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Rogers thus notes that “If knowledge cannot be proved by direct evidence, it may be inferred from the surrounding circumstances, for example, the widespread nature, severity or notoriety of offences." Similarly, if "he is told that a report deals with, say, the massacre of civilians by troops under his command, he is put under a duty to do something about it. Te cannot simply turn a blind eye to it. He must give appropriate orders to his staff."

Rogers concludes that:

Actual knowledge may be difficult to prove, but can be inferred from the
surrounding circumstances, especially if war crimes by those under command are
so widespread as to be notorious, for example, when soldiers under command
carry out sustained and frequent unlawful attacks, ........ Liability may also attach to
a commander even if he did not actually know about the acts of subordinates
but ought to have known about them and his failure in this respect constituted a
dereliction of duty on his part, for example, if he is put on notice but fails to do
anything about it.

Superior duty to take necessary and reasonable measures to prevent the crime or to punish the perpetrator

Superiors have both a duty to prevent and a duty to punish the crimes of subordinate persons. These constitute distinct and independent legal obligations.372

The duty to prevent renders superiors responsible where they failed to consider clements that point to the likelihood that such crimes would be committed.373 Superiors successfully discharge their duty to prevent subordinate crimes when they employ every means in their power to do 80.374

371

A.P.V. Rogers, "Command Responsibility under the Law of War," [online], http://icil.law.cam.ac.uk/lectures/lecture_papers.php. The UN Commission of Experts in the former Yugoslavia established

in 1992, pursuant to Security Council Resolution 780, also recognized three forms of knowledge:

(a) actual knowledge. (b) such serious personal dereliction on the part of the commander as to constitute wilful and wanton disregard of the possible consequences, or (c) an imputation of constructive knowledge, that is, despite pleas to the contrary, the commander, under the facts and circumstances of the particular case, must have known of the offences charged and acquiesced therein.

Final Report of the Commission of Experts. Established Pursuant to Security Council Resolution 780 (1992), UN SCOR, Annex, UN Doc. S/1994/674, para. 58 (May 27, 1994).

372

Ilias Bantekas, "The Contemporary Law of Superior Responsibility, 93 A.J.I.L. 573, 591 (1999).

373 Final Report of the Kahan Commission (authorized English translation), 22 ILM 473 (1983).

374

See United States v. von Weizsaecker, 14 Trials of War Criminals before the Nuremberg Military Tribunals Under Control Council Law No. 10 (1952).

"A superior's 'duty to punish' arises after the commission of an offense. It is predicated upon offenses by others which have already occurred, not future offenses. Punishment is, therefore, intended to deter the commission of future offenses."

Acknowledgements

This report was written by Reed Brody, special counsel with Human Rights Watch. Research assistance was provided by: John Sifton, Afghanistan researcher; Katherine Kruk, intern; Joshua Franco, Warisha Farasat, and Kamran Serhat Choudhry, students at Columbia Law School, and Katherine Hawkins, student at Harvard Law School. Joe Saunders, deputy program director, edited the report, Wilder Tayler, legal and policy director, and James Ross, senior legal advisor, provided a legal review. Tom Malinowski, Washington advocacy director, added helpful comments. Rania Suidan, associate, prepared the report for publication, together with Katherine Kruk. Andrea Holley, publications director for Human Rights Watch, and Fitzroy Hepkins, mail manager, made possible the production of this report. I luman Rights Watch is grateful to the Center for Constitutional Rights and to the Center for Human Rights and Global Justice of NYU School of Law for sharing their legal analyses with us.

Human Rights Watch would also like to thank the Atlantic Philanthropies and Franz Allina, who helped made this work possible.

REPORT, AMERICAN CIVIL LIBERTIES UNION, "SANCTIONED BIAS," FEBRUARY 2004

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SANCTIONED BIAS: Racial Profiling Since 9/11

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