for two reasons:

1. Whether or not to do something (commission), or not do something (omission), is a decision that has to be made by the military officer, or by the civilian official (war crimes applies to the entire chain of command, military and civilian), because that officer or official is the one who will get fried.

2. Lawyers' opinions in this area are not reliable because they vary all over the map - e.g., consider the range of lawyerly opinions about the drone strikes, and the range of opinions by investigators regarding the material facts.

BTW: I'm a retired gentleman, not the SWC lawyer; and I'd like to see some comments (and research) from others. The rest of your post was OK in that regard. I can do without $hit like: "You're the lawyer." No, I'm not. I also have no particular personal interest in prosecuting or defending Smith.

Regards

Mike

PS: later, I'll add a couple of black-letter bits, only as background.