“Crashing Down on Us” 63 Under Article 28 of the Rome Statute, military commanders exercising control over those responsible for war crimes are themselves criminally liable if they failed to act to prevent such crimes, to punish those responsible or to report them.173 Article 25 establishes criminal liability for different forms of involvement in committing the crime, including as a direct, indirect, or co-perpetrator or as a perpetrator responsible for ordering, contributing to, or inciting criminal action.174 To issue an arrest warrant for alleged criminal responsibility in the commission of war crimes, an ICC prosecutor must only show that the “evidence provides reasonable (not conclusive or definitive) grounds to believe that the person committed a crime within the jurisdiction of the Court.”175 In addition to eyewitness testimony regarding the locations and actions of Myanmar military battalions, Fortify Rights also consulted testimonies it collected from military defectors in 2022 and 2023 in India, Thailand, and Myanmar and from a prisoner-of-war pilot who was detained by Karenni armed resistance forces in February 2024, documentation leaked to Fortify Rights from active-duty military sources concerning the military chain-of-command, and other sources, including open sources intelligence and reporting from Security Force Monitor, a project at the Columbia University School of Law.176 Lastly, Fortify Rights also consulted the otherwise confidential physical locations of all military units throughout the country, which was published in an annex of the 2022 Fortify Rights report “Nowhere is Safe:” The Myanmar Junta’s Crimes Against Humanity Following the Coup d’État.177 Command Responsibility Article 28(a) of the Rome Statute establishes criminal liability for command responsibility of “a military commander or person effectively acting as a military commander” when international crimes take place “by forces under his or her effective command and control” or “as a result of his or her failure to exercise control properly over such forces.”178 The commander must or should have known about the crimes and “failed to take all necessary and reasonable measures within his or her power” prevent, halt or report the crimes.179 A “military commander” generally refers to a member of the armed forces or “non-governmental irregular” armed forces with formal authority to issue direct orders to subordinates.180 Article 28(a) also covers quasi-military commanders, such as those who do not occupy official positions but 173 Command (or superior) responsibility can be traced back to the fifteenth century. See, e.g., W. H. Parks, “Command Responsibility for War Crimes,” Military Law Review, Vol. 62, 1973, pp.4–5. Describing the 1474 case of a knight convicted by an international tribunal and executed for murder, rape, perjury, and other crimes “against the laws of God and man” that he, as a knight, had a duty to prevent). However, it only became firmly established in international customary law after World War II. Although the International Tribunal in Nuremberg did not use the doctrine and the Tribunal of Tokyo did so only “very broadly,” the Yamashita case before the United States Military Commission marked its modern debut. See, René Värk, “Superior Responsibility,” Estonian National Defence College Proceedings, Vol. 15, 2012, p. 144. The International Criminal Tribunal for Rwanda (ICTR) and ICTY further developed the doctrine, initially for military commanders but increasingly—and somewhat controversially—for civilian superiors as well. See, Jamie A. Williamson, “Command Responsibility in the Case Law of the International Criminal Tribunal for Rwanda,” Criminal Law Forum, Vol. 13, 2002, pp. 365–366. See also, ICTR Statute, Art. 6(3); ICTY Statute, Art. 7(3). 174 Rome Statute, Arts. 25, 28. 175 Prosecutor v. Omar Hassan Ahmad Al-Bashir, International Criminal Court (ICC), Case No. ICC-02/05-01/09-OA, Judgment (Appeal), February 3, 2010, para. 17 (establishing that the threshold for issuing an arrest warrant is “reasonable grounds to believe”). See also, at para. 31 (finding that “at this preliminary [pre-trial, warrant seeking] stage, it does not have to be certain that that person committed the alleged offence. Certainty as to the commission of the crime is required only at the trial stage of the proceedings, when the Prosecutor has had a chance to submit more evidence.”). See, Rome Statute, Art. 66(3). 176 Security Force Monitor, website, https://securityforcemonitor.org/. 177 See, Fortify Rights and Yale Law School, “Nowhere is Safe,” Annex, pp. 158-193. 178 Rome Statute, Art. 28(a). 179 The Rome Statute codifies superior responsibility doctrine in Article 28. Article 28(a) applies to military commanders or those acting as military commanders, and Article 28(b) applies to non-military commanders, including civilians. See, René Värk, “Superior Responsibility,” Estonian National Defence College Proceedings, Vol. 15, 2012, p. 143. 180 Centre for International Law Research and Policy, Commentary on the Law of the International Criminal Court, Part 3, Article 28(a): Military Commander, June 30, 2016, https://www.casematrixnetwork.org/cmn-knowledge-hub/icccommentary-clicc/commentary-rome-statute/commentary-rome-statute-part-3/; Prosecutor v. Jean‑Pierre Bemba Gombo, ICC, Case No. ICC-01/05-01/08, Judgment (Trial), March 21, 2016, para. 176.