602 (1994) [hereinafter ICTR Statute].

³⁰ ICC statute, supra note 18.

³¹ Trial of General Tomoyuki Yamashita (US Military Commission, Manila (Oct. 8–Dec. 7,1945) [hereinafter Yamashita case], United Nations War Crimes Commission, 4 Law Reports of Trials of War Criminals, 1, 88 (1945) [hereinafter Law Reports].

³² See id. at 87.

³³ See id.

³⁴ See United States v. Brandt, 2 Trials, supra note 9, at 171, 212 (1949); Hostage case, supra note 10, at 1230; High Command case, supra note 9, at 462.

³⁵ Protocol I, supra note 15, Art. 87.

³⁶ The Yugoslav representative offered the view that command duties were accepted in “military codes of all countries.” CCDH/1/SR.71, 9 Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts [hereinafter Official Records], 399, para. 2 (1978). A similar view was expressed by the Swedish representative. CCDH/I/SR.64, 4 Official Records, supra, at 315, para. 61.

³⁷ In his charge to the jury in United States v. Medina, 43 C.M.R. 243 (1971), Judge Howard noted that as a general principle of military law and custom commanders have a duty to properly supervise their subordinates. See Roger S. Clark, Medina: An Essay on the Principles of Criminal Liability for Homicide, 5 Rut. Cam. L.J. 68 (1973).

³⁸ Prosecutor v. Blaškić, No. IT-95-14, Response of the Prosecutor regarding mens rea for command responsibility at 14 (on file with the author).

³⁹ See Command Responsibility for War Crimes, supra note 14, at 1276. In some circumstances, however, acts of commission may suffice. See William. J. Fenrick, Some International Law Problems Related to Prosecutions Before the International Criminal Tribunal for the Former Yugoslavia, 6 Duke j. Comp. & Int’l. L. 103, 110 (1995). Similarly, in Prosecutor v. Akayesu, judgment, No. ICTR-96-4-T (Sept. 2,1998), reprinted in 37 ILM 1399 (1998) [hereinafter Akayesu judgment], (visited May 25,1999) <>. The Trial Chamber found that ‘command responsibility’ … does not necessarily require the superior to have had knowledge of such to render him criminally liable. The only requirement is that he had reason to know that his subordinates were about to commit or had committed and failed to take the necessary or reasonable measures to prevent such acts or punish the perpetrators thereof.” Id., 37 ILM at 1406, para. 39.

⁴⁰ See ILC Draft Code Commentary, supra note 27, at 108–09. The Commentary notes that a commander who has failed in his duty to act “may be considered to be an accomplice under general principles of criminal law relating to complicity.”

⁴¹ See Report of the Secretary-General Pursuant to paragraph 2 of Security Council Resolution 808 (1993), UN Doc. S/25704, para. 56.

⁴² See id. It has wrongly been suggested that because command responsibility requires personal involvement and a degree of knowledge, it is not a case of “imputed liability.” See William G. Eckhardt, Command Criminal Responsibility: A Plea for a Workable Standard, 97 Mil. L. Rev. 1, 5 (1982).

⁴³ Čelebići judgment, supra note 16, para. 645. That the basis of command responsibility is not “vicarious liability” is also confirmed by Timothy Wu & Yong-Sung (Jonathan) Kang, Criminal Liability for the Actions of Subordinates—The Doctrine of Command Responsibility and its Analogues in United States Law, 38 Harv. Int’l. L.J. 272, 282 (1997). Furthermore, command responsibility is not a strict liability offense, which is the only category of offenses to which vicarious liability is limited. See William Wilson, Criminal Law: Principles and Theory, 178 (1998).

⁴⁴ See Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, para. 3543 (Claude Pilloud et al.eds., 1987) [hereinafter ICRC Commentary]; Čelebići judgment, supra note 16, para. 346.

⁴⁵ ICTY Statute, supra note 28, Art. 7 (3); ICTR Statute, supra note 29, Art. 6 (3).

⁴⁶ See Čelebići judgment, supra note 16, para. 370.

⁴⁷ See id.

⁴⁸ See id., para. 354.

⁴⁹ Prosecutor v. Karadžić and Mladić, Review of the Indictment Pursuant to Rule 61 of the Rules of Procedure and Evidence, Nos. IT-95-5-R61 and IT-95-18-R61 (July 11, 1996), reprinted in 108 ILR 86, para. 66 (1998) [hereinafter Karadžić and Mladić case].

⁵⁰ See Akayesu judgment, supra note 39, at 21.

⁵¹ See Ministries case, supra note 11, at 526.

⁵² General Mladić, for example, although a strategic commander, assumed operational and in some cases even tactical command of Bosnian Serb forces (VRS). Karadžić and Mladić case, supra note 49, para. 78.

⁵³ See David Kaye, Are There Limits to Military Alliance? Presidential Power to Place American Troops Under Non-American Commanders, 5 Transnat’l L. & Contemp. Probs. 399, 408 (1995).

⁵⁴ See id.

⁵⁵ See id. at 409.

⁵⁶ See ICRC Commentary, supra note 44, para. 3553; Čelebići judgment, supra note 16, para. 371, noted that “direct subordination” relates the tactical commander to his troops.

⁵⁷ Under the UN Charter it was envisaged that while the Security Council would exercise policy command in accordance with Article 47(3) (4), a Military Staff, composed of the Chiefs of Staff of the permanent members of the Security Council or their representatives, under Article 47 (2), would be responsible for the “strategic direction of any armed forces placed at the disposal of the Security Council.” The cold-war confrontation that followed the Charter, however, rendered the application of Article 47 inoperative.

⁵⁸ See Article 8 of the llth Report of a Working Group of the United Nations Special Committee on Peacekeeping Operations, UN Doc. A/32/394/Annex II, App. I (Dec. 2,1977). See also Hilaire McCoubrey & Nigel D. White, The Blue Helmets Legal Regulation of United Nations Military Operations 142 (1996).

⁵⁹ See id. at 142 (quoting UN Dep’t of Pub. Info., The Blue Helmets: A Review of United Nations Peace-Keeping 405, UN Sales No. E.90.I.18 (2d ed. 1990)).

⁶⁰ See id.

⁶¹ See Article 11 of the United Nations Force in Cyprus (UNFICYP) Regulations (1964), in McCoubrey & White, supra note 58, at 144–45. Similarly, only operational command or control over forces are assigned to NATO by member states. Full command over all tactical aspects of the operation and administration of forces is retained by the national governments. See NATO Handbook 167 (1995). Consistent state practice in the field of military alliances suggests that military discipline rests with national command, which explains why tactical command is always national. Furthermore, although operational command is always multinational, subordinate commanders may appeal any order to their respective national High Commands. See Kaye, supra note 53, at 432–433. Since the end of the cold-war, military alliances have viewed their structures and operations more broadly, in accordance with peacekeeping and regional defense requirements, and have not hesitated to disregard traditional military structures. Hence, it has been shown that a multinational or national contingent force, within the context of a multinational operation, may have two chains of command according to the nature of its missions. This was the case with the Quick Reaction Force (QRF) in Somalia, which was comprised solely of United States troops and had a United States chain of command but, in pre-arranged and emergency situations, was planned to have at the head of its command the United Nations Operation in Somalia II (UNOSOMII) commander. See Kaye, supra, at 441–442; see also Charles Barry, Forces in Theory and Practice, 28 Survival 81, 82 (1996).

⁶² Supra note 28, Art. 7(3).

⁶³ See 15 Law Reports, supra note 31, at 175 (1949). Asimilar statement was made in United States v. Ohlendorf, 4 Trials, supra note 9, at 411, 480 (1950).

⁶⁴ Sadaiche case, cited in 15 Law Reports, supra note 31, at 175.

⁶⁵ See ICRC Commentary, supra note 44, para. 3553.

⁶⁶ See ICC statute, supra note 18, Art. 28.

⁶⁷ See Čelebići judgment, supra note 16, para. 377.

⁶⁸ See ICRC Commentary, supra note 44, para. 3544.

⁶⁹ See Weston D. Burnett, Command Responsibility and a Case Study of the Criminal Responsibility of Israeli Military Commanders for the Pogrom at Shatila and Sabra, 107 Mil. L. Rev. 71, 142–43 (1985).

⁷⁰ See ICRC Commentary, supra note 44, para. 3544.

⁷¹ See Čelebići judgment, supra note 16, para. 354; Akayesu judgment, supra note 39, at 133.

⁷² Čelebići judgment, supra note 16, para. 658.

⁷³ See id., paras. 653–56.

⁷⁴ See Yamashita case, supra note 31, at 94–95; High Command case, supra note 9, at 543–44.

⁷⁵ See ICRC Commentary, supra note 44, at 1019; Eckhardt, supra note 42, at 17.

⁷⁶ See Čelebići judgment, supra note 16, para. 647.

⁷⁷ See id., para. 371.

⁷⁸ See id., para. 647.

⁷⁹ See High Command case, supra note 9, at 684. Similar rulings were made in the Hostage case, supra note 10, at 1286.

⁸⁰ See Hostage case, supra note 10, at 1260.

⁸¹ See Hostage case, supra note 10, at 1272.

⁸² This is based on Hague Convention No. IV, supra note 5. See also Hostage case, supra note 10, at 1272; ICRC Commentary, supra note 44, para. 3555.

⁸³ See Prosecutor v. Nikolić, Review of the Indictment Pursuant to Rule 61 of the Rules of Procedure and Evidence Case No. IT-94-2-R61, para. 24 (Oct. 20,1995), reprinted in 108 ILR 53 (1998) [hereinafter Nikolić case].

⁸⁴ Ministries case, supra note 11, at 684.

⁸⁵ See Čelebići judgment, supra note 16, para. 658.

⁸⁶ Id., para. 669.

⁸⁷ Id., para. 664.

⁸⁸ Id., para. 806.

⁸⁹ Id., paras. 804–805.

⁹⁰ Id., para. 803.

⁹¹ Nikolić case, supra note 83, para. 24.

⁹² See United States v. Linnas, 527 F. Supp. 426 (E.D.N.Y. 1981), reprinted in 7 Am. Int’l. L. Cas. 2d 562 (1979–86). The court pointed out that the signing of documents showed the accused’s superior authority and position in the Tarku prisoner camp.

⁹³ Čelebići judgment, supra note 16, para. 672.

⁹⁴ Id., para. 668.

⁹⁵ Id., para. 663.

⁹⁶ Id., para. 684.

⁹⁷ Ministries case, supra note 11, at 693.

⁹⁸ See id.

⁹⁹ Čelebići judgment, supra, note 16, para. 764.

¹⁰⁰ Id., para. 671.

¹⁰¹ Id., paras. 673,686.

¹⁰² Id., paras. 687–88

¹⁰³ Id., para. 689.

¹⁰⁴ Id., para. 693.

¹⁰⁵ Id., para. 694.

¹⁰⁶ Id., para. 696.

¹⁰⁷ See High Command case, supra note 9, at 544–45.

¹⁰⁸ Nikolić case, supra note 83, para. 24.

¹⁰⁹ See id.

¹¹⁰ Prosecutor v. Furundžija, Judgment, paras. 65,130 No. IT-95-17/1-T (Dec. 10,1998), reprinted in 38 ILM 317 (1999) [hereinafter Furundžija judgment].

¹¹¹ In Prosecutor v. Cancar, Judgment No. K: 186/96 (Jan. 19,1998) (Cantonal Court of Sarajevo, on file with author), at 7, the Court inferred the superior status of the accused cumulatively from his being called “boss,” his own representation as such, his authoritarian attitude towards the guards of the camp, his issuance of orders to them, and his organizational leadership in the transfer of prisoners. It should be noted that neither in the Furundžija nor in the Cancar cases were the accused charged with failure to act.

¹¹² Prosecutor v. Mrkšić, Radić, and Šljivančanin, Review of the Indictment Pursuant to Rule 61 of the Rules of Procedure and Evidence, para. 16 No. IT-95-13-R61 (April 3,1996), reprinted in 108 ILR 53 (1998) [hereinafter Vukovar Hospital case].

¹¹⁵ Prosecutor v. Rajić, Review of the Indictment Pursuant to Rule 61 of the Rules of Procedure and Evidence, paras. 58–59, 61, No. IT-95-12-R61 (Sept. 13, 1996), reprinted in 108 ILR 141 (1998).

¹¹⁴ See Akayesu judgment, supra note 39, at 4.

¹¹⁵ See id. at 23.

¹¹⁶ Article 3 of the Decision on the Establishment of the Serbian Republic of Bosnia and Herzegovina (May 12, 1992), cited by ICTY Trial Chamber I in its Rule 61 Decision in Karadžić and Mladić case, supra note 49, para. 7.

¹¹⁷ See id., para. 78.

¹¹⁸ See id.

¹¹⁹ See Čelebići judgment, supra note 16, para. 647.

¹²⁰ See Operations of Armed Forces in the Field, para. 3.1, US Army Field Manual (FM 100-5), defines command as “the authority vested in an individual to direct, co-ordinate and control military forces.”

¹²¹ See Yamashita v. Styer, 327 U.S. 1,16 (1946).

¹²² See Bruce D. Landrum, The Yamashita War Crimes Trial: Command Responsibility Then and Now, 149 Mil. L. Rev. 293 (1995).

¹²³ See Crowe, supra note 7, at 201–202.

¹²⁴ See id. at 195,202. Yamashita’s sector of command saw the least criminal activity. See also Landrum, supra note 122, at 294.

¹²⁵ In terms of military law this may be found in para. 3.1 FM 100-5, supra note 120. See Parks, supra note 7, at 42.

¹²⁶ See Allen v. Whitehead [1930] 1 K.B. 211; USA v. Parfait Powder Puff Co., 163 F. 2d. 137 (6th Cir., 1947). See also Wilson, supra note 43, at 178.

¹²⁷ Trial Chamber I in the Čelebići judgment stated that a superior is under a duty to take necessary and reasonable measures which are within his “material possibility.” See Čelebići judgment, supra note 16, para. 395.

¹²⁸ See Command Responsibility for War Crimes, supra note 14, at 1283.

¹²⁹ See 20 Official Transcripts of the Tokyo Trial, supra note 8, at 49, 816.

¹³⁰ See Cherif M. Bassiouni, et al., International Criminal Law: Cases and Materials 40-41 (1996).

¹³¹ High Command case, supra note 9, at 543–44.

¹³² See id. at 533.

¹³³ See id., Parks, supra note 7, at 46.

¹³⁴ See Hostage cases, supra note 10, at 1260; High Command case, supra note 9, at 692.

¹³⁵ See High Command case, supra note 9, at 544.

¹³⁶ See id. at 632.

¹³⁷ See id.

¹³⁸ Hostage case, supra note 10, at 1272.

¹³⁹ See Hostage case, supra note 10, at 1256.

¹⁴⁰ See id.; see also, High Command case, supra note 9, at 1259–60.

¹⁴¹ It is apparent that no mens rea is required. Even though this construction is upheld by international law, one should consider analogous advances in some domestic criminal laws regarding offenses of strict responsibility. Such judicial and legislative innovations since the 1940s have developed a defense particular to strict responsibility offenses, namely a defense of “due diligence.” Although a substantial difference in the magnitude of authority and duty exists between crimes of strict responsibility in domestic law and executive command responsibility, the underlying notion for advancing a defense of due diligence is that to punish under such circumstances would be an unnecessary violation of the principle of individual autonomy. See R. v. City of Sault Ste. Marie, 85 D.L.R. (3d.) 161, 170–82 (Can. 1978); Proudman v. Dayman, 67 C.L.R. 536, 540 (Austl. 1941). Due diligence defenses have been incorporated into a number of statutory offenses, such as in section 28 of the English Misuse of Drugs Act, 1971, ch. 38 (Eng.). See also Wilson, supra note 43, at 174–75. Some support for this in international law can be found in the Hostage case where it was held that an executive commander may be excused where active concern with the exigencies of the conflict makes it impossible to supervise fully every aspect of matters under his or her administration. Supra note 10, at 1260.

¹⁴² See Trial of Karl Heynen, British Parliamentary Command Paper No. 1450. See also Judicial Decisions, German War Trials, Judgement in the Case of Karl Heynen, 16 AJIL 674, 676 (1922).

¹⁴³ See 20 Official Transcripts of the Tokyo Trial, supra note 8, at 48, 442.

¹⁴⁴ Hague Convention No. IV, supra note 5, Art. 4.

¹⁴⁵ 20 Official Transcripts of the Tokyo Trial, supra note 8, at 48, 442.

¹⁴⁶ Trial Chamber I in the Akayesu case noted that the issue of government responsibility for the acts of the military was contentious. This, would depend on the “power of authority actually devolved upon the accused, in order to determine whether or not he had the power to take all necessary and reasonable measures to prevent and punish.” Akayesu judgment, supra note 39, at 98.

¹⁴⁷ See 20 Official Transcript of the Tokyo Trial, supra note 8, at 49, 831. This is consistent with ICTR jurisprudence, where Prime Minister Kambanda incurred superior liability through inaction to repress massacres even though he had been amply informed. See Prosecutor v. Kambanda, Judgment, para. 39, No. ICTR-96-4-T, reprinted in 37 ILM 1411 (1998).

¹⁴⁸ See Hostage case, supra note 10, at 1260.

¹⁴⁹ See High Command case, supra note 9, at 684.

¹⁵⁰ See Čelebići judgment, supra note 16, para. 763.

¹⁵¹ See ICC Prep-Com, 11–21 Feb. 1997, Decisions Taken by the Preparatory Committee, UN Doc. A/AC.249/ 1997/L.5 Art. H (Mar. 12,1997).

¹⁵² Čelebići judgment, supra note 16, para. 383; ICTY Statute, supra note 28.

¹⁵³ Čelebići judgment, supra note 16, para. 383.

¹⁵⁴ See Final Report of the Commission of Experts, Established pursuant to Security Council Resolution 780 (1992), UN SCOR, Annex, UN Doc. S/1994/674, para. 58 (May 27, 1994). See also Čelebići judgment, supra note 16, para. 386.

¹⁵⁵ Karadžiž and Mladić case, supra note 49, para. 72.

¹⁵⁶ See id., in relation to Karadžić.

¹⁵⁷ See id., para. 80; Vukovar Hospital case, supra note 112,paras. 13,17.

¹⁵⁸ See Čelebići judgment, supra note 16, para. 770.

¹⁵⁹ Yamashita case, supra note 31, at 34, 94.

¹⁶⁰ Cited in id. at 88.

¹⁶¹ Hostage case, supra note 10, at 1281.

¹⁶² See Canada v. Kurt Meyer, 4 Law Reports, supra note 31, at 97, 128–29 [hereinafter Abbaye Ardenne case].

¹⁶³ See William H. Parks, A Few Tools in the Prosecution of War Crimes, 149 Mil. L. Rev. 76 (1995).

¹⁶⁴ Čelebići judgment, supra note 16, para. 384.

¹⁶⁵ See id., para. 385.

¹⁶⁶ High Command case, supra note 9, at 462, 568.

¹⁶⁷ Id. at 547–49. See also Čelebići judgment, supra note 16, para. 385.

¹⁶⁸ See id., para. 386.

¹⁶⁹ See Official Records, CCDH/I/AR.64, supra note 36, at 310; Protocol I, supra note 15.

¹⁷⁰ See Official Records, CCDH/I/AR.64, supra note 36, at 310.

¹⁷¹ See id.

¹⁷² See id. at 307.

¹⁷³ ICRC Commentary, supra note 44, para. 3548, citing with approval the precedent established in Yamashita case, supra note 31. Furthermore, during the ICC Prep-Com (Feb. 11–21, 1997), “should have knowledge” was linked to either “widespread commission of offences” or to “the circumstances at the time,” or both. UN Doc. A/AC.249/1997/WG.2/CRP.3.

¹⁷⁴ ICC statute, supra note 18.

¹⁷⁵ Čelebići judgment, supra note 16, para. 391.

¹⁷⁶ ICRC Commentary, supra note 44, para. 3548.

¹⁷⁷ In United States v. Kowalchuk, 773 F. 2d. 488 (3rd. Cir. 1985), the accused, a member of the clerical staff of the German police in occupied Ukraine, was convicted based upon a presumption of “must have knowledge” concerning cruel and inhumane German measures against civilians.

¹⁷⁸ See Cherif M. Bassiouni, Crimes Against Humanity in International Criminal Law 372 (1992).

¹⁷⁹ ICTY Statute, supra note 28.

¹⁸⁰ Protocol I, supra note 15, Art. 86(2).

¹⁸¹ See Čelebići judgment, supra note 16, para. 387; in Commonwealth v. Welansky, 316 Mass. 383, 55 N.E. 2d 902 (1944), it was held that knowing facts that would cause a reasonable man to ascertain the danger is equivalent to knowing the danger.

¹⁸² See Čelebići judgment, supra note 16, para. 388, citing 20 Official Transcripts of the Tokyo Trial, supra note 8, at 48, 445, and Hostage case, supra note 10, at 1230, 1271.

¹⁸³ See Roechling case, supra note 12, at 1106.

¹⁸⁴ Recognized in United States v. Pohl, 5 Trials, supra note 9, at 958,1055 (1950); Roechling case, note 12, at 1097, 1106; Čelebići judgment, supra note 16, para. 388.

¹⁸⁵ See Yamashita case, supra note 31, at 94–95; United States v. Pohl, 7 Law Reports, supra note 31, at 49, 62 (1948).

¹⁸⁶ For example, in English law, oblique intent is not considered to be an independent form of mens rea, rather it may provide the jury with evidence of direct intent. See R. v. Nedrick, [1986] 3 All E.R.I.

¹⁸⁷ Čelebići judgment, supra note 16, para. 393.

¹⁸⁸ See id.

¹⁸⁹ ICTY Statute, supra note 28; ICTR Statute, supra note 29, Protocol I, supra note 15; ICC statute, supra note 18.

¹⁹⁰ See Prosecutor v. Blaškić, Decision on the Defence Motion to Strike Portions of the Amended Indictment Alleging “Failure to Punish” Liability, paras. 12–16 (April 4, 1997) (on file with author) [hereinafter Blaškić Decision].

¹⁹¹ Protocol I, supra note 15; ICTY Statute, supra note 28. See also Report of the Secretary-General, supra note 41, para. 56.

¹⁹² See Abbaye Ardenne case, supra note 162, at 97. This point is cited by Green, supra note 3, at 337, from the unpublished transcripts of the trial.

¹⁹³ Final Report of the Kahan Commission (authorized English translation), 22 ILM 473 (1983) [hereinafter Kahan Report].

¹⁹⁴ See id.

¹⁹⁵ See Ministries case, supra note 11, at 369.

¹⁹⁶ See id. at 496, 518, 609.

¹⁹⁷ See Nikolić case, supra note 83, para. 24.

¹⁹⁸ Akayesu judgment, supra note 39, at 46.

¹⁹⁹ See id. at 71.

²⁰⁰ Field Marshall List was convicted for failing to condemn criminal acts against civilians within his territory of authority. See Hostage case, supra note 10, at 1272.

²⁰¹ An attempt to prevent will negate liability only when it constitutes a “serious effort.” See Čelebići judgment, supra note 16, paras. 773–774.

²⁰² Prosecutor v. Blaškić, Prosecutor’s Response Re: “Failure to Punish” Liability (Jan. 20,1997), at 14 (on file with author).

²⁰³ See High Command case, supra note 9, at 623; Hostage case, supra note 10, at 1279–80; Blaškić Decision, supra note 190, para. 10, where the ICTY stated that “failing to punish subordinates inevitably means failing to prevent the recurrence of crimes, whereas by punishing subordinates such recurrence is naturally prevented, with the result that failure to punish alone is sufficient grounds for command responsibility.”

²⁰⁴ See Paul H. Robinson, Imputed Criminal Liability, 93 Yale L.J. 609, 633 (1984). Thus, a person who aided the principal after the completion of the offense could be convicted of the substantive offense committed by the principal. It is now largely obsolete in Anglo-American law because the accessory neither caused the primary offense nor formed mens rea with respect to it.

²⁰⁵ It too, though largely obsolete, supports the criminal liability of persons who fail to report a known felon.

²⁰⁶ See High Command case, supra note 9, at 568, 632; Hostage case, supra note 10, at 1289, 1311. Major-General Koster was convicted for the inadequacy of criminal investigations into the My Lai incident because he had ample resources and information to prevent such a failure. Memorandum of Explanation to Secretary of Defense from Secretary of the Army (March 23,1971), reprinted in Koster v. United States, 685 F. 2d (Ct. CI. 1982), 407, 410, 414, and Green, supra note 3, at 335.

²⁰⁷ See U.S. Dep’t of Navy, Law of Naval Warfare, para. 330(b) (2) (1955) (establishing a duty to “discover and stop offenses already perpetrated”).

²⁰⁸ See Federal Republic of Germany, Federal Ministry of Defense, Humanitarian Law in Armed Conflict-Manual (1992). The German Military Manual, reflecting Geneva Protocol I, provides in Article 138 a duty to either suppress or “report to competent authorities breaches of international law.”

²⁰⁹ Čelebići judgment, supra note 16, para. 395.

²¹⁰ See ILC Draft Code Commentary, supra note 27, at 108–09, in Čelebići judgment, supra, note 16, para. 395.

²¹¹ Id., para. 398.

²¹² Id., para. 399.

²¹³ Id., para. 400.

²¹⁴ 15 Law Reports, supra note 31, at 71 (emphasis added).

²¹⁵ See Soering v. United Kingdom judgment, Eur. Ct. H.R. (ser. A) para. 90 (1989). This was cited with approval in the Furundžija judgment, supra note 110, para. 148, where in relation to the crime of torture the Chamber noted that states are under an obligation to “put in place all those measures that may pre-empt its perpetration.”

²¹⁶ Abbaye Ardenne case, supra note 162, at 97. See Green, supra note 3, at 337.

²¹⁷ Yamashita v. Styer, 327 U.S. 1, 16 (1945).

²¹⁸ Yamashita case, supra note 31, at 35.

²¹⁹ United States v. Toyoda (unreported), Transcript of the Record of Trial, at 5006. This is one of many cases tried by allied military tribunals after Japan’s capitulation, but stands out because Toyoda was a senior Admiral of the Japanese Imperial Navy who was finally acquitted of all charges.

²²⁰ See Kahan Report, supra note 193, at 503

²²¹ Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Merits, 1986 ICJ Rep. 14, 61–62 (June 27). It has been argued that the Nicaragua principles refer to cases of state responsibility and therefore have no application in cases before the ICTY, which deals only with individual responsibility. See Theodor Meron, Classification of Armed Conflict in the Former Yugoslavia: Nicaragua’s Fallout, 92 AJIL 236 (1998). This was subsequently adopted in the Čelebići judgment, supra note 16, paras. 228, 230–233.

²²² In Prosecutor v. Radić, supra note 113, at paras. 12, 21, 25, 32, Trial Chamber II ruled that “significant and continuous military action” by Croatia in BiH, as well as the exercise of a high degree of control over military and political institutions of the Bosnian Croats, rendered the latter agents of Croatia. In Prosecutor v. Tadić, Opinion and Judgment No. IT-94-I-I (May 7, 1997), reprinted in 36 ILM 908 (1997), it was held that despite extensive dependence and support, the VRS was not an agent of FRY because there was neither evidence as to a single chain of command emanating from Belgrade, nor proof that orders received from Belgrade circumvented or overrode the authority of the VRS Corps Commander. Id. at paras. 593–601. In her dissenting opinion, Judge McDonald argued that it was clear that the VRS was an agent of the FRY, upon whom effective control was exercised. Id. at para. 34.