has long been a custom of the service that, in general, a commander
is responsible for the actions of his subordinates in the performance
of their duties. This service custom was judicially underscored
by Judge Latimer who stated in a concurring opinion, 'Military
law recognizes no principal which is more firmly fixed than
the rule that a military superior is responsible for the proper
performance by his subordinates of their duties.' . For indeed,
the responsibility of a commander for controlling and supervising
his subordinates is the cornerstone of a responsible armed force.
A commander must 'give clear, concise orders' and must 'be sure
they are understood.' 'After taking action or issuing an order,
'a commander' must remain alert and make timely adjustments
as required by a changing situation.'
commander keeps informed on the situation at all times and goes
where he can beat influence the action.' 'Without undue harassment,
he supervises his unit by checking on its progress in accomplishment
of actions and orders.' Stated succinctly, 'The successful commander
insures mission accomplishment through personal presence, observation,
and supervision.' The custom of the Armed Forces regarding command
responsibility is well stated in FM 22-100, supra, para. 22:
"The military commander has complete and overall responsibility
for all activities within his unit. He alone is responsible
for everything his unit does or does not do." This command
responsibility does not, of course, extend to criminal responsibility
unless the commander knowingly participates in the criminal
acts of his men or knowingly fails to intervene and prevent
the criminal acts of his men when he had the ability to do so.
commanders may also be responsible for war crimes committed
by their subordinates. 'When troops commit massacres and atrocities
against the civilian population of occupied territory or against
prisoners of war, the responsibility may rest not only with
the actual perpetrators but also with the commander. Such a
responsibility arises directly when the acts in question have
been committed in pursuance of an order of the commander concerned.
The commander is also responsible if he has actual knowledge,
or should have knowledge, through reports received by h'un or
through other means, that troops or other persons subject to
his control are about to commit or have committed a war crime
and he fails to take the necessary and reasonable steps to insure
compliance with the law of war or to punish violators thereof.'
addition to controlling and supervising his subordinates, an
Army officer, due to his superior rank and senior position,
must conduct himself in an exemplary manner. In CM 374314, Floyd,
18 CMR 362, 366 (1955), (Pet. den.) the Board of Review stated:"
As a commissioned officer of the United States Army. Colonel
Keith, whether the senior American officer present in the particular
camp or not, and although deprived of many of the functions
and prerogatives of his office by his Communist captors, had
the responsibility and duty to take such actions as were available
to him (and if the senior officer present to exercise such command
as he was able) to assist his fellow prisoners, to help maintain
their morale, and to counsel, advise and, where necessary, order
them to conduct themselves in keeping with the standards of
conduct traditional to American servicemen.'
combat commander has a duty, both as an individual and as a
commander, to insure that humane treatment is accorded to noncombatants
and surrendering combatants. Article 3 of the Geneva Convention
relative to the Treatment of Prisoners of War specifically prohibits
violence to life and person, particularly murder, mutilation,
cruel treatment, and torture. Also prohibited are the taking
of hostages, outrages against personal dignity and summary judgment
and sentence. It demands that the wounded and sick be cared
for. These same provisions are found in the Geneva Convention
Relative to the Protection of Civilian Persons in Time of War.
While these requirements for humanitarian treatment are placed
upon each individual involved with the protected persons, it
is especially incumbent upon the commanding officer to insure
that proper treatment is given.
all military personnel, regardless of rank or position, have
the responsibility of reporting any incident or act thought
to be a war crime to his comamnding officer as soon as practicable
after gaining such knowledge. Commanders receiving such reports
must also make such facts known to the Staff Judge Advocate.
It is quite clear that war crimes are not condoned and that
every individual has the responsibility to refrain from, prevent
and report such unwarranted conduct. While this individual responsibility
is likewise placed upon the commander, he has the additional
duty to insure that war crimes committed by his troops are promptly
and adequately punished.