Military spokespeople and upper echelon commanders routinely maintain that wartime atrocities are the acts of a few "bad apples." Yet, while disclaimers of responsibility from higher-ups in the chain of command often beg credulity, the law provides safe harbor for those holding command positions since it is frequently powerless to ensnare anyone but the atrocity's immediate perpetrators. This Article spans international and domestic law, and it addresses one of the doctrinal constraints on holding commanders criminally liable: the doctrine of command responsibility as it applies where commanders fail adequately to investigate or punish atrocities of their troops.
As a theoretical matter, there are two ways to respond to such failures: First, the commander may be held responsible solely for dereliction of duty; alternatively, she may be held criminally liable for her subordinates' atrocity. Currently, both domestic and international tribunals have adopted the former response.
This Article argues that, in doing so, these tribunals have betrayed the doctrinal history of command responsibility, and significantly misconstrued the nature of the harm waged by a commander's failure to punish. The Article articulates an expressive theory of harm according to which a commander's failure to punish can, under certain circumstances, come to constitute part of the injury of his subordinates' offense; when these circumstances arise, it is appropriate to hold the commander criminally liable for that offense.