The jurisprudential conception of effective control is rooted in
outmoded conc- tions of hierarchical organizational structure. By
extension, the current template for evaluating effective control poses
an increasing risk that culpable commanders will escape liability by
exploiting the lacunae in current case law. This article p- poses that
jurists should analyze command/superior responsibility cases with full
cognizance of modern command and control theory in order to sustain its
viability as a practical prosecutorial tool to regulate the crimes
committed by loosely knit groups and non-state actors conducting
atrocities in chaotic circumstances. The Composite Theory proposed
herein would support liability for the acts of subor- nates on the
theory that commanders who field fighting organizations without the
proper methods for enforcing compliance with the laws and customs of
war - sume the risk of criminal sanction where criminal violations occur
by their sub- dinates, regardless of the nature of the organization.
Despite its broad acceptance and frequent regurgitation in
jurisprudence, the doctrine of effective control drawn from the essence
of the leader's authority is increasingly inapplicable to non-state
actors who conduct hostilities in non-tra- tional conflicts. The
independent emergence of the principle that the commander's orders
operate with the force of law to limit the application of violence in
widely disparate cultures and historical periods suggests that it is
more than just a legal technicality, but instead is fundamental to the
nature of warfare itself.
