COMMAND RESPONSIBILITY

FOR WAR CRIMES*

by
Maj. William H. Parks **

An historical and comparative analysis of war crimes trials involving command responsibility in order to determine the standards of conduct required of a military commander in combat with regard to the prevention, investigation, reporting, and prosecution of war crimes. The author includes as part of his examination a view of the criminal responsibility of the combat commander, possible offenses, and the degree of intent required under both domestic and international law.

Because of the document's length (100 pages of A4 - 46,000 words)  it is presented here in four parts. Part II will load slowly.

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 I

 

INTRODUCTION

3

 

A

Development of the Concept – Pre 1945

3

 

B

Summary

20

 

 

 

 

II

 

WORLD WAR II TRIALS

20

 

A

War Crimes Defined

20

 

B

The Trial of General Tomoyuki Yamashita

22

 

C

The “High Command” Case

37

 

D

The “Hostage” Case

56

 

E

The “High Command” and “Hostage” Cases in Summary

60

 

F

The Tokyo Trials

61

 

G

The Trial of Admiral Toyoda

66

 

H

Other Trials

70

 

I

Summary

73

 

 

 

 

III

 

THE STANDARD DEFINED

74

 

A

Incitement

75

 

B

Acquiescence

77

 

C

Command and Control

79

 

D

Knowledge

83

 

E

Subjective Factors

87

 

F

The Standard of Knowledge

87

 

G

The Degree of Negligence – Enough, Too Much or Too Little?

91

 

 

 

 

IV

 

SUMMARY

97

 

 

 

 

 

* This article is adapted from a thesis presented to The Judge Advocate General’s School, U. S. Army, Charlottesville, Virginia, while the author was a member of the 21st Advanced Course. The opinions and conclusions presented herein are those of the author and do not necessarily represent the views of The Judge Advocate General’s School or any other governmental agency.

** U. S. Marine Corps; Instructor, Criminal Law and International Law Divisions, TJAGSA. B.A. 1963, J.D. 1966, Baylor University. Member of the Bars of Washington and Texas, the U. S. Supreme Court, and the U. S. Court of Military Appeals.

 

 

 

 

 

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