Normally, it would be highly suspect to charge a president with war crimes under a command responsibility theory. Certainly, President [Donald J.] Trump did not know, and probably couldn’t have known or prevented these acts. He wasn’t even president when they were committed. But presidents don’t normally pardon war criminals. The law of command responsibility doesn’t only address crimes a commander ordered his or her troops to commit, or even only those which he or she failed to prevent. It also requires a commander to impose consequences for violations committed by his or her subordinates. It is hard to imagine a clearer violation of this obligation than a pardon. [Emphasis added.]The Editor shares these concerns but has one point of clarification. A commander need not personally have the power to make prosecutorial decisions; it is enough if he has (and exercises) the power to refer allegations to a military justice system that is not a sham. A senior official who, having done everything right to that point, refers investigated war crimes charges to a lawyer prosecutor (who has the power and resources to mount a prosecution in a military justice system that is otherwise functional) has no command responsibility if the case ends with an acquittal or an excessively lenient sentence. Command responsibility, in other words, does not require a commander-centric military justice system like the US's (and unlike many others, such as the UK, Canada, Australia, New Zealand, Ireland, and Israel). Those who follow the current threatened-pardon controversy should not throw out the independent-prosecutor baby with the war-crimes-pardon bathwater. I am concerned that defenders of the US system will attempt to use the pardon business as yet another unfounded theory for retaining George III's system. Reformers and federal legislators should be alert to this danger.
The granting of a pardon for a war criminal is different from a charging decision. The pardon power is personal to the official who possesses it. Its exercise cannot be delegated, at least in the US system. To pardon a convicted war criminal in the absence of some clear legal error in the proceedings is as indefensible as is sweeping charges under the carpet beforehand.