text: War Crimes and Enforcement of the Law of Armed Conflict
  Command Response
  8-25. Commanders receiving information about an alleged LOAC violation involving a member of their
  command, either as a victim or a perpetrator, may conduct an informal or formal administrative investigation
  to collect evidence and assess the credibility of the allegations and the involvement of U.S. personnel (AR
  15-6; Chapter II of the Manual of the Judge Advocate General of the Navy [JAGMAN]). A commander’s
  decision to direct such an investigation, however, should not delay further reporting up the chain of command
  or, when appropriate, referral to CID or the NCIS. Further, if a commander’s investigation determines there
  is credible evidence a crime has been committed, the commander should consult the command’s judge
  advocate for advice on determining the appropriate disposition of the charges (Rules for Courts-Martial
  [RCM] 303, 306).
  Department of Justice Involvement
  8-26. It is DOD Policy to maintain effective working relationships with the Department of Justice (DOJ) in
  the investigation and prosecution of crimes involving DOD programs, operations and personnel, including
  the investigation of some alleged violations of LOAC. DOD and DOJ policy with regard to the investigation
  and prosecution of criminal matter is set forth in a Memorandum of Understanding (MOU) between the DOD
  and DOJ (implemented by DODI 5525.07). The MOU is a general policy and not specific to LOAC
  violations. Under the MOU, DOD generally will investigate most crimes committed on a military installation
  or during military operations. If the crime was committed by a person subject to the UCMJ, the Military
  Department concerned generally will take the lead in prosecuting the offender. DOJ is responsible for
  prosecution when the perpetrator is not subject to the UCMJ. Commanders should consult with a judge
  advocate and adhere to applicable DOD policies regarding DOJ involvement in a particular matter.
  WHO MAY BE HELD ACCOUNTABLE
  8-27. Those personnel who commit a war crime may be held individually responsible. In addition to the
  individual, others may be held responsible, such as the commander, those who aided and abetted an offense,
  and those who conspired with them to commit the crime—and even those who conspire to commit a war
  crime that does not occur. Other theories of criminal responsibility under international law include joint
  criminal enterprise responsibility, command responsibility and responsibility for planning, instigating, or
  ordering the crime. Under the UCMJ, a person who aids, abets, counsels, commands, or procures the
  commission of an offense may be punishable (see UCMJ, art. 77).
  Individual Responsibility
  8-28. Any person who commits an act that constitutes a crime under international law, who aids, abets, or
  counsels such a crime, or orders the commission of, conspires to commit, or attempts to commit such a crime
  is responsible for the crime and is liable to punishment (see DOD Law of War Manual, 18.22.1). Even if the
  act is not punishable as a crime in the person’s own State, the individual is not relieved from criminal
  responsibility under international law (see DOD Law of War Manual, 18.22.2). Further, a person acting
  pursuant to an order of their government or of a superior is not relieved from responsibility under international
  law for acts that constitute a crime under international law, provided it was possible in fact for the person to
  make a moral choice (see DOD Law of War Manual, 18.22.4; but see para. 8-67(describing when superior
  orders might constitute a legitimate defense)).
  Command Responsibility
  8-29. Commanders have a duty to maintain order and discipline within their command and to ensure
  compliance with applicable law by those under their command or control. Commanders, therefore, may be
  liable for the criminal acts of their subordinates or other persons subject to their control even if the
  commander did not directly participate in the underlying offenses (see DOD Law of War Manual, 18.23.3).
  In order for the commander to be liable, however, the commander’s personal dereliction must have
  contributed to or failed to prevent the offense; the commander is required to take necessary and reasonable
  measures to ensure that their subordinates do not commit violations of LOAC.