The doctrine of command responsibility posits that, when military commanders fail to effectively prevent, suppress, or punish their subordinates’ war crimes, the commander may be punished for the subordinates’ crimes. Several international criminal statutes have codified this doctrine, but the United States’ Uniform Code of Military Justice has not. In light of U.S. law-of-war violations during the Iraq and Afghanistan wars, several legal commentators have called for stronger legal incentives within domestic military law and for the adoption of a formal command responsibility provision. Such measures, it is argued, would place sufficient pressure on senior military commanders to stem the tide of war crimes within the U.S. military. Assuming that a formal command responsibility statute is the best method of redress, this Note argues that a more nuanced approach is needed to introduce the provision domestically. Namely, Congress must shape the provision around the concerns and incentives of small-unit leaders, not senior military commanders. As the United States continues to engage heavily in counterinsurgency warfare, small-unit leaders have taken on increasingly more important roles, both strategically and with regard to preventing law-of-war violations. Accordingly, there is a critical need for lawmakers to draft the statutory elements of a command responsibility so as to minimize the doctrine’s costs on small-unit leaders while maximizing these leaders’ incentives to enforce the laws of war. Using this framework, this Note argues further that a domestic command responsibility provision should incorporate a negligence mens rea standard in only limited circumstances.
