COMMAND RESPONSIBILITY
FOR WAR CRIMES
by Maj. William H. Parks
___________________________________
I. INTRODUCTION
The Vietnam conflict and the
aberration which occurred in the subhamlet of My Lai (4) in Song My
Village, Quang Nai Province, in the Republic of South Vietnam on March 16,
1968, reawakened questions concerning the responsibility of a military
commander for the unlawful acts of his subordinates.[1]
For some, it constituted an
opportunity to re-assert theories of responsibility previously argued and
rejected by courts of law;’[2] others saw
it as yet another way to indict the nation’s leaders, and particularly the
military, for the United States’ involvement in Vietnam.[3]
It is not the intent of this
article to rebut these arguments, as this has already been done by others.[4]
Rather it is intended to examine
the standards of responsibility previously applied in order to ascertain
the existing standards, municipal and international, and to determine if
an identical municipal-international standard is feasible.
A . DEVELOPMENT OF THE
CONCEPT-PRE-1945
The concept of command
responsibility-and the commensurate duty of a commander to control his
troops-was developed along two paths, not reaching fruition per se until
delineated by the post-World War I1 tribunals. The first path dealt with
the question of the general responsibility of command; the second, with
the specific criminal responsibility of the commander. It is alternatively
submitted that (a) the natural development of the former would lead to
inevitable inclusion of the latter, and (b) there was in fact an
intertwining of the development of the two from the outset. It is further
submitted that the development of an international standard was incidental
in nature, occurring only where states manifested such conduct as to make
it apparent that no satisfactory municipal standard was to be applied, and
the other parties to the conflict were in a position to impose what was
considered to be an appropriate international standard on culpable
commanders of the off ending state.[5]
When such an international tribunal was conducted, it generally
followed the municipal standard of responsibility of the convening state.[6]
Sun Tzu, in what is considered
to be the oldest military treatise in the world, wrote in 500 B.C.:
When troops flee, are
insubordinate, distressed, collapse in disorder, or are routed, it is the
fault of the general. None of these disorders can be attributed to natural
causes.[7]
Recognizing the responsibility
of the commander, he also recognized the correlative duty of the commander
to control his subordinates. Upon publication of his principles of war,
Sun Tzu was summoned before a leading warrior king and asked to submit his
theories to a test; Sun Tzu consented. Two companies of women, untrained
in military matters, were formed up and each placed under the command of
one of the king’s favorite concubines. They were armed and given cursory
instruction in the then-current manual of arms and close order drill.
Then, to the sound of drums, Sun Tzu gave the order, “Right turn !” The
only response of the “companies” was one of laughter. Sun Tzu remarked:
“If the words of command are not clear and distinct, if orders are not
thoroughly understood, then the general is to blame.”
Again uttering the same
command and receiving the same response, Sun Tzu then declared:
If the words of command are
not clear and distinct, if orders are not thoroughly understood, the
general is to blame. But if his orders are clear, and the soldiers
nevertheless disobey, then it is the fault of their officers. [8]
So saying and much to the
consternation of the warrior king, Sun Tzu ordered the two company
commanders beheaded and replaced by a member of each company. The
execution was viewed by all, the drum was again sounded for drill, and the
companies thereafter executed all maneuvers with perfect accuracy and
precision, never venturing to utter a sound.‘
The concept of national-and
criminal-responsibility was recorded at an early date, Grotius declaring
“. . . a community, or its rulers, may be held responsible for the crime
of a subject if they knew it and do not prevent it when they could and
should prevent it.’’[9]
While Grotius’ statement on
its face limits itself to national responsibility rather than addressing
the liability of the individual military commander, international
recognition of the latter occurred as early as
1474 with the trial of
Peter von Hagenbach. Brought
to trial by the Archduke of Austria on charges of murder, rape, perjury
and other crimes against “the laws of God and man,” Hagenbach was tried by
an international tribunal of twenty-eight judges from allied states of the
Holy Roman Empire.
Despite a plea of superior
orders, Hagenbach was convicted, deprived of his knighthood for crimes
which he as a knight was deemed to have a duty to prevent, and
executed. While an “international” trial, his trial in theory was not a
“war crimes” trial as no state of war existed at the time of the
commission of the offenses, the Swiss-Burgundian war not occurring until
1476.[10]
In 1621 King Gustavus Adolphus
of Sweden promulgated his “Articles of Military Lawwes to be Observed in
the Warres,” Article 46 of which in part provided: “No Colonel or Captaine
shall command his souldiers to do any unlawful thing; which who so does,
shall be punished according to the discretion of the Judges . . .”
In 1689, after unsuccessful
seige of Calvanist Londonderry, Count Rosen was sternly reprobated and
relieved from all further military duties by the exiled James II-not for
failure to accomplish his mission, but for his outrageous seige methods,
which included the murder of innocent noncombatants.[11]
On April
5, 1775, the Provisional Congress of Massachusetts Bay adopted
the Massachusetts Articles of War. The eleventh article provided:
Every
Officer commanding, in quarters, or on a march,
shall keep good order, and
to the utmost of
his power, redress all such abuses or disorders which may be
committed by any Officer or Soldier under his command; if upon complaint
made to him of Officers or Soldiers bezting or otherwise ill-treating any
person, or committing any kind of riots to the disquieting of the
inhabitants of this Continent, he, the said commander, who shall refuse or
omit to see Justice done to this offender or offenders, and reparation
made to the party or parties injured, as soon as the offender’s wages
shall enable him or them, upon due proof thereof, be punished, as ordered
by General Court-Martial, in such manner as if he himself had committed
the crimes or disorders complained of .[12]
Article XI1 of the American
Articles of War, enacted June 30, 1775, contained the same language. The
provision was re-enacted as section IX of the American Articles of War of
1776 on September 20,
1776. Thus from the very
outset of this nation, there was imposed upon the military commander the
duty and responsibility for control of the members of his command.
In promulgating the Articles
of War of 1806, the
provision was re-enacted) this time however authorizing specific
punishment of the offending commander by cashiering, if deemed
appropriate.
[13]
In addition) Article 33 provided:
When any commissioned officer
or soldier shall be accused of a capital crime, or of having used
violence, or committed any offense against the person or property of any
citizen of any of the United States, such as is punishable by the known
laws of the land, the commanding officer and officers of every regiment,
troop, or company to which the person or persons so accused shall belong,
are hereby required, upon application duly made by, or in behalf of, the
party or parties injured) to use their utmost endeavors to deliver over
such accused person or persons to the civil magistrate, and likewise to be
aiding and assisting to the officers of justice in apprehending and
securing the person or persons so accused, in order to bring him or them
to trial. If any commanding officer or officers shall willfully neglect,
or shall refuse upon the application aforesaid, to deliver over such
accused person or persons to the civil magistrates, or to be aiding and
assisting to the officers of justice in apprehending such person or
persons, the officer or officers so offending shall be cashiered.[14]
At approximately the same
time, Napoleon I re-emphasized the responsibility of the commander in the
briefest maxims: “There are no bad regiments; there are only bad
colonels.”[15]
During the War of 1812,
American soldiers needlessly burned some buildings near their encampment
in Upper Canada. Their commanding officer was summarily dismissed from the
service. Another commander was brought before a United States military
tribunal for a similar occurrence at Long Point.[16]
During the Black Hawk War of
1832, militia captain
Abraham Lincoln was convicted by a court-martial for failure to control
his men, some of whom had opened the officers’ supply of whiskey and
partaken freely thereof, while others were inclined to straggle on the
march. Captain Lincoln was sentenced to carry a wooden sword for two days.[17]
In
1851 the United States Supreme Court affirmed a lower court’s
decision finding Colonel David D. Mitchell responsible for illegal acts
which occurred during the Kearney campaign into Mexico in
1846. Colonel Mitchell had received illegal orders from his
immediate superior which he had passed on to his subordinates and in some
cases personally carried into execution. Although the case concerned civil
rather than criminal penalties, the conclusions reached with regard to
certain principles of responsibility-viz. the execution or passing on of a
patently illegal order, and the defense of superior orders-were exactly
those prescribed almost a century later in the Hostage and High
Command cases.[18]
In
1863, the United States promulgated General Order No. 100, better
known as the Lieber Code. Article
71 thereof provided for punishment of any commander ordering or
encouraging the intentional wounding or killing of an already “wholly
disabled enemy,” whether that commander belonged to the “Army of United
States, or is an enemy captured after having committed his misdeed.” Two
years later, Captain Henry Wirz, Swiss doctor and Commandant of the
Confederate prisoner of war camp at Andersonville, Georgia, was convicted
by military commission and hanged for violation of the Lieber Code, having
ordered and permitted the torture, maltreatment, and death of Union
prisoners of war in his custody.’[19]
Winthrop in his Military Law
and Precedents
makes reference to other post-Civil War investigations, concluding that
the burning of Columbia, South Carolina, on February
17, 1865, “. . ., cannot
fairly be fixed upon any responsible commander. . . .”[20]
for lack of evidence and interceding factors.
In
1873 in the course of hostilities in Northern California six Modoc
indians, including Captain Jack, the chief, were tried by military
tribunal for the murder of Brigadier General Canby and Reverend E. Thomas,
who as peace commissioners had entered the Modoc village under a flag of
truce. All were convicted and sentenced to hang. The sentences of the
principal perpetrators and Captain Jack were affirmed, the latter for
ordering the murders. In
affirming those sentences, the Attorney General of the United States
observed:
All the laws and customs of
civilized warfare may not be applicable to an armed conflict with the
Indian tribes upon our Western frontiers, but the circumstances attending
the assassination of Canby
and Thomas are such as to make their murder as much a violation of the
laws of savage as of civilized warfare, and the Indians concerned in it
fully understood the baneness and treachery of their act.[21]
On June
22, 1874, the American Articles of War were repromulgated, Article
54 repeating the previous
provisions concerning command responsibility. Winthrop in 1886 further
defined the duty of the commander in armed conflict, providing some
overlap between the responsibility of the military commander as stated in
the Articles of War and the obligations of the laws of war:
The observance of the rule
protecting from violence the unarmed population is especially to be
enforced by commanders in occupying or passing through towns or villages
of the enemy’s country.
All officers or soldiers offending against
the rule of immunity of non-combatants or private persons in war forfeit
their right to be treated as belligerents, and together with civilians
similarly offending, become liable to the severest penalties as violators
of the laws of war. [22]
Elsewhere, he re-emphasized
this point:
It is indeed the chief duty of
the commander of the army of occupation to maintain order and the public
safety, as far as practicable without oppression of the population, and as
if the district were a part of the domain of his own nation.[23]
With the deployment of United
States forces to the Philippine Islands in 1901, United States forces met
the question of the trial of foreign combatants for war crimes head on. By
General Order No. 221,
Headquarters, Division of the Philippines, August
17, 1901, insurrection
First Lieutenant Natalio Valencia was tried, convicted, and sentenced to
death for illegally ordering the execution of a non-combatant. By General
Order No. 264 of that
headquarters, September 9, 1901, Pedro A. Cruz, identified as a “leader”
of guerrillas, was condemned to death for permitting the murder of
two American Army prisoners of war in his custody.[24]
In April,
1902, Brigadier General Jacob H. Smith, United States Army, was
tried and convicted by general court-martial for inciting, ordering and
permitting subordinates to commit
war crimes during counterinsurgency operations on the island of
Samar. In approving the conviction and sentence of dismissal, President
Theodore Roosevelt stated:
The findings and sentence of
the court are approved. I am well aware of the danger and great difficulty
of the task our Army has had in the Philippine Islands and of the
well-nigh intolerable provocations it has received from the cruelty,
treachery, and total disregard of the rules and customs of civilized
warfare on the part of its foes. I also heartily approve the employment of
the sternest measures necessary to put a stop to such atrocities, and to
bring this war to a close. It would be culpable to show weakness in
dealing with such foes or to fail to use all legitimate and honorable
methods to overcome them. But the very fact that warfare is of such
character as to afford infinite provocation for the commission of acts of
cruelty by junior officers and the enlisted men, must make the officers in
high and responsible position peculiarly careful in their bearing and
conduct so as to keep a moral check over any acts of an improper character
by their subordinates. Almost universally the higher officers have so
borne themselves as to supply this necessary check; and with but few
exceptions the officers and soldiers of the Army have shown wonderful
kindness and forbearance in dealing with their foes. But there have been
exceptions; there have been instances of the use of torture and of
improper heartlessness in warfare on the part of individuals or small
detachments. In the recent campaign ordered by General Smith, the shooting
of the native bearers by the orders of Major Waller was an act which
sullied the American name and can be but partly excused because of Major
Waller’s mental condition at the time; this mental condition being due to
the fearful hardship and suffering which he had undergone in his campaign.
It is impossible to tell exactly how much influence language like that
used by General Smith may have had in preparing the minds of thoses under
him for the commission of the deeds which we regret. Loose and violent
talk by an officer of high rank is always likely to excite to wrongdoing
those among his subordinates whose wills are weak or whose passions are
strong.[25]
Major Edwin F. Glenn, United
States Army, was tried and convicted for violation of paragraph 16 of the
Lieber Code, torture of a prisoner, for ordering use of the “water cure”
and other means of torture as interrogation methods of prisoners taken
during the Samar campaign.”; [26] Another Army
officer, Captain Cornelius M. Brownell, was accused of ordering and
directing the “water cure” interrogation of one Father Augustine de la
Pena, who died while being so interrogated; Brownell escaped prosecution,
however, as he had been released from the Army prior to discovery of the
offense by higher authorities-a jurisdictional refrain which, through lack
of Congressional action, returned to haunt the nation at the time of
discovery of the My Lai offenses.[27]
On October 18, 1907, the
Fourth Hague Convention of 1907, respecting the laws and customs of war on
land, was executed by forty-one nations. Article 1 of the Annex thereto
laid down as a condition which an armed force must fulfil in order to be
accorded the rights of a lawful belligerent, that it must be “commanded by
a person responsible for his subordinates.”[28]
Similarly Article 19 of the Tenth Hague Convention of 1907, relating to
bombardment by naval vessels, provided that commanders of belligerent
fleets must “see to the execution of the details of the preceding
articles” in conformance with the general principles of that Convention.29[29]
Article 43 of the Annex to
the Fourth Hague Convention of 1907 further requires that the commander of
a force occupying enemy territory “shall take all measures in his power to
restore, and ensure, as far as possible, public order and safety, while
respecting, unless absolutely prevented, the laws in force in the
country.’’[30]
The latter principle was not unlike that advocated by Winthrop two
decades previous; Hague Convention Four, it is submitted, is a
manifestation and codification of that which was custom among the
signatory nations, giving early recognition to the duties and
responsibilities of the commander.
Article
54 of the 1916 Articles of War provided that
a commander has a duty of
insuring “to the utmost of his power, redress of all abuses and disorders
which may be committed by an officer or soldier under his command.”
General John A. Lejeune, thirteenth Commandant of the Marine Corps,
reiterated the general responsibility of a commander in the 1920 Marine
Corps Manual:
. . . officers, especially
commanding officers, are responsible for the physical, mental, and moral
welfare, as well as the discipline and military training of the young men
under their command.[31]
At the conclusion of World War
I, an international “Commission on the Responsibility of the Authors of
the War and on Enforcement of Penalties” met at Versailles. As part of
their final report, delivered in March, 1919, the Commission recommended
the establishment of an international tribunal “appropriate for the trial
of these offenses (crimes relating to the war) .”
[32]
Part 111 thereof concluded that:
All persons belonging to enemy
countries, however high their position may have been, without distinction
of rank, including and customs of war or the laws of humanity, are liable
to criminal prosecution.[33]
It is submitted that this
resolution was predicated by two events unusual for the most part in the
annals of warfare; (1) acts of war beyond normal public apprehension which
shocked the conscience of the world, for example, the commencement of
large scale unrestricted submarine warfare, and
(2) the virtually total
defeat of Germany and her allies. This created a demand for retribution-
perhaps to insure that this was indeed “the war to end all wars”-as well
as the potential means for satisfying that demand in the form of the
League of Nations.
Such was not to be, however,
as some nations for individual reasons voiced reluctance for proceeding.
The United States, through its representatives, Secretary of State Robert
Lansing and international law scholar James Brown Scott, dissented from
the proposed procedure of trial by international tribunal as it was
without precedent; rather, any accused should be tried by military
tribunals of the conquering nations which had “admitted competence” in the
matter.[34]
The Japanese delegation dissented from prosecuting
. . . highly-placed enemies on
the sole ground that they abstained from preventing, putting an end to, or
repressing acts in violation of the laws and customs of war [feeling] some
hesitation [in admitting] a criminal liability where the accused, with
knowledge and with power to intervene, abstained from preventing or taking
measures to prevent, putting an end to, or repressing acts in violation of
the laws and customs of war.[35]
Sweeping these objections
aside, Articles CCXXVII and CCXXVIII of the Versailles Treaty demanded the
trial of the Kaiser by international tribunal and persons accused of
violating the laws of war by international military tribunals.[36]
On February
3, 1920, the Allies submitted to the German government a list of
896 alleged war criminals they desired to try in accordance with Article
CCXXVIII of the Versailles Treaty. The list including such high-ranking
officers as the son of the Kaiser, Count Bismark (grandson of the Iron
Chancellor), and Marshalls Von Hindenburg and Ludendorff. The German
Cabinet strenuously objected, warning the Allies that Army leaders would
resume hostilities if the demand was pressed. The German government
advised the Allies that the Supreme Court of the Reich at Leipzig would
conduct the trials and apply international rather than municipal law in
trying the cases. The Allies consented on February
13, 1920, tendering to the
Germans a list of forty-five names. The Germans eventually tried twelve of
the forty-five, acquitting six. Of those convicted, only one was convicted
on the basis of command responsibility. Major Benno Crusius was found
guilty of ordering the execution of wounded French prisoners of war and
sentenced to two years confinement.[37]
In the “Llandovery Castle” Case, the German Supreme Court of
Leipzig noted in their opinion that under their own Military Penal Code,
[I]f the execution of an order
in the ordinary course of duty involves such a violation of the law as is
punishable, the superior officer issuing such order is alone responsible.[38]
The demands for international
standards of responsibility by and large went unanswered and unheeded, as
the world was to discover two decades later. The Red Cross Convention for
the Amelioration of the Condition of the Wounded and Sick of Armies in the
Field, promulgated in 1929,
recognized in Article 26
that the commander had “the duty .,. to provide for the details of
execution of the foregoing articles [of the Convention] as well as for the
unforseen cases.”
[39]
Thus the belligerent states entered World War I1 with a custom of command
responsibility, codified in large part by the Hague Conventions of
1907 and the
1929 Red Cross Convention, and with somewhat of a warning based on
the essentially unfilled demands of the Versailles Treaty that concepts of
command responsibility would be implemented at the conclusion of any
future conflict.[40]
Objections by the Allies to
the leniency of the German trials at Leipzig, as well as the actions of
Japan, such as their rape of Nanking in
1937, and German genocidal
practices from the very outset and even prior to commencement of World War
11, again shocked the conscience of the world, the two serving as
catalyctic impetus virtually from the outset of hostilities for thoughts
of the establishment of international tribunals for the conduct of war
crimes trials once that conflict was concluded.
Stories of the many atrocities
committed by the German armies led representatives of many of the
victimized states to issue the St. James Declaration in January,
1942, which promised to punish, “through the channels of organized
justice,” those responsible for war crimes.[41]
On March 9, 1943, the
United States issued ‘‘solemn warnings’’ to the Axis powers that all those
responsible for war crimes, either directly or indirectly, would be held
accountable.[42]
In July, 1943, the United Nations War Crimes Commission was established to
collect and collate evidence of war crimes. The Commission concerned
itself primarily with such crimes as mistreatment of prisoners of war,
atrocities against civilians, inhumane treatment of concentration camp
inmates, execution of hostages, and other killing of non-combatants. On
November 1, 1943, Great
Britain, the United States, and the Soviet Union issued the Moscow
Declaration on German Atrocities, which provided that those accused of war
crimes would either be (a) “brought back to the scene of their crimes and
judged on the spot by the peoples whom they have outraged,” or (b) where
offenses had no particular geographic localization, “punished by the joint
decision of the Government of the Allies.”
Formal protests to the Axis
powers went unanswered; radio broadcast warnings went unheeded. On January
29, 1944, statements by
United States Secretary of State Cordell Hull and British Foreign
Secretary Anthony Eden were broadcast-and received by the Japanese-giving
the details of the Bataan Death March. The United States also disclosed
that the Japanese would not permit the United States Government to send
food and supplies to United States and Filipino prisoners. Secretary Hull,
in speaking of the treatment of prisoners of war in Japanese hands,
stated:
According to the reports of
cruelty and inhumanity, it would be necessary to summon the
representatives of all the demons available anywhere and combine their
fiendishness with all that is bloody in order to describe the conduct of
those unthinkable atrocities on the Americans and Filipinos.[43]
Secretary Eden in turn declared that the Japanese
were violating not only international law but all human, decent civilized
conduct. He warned the Japanese Government that in time to come the record
of their military atrocities would not be forgotten. Secretary Hull closed
his statement with the remark that the United States was assembling all
possible facts concerning Japanese treatment of prisoners of war and that
it intended to seek full punishment of the responsible Japanese
authorities. Upon landing in the Philippines in October, 1944, General
Douglas MacArthur issued warnings to the Japanese commanders that he would
hold them immediately responsible for any failure to accord prisoners of
war and civilians proper treatment. Like the Hull-Eden broadcast, General
MacArthur’s message was recorded in the Japanese Ministries.[44]
On August 8, 1945, the Allies signed the London Agreement,
establishing an International Military Tribunal for trial of war criminals
whose offenses had no particular geographical location.[45]
Jurisdiction for the trial of military commanders, as well as
national leaders, was established in Article
6 of the Charter of the
International Military Tribunal:
Article 6. The Tribunal
established by the Agreement referred to in Article 1 hereof for the trial
and punishment of the major war criminals of the European Axis countries
shall have the power to try and punish persons who, acting in the
interests of the European Axis countries, whether as individuals or as
members of organizations, committed any of the following crimes.
The following acts, or any of
them, are crimes coming within the jurisdiction of the Tribunal for which
there shall be individual responsibility:
(b) WAR CRIMES: namely,
violations of the laws or customs of war. Such violations shall include,
but not be limited to, murder, ill-treatment or deportation to slave labor
or for any other purpose of civilian population of or in occupied
territory, murder or ill-treatment of prisoners of war or persons on the
seas, killing of hostages, plunder of public or private property, wanton
destruction of cities, towns or villages, or devastation not justified by
military necessity;
Leaders, organizers,
instigators, and accomplices participating in the formulation or execution
of a common plan or conspiracy to commit any of the foregoing crimes are
responsible for all acts performed by any persons in execution of such
plan. [46]
Individual states, in
establishing military tribunals for trial of lesser officials accused of
committing war crimes, promulgated comparable rules relating to the
criminal responsibility of lesser commanders.
The initial United States
definition, although never incorporated into any promulgating order, dealt
both with direct commission of an offense and
. . . omission of a superior
officer to prevent war crimes when he knows of, or is on notice as to
their commission or contemplated commission and is in a position to
prevent them.[47]
Subsequently, each American
theater of operations promulgated its own regulations for trial of war
criminals. The commanders of the Pacific and China theaters issued orders
which defined both subject jurisdiction and jurisdiction of the person:
5. OVER OFFENSES - a. The
military commissions established hereunder shall have jurisdiction over
the following offenses: murder, torture or ill-treatment of prisoners of
war or persons on the seas; killing or ill-treatment of hostages; murder,
torture or ill-treatment, or deportation to slave labor or for any other
illegal purpose, of civilians of, or in, occupied territory; plunder of
public or private property; wanton destruction of cities, towns or
villages; devastation, destruction or damage of public or private property
not justified by military necessity; planning, preparation, initiation or
waging of a war of aggression, or an invasion or war in violation of
international law, treaties, agreements or assurances; murder,
extermination, enslavement, deportation or other inhumane acts committed
against any civilian population, or persecution on political, racial,
national or religious grounds, in execution of or connection with any
offense within the jurisdiction of the commission, whether or not in
violation of the domestic law of the country where perpetrated; and all
other offenses against the laws or customs of war; participation in
a common plan or conspiracy
to accomplish any of the foregoing. Leaders, organizers, instigators,
accessories and accomplices participating in the formulation or execution
of any such common plan or conspiracy will be held responsible for all
acts performed by any person in execution of that plan or conspiracy.[48]
Article
3 of the Law of August 2,
1947, of the Grand Duchy of Luxemborg, on the Suppression of War
Crimes, reads as follows:
Without prejudice to the
provisions of Articles 66 and 67 of the Code Penal, the following may be
charged, according to the circumstances, as co-authors or as accomplices
in the crimes and delicts set out in Article 1 of the present law:
superiors in rank who have tolerated the criminal activities of their
subordinates, and those who, without being the superiors in rank of the
principal authors, have aided those crimes or delicts.[49]
A special provision was made
in the Netherlands relating to the responsibility of a superior for war
crimes committed by subordinates. Article 27(a)
(3) of the Law of July,
1947, adds, inter alia, the following provision to the
Extraordinary Penal Law Decree of December
22, 1943: “Any superior who
deliberately permits a subordinate to be guilty of such a crime shall be
punished with a similar punishment, . . ,”
[50]
Article
4 of the French Ordinance of August
28, 1944, “Concerning the Suppression of War Crimes,’’ utilized for
the trial of persons accused of war crimes within metropolitan France,
Algeria, and the then-existing French colonies, provided:
Where a subordinate is
prosecuted as the actual perpetrator of a war crime, and his superiors
cannot be indicted as being equally responsible, they shall be considered
as accomplices in so far as they have tolerated the criminal acts of their
subordinates.[51]
Trials within Germany were all
subject to Law No. 10 of the Allied Control Council (“Punishment of
Persons Guilty of War Crimes, Crimes Against Peace and Crimes Against
Humanity”). Article II (2)
provided:
Any person without regard to
nationality or the capacity in which he acted, is deemed to have committed
a [war] crime, . . . if he was (a) a principal, or (b) was an accessory to
the commission of any such crime or ordered or abetted the same, or (c) he
took a consenting part therein .,.[52]
Article IX of the Chinese Law
of October 24, 1946,
“Governing the Trial of War Criminals,” states that:
Persons who occupy a . . .
commanding position in relation to war criminals and in their capacity
as such have not fulfilled
their duty to prevent crimes from being committed by their subordinates
shall be treated as the accomplices of such war criminals.[53]
Article 8 (ii) of the British
Royal Warrant relating to the trials of persons accused of the commission
of war crimes provided:
Where there is evidence that a
war crime has been the result of concerted action upon the part of a unit
or group of men, then evidence given upon any charge relating to that
crime against any member of such unit or group may be received as prima
facie evidence of the responsibility of each member of that unit or
group for that crime . .
[54]
The Canadian rules expanded
this point, incorporating British rule 8 (ii), then providing in their
Rule 10:
(4)
Where there is evidence that
more than one war crime has been committed by members of a formation,
unit, body, or group while under the command of a single commander, the
court may receive that evidence as
prima facie evidence of the responsibility of the commander for
those crimes.
(5)
Where there is evidence that a
war crime has been committed by members of a formation, unit, body, or
group and that an officer or non-commissioned officer was present at or
immediately before the time when such offense was committed, the court may
receive that evidence as prima facie evidence of the responsibility of
such officer or non-commissioned officer, and of the commander of such
formation, unit, body, or group, for that crime.[55]
B. SUMMARY
Command has always imposed
responsibility; yet few instances are recorded prior to the end of World
War I1 where that responsibility was either criminal or international in
nature. The responsibility existed prior to that time, but there was not
sufficient warrant or authorization to interfere in what was essentially
an area of “state action.” The frustrations with the Leipzig trials after
World War I, the genocidal acts of the Axis, and the absolute
cessation of any form of government in the defeated Axis states,
gave the world both the cause and the means for demanding a day of
reckoning.
Based on the foregoing rules,
the Allied nations entered the trials believing a commander to be
responsible for the unlawful actions of his subordinates where (a) he
personally ordered the illegal act charged, or (b) with knowledge that
such actions were taking place, he failed in his duty as a commander to
prevent such offenses, either intentionally (The Netherlands, France, and
Luxemborg) or through neglect (United States, China, Great Britain and
Canada).[56]
It remained for the tribunals to apply those rules to the cases
presented.
[1]
See, e.g., The Clamor
Over Calley: Who Shares the Guilt?
TIME, April 12,
1971, at 14; Who Else
is
Guilty? NEWSWEEK,
April 12, 1971, at 30;
Sheehan, Should We Have War Crimes Trials?,
Seattle Post-Intelligencer, April 11, 1971, at 17, col. 5.
See generally
T. TAYLOR, NUREMBURG AND VIETNAM: AN AMERICAN TRAGEDY
(1970) ; s. HERSH, MY LAI 4 (1970) and
R. HAMMER, ONE MORNING IN THE WAR (1970).
2
Telford Taylor, chief prosecutor in the
High Command Case,
discussed infra p.
38 et
seq., argued
(unsuccessfully) for a theory of strict liability of a commander
(XI TRIAL OF WAR CRIMINALS
BEFORE THE NUERMBURG MILITARY TRIBUNALS UNDER CONTROL
COUNCIL LAW NO. 10 [hereinafter “TWC”] 544 [1948]; the argument is
renewed in Nuremburg and Vietnam,
supra note 1, at
180-181, and in an interview on the Dick Cavett Show on January 8,
1971, as reported by Neil Sheehan in the New York Times, January
9, 1971, at 3, col. 1. In that interview Professor Taylor opined
that if one were to apply to Secretary of State Dean Rusk,
Secretary of Defense Robert s. McNamara, Presidential advisors
McGeorge Bundy and W.
W. Rostow, President Lyndon B. Johnson, and General William
C. Westmoreland the same standards of command responsibility as
were applied in the trial of General Tomoyuki Yamashita in 1945,
discussed infra, “there would be a strong possibility that they
would come to the same end as he did.” General Yamashita was found
responsible for war crimes committed by his subordinates and
hanged on February 23, 1946.
A. Frank Reel, one
of General Yamashita’s defense counsel and author of a book
relating the defense view of the case (THE CASE
OF GENERAL
YASASHITA, 1949) , has been similarly quoted, as noted in D.
BERGAMINI, JAPAN’S IMPERIAL CONSPIRACY at 1112. n.5 (1972).
[3]
See, e.g., CRIMES OF WAR (R. Faik, G. Rolko, and R. Lifton,
eus., 1971) ; and WAR CRIMES AND THE AMERICAN CONSCIENCE (E. Knoll
and J. McFadden, eds., 1970).
[4]
See
Solf,
A Response to
Telford Taylor’s Nuremburg and Vietnam:
An American Tragedy,
5 AKRON L. REV.
43 (1972);
DEPARTMENT OF THE ARMY,
Final Report of the Research Project: Conduct of
the War in Vietnam
(1971) ; Pauet, . My Lai
and Vietnam: -Norms,
Myths, and Leader Responsibility,
57 MIL. L. REV. 99
(1972) ; Hart, Yamashita , Nuremburg and Vietnam: Command
Responsibility Reappraised, XXV NAVAL WAR
COLLEGE REVIEW 19 (1972) ; and Paust, XXV SAVAL
IVAR COLLEGE REVIEW
103 (1973).
[5]
In a report issued October
28,
1953, the U.S. Army disclosed that in June, 1953, thirty-four war
crimes cases arising out of the Korean conflict were ready for
trial, but that the alleged perpetrators had to be released in the
prisoner exchange following the armistice (July 27, 1953) in that
conflict, GREENSPAN, THE MODERN LAW OF LAND WARFARE 30, n. 82
(1959). Thus even where a state may legally detain and try
prisoners of war for war crimes (as is recognized by Articles 85,
115, and 119 of the Geneva Convention Relative to the Treatment of
Prisoners of War, 1949), this right may be forfeited by the terms
of armistice between the conflicting states. Only where there is a
clear “winner” and “loser” is there likelihood of international
war crimes trials. In the Korean and Vietnam wars, it was apparent
that the Communist states had no intention of punishing those
commanders responsible for the commission of war crimes; and by
the terms of the respective peace agreements between the parties
and the circumstances of execution of those agreements, their
adversaries were incapable of imposing sanctions upon those
commanders, even where they were within the control of the Free
World states. In the India-Pakistan-Bangladesh conflict, where
military success was more readily defined, Bangladesh was
ultimately persuaded by India to postpone its plans to try 195
Pakistanis accused of war crimes in the interest of “fulfilling a
larger vision of harmony and peace in the (Indo-Pakistani)
subcontinent.” The Bangladesh insistence of trial of the 195
accused was considered the “most crucial point” in negotiations
during the twenty months between cessation of hostilities and
conclusion of the peace accord. Simons, Bangladesh Divided Over
Issue
of
War Crimes Trials,
Wash. Post, August 17, 1973, at p.
A22, col. 1. Ratzin, Pakistan, India Set Accord, Wash, Post,
August 29, 1973, at p.
1,
col. 8; and India to
Release 90,000 Pakistans in Peace Accord, N. Y. Times,
August 29, 1973, at p. 1, cols.
7,8. This dilemma
has been the rule more than the exception, and has been offered as
explanation in part for the dearth of international war crimes
trials prior to the unconditional surrender of World War 11.
Gross, The Punishment
of
War Criminals, ZZ
NETHERLANDI.S L. REV. 356 (1955) as cited in Paust, My Lai and
Vietnam: Norms,
Myths,
and
Leader Responsibility,57
MIL. L. REV. 99 at 111, fn. 38 (1972).
[6]
This was advocated by Polish legal scholar Manfred Lachs in
1945 in War Crimes: An Attempt to Define the Issues, and
generally followed by all Tribunals, e.g., the Soviet Union
utilized exclusively the Soviet concept of criminal negligence in
defining command responsibility. U.S. DEPARTMENT OF THE ARMY,
Prisoner of War Study (Step Two: The Functioning of the Law
[VIII National Attitudes and Legal Standards
22]), 1969
(hereinafter cited as the “Harbridge House Study”).
[7]
S. Tzu, THE ART OF WAR 125 (S. Griffith transl. 1963).
[8]
S. TZU, THE ART OF WAR 9 (L. Giles Transl. 1944).
[9]
II GROTIUS, DE JURE BELLI
AC PACIS5 23
(C.E.I.P. ed., Kelsy trans
1925).
[10]
Solf, supra note 4 at
65, and Paust, supra
note 4
at 57 MIL. L.
REV.
[11]
Hargreaves, The
Rule Book of
Warfare, MARINE
CORPS GAZETTE
August 1970, at
44.
[12]
Emphasis supplied. Articles of War, Provisional Congress of
Massachusetts Bay, April 5, 1775.
[13]
Articles of War, Article 32 (1306).
[14]
Articles of War, Article 33 (1806).
[15]
R. HEIKL, DICTIONARY OF MILITARY AND NAVAL QUOTATIONS 56
(1966).
[16]
Colby, War Crimes, 23 MICH. L.
REV. 432, 501-02
(1925), as cited in
Paust, supra n. 10 at 113.
[17]
C. SANDBURG, ABRAHAM LINCOLN: THE PRAIRIE YEARS AND THE WAR
YEARS 30 (1961)
[18]
Mitchell w. Harmony, 54
US. (13 How.) 420 (1851). The plaintiff received a judgment against
Colonel Mitchell personally of $90,806.44 for seizure
of plaintiff’s
goods not justified by military necessity.
See Infra, text
at footnotes 120 and 195.
[19]
THE TRIAL OF CAPTAIN HENRY WIRZ, 8 AMERICAN STATE TRIALS
666 (1865), as cited in THE LAW OF WAR: A DOCUMENTARY HISTORY 783
(L. Friedman ed. 1972).
[20]
Emphasis supplied.
WINTHROP, MILITARY LAW AND PRECEDENTS 782 n. 46 (2nd ed.
1895).
[21]
14 OPINS. ATT’Y GEN. 249
(1873), as cited in WINTHROP, Id. at 786, n.78
[22]
WINTHROP, supra n. 20 at
779 (footnote
omitted).
[23]
Id. at 800, (footnote omitted.) citing Johnson v. McIntosh, 8
Wheaton 581 (1821)
which provides at 589: “A
conquered people are not to be ‘wantonly oppressed:
. . .” [Emphasis supplied].
[24]
Brief for the Respondents in Opposition. In the Matter of
General Tomoyuki Yamashita for Writs of Habeas Corpus and
Prohibition, pp. 33-34.
United States Supreme Court, October Term
1945 No. 61, Misc;
NO. 672. Also In
re General Tomoyuki Yamashita,
327 US. 1 at 16, n.
3 (1946). These two orders were cited by the majority in
recognizing the existence of “an affirmative duty” on the part of
a commander who is additionally the commander of an occupied
territory “to take such measures as [are] within his power and
appropriate in the circumstances to protect prisoners of war and
the civilian population” of that occupied territory.
[25]
S. Doc. 213,
57th Cong. 2nd Session, p.5. After learning of the
widespread commission of war crimes by the insurrectionists –
including torture and murder of all prisoners of war, mutilation
of their bodies, murder of noncombatants, use of poison, and
refusal to respect flags of truce- General Smith issued the
following order to Major of Marines Littleton Waller Tazewell
Waller, whose battalion had been deployed as part of General
Smith’s command :
I want no prisoners. I wish you to burn
and kill; the more you burn and kill, the better it will please
me, The interior of Samar must be made into a howling wilderness.
General Smith further instructed Major
Waller to kill all persons capable of bearing arms, designating
the lower age limit as ten years of age. In the next sixty days,
Major Waller and his Marine expeditionary force through constant
contact virtually destroyed a numerically superior enemy force
without resorting to the illegal methods urged by General Smith.
In January1902, however, the Marine force was beset by a number of
problems, many of which were caused by the repeated treachery of
that force’s Filipino guides and bearers, who Major Waller
discovered were plotting to massacre the entire Marine party.
Feeling that his drastic situation called for drastic measures:
Major Waller convened a drumhead court-martial of eleven Filipino
bearers on January 20, 1902, of which he noted: “When I learned of
the plot and heard everything, I sent [the bearers] out and had
them shot.” Major Waller maintained subsequently that the bearers
were executed not only for their gross betrayal of the Marines,
but in reprisal for the slaughter of Company C of the 9th Infantry
at Balangiga, where Moro bolo-men had ripped open the entrails of
butchered Army officers and poured in jam looted from the
messhall.
General Chafee ordered Major Waller tried
by general court-martial. Despite extreme command pressure, the
court acquitted Major Waller. When General Chafee disapproved the
acquittal, the Judge Advocate General of the Army disapproved the
entire court-martial proceeding inasmuch as the Marine force had
never been detached for service with the Army by Presidential
order, as required by Sec. 1621, R.S. (1895) of the Articles of
War. See also R. HEINL, SOLDIERS OF
THE SEA 123-6
(1962) ; and J. SCHOTT,
THE ORDEAL OF SAMAR
(1964).
[26]
S. Doc. 213, 57th Cong., 2nd Sess., pp. 20-28. The “water
cure” method of interrogation consisted of the forcing of large
quantities of water into the mouth and nose of the victim, which
not only caused the victim to suffocate but served to severely
distend the stomach; whereupon the interrogator(s) would strike
the victim in the stomach or even jump on his abdomen.
[27]
Id. at pp. 80-92. The offenses of Major Glenn and Captain
Brownell were uncovered as the result of statements by former
members of their respective commands-again a striking resemblance
to My Lai. By letter of May 10, 1902, George B. Davis, Judge
Advocate General of the Army, suggested to Senator H. Cabot Lodge
that these jurisdictional defects be cured, a plea which has to
this day gone unheeded. For a discussion of this point, see
Paust, After My Lai-The Case for War Crime Jurisdiction Over
Civilians in Federal District Courts, 50 TEX. L. REV. 6
(1971).
[28]
36 Stat. 2277; Treaty Series No. 539; MALLOY
TREATIES, VOL. 11,
2269 (1910).
[29]
36 Stat. 2351 (1910).
[31]
Marine Corps Manual, U. S. Marine Corps, 1920.
[32]
Committee on the Responsibility of the Authors of the War
and on Enforcement of Penalties-Report Presented to the
Preliminary Peace Conference,
Versailles, March, 1919, Part IV.
[33]
Id. as reported in 14
AM. J. INT.
L. 95
(1920).
[35]
Greenspan, supra
n.5 at 478,
n.286.
[36]
The accused was to be tried by a military tribunal of the
nation which had jurisdiction over the offense(s) alleged; if more
than one nation could claim jurisdiction, a multinational military
tribunal was to be appointed.
[37]
The name of each accused ultimately tried, the charge, and
the finding and sentence are as follows:
ACCUSED
|
CHARGE
|
FINDING
|
SENTENCE
|
Sgt. Karl Heymen
|
Mistreatment
of POWs
|
Guilty
|
10 months
|
Capt. Emil Muller
|
Mistreatment
of POWs
|
Guilty
|
6 months
|
Pvt. Robert Neumann
|
Mistreatment
of POWs
|
Guilty
|
6 months
|
Lt. Capt. Karl Neumann
|
Torpedoing the hospital ship
Dover Castle
|
Not Guilty
|
|
1st Lt. Ludwig Dithmar
|
Firing on survivors in lifeboats
of hospital
ship Llandovery Castle
|
Guilty
|
4 years
|
1st Lt. John Boldt
|
Firing on survivors in lifeboats
of hospital
ship Llandovery Castle
|
Guilty
|
4 years
|
Max Ramdahr
|
Mistreatment of Belgian children
|
Not Guilty
|
|
Major Benno Crusius
|
Ordering the Execution of POWs
|
Guilty
|
2 years
|
1st Lt. Adolph Laule
|
Murder
of a POWs
|
Not Guilty
|
|
Lt. Gen. Hans von Schock
|
Mistreatment
of POWs
|
Not Guilty
|
|
Maj. Gen. Benno Kruska
|
Mistreatment
of POWs
|
Not Guilty
|
|
Lt. Gen. Karl Stenger
|
Ordering the Execution of POWs
|
Not Guilty
|
|
U. S. DEP’T OF ARMY, PAMPHLET No.
27-161-2, INTERNATIONAL LAW
221-222 (1962).
[38]
Friedman, supra n.
19, 881.
[39]
47 Stat. 2074 (1932).
[40]
The concept of command responsibility was well recognized
prior to World War 11, even by the so-called ["Oriental mind,” as
Marine General A. A.
Vandegrift indicates in his autobiography, ONCE
A MARINE (at p.
75). ln
1928, then-Major
Vandegrift was stationed with the Marine expeditionary force in
China. He relates the following:
For a Christian general, Feng Yu-hsiang
(the famous “Christian general” who baptized his troops en masse
[with fire hoses] and had them sing hymns each night before
retiring) proved an anomaly.
As was the custom
with Chinese forces, plainclothes agents preceded the main forces
into the city. These men, generally cruel, plundered at will and
treated the Chinese folk very harshly.
Soon after Feng’s advance [to Tientsin], I
learned that some of his agents were persecuting the natives in a
small village close to one of our defense areas. After confirming
the report I hastened to Feng’s headquarters . . . he received me
most courteously, explained that such acts were contrary to his
orders, and promised to deal with the offenders if General
[Smedley D.] Butler would let troops transit our area. Butler gave
permission by telephone and I accompanied a platoon to the trouble
spot. We caught the looters redhanded. Before I could say anything
the Chinese platoon leader lined six of them up and beheaded them,
an example to anyone else so tempted. The rest of them he marched
back to the Chinese city, lined them against a wall and had them
shot.
Japanese General Tomoyuki Yamashita
testified at his trial (discussed infra n.
64) that he
recognized and acknowledged the concept as a vaIid one, and one to
which he maintained he adhered. United States
v. Gen. Tomoyuki
Yamashita, Tr. 3650, 3652,
3653, 3674.
[41]
Friedman, supra n. 19,
778.
[42]
89 Cong. Rec. 1773
(daily ed. March 9, 1943).
[43]
Judgment of the International Japanese War Crimes Trial in the
International-Military Tribunal for the Far East (hereinafter
cited as “IMTFE”) (1948), pp. 49,
748-750.
[45]
Until execution of the London Agreement, Great Britain was
of the mind that the German leaders should be considered wanted
outlaws to be shot on sight, even if they voluntarily surrendered.
Friedman, supra, n.19, p.
777.
Despite these preliminary moves, some
international legal sholars throughout the war doubted the
practicality of international war crimes trials. A. Berriedale
Keith, in his seventh edition of
WHEATON’S INTERNATIONAL
LAW (1944)
declared “[the idea of war crimes trials by neutral tribunals . .
. fantastic, rather than practicable” (p.
242) ; and that
“. . . the
probability of anything effective being devised . . . is
negligible” (p. 587). He also questioned whether individuals committing war
crimes under order of their governments could be held liable for
their actions (p. 586).
[46]
Friedman, supra n. 19, 885.
[47]
JCS Directive
1023/3, September
25, 1944, as cited in Douglass, High Command Case:
A Study in
Staff and C m a n d Responsibility,
INT’L LAWYER,
686, 687 (October
1972).
[48]
United States Armed Forces, Pacific, Regulations
Governing the Trial of War Criminals
(24 September 1945)
; United States Armed Forces,
China, Regulations (21 January 1946). The former were used
in the trial of Generals Yamashita and Homma and in the Jaluit
Atoll Case, infra, then superseded by the Regulations
Governing the Trials
of Accused War
Criminals of
December 5, 1945, for all subsequent trials.
[49]
United Nations War Crimes Commission, IV LAW
REPORTS OF TRIALS
OF WAR CRIMINALS 87 (hereinafter cited
as “--L.R.T.W.C.--”) (1948).
[54]
I L.R.T.W.C. 108-9. Article 139 (b), UCMJ
(10 U.S. Code
5 939(b)),
relating to redress of injuries to property similarly provides
that where such injuries are committed by a unit and the
individual perpetrators cannot be identified, damages may be
assessed against all individual members of the command who are
shown to have been present at the time the damages complained of
were inflicted.
[56]
The requirement of knowledge presents itself by implication
only in all but the United States JCS definition (supra, n.
47), which included
knowledge or notice.
|