Monday, May 13, 2019

Commander responsibility?

Country A's armed forces are reasonably well trained, led and supervised. Nonetheless, at times a few of its military personnel violate the law of armed conflict. Country A is led by an elected civilian chief of state who is responsible for taking care that the laws are enforced, is commander in chief of the armed forces, has the power to refer charges to courts-martial and to dismiss court-martial charges, as well as the power to grant pardons and clemency.

Is Country A's chief of state subject to war crimes prosecution under a commander responsibility theory of liability if, having had no personal role in the training or supervision of the offenders or personal involvement in the operations in which their offenses were committed, he:
a. grants a full pardon, in accordance with Country A's constitution, to a soldier who has been duly convicted of unlawfully killing a prisoner, and whose conviction has been upheld on appeal by Country A's courts? 
b. takes over from a military subordinate, in accordance with domestic law, the disposition of similar charges against a soldier, and dismisses them before trial? Assume the charges are well-founded in law and in fact.
c. as authorized by Country A's laws, materially reduces the sentence of a soldier convicted of unlawfully killing a prisoner?
Explain your answers.

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