This is the issue Siddharth Varadarajan is attempting to address in his The Hindu article. The article quotes from various memos authored by various US government lawyers,- the infamous "torture memos" that have been making rounds through various media. Says Varadarajan,
It is astonishing that despite the existence of such documents — and only censored versions of these memos have been released — there is no clamour within the U.S. to bring charges against Mr. Bush and Mr. Rumsfeld for the commission of war crimes by their subordinates.According to Varadarajan no memos of comparable content have been issued by Mr Milosevic's administration.
Louise Arbour, chief prosecutor of the International Criminal Tribunal for the Former Yugoslavia (ICTY), had no such documentary evidence when she indicted Yugoslav President Slobodan Milosevic in 1999 on four counts of crimes against humanity and violations of the laws of war. The crimes concerned the death of 340 Kosovar Albanians at the hands of the Yugoslav security forces. Paragraph 84 of the indictment states that "in as much as he has authority or control over the VJ (Yugoslav army) ... Slobodan Milosevic, as president of the FR of Yugoslavia ... is also criminally responsible for the acts of his subordinates." Para 88 states, "A superior is responsible for the acts of his subordinate(s) if he knew or had reason to know that his subordinate(s) was/were about to commit such acts or had done so and the superior failed to take necessary and reasonable measures to prevent such acts..."Another historical parallel that is worth examining is the massacre at Sabra and Shatilla and the report issued by Israel's Kahan Commission tasked with investigating that massacre. The report considers the issue of indirect responsibility thusly:
The argument is that no responsibility should be laid on Israel for deeds perpetrated outside of its borders by members of the Christian community against Palestinians in that same country, or against Muslims located within the area of the camps.This sounds like a proper standard to apply. It was applied, at least to some extent, in Israel, where the scandal that followed Sabra and Shatilla cost Defense Minister Ariel Sharon his ministerial seat.
A certain echo of this approach may be found in statements made in the cabinet meeting of 19.9.82, and in statements released to the public by various sources. We cannot accept this position. If it indeed becomes clear that those who decided on the entry of the Phalangists into the camps should have foreseen - from the information at their disposal and from things which were common knowledge - that there was danger of a massacre, and no steps were taken which might have prevented this danger or at least greatly reduced the possibility that deeds of this type might be done, then those who made the decisions and those who implemented them are indirectly responsible for what ultimately occurred, even if they did not intend this to happen and merely disregarded the anticipated danger.
In 2001 in Kunduz, the Afghan Northern Alliance soldiers transported several thousand Taliban POWs to a remote prison in unventialted trucks. Many died enroute in a horrendous agony, some where later shot to death by the Afghans supervised by the US soldiers. Personally, I don't know how true those allegations are, but the documentary 'Convoy of Death' shot about the subject sounds convincing. It is also worth noting that the said documentary broadcast around the world did not make it into any of the US major networks' programming.
If at Sabra and Shatilla Israeli troops were accused of watching the events from afar and possibly shooting flares to make the Phalangist muderers' job easier, here the allegations state US soldiers' direct and immediate participation in a massacre. And I think the standard of responsibility used in the Kahan commission report is just as applicable in this case.
War crimes have existed for so long as the war itself. However, this is not a reason to be complacent about those crimes. We need to use a uniform standard to define them, and apply this standard to all suspects in a fair and non-prejudicial manner,- regardless of the suspect's rank or position.