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7 Dartmouth L.J. 223 (2009)
The Constructive Knowledge Standard of Command Responsibility

handle is hein.journals/dcujl7 and id is 223 raw text is: THE CONSTRUCTIVE KNOWLEDGE STANDARD OF COMMAND RESPONSIBILITY VICTOR GALSON* The doctrine of command responsibility states that a military commander can be held criminally responsible for war crimes committed by his subordinates. The Rome Statute of the International Criminal Court establishes a constructive knowledge standard for such cases, meaning the commander can be found guilty even if he had no actual knowledge of the commission of the crime. This article will argue that this constructive knowledge standard is unacceptable because it is largely at odds with both American criminal law and moral intuition. I. CONSTRUCTIVE KNOWLEDGE AND ARTICLE 28(A) ........ .......... 224 II. CONSTRUCTIVE KNOWLEDGE AND AMERICAN CRIMINAL LAW .........226 III. DIFFERENCES BETWEEN AMERICAN AND INTERNATIONAL CRIMINAL LAW .................................. ........ 228 IV. IS THE CONSTRUCTIVE KNOWLEDGE STANDARD JUSTIHED? ............230 IV. FINAL CONCESSION .......................................... 232 In broad terms, the doctrine of command responsibility states that a commander may be held criminally accountable for the actions of his subordinates in cases of war crimes. Much of the debate surrounding this doctrine seeks to resolve the current state of command responsibility through a careful analysis of the relevant, but often convoluted and contradictory, international statutes and cases.' This non-normative approach considers the entire history of command responsibility up to the most recent definition espoused in international law: Article 28(a) of the Rome Statute of the International Criminal Court. I wish to avoid the difficult questions surrounding the current status of command responsibility by accepting the Rome Statute and pursuing a more normative approach. Namely, what should be the status of command responsibility? This too is a difficult question, and I will focus the discussion to one element of the doctrine: the mental element of the crime. In short, I will argue that the use of constructive knowledge as a mental *Victor Galson, from Bethesda, Maryland, is a junior at Dartmouth College. He majors in Philosophy, with plans to attend medical school after graduation. 1 Including, but not limited to, the policies and holdings of these ad hoc tribunals: the Nuremburg Tribunals, the International Military Tribunal Far East, The International Criminal Tribunal for the Former Yugoslavia, and the International Criminal Tribunal for Rwanda. See Stuart E. Hendin, Command Responsibility and Superior Orders in the Twentieth Century - A Century of Evolution, 10 MURDOCH UNIVERSITY ELECTRONIC JOURNAL OF LAW (2003). 223

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