Acceptance of command clearly imposes upon the commander a duty to supervise and control the conduct of his subordinates in accordance with existing principles of the law of war. Equally clear, a commander who orders or directs the commission of war crimes shares the guilt of the actual perpetrators of the offense. This is true whether the order originates with that commander or is an order patently illegal passed from a higher command through the accused commander to his subordinates. Only the genre of culpability may distinguish the commander from those members of his command accused of committing the war crimes for which he is charged.



No less clear is the responsibility of the commander who incites others to act, although there may be extremes in examples in such a case. In the Essen Lynching case, by ordering his men before an angry crowd not to interfere if the crowd attempted to mistreat prisoners in their custody, Captain Heyer knowingly incited (a) an abandonment of responsibility by his subordinates and (b) perpetration of the main offense by persons not members of his command, resulting in the deaths of the prisoners. Would his incitement (and responsibility) be as clear had it been shown that (rather than the events occurring as they did) these same soldiers, while never receiving an order from Captain Heyer to neglect their responsibilities, nevertheless had heard him say that “the only good prisoner is a dead one,” or refer to the enemy through racial epithets imputing to the enemy a less than human quality or status? Black’s Law Dictionary defines “incite” as : “to arouse; urge; provoke; encourage; spur on; goad; stir up; instigate; set in motion.” [258]Webster’s defines “incite” as “to move to a courseof action; stir up; spur on; urge on.”[259] Certainly it would depend on the circumstances of the remark, the recipient, and whether the perpetrator of the offense charged to have occurred as a result of the alleged incitement was the intended recipient. The passing remark by the twenty-four year old company commander to his twenty-three year old executive officer over a drink certainly would not have the same effect as if that same company commander were briefing his troop for a combat assault-troops eighteen years old who have been trained to respect and obey every word uttered by their company commander. While the qualification, “unless illegal” should be added to the last sentence, this does not take into account the impressionability of the young soldier. Even where a commander’s comments are in jest and intended as casual remarks for the ears of the executive officer or the company first sergeant, such remarks, particularly where repeated with some frequency, could lead to questions of incitement where overheard by the “casual private first class” who then carries them back to the barracks. Here the incitement abandons the normal image of an explosive, motivating harangue for the subtle suggestion of toleration of certain offenses. While it would be most difficult to attach criminal responsibility to such casual remarks overheard by the unintended eavesdropper, the impact on the subconscious of the young eavesdropper who subsequently finds himself in custody of a “mere ------” on a lonely trail cannot be under-estimated. While it is most unlikely that criminal responsibility would attach for such a casual remark or remarks, it is nevertheless asserted - for moral and military mission reasons, if not legal[260] - that the commander’s responsibility lies or should lie in affirmatively manifesting an intolerance for illegal acts under any and all circumstances; and that the dividing line between moral and legal responsibility as it relates to incitement of others to act is a fine one. This dividing line could move depending on the tactical situation of the commander and his command ; the casual remarks of the commander of a maintenance unit in a conventional war would seem to have less impact than those of an infantry company commander in a counterinsurgency environment. Even when remarks which incite violate a legal responsibility, the degree of culpability may vary. Captain Heyer was found to be a principal for his remarks and as a result received a death sentence ; while his remarks were not tantamount to orders, they were (a) given with the intent of inciting and (b) with full knowledge of the probable consequences. The single or even occasional castoff remark would not normally indicate the same intent nor awareness of the possible circumstances, although it could amount to personal dereliction on the part of a commander if shown that he should have anticipated the probable consequences ; [261]and, taken alone, would only under the rarest circumstances be sufficient to find its speaker responsible, assuming a direct correlation between remark and act could be made. Thus, the degree of criminal responsibility may vary from the situation where the remarks of incitement are synonymous with orders as opposed to the situation where such remarks are unintended in the context received and erroneously perceived as a manifestation of acquiescence on the part of the speaker. The degree of responsibility is determinative of the degree of culpability, and is of particular significance where the misconduct charged is alleged to constitute a “grave breach’’ as that term is defined in the 1949 Geneva Conventions.[262]



A commander who is shown to have knowledge of offenses which have occurred within his command may be found responsible to some degree for those offenses where he has manifested acquiescence in their commission. Responsibility may vary from that of a principal to dereliction of duty; the degree of culpability will be correlative to the degree of acquiescence, or better said, to the degree of manifestation of intent to join or assist the principals in perpetration of the primary offense. There is little difficulty with the situation where the commander takes no action, or where by his action he clearly manifests an intent to aid the commission of the offense after the fact; the difficulty lies in establishing a causal connection where acquiescence is due to dereliction of duty rather than a manifestation of specific intent. The commander is deemed to share responsibility where he has knowledge of an offense and fails to take reasonable corrective action. Assuming the principal offense and the commander’s knowledge thereof are established, the commander would be responsible if (a) he took no action, either intentionally or through personal dereliction; or (b) the action taken is within the control of the commander and is patently disproportionate to the offense committed as to result in acquiescence therein.

Thus a commander would not be responsible if an accused is referred to a general court-martial for murder of a noncombatant and is either acquitted or receives what on its surface appears to be a light sentence, unless there is established a pattern of such trials which would indicate that they have been no more than a sham or facade; but the commander who punishes the same accused through nonjudicial punishment (given circumstances indicating guilt of the offense charged) would be no less responsible than the one who awards no punishment. Any such acquiescence must be blatant in character rather than speculative “second guessing” after the fact.

Field Manual 27-10 fairly states the commander’s duty relative to this point: “Commanding officers . . . must insure that war crimes committed by members of their forces . . . are promptly and adequately punished.” [263]

While this represents a statement of the commander’s duty, in seeking an answer to any question of a commander’s acquiescence a reverse tack is required. Current British military law states this point by considering a commander to have acquiesced in an offense “if he fails to use the means at his disposal to insure compliance with the law of war;” [264]in comment it continues:

The failure to do so raises the presumption - which for the sake of the effectiveness of the law cannot be regarded as easily rebuttable - of authorisation [sic], encouragement, connivance, acquiescence, or subsequent ratification of the criminal acts.[265]

Field Manual 27-10 similarly provides that a commander may be responsible under a theory of acquiescence “if he fails to take the necessary and reasonable steps to insure compliance with the law of war or to punish violations thereof.” [266]Both the British “means at his disposal” test and the “necessary and reasonable” language of FM 27-10 suggest that, rather than establishing an absolute norm, the actions of the commander under the circumstances extant at the time of the discovery of the offense will determine whether he is deemed to have acquiesced in the offense.[267] To the commander whose forces are heavily engaged in an intense operation or pitched battle, no reasonable means may exist to secure prompt punishment of an offense prior to conclusion of that engagement ; absent disengagement, there would come a point where some action must be taken against an alleged perpetrator of an offense regardless of the circumstances of the campaign, or where there has been sufficient disengagement from the campaign for the commander to turn his attention to matters other than tactics.[268] Put another way, the theory of prompt investigation, trial and punishment will be more stringently applied to a commander in a static tactical situation than one in a very fluid, fast-moving situation requiring complete devotion to accomplishment of the mission at hand.’[269]

C. Command and Control

The post-World War II tribunals concluded that responsibility for control of a unit existed with command of that unit, for example, the commander had the duty to control those troops and units subordinate to him in his command. These tribunals found that identification with and responsibility for certain units by particular commanders was not always clearly defined.

The tribunals in their examination of this point in Yamashita,Von Leeb, and List are in agreement that where a commander exercises executive power over occupied territory, he is responsible for acts committed within his area of responsibility regardless of whether a unit is subordinated to his command or not, As the commander bearing executive power, he is charged with responsibility for maintaining peace and order within the area over which his executive authority extends, and the duty of crime prevention rests upon him.[270]

In List the Tribunal deftly avoided the question of responsibility of the commander possessed solely of tactical command, noting in such case that the “matter of subordination of units as a basis for fixing criminal responsibility becomes important.’’[271] No difficulty in ascertaining responsibility exists where the tactical commander exercises both operational and administrative control; all authority and responsibility is vested in the single command. The question raised, but unanswered in List, addresses the splitting of operational and administrative control – tactical control reposed in one commander, with the authority to punish in another, as alleged in Yamashita regarding the atrocities committed by naval troops in Manila. Setting aside the responsibility of the tactical commander in whom executive authority also was vested, to what degree can a commander be said to be responsible for the acts of subordinate units over which he exercises only operational control? The Supreme Court in Yamashita discussed responsibility for failure of a commander to take such measures as were within his power rather than his authority. [272]The Tribunal in Toyoda, all professional military officers, did not view any such division of authority as realistically giving rise to any control problems:

The responsibility for discipline in the situation facing the battle commander cannot, in the view of practical military men, be placed in any hands other than his own. Whatever theoretical division of such responsibility may have been propounded, it is, in fact, impossible for delineation in the heat of “trial by fire.”[273]

Thus, where a tactical commander has only operational control of a subordinate unit and not the authority to relieve or punish the subordinate commander, he will be expected to take such measures as are within his physical power under the circumstances to prevent or stop war crimes by that subordinate commander. It is the commander’s responsibility to take all measures possible to prevent the commission of war crimes by subordinates ; lack of administrative control and hence normal administrative remedies does not foreclose or preclude use of other measures.

For example, assume an infantry battalion is operating with an artillery battery attached. Because of operational exigencies, the battery is under operational control of the infantry battalion but under administrative control of its parent (artillery) battalion. The battery commander is authorized to fire only those missions requested by the supported unit. The battery commander receives a fire mission from another unit or from his parent artillery unit which is patently in violation of the rules of engagement or otherwise violates the laws of war, and the battery commander indicates he will fire the mission. On monitoring of that message in the supported infantry battalion’s fire support coordination center by the infantry battalion commander or his representative, there is no question that he has the duty, the authority, and the power to prevent the perpetration of that offense. While certainly this example is more easily solved under our bureaucratic command system than the pluralistic system of the Third Reich, and less complex than that with which General Yamashita was confronted, it nevertheless seems to be the only reasonable result or conclusion which can be reached. It seems unconscionable in the example given that the infantry battalion commander could forego his responsibility by pleading a lack of administrative authority over the attached battery so long as he has the means of preventing perpetration of the offense.[274]

Other situations pose similarly perplexing problems. Assume a commander is assigned a tactical area of operation over which he exercises no executive authority. Other forces – whether allied forces from a third nation, forces of the host nation, or other United States forces - enter that area obviously bent on the commission of war crimes, for example, announcing openly the taking and execution of hostages. Certainly a duty exists to exercise those means within his control to prevent the intended acts, even if those means are limited to notification of his superiors in an effort of reaching a common commander with authority to prevent the offense, or to report those offenses if unsuccessful in their prevention; yet the degree of duty and commensurate liability for violation thereof, particularly where allied troops are involved, is not clearly defined. Article 1 of the Geneva Conventions of 1949 requires that all signatories thereto “respect” and “ensure respect” for the Conventions “in all circumstances.” This language has been determined to be permissive rather than mandatory, however.[275] While Articles 13 and 16 of the Geneva Civilian Convention, taken together, require a signatory nation to assist, protect and respect, as far as military considerations allow, “persons exposed to grave danger,” it has been said that Article 4 of the Convention emasculates any duty of the individual commander to intervene by suggesting that any intervention be conducted through normal diplomatic channels.[276] Insofar as that duty exists with regard to other American units, Field Manual 27-10 provides that:

The commander is . . . responsible if he has actual knowledge, or should have knowledge . . . that troops or other persons subject to his control are about to commit or have committed a war crime and he fails to take the necessary and reasonable steps to insure compliance with the law of war . . . .[277]

Combining this definition with the previously-cited British “means at his disposal” test, it would seem the commander with means of controlling the commission of war crimes has a duty to do so, not only within his own command but within his area of operations and command. While not a commander, an adviser to an allied unit may be said to have a duty to prevent the commission of war crimes by the unit to which he is assigned because of his unique position within that unit. If, for example, an advisor should come upon a situation in which members of his advisee unit were about to commit a war crime, while lacking the authority to control the conduct of those forces, his means of otherwise preventing the commission of the offense are not entirely foreclosed. After protesting to the unit commander (assuming without success), he has the means to notify his next higher command by separate radio net - again in hopes of reaching a common senior headquarters that can prevent the offense. If the offense occurs, he has the limited means of preventing its reoccurrence by (a) reporting its occurrence and (b) seeking relief from his role as adviser to that unit, should the circumstances warrant. The latter suggestion not only follows the alternatives proposed in the Tokyo and Von Leeb trials, but would appear to be the practical solution where the rapport between the adviser and the advisee unit commander has been seriously jeopardized by their clash. The circumstances for relief as well as any question of acquiescence on the part of any adviser who remains with the unit would depend entirely on the circumstances and severity of the incident, however. The situation is not unlike that which the Tokyo Tribunal found in convicting Lieutenant General Akira Muto of war crimes perpetrated as General Yamashita’s Chief of Staff: while not in the precise position in which the adviser finds himself, he was found criminally responsible inasmuch as he was deemed to have had the means to influence substantially command decisions ; thus failure to utilize all means available to prevent the perpetration of war crimes may legitimately raise questions of criminal responsibility.

D. Knowledge

Given the established duty of a commander to control the conduct of his subordinates, responsibility for such conduct exists where the commander has or should have had knowledge of offenses and fails to act. Because of Yamashita, or what might be called the “popular” view of what Yamashita purportedly represents, this has been a point begging resolution. It is submitted that the difficulty lies not with Yamashita but in what a minority with vested interests claim Yamashita represents.

This so-called popular view, based on the writings of General Yamashita’s defense counsel, Frank Reel, and the current writings of Telford Taylor, is that a commander may be convicted for the war crimes of a subordinate on the basis of respondeat superior, without any showing of knowledge. As previously noted, this theory was argued unsuccessfully by Telford Taylor at Nuremburg and was also rejected by the Tokyo Tribunal. The theory ignores the basic charge against General Yamashita that he

 . . . unlawfully disregarded and failed to discharge his duty to control the operation of the members of his command, permitting them to commit brutal atrocities and other high crimes . . .; and he thereby violated the laws of war.[279]

By definition, “permitting” implies knowledge of that which is permitted and acquiescence therein, which would suggest that the standard in Yamashita - of either knowledge or, possessing knowledge, of a failure to carry out the commander’s duty to act -- is no less nor more than that stated in the High Command case “. . . a personal neglect amounting to wanton, immoral disregard of the action of his subordinates amounting to acquiescence.” [280]

A recent discussion of Yamashita can be found in Professor Arthur Rovine’s writings on command responsibility in The Air War in Indochina.[281] In reviewing the Supreme Court’s opinion in Yamashita, Professor Rovine stated :

Our view is that the Yamashita decision does not carry the weight assigned to it by ardent supporters or critics. At no point did the military commission or the Supreme Court hold that knowledge was irrelevant. It is true that the original decision by the commission did not make a specific finding of knowledge, it did quote from and apparently accept prosecution evidence but it did quote from and apparently accept prosecution evidence “to show that the crimes were so extensive and widespread, both as to time and area, that they must either have been wilfully permitted by the accused, or secretly ordered by the accused.”

The Court refused to deal with the evidence on which General Yamashita was convicted; and did not deal with the question of knowledge one way or the other.

The Court did decide that the precise substantive question before it was whether the laws of war imposed on a military commander an obligation to take such appropriate measures as are within his power to control the troops under his command for the prevention of war crimes. The Court cited several provisions of conventional law to demonstrate the existence of an international legal obligation for the defendant amounting to an affirmative duty to take such measures as were within his power and appropriate in the circumstances to protect prisoners of war and the civilian population.

The proposition of law which General Yamashita was held to have violated was thus formulated in a rather elliptical manner that avoided the element of knowledge while leaving it as a variable for consideration by the court of first instance. Given the significance of the issue and the punishment of death, it is regrettable that the Supreme Court did not present a full-scale analysis of the legal significance of a commander’s knowledge, or lack of knowledge, of war crimes committed by his troops. But the unsatisfactory nature of the Court’s opinion in 1946 is certainly not to be taken as a clear statement that there is command responsibility for crimes of which a commander has no knowledge.[281]

After summarizing the High Command case, Professor Rovine concludes:

We think the High Command Case is far preferable to the Yamashita holding, because it deals clearly with a crucial issue – knowledge-- rather than avoiding it, and because the doctrine it evokes appears to be more equitable and better law. Further, as an expression by an international tribunal rendering judgment in one of a large series of war-crimes trials, its legal weight is probably greater than a judgement (sic) even of the U.S. Supreme Court, at least in terms of formulating rules of international law. And, ironically, it is far more likely than the Supreme Court ruling to win acceptance in the United States, among lawyers, the public, and government and military decision makers. [282]

Professor Rovine’s comments lament the same point noted previously in this article - in rushing to try Generals Homma and Yamashita in order to placate his Filipino constituency, General MacArthur committed an equally great injustice to international law by failing to appoint a law member to those military tribunals. The resulting credence given the opinion of a lay jury is unprecedented and disproportionate in light of the number of high-ranking officers tried by tribunals whose membership included members of the bar.

Obviously, all trials will not deal with the question of knowledge to the degree that Yamashita did. Where knowledge is obvious, given the failure to act, the commander will be deemed responsible. In other cases, knowledge may be reasonably imputed. Thus, in List the Tribunal imputed knowledge to a commander where reports were received by his headquarters, stating as to General List :

Want of knowledge of the contents of reports made to him is not a defense. Reports to commanding generals are made for their special benefit. Any failure to acquaint themselves with the contents of such reports, or a failure to require additional reports where inadequacy appears on their face, constitutes a dereliction of duty which he cannot use in his own behalf.[283]

Similarly, of General von Kuechler in the High Command case the Tribunal stated “It was his business to know, and we cannot believe that the members of his staff would not have called these reports to his attention had he announced his opposition to the [Commissar Order] .”[284]

These Tribunals, and it is submitted the Tokyo Tribunal in convicting General Muto and the Military Commission in convicting General Yamashita, further asserted that a commander may normally be presumed to have knowledge of offenses occurring within his area of responsibility while he is present therein. In addressing this point in the Hostage case, the Tribunal observed :

It would strain the credulity of the Tribunal to believe that a high ranking military commander would permit himself to get out of touch with current happenings in the area of his command during wartime. No doubt such Occurrences result occasionally because of unexpected contingencies, but they are unusual.[285]

The Canadian rule of 1945 reflects this.[286]

In discussing the responsibility of General von Roques for crimes committed within his area of responsibility, an area over which he also had executive power, the Tribunal in von Leeb placed this in perspective, quoting from List: “ [A commander ] cannot ignore obvious facts and plead ignorance as a defense.”[287]

This is not a presumption to be rebutted by the commander, but a subjective element which the court in its discretion may consider. Where the commander denies actual knowledge of the offenses alleged, it is an imputation of constructive knowledge where it is established that under the circumstances he must have known.   Other subjective elements will weigh heavily on the value placed on this factor in considering whether the commander so accused has been derelict in the performance of his duties, for example, in obtaining knowledge, and under the circumstances to what degree he shares the guilt of the principal accused.

The standard to this point may be stated as follows: A commander may be liable for the actions of his subordinates if: (a) he has actual knowledge that an offense has occurred, and he fails to punish the perpetrators of the offense or take reasonable preventive measures within his power to prevent reoccurrence ; or (b) he failed to exercise the means available to him to learn of the offense and, under the circumstances, he should have known and such failure to know constitutes criminal dereliction ; or (c) there is sufficient evidence to impute knowledge.


One author has suggested that (b) and (c) be ascertained by a “reasonable commander” standard.’[288] The difficulty with this suggestion is just as there is no such thing as a “reasonable man,” there is no such thing as a “reasonable commander”; and that the variable of the circumstances of command are too great to be considered in one “pat” test. Rather than attempt to define the elusive, it is asserted that a number of subjective criteria be recognized and considered in ascertaining and imputing knowledge and responsibility. Although these criteria may also be considered in determining any question of acquiescence, they are considered here only with regard to resolution of any question of knowledge. These criteria include :

(1) The rank of the accused. This may serve as a two-edged sword, for while rank is gained through experience it also serves to isolate the commander from the everyday events of the battlefield,

(2) Experience of the commander. Ideally officers of equal rank are equal - in authority, responsibility, ability, and experience. Realistically nothing could be further from the truth. In the simplest of examples, a rifle company may be commanded by a captain with up to twelve years’ commissioned service -- experienced as a platoon leader, company executive officer, with additional professional schooling, and several years of experience as a company commander. The adjacent company may be commanded by another captain who by virtue of accelerated promotions in time of war may have only two years commissioned service, half of which was spent in training; or by a second lieutenant who joined the company, his first assignment, the day before as a platoon leader and who after a heavy assault finds he is the surviving officer in that company. Leadership comes not only from training but from experience; with it comes a sixth sense, an ability to anticipate problems before they arise as well as being cognizant of a greater variety of means or methods for dealing with or preventing them. Thus in the trial of General Yamashita the Commission specifically recognized the extensive and broad experience of the accused throughout the world in war and peace, in rejecting his plea of lack of knowledge[289] Similar consideration would be given to the personal and professional qualities of the commander - his intelligence, his education, the amount of time spent in staff duties as opposed to command positions, or vice-versa, as well as the charisma of the commander. The last point is most important, however much a will-o’-the-wisp it may be ; the commander whose troops will follow him to hell and back certainly has greater means of knowledge, as well as control, simply by virtue of the personal dedication to him by his subordinates than the commander who lacks the ability to lead his troops to the chow line. Thus given like facts in all other factors a court in one case may find a commander should have had knowledge simply because he was a better commander than his acquitted counterpart in another case.[290]

(3) The duties of the commander by virtue of the command he held. These considerations will extend not only to the type of command held by the commander but also to the operational commitments of that command, Thus it may be reasonable to conclude the commander of a stable support command should have had knowledge of an offense more readily than the infantry commander of a highly mobile and widely deployed unit. Similarly, the commander operating, for example, a battalion with supporting arms in general and even direct support is operating in a less complex environment than his counterpart operating with the same forces attached.

(4) Mobility of the commander. What the advent of the helicopter the commander has extended his means of knowledge. Yet a disparity exists from unit to unit. The commander of an air cavalry unit with a seeming overabundance of helicopters may be deemed to have a greater means of knowledge than his airborne counterpart who after initial deployment finds he is limited to the infantryman’s traditional means of transportation -- foot. While personal inspection of units certainly increases a commander’s means of knowledge, the development of effective communications may have limited any argument of lack of mobility as a viable defense. It is nevertheless a point which deserves some consideration.

( 5 ) Isolation of the commander. This concept goes hand-in-hand with its predecessor, the obvious example being the case of Admiral Toyoda, who was relegated to commanding a vast force covering the Pacific from a flagship anchored in home  waters. In contrast commanders in Vietnam, if not actually on the ground with their command, hovered overhead in constant observation of the tactical situation. Isolation and mobility were usually capable of correction by a fifteen-minute helicopter flight, yet that same commander could be virtually as isolated from his command as Admiral Toyoda by adverse weather conditions.

(6) The “sliding probability ration’’ of unit/incident/command. There certainly exists a sliding probability ratio, that is, the greater the size of the offense and/or the unit involved, the higher in the chain of command knowledge may be subjectively imputed. Obviously any one soldier can go out in a combat environment and murder an unarmed belligerent or non-combatant without anyone knowing otherwise. The introduction of each additional person, whether co-participant, observer, or victim, increases the likelihood of discovery of the offense ; and the greater the number of participants or victims, the higher in the chain of command that information is likely to reach - or the more likely that a court will impute knowledge to the accused commander. It is conceivable that a small patrol could commit murder and the information not reach above the platoon leader; in such case, involving one or two deaths, it would be difficult to impute knowledge to the division commander absent a showing of offenses systematic in nature. Yet if that patrol walks into a village and executes fifty non-combatants, or if a platoon or company is witness to the murder of one non-combatant, or if a platoon or company murders fifty non-combatants, it would be reasonable for a court to conclude that a division commander and intermediate commanders between the platoon or company and the division knew or should have known of the offenses. Dereliction in failing to learn of the isolated offense may thus be imputed only to those commanders at lower levels in direct contact with the situation; but a commander’s duties include as part of the exercise of command supervision of subordinates to insure that orders are carried out fully and properly. Hence the greater the severity of the offense or the frequency of offenses, the higher up the chain of command knowledge may be imputed because of the commander’s failure to carry out his supervisory responsibilities.

(7) Size of the Staff of the Commander. While the size of the staff directly affects the commander’s means of knowledge, and while a court may give this consideration in imputing knowledge, a Commander may not “shrink” his staff to avoid learning about activities. He cannot avoid that which is his duty.

(8) Comprehensiveness of the Duties of the Staff of the Commander. Depending on circumstances, the duties of the staff may vary considerably in their comprehensiveness, thereby varying the means of gaining knowledge. Thus the commander and his staff engaged in a complex amphibious operation will have less opportunity for gaining knowledge than they would during a sustained land campaign. This does not permit a commander and his staff to operate in a vacuum, however, ignoring the obvious.

(9) Communications Abilities. While arguments were made in the Hostage Case, the High Command Case, Yamashita, and by General Muto before the Tokyo Tribunal that inadequate communications were the cause of each accused’s lack of knowledge, there was sufficient evidence to the contrary in each case for the court to reject this as a valid defense. Few commanders will permit their subordinates to lose contact with the command; and while communications (and hence the means of knowledge) may diminish, seldom will they cease. There is a disparity among units of equal level as well as units of different levels, however, and these variations in means should be taken into consideration by a court.

(10) Training, Age and Experience of the Men Under His Command. General Douglas MacArthur, in his Annual Report of the Chief of Staff of the Army, 1933, stated “In no other profession are the penalties for employing untrained personnel so appalling or so irrevocable as in the military.’’ [291]

Even earlier, General W. T. Sherman had said of the value of experience:

It was not until after Gettysburg and Vicksburg that the war professionally began. Then our men had learned in the dearest school on earth the simple lessons of war. Then we had brigades, divisions and corps which could be handled professionally, and it was then that we as professional soldiers could rightly be held to a just responsibility.[292]

Lack of training and experience is no excuse for the commission of war crimes, yet it may serve in the way of explanation should they occur and the commander argue his ignorance of their occurrence. This lack of training and experience may be deemed to put the commander on notice as to his additional responsibility of controlling untrained troops, for part of the identified responsibility of the commander is knowing his command, its capabilities and limitations.’!’ [293]

(11) Composition of Forces Within the Command. Yamashita emphasized one point: the joint or combined force is more difficult to control than the unified command, simply because of interservice or international rivalries. Things are done differently; hence just as a commander may be limited in his control of such an “allied” force, so may his means of knowledge be similarly limited in scope.

(12) Combat Situation. The extremes are obvious, one being the relatively stable combat environment as opposed to the fluid, rapid-moving situation. Consideration must be given to these degrees of engagement as they have perhaps the greatest effect on the commander’s ability to obtain knowledge and hence the ability to control his subordinates.


F. The Standard of Knowledge

Almost universally the post-World War I1 tribunals concluded that a commander is responsible for offenses committed within his command if the evidence establishes that he had actual knowledge or should have had knowledge, and thereafter failed to act. This remains the standard today. Field Manual 27-10 states that:

The commander is . . . responsible, if he had actual knowledge or should have had knowledge, through reports received by him or through other means, that troops or other persons subject to his control are about to commit or have committed a war crime and he fails to use the means at his disposal to insure compliance with the law of war.[294]

Available information indicates the knew or should have known test was used by the Soviet Union in their war crimes trials after World War I1 and remains the Soviet standard of command responsibility.”[295]; The Netherlands has proposed that the knew or should have known test be codified as the international standard for responsibility.”[296]


G. The Degree of Negligence: Enough, Too Much,
or Too Little?

While there appears to be agreement on the general acceptability of the knew or should have known test, the difficulty lies in establishing the point at which criminal liability attaches. In the words of the High Command Case, at what point has a commander been guilty of “a personal neglect . . . amounting to acquiescence?” In the absence of an international definition, examination of municipal standards is required.

In order to determine the degree of negligence required for culpability, a review of the possible offenses is in order. Under Article 130 of the 1949 Geneva Convention Relative to the Treatment of Prisoners of War grave breaches of the Convention are described as

. . . wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, compelling a prisoner of war to serve in the forces of the hostile Power, or wilfully depriving a prisoner of war of the rights of fair and regular trial prescribed in this Convention.[297]

Article 147 of the 1949 Geneva Convention Relative to the Protection of Civilian Persons in Time of War similarly defines grave breaches as

. . . wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, unlawful deportation or transfer or unlawful confinement of a protected person, compelling a protected person to serve in the forces of a hostile Power, or wilfully depriving a protected person of the rights of fair and regular trial prescribed in the present Convention, taking of hostages, and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.[298]

Article 50 of the 1949 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field contains similar language to the preceding provisions. Such grave breaches are punishable by a sentence up to and including a sentence of death.

The 1949 Conventions thus codify the apparent degree of negligence used in the High Command Case: “. . . a personal neglect amounting to wanton, immoral disregard of the action of his subordinates amounting to acquiescence.”[299]

Thus precedent and present Conventions appear to indicate that in order to hold a commander responsible for grave breaches of these Conventions or of war crimes tried before an international tribunal, absent actual knowledge there must be either (a) such serious personal dereliction on the part of the commander as to constitute wilful and wanton disregard of the possible consequences ; or (b) an imputation of constructive knowledge, that is, that despite pleas to the contrary under the facts and circumstances of the case the commander must have known of the offenses charged and acquiesced therein.[300] The question remains, particularly in light of the severity of the penalty for commission of a grave breach, if the standard should be lower.

Under domestic law, there exist three degrees of negligence:

(1) Wanton: This degree of negligence involves the doing of an inherently dangerous act or omission with a heedless disregard of the probable consequences.

(2) Recklessness, Gross or Culpable Negligence: Culpable negligence is a degree of carelessness greater than simple negligence.[301] It is a negligent act or omission accompanied by a culpable disregard for the forseeable (but not necessarily probable) consequences to others of that act or omission.

(3) Simple Negligence: Simple negligence is the absence of due care, that is, an act or omission of a person who is under a duty to use due care which exhibits a lack of that degree of care for the safety of others which a reasonably prudent man would have exercised under the same or similar circumstances.

It is submitted that only where there is a showing of wanton negligence has the commander manifested the mens rea to be held criminally responsible for the primary offense, that is, he has through his dereliction sufficiently aided and abetted the principals thereto as to make himself a principal or an accessory after the fact.

Article 77, Uniform Code of Military Justice, defines a “principal” as :

Any person . . . who-

(1) commits an offense . . ., or aids, abets, counsels, commands, or procures its commission; or

(2) causes an act to be done which if directly performed by him would be punishable by this chapter; is a principal.[302]


In discussing Article 77 the Manual for Courts-Martial states :

To constitute one an aider and abettor under this article, and hence liable as a principal, mere presence at the scene is not enough nor is mere failure to prevent the commission of an offense; there must be an intent to aid or encourage the persons who commit the crime. The aider and abettor must share the criminal intent or purpose of the perpetrator.[303]

Article 78, UCMJ, Accessory after the Fact, states that

Any person . . . who, knowing that an offense . . . has been committed, receives, comforts, or assists the offender in order to hinder or prevent his apprehension, trial, or punishment shall be punished as a court-martial may direct.[304]

In discussing Article 78, the Manual states that in addition to having actual knowledge that an offense has occurred “mere failure to report a known offense will not constitute one an accessory after the fact.” [305]

Yet such failure to report will give rise to other liability, at least at the domestic level. Article 1139, Navy Regulations, states :

Obligation to Report Offenses. Persons in the Department of the Navy shall report to the proper authority offenses committed by persons in the Department of the Navy which come under their observation.[306]

Likewise, Military Assistance Command, Vietnam, Directive 20-4 [307] required that any allegation of a war crime be reported not only to the next higher headquarters but directly to MACV headquarters in Saigon, bypassing the regular chain of command and communication channels.

Violation of either of these orders constitutes a violation of Article 92 of the Uniform Code of Military Justice,[308] either as a violation of a lawful general order or as an act which constitutes dereliction of duty. In the former charge, where there is a more substantial question of criminal intent, the maximum sentence is a dishonorable discharge (dismissal for officers) and confinement at hard labor for two years. In the latter case, where commission of the offense may occur through an act of simple negligence, the maximum punishment is three months' confinement.[309]

Where there exists the necessary mens rea, something more than a mere failure or refusal to disclose an act and some positive act of concealment, the person so acting is guilty of misprision of a felony, a violation of Article 134,[310] for which the maximum punishment is a dishonorable discharge (dismissal for officers) and confinement at hard labor for three years. Any greater degree of intent would place the individual charged within the realm of the previously-discussed area of principal or accessory after the fact. Thus the degree of negligence is in direct relation to the degree of liability, and under either domestic law, charging one as a principal or accessory after the fact to murder, or international law, charging one in essence as a principal or accessory after the fact to a war crime, there exists a requirement that the negligence of the commander be so great as to be tantamount to the possession of the necessary mens rea to so become such an active party to the offense. Only upon a showing of this degree of negligence can there be imposed the maximum penalty of death. Thus in the Pohl trial, SS Standartenfuehrer (Colonel) Erwin Tschentscher was charged with war crimes committed by members of his battalion in the first Russian campaign from the first of July until December 31, 1941. The court noted that there was some evidence that he had constructive knowledge of the participation of members of his command, but no evidence that he had actual knowledge of such facts. Rejecting any strict liability theory although quoting Yamashita the court did not believe the participation was of sufficient magnitude or duration to constitute notice to Colonel Tschentscher, and thus to give him an opportunity to control the actions of his subordinates.”[311] Had this been a court-martial, either of an individual normally subject to the Uniform Code of Military Justice or of a foreign officer being tried for war crimes pursuant to Article 18,[312] the prosecution could have proceeded under multiplicious charges and theories concerning the degree of negligence, absent actual knowledge and liability; as a minimum, given the Tribunal’s judgment, Colonel Tschentscher would have been guilty of dereliction of duty. The standards of punishment parallel the standards of responsibility and proof under either domestic or international law ; just as the Tribunal stated with regard to Colonel Tschentscher, proof of constructive knowledge under the Uniform Code of Military Justice does not constitute a showing of actual knowledge.[313]

Where domestic law exists. however. charges against United States personnel should normally be drawn under that law rather than under the general “war crime” offense.”.’[314] No nation is going to charge its own citizen with the commission of a war crime for obvious political reasons. There certainly exist psychological reasons why such charges would be drawn alleging specific offenses rather than the commission of a war crime – a result of the heinous connotation of those words and, as a result, perhaps a greater reluctance by a court to convict an accused. A parallel to the Tschenstcher case would serve to illustrate this point.

The accused was a company commander in Vietnam. His company occupied a night defensive position with another company. During the night one of several enemy prisoners taken during the action of the preceding day was shot and killed. Although the offense occurred within his perimeter and within sixty feet of his position, the accused did not investigate; he did, however, receive a report that one of the prisoners had grabbed a weapon and shot the victim. He neither investigated the offense further nor did he report the offense in accordance with existing directives.[315] He was charged with and convicted of failure to obey a lawful general order and dereliction of duty, both offenses under Article 926.[316] While the evidence was sufficient to sustain a conviction under the charged domestic offenses,[317] it is arguable whether a conviction could have been obtained had the accused been charged with the commission of a war crime. As in Tschentscher, the appellate opinion declined to address the international should have known test, leaving to a commander some area in which he is permitted to exercise his personal judgment as to the necessity for further investigation ; absent some serious personal dereliction manifesting some degree of mens rea the commander must be presumed to have acted in good faith, given all circumstances, unless the facts become so overbearing as to point an accusatory finger at him. These circumstances again require an examination and balancing of the subjective criteria previously discussed.





[258] BLACK’S LAW DICTIONARY 905 (4th ed. 1951) [Emphasis added].


[260] The concept of intolerance of war crimes in order to accomplish the mission is simply one of not making unnecessary enemies (the civilian population) who will thus detract you through partisan warfare from your primary mission, or of giving the natural enemy cause to fight harder (the enemy soldier who believes he will die if taken prisoner will fight harder not to be taken prisoner). While the Vietnam “winning the hearts and minds of the people” program of civic action is the most recent example of this concept, Emperor Meiji of Japan, in his “Rescript to Soldiers and Sailors’’ of January 4, 1883, admonished :

Those who appreciate true valor should in their daily intercourse set gentleness first and aim to win the love and esteem of others. If you affect valor and act with violence, the world will in the end detest you and look upon you as wild beasts. Of this you should take heed.

(HEINL, supra n. 15 at 172). Similarly, Sir Philip Sidney (1554-1586) declared: “Cruelty in war buyest conquest at the dearest price.” (Id. at 20).

[261] In this situation the dereliction may be one of the commander not knowing his troops. U.S. DEP’T OF ARMY, FIELD’ MANUAL 101-5, OPERATIONS OF ARMY FORCES IN THE FIELD, provides a t paragraph 3-5:


Despite advances in technology, man remains the most essential element on the battlefield. The commander must be acutely sensitive to the physical and mental condition of his troops, and his plans must take account of their strengths and weaknesses. He must make allowance for the stresses and strains the human mind and body are subjected to in combat. His actions must inspire and motivate his command with the will to succeed under the most adverse conditions. He must assure his troops that hardship and sacrifice will not be needlessly imposed and that their well-being is of primary concern to him.

[262] Articles 146-148, Geneva Convention Relative to the Protection of Civilians: Articles 129-131, Geneva Convention Relative to the Treatment of Prisoners of War; Articles 49-51, Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field; and Articles 50-52, Geneva Convention for the Amelioration of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea.

[263] [Emphasis supplied.] Paragraph 507 (b) strangely urges prompt and adequate punishment of war crimes committed against enemy personnel only ; the admonishment applies regardless of the victim.

[264] Supra n. 58 at paragraph 631.

[265] Id. at n. 1. The note continues (after citing Yamashita as the principal case on acquiescence) :

The principle has also been recognized in the legislation regarding war crimes of some countries. However, it is probable that the responsibility of the commander goes beyond the duty as formulated above. He is also responsible if he fails, negligently or deliberately, to ensure by the means at his disposal that the guilty are brought to trial, deprived of their command or ordered out of the theater of war, as appropriate. [Emphasis supplied].

[266] Para. 501, FM 27-10 (1956).

[267] The French and Luxemborg criteria of “tolerated” used immediately after World War I1 would seem to be in agreement with the British and United States views, while the Netherlands criteria of that period (“deliberately permitted”) appears higher. Cf. the Netherlands proposed standard in n. 296 infra. The Republic of Zaire, in its Code of Military Justice of 1972, provides at Paragraph 502 that “(S)uperiors can . . . be considered accomplices to the crime to the extent that they organized or tolerated the (war) crimes of their subordinates.” Article I1 of the Convention on the Nonapplicability of Statutory Limitations to War Crimes and Crimes Against Humanity (U. N. G. A. Res. 2391 [XXIII] December 9, 1968) provides that “ (T) he provisions of this Convention shall apply to representatives of the state authority and private individuals who, as principals or accomplices, participate in or who directly incite others to the commission of any of those crimes, or who conspire to commit them, irrespective of the degree of completion, and to representatives of the state authority who tolerate their commission.”

[268] This is particularly true today with the staff support which the commander receives. In proceeding against a member of his command accused of war crimes, there are few matters which require the personal attention or decision of the commander. With judge advocates assigned as special staff officers down to and including brigade or regimental level (the Marine Corps has non-lawyer legal officers at battalion level), and assuming adequate investigative services are available, it would seem that the tactical circumstances would most affect the company grade commander. Availability of staff assistance is perhaps most illustrative of the “means at his disposal” test.

[269] Care should be exercised in reading the preceding statement, as it addresses only the subjective standard to be utilized in weighing a commander’s conformance with the laws of war; it in no way suggests that under any circumstances are those standards decreased. Within individual units, the tactical situation may fluctuate rapidly and unexpectedly. Allied commanders on D-Day, June 6, 1944, were of necessity completely involved in mission accomplishment; thereafter their responsibility for prompt investigation, trial and punishment of any alleged offense became of more paramount concern. Initiation of the German Ardennes Counteroffensive on December 16, 1944, affected the commander’s ability to obtain prompt investigation, trial and punishment of an accused as well as his personal ability to concentrate his attention on disciplinary matters. A similar reasonable shifting of priorities would be exemplified by the United States Marine amphibious assault at Inchon, Korea, on September 15, 1950; the subsequent strategic withdrawal from the Chosin Reservoir, commencing December 1, 1950 ; as compared with the relatively stable six-month-period from October 1952 to March 1953 when Marine units formed a part of the United Nations Command line. The preoccupation of the commander with strictly tactical matters in the first two instances is much more significant than in the latter.

[270] This responsibility is not exclusive but concurrent with that of unit commanders, whether tactically subordinate to the area commander or not, and under normal circumstances would be superior in authority to that of those unit commanders.

[271] Supra n. 195 at 1260.

[272] Supra n. 107 at 15.

[273] Supra n. 231 at 5012.

[274] Responsibility in this case would not be exclusive. Where the requested fire mission comes from a separate unit, the artillery battalion commander has a two-fold responsibility (assuming he has knowledge before the mission is fired) : (a) to use all means reasonably available to prevent the firing of the mission, and (b) to punish those responsible in the battery for commission of the offense.


[276] PAUST, supra. n. 4 at 57 MIL. L. REV. 158.

[277] Supra n. 57 at para. 501.

[278] Supra n. 71.

[279] XI TWC 543-44.

[280] THE AIR WAR IN INDOCHINA (Rev. ed. R. Littauer and N. Uphoff 1972).

[281] Id. at 140-1.

[282] Id. at 141.

[283] Id. at 203.

[284] Id. at 151.

[285] Id. at 199.

[286] Supra n. 65. Canadian rule 10(4) provides:

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.

[287] Supra note 184.

[288] O’Brien, The Law of War, Command Responsibility and Vietnam, 60 GEO. L.J. 605, 629 (1972).

[289] Supra note 64 at 4060-1.

[290] The result of this conclusion is that it encourages mediocrity, an argument which the author is hard pressed to refute. The result in actuality, however, is that while a higher standard of expected performance of duty may be considered in the case of a superior commander, the high standard prescribed by precedent may never be lowered to accommodate the mediocre performance of a less capable commander. The same encouragement of mediocrity exists under the “reasonable commander’’ rule, if not more so. Utilization of the subjective standards diminishes the likelihood of culpability turning on the one point.

[291] HEINL, supra n. 15 at 329.

[292] Id. at 108-9.

[293] See n. 261, supra.

[294] Supra n. 57 at para. 501 (emphasis supplied).

[295] Harbridge House Study, supra n. 6 at 22.

[296] By CE/COM IV/45 the Netherlands recommended that the following paragraph he added to Draft Article 75 of International Committee of the Red Cross Draft Additional Protocol to the Four Geneva Conventions of August 12, 1949:

2. [The civilian and military authorities] shall be criminally liable for any failure on their part to take all those steps within their power to make an end to breaches of the laws of war which were, or ought to have been, within their knowledge.

[297] Treaties and Other International Acts Series 3364 (Emphasis supplied)

[298] Treaties and Other International Acts Series 3365 (Emphasis supplied)

[299] XI TWC 543-544 (Emphasis supplied).

[300] Professor O’Brien, supra n. 288 a t 649, utilizes an indirect/direct liability theory rather than the legal concept of imputed or constructive knowledge :

 . . . if . . . violations are such as to reveal demonstrable direct or implied negligence on the part of the relevant commanders. Command responsibility dictates indirect liability for the crimes. If it can be shown that the commanders must have been aware that torture and mistreatment were regularly practiced, . . . they become participants with direct responsibility added to their indirect liability.

[301] Para. 198b, MANUAL FOR COURTS-MARTIAL, 1969 (REV. ED.) [hereinafter cited as MCM, 1969 (Rev. ed.)].

[302] 10 U.S.C. § 877.

[303] Para. 156, MCM, 1969 (Rev. ed.).

[304] 10 U. S. C. § 878.

[305] Para. 157, MCM, 1969 (Rev. ed.).

[306] United States Naval Regulations, 1973. These regulations apply to all members of the United States Navy and Marine Corps, active or reserve, and to Coast Guard units and personnel when attached to the Navy.

[307] MACV Directive 20-4 (20 April 1965). This requirement was in effect throughout the period of major United States’ involvement in Vietnam, being republished in all subsequent editions of MACV Directive 20-4 (25 March 1966; 10 July 1970; and 2 March 1971).

[308] 10 U. S. C. § 892.

[309] A commissioned officer additionally may be punished by punitive separation from the service, i.e. dismissal, when convicted by a general court-martial of any offense in violation of the Uniform Code of Military Justice. Para. 126d, MANUAL FOR COURTS-MARTIAL, UNITED STATES, 1969, (REV. E D . )

[310] 10 U. S. C. § 934.

[311] V TIVC 1010-12. Colonel Tschentscher was found guilty of other charges and sentenced to ten years' imprisonment.

[312] 10 U.S.C. 818. While a foreign officer would normally be charged with the commission of a war crime, Paragraph 12 Appendix 6a, Manual for Courts-Martial, United States, 1969 (Revised edition), states that there is no jurisdictional error in the erroneous designation of a specification as a violation of an article of the Uniform Code of Military Justice.

[313] United States v. Curtin, 9 USCMA 427, 26 CMR 207 (1958). There is no per se equation of the “should have known” test except through the previously-cited and discussed standards of negligence as applied to the individual case and its facts.

[314] Paragraph 507b of FM 27-10 states:

b. Persons Charges With War Crimes. The United States normally punishes war crimes as such only if they are committed by enemy nationals or by persons serving the interests of the enemy State. Violations of the law of war committed by persons subject to the military law of the United States will usually constitute violations of the Uniform Code of Military Justice and, if so, will be prosecuted under that Code. Violations of the law of war committed within the United States by other persons will usually constitute violations of federal or state criminal law and preferably will be prosecuted under such law (see paras. 505 and 506).

[315] USARV Reg 335-6 (24 June 1967), which served as an implementing instruction for all United States Army Forces in Vietnam for the previously cited MACV Directive 20-4.

[316] 10 U. S. C. § 892.

[317] United States v. Golden, 43 C.M.R. 710 (ACMR 1970).