Maj. William H. Parks




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.


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]



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).


[16]  Colby, War Crimes, 23 MICH. L. REV. 432, 501-02 (1925), as cited in Paust, supra n. 10 at 113.


[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.


[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).

[30]  36 Stat. 2277.

[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).

[34]  Id. at Annex 11.

[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:





Sgt. Karl Heymen

Mistreatment of POWs


10 months

Capt. Emil Muller

Mistreatment of POWs


6 months

Pvt. Robert Neumann

Mistreatment of POWs


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


4 years

1st Lt. John Boldt

Firing on survivors in lifeboats of hospital ship Llandovery Castle


4 years

Max Ramdahr

Mistreatment of Belgian children

Not Guilty


Major Benno Crusius

Ordering the Execution of POWs


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.

[44]  Id. a t 749.

[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).

[50]  Id., 88

[51]  III L.R.T.W.C. 94.

[52]  I TWC XVI.

[53]  IV L.R.T.W.C. 88.

[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.

[55] IV L.R.T.W.C. 128. 

[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.