Several years ago, Beth Van Schaack highlighted a gap in U.S. law regarding atrocity crimes. Although well established in international criminal law as well as other areas of U.S. law, Title 18 of the U.S. Code lacks command responsibility as a mode of criminal responsibility. Following the issuance of pardons by President Donald Trump, Gabor Rona drew renewed attention to command responsibility as a mode of liability.
Brian Finucane, A Commander’s Duty to Punish War Crimes: Past U.S. Recognition. Just Security, 4 December 2020.
This duty to punish has been an element of command responsibility since at least the Hundred Years’ War. In 1439, King Charles VII of France issued an ordinance identifying the failure of a commander to discipline a subordinate as a basis for the punishment of the commander.
The King orders each captain or lieutenant to be held responsible for the abuses, ills, and offenses committed by members of his company, and that as soon as he receives any complaint…he bring the offender to justice…If he fails to do so or cover up the misdeed…the captain shall be deemed responsible for the offense, as if he had committed it himself and shall be punished in the same way as the offender would have been. (emphasis added)
And he concludes,
Discussions of accountability for atrocity crimes, both domestically and abroad, should be informed by the United States’ own long-standing views that a commander’s failure to punish war crimes by his subordinates may itself amount to a war crime.
And then we have this,