A commander may be held liable for torture and extrajudicial killing committed by troops under his command under two separate legal theories. The first applies when a commander takes a positive act, i.e., he orders torture and extrajudicial killing or actually participates in it. Ther second legal theory applies when a commander fails to take appropriate action to control his troops. This is called the doctrine of command responsibility, and it is upon this doctrine that plaintiffs seek to hold the defendants liable. The doctrine of command responsibility is founded on the principle that a military commander is obligated, under international law and the United States law, to take appropriate measures within his power to control the troops under his command and prevent them from committing torture and extrajudicial killing. Plaintiffs contend that the defendants failed to exercise proper control over the troops under their command.

To hold a specific defendant/commander liable under the doctrine of command responsibility, each plaintiff must prove all of the following elements by a preponderance of the evidence:

(1) That persons under defendant’s effective command, had committed, were committing, or were about to commit torture or extrajudicial killing; and

(2) The defendant knew, or owing to the circumstances at the time, should have known, that persons under his effective command had committed, were committing, or were about to commit torture or extrajudicial killing; and

(3) The defendant failed to take all necessary and reasonable measures within his power to prevent or repress the commission of torture and extrajudicial killing, or failed to investigate the events in an effort to punish the perpetrators.

"Effective command" means the commander has the legal authority and the practical ability to exert control over his troops. A commander cannot, however, be excused from his duties where his own actions cause or significantly contribute to the lack of effective control.

A commander may be relieved of the duty to investigate or punish wrongdoers if a higher military or civilian authority establishes a mechanism to identify and punish the wrongdoers. In such a situation. The commander must do nothing to impede or frustrate the investigation.

A commander may fulfill his duty to investigate and punish wrongdoers if he delegates this duty to a responsible subordinate. A commander has the right to assume that assignments entrusted to a responsible subordinate will be properly executed. On the other hand, the duty to investigate and punish will not be fulfilled if the commander knows or reasonably should know that the subordinate will not carry out his assignment in good faith, or if the commander impedes or frustrates the investigation.

Definitions of "torture" and "extrajudicial killing" omitted.