In legal terms, “superior responsibility” is a form of culpable omission by superiors – usually military commanders – that leads subordinates to violate international criminal and humanitarian law. Military commanders have a duty to ensure that their subordinates observe such law, a duty enshrined in international treaties, most national military codes, and army training manuals.

Prosecutors should look to superior responsibility when an effective chain of command exists but elites have been too careful to have issued (or left evidence of issuing) criminal orders. Imagine a situation, for instance, in which subordinate interrogators are given to understand that detainees likely have valuable information about future terrorist plots, information not offered voluntarily. Interrogators are told that the Geneva Conventions must be honored, but also that detainees may not actually be covered by these treaties. Supervision of the interrogators is then made very occasional, though superiors may plausibly justify this spottiness on the basis of staffing shortages not of their own creation.

Interrogators seek to resolve ambiguities and inconsistencies in their instructions concerning permissible methods of interrogation. They learn that their questions to immediate superiors will be referred up the chain of command and answered in due course. Yet no answers follow. In the interim, the interrogators continue to employ methods that, they are informed, pose no threat of mortal harm, but that prove in fact to cause the deaths of some detainees. On these facts, superior responsibility offers the most credible legal method by which to hold the upper echelons liable for these deaths.