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Second, the prosecutor or plaintiff must prove that the commander knew or should have known that violations of the laws of war occurred. If the commander had actual knowledge, for example, he witnessed the act or received a direct report from a subordinate about the act, then he was automatically under an obligation to take action. If, however, the commander did not have actual knowledge, he can still be held liable. For example, the prosecution or plaintiff can demonstrate that the volume of atrocities, their large scale, or the pattern of abusive behavior necessitates a finding that a commander must have realized violations were being committed by troops under his command. This liability would be based on constructive knowledge on the part of the commander -- the idea that he should have known of these abuses. A variety of sources of evidence can demonstrate that a commander should have known that violations were occurring: newspaper accounts, communications from civilian officials, the commander's geographic proximity to the events, reports of human rights and intergovernmental organizations, and other factors that would indicate that any lack of action on the part of the commander was based more on willful ignorance than on any true lack of knowledge. A commander is under an affirmative duty to monitor the activities of his or her subordinates.
Finally, the prosecutor or plaintiff must demonstrate that the commander failed to prevent the atrocities from occurring and to investigate or punish those who committed them. Under the Yamashita standard, a commander must do everything in his power to ensure that war crimes are investigated fully and that if the perpetrators are found guilty, they are punished. While a commander can delegate the investigation to a subordinate, this delegation does not end the commander's ongoing duty to ensure that the investigation is completed. If abuses are confirmed, the perpetrators must be genuinely punished and actions must be taken to prevent future atrocities.
U.S. Military Code applies the Yamashita standard to its commanders. The U.S. Army Field Manual states, "In some cases, military commanders may be responsible for war crimes committed by subordinate members of the armed forces, or other persons subject to their control" (Army Field Manual No. 27-10, RESPONSIBILITY FOR ACTS OF SUBORDINATES IN THE LAW OF LAND WARFARE, 501 [1956]). More recent manuals reinforce this position: "Command is a specific and legal position unique to the military. It's where the buck stops. . . . Command is a sacred trust. The legal and moral responsibilities of commanders exceed those of any other leader of similar position and authority" (Army Field Manual No. 22-100, ARMY LEADERSHIP: BE KNOW DO, Art. 1-60, 1-61 [1999]). The importance of command responsibility within a military structure cannot be overstated, as it is the commanders who are entrusted with the duty of ensuring that the laws of war are obeyed on the ground, and it is their duty to ensure the protection of the civilian population from abuse.
Source: Leslie C. Green, "War Crimes, Crimes Against Humanity, and Command Responsibility." www.nwc.navy.mil/press/review/1997/spring/art2sp97.htm
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Torture Victims
Protection Act 
Civil trials have an important role to play as a means of enforcing human rights norms. Such cases do not require official approval. They can be brought by individuals who have control over the lawsuits and thus are less subject to political vagaries. | |
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Command Responsibility
Military commanders are responsible for the acts of their subordinates. If subordinates commit violations of the laws of war and their commanders fail to prevent or punish these crimes, then the commanders also can be held responsible. | |
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