Yamashita, Medina, and beyond: Command responsibility in contemporary military operations

Military Law Review

Volumn , Issue 164, 2000, Pages 155-230

  Smidt, Michael L ^a  

^a NONE

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EID: 0034396401     PISSN: 00264040     EISSN: None     Source Type: Journal    
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References (323)

1. LLOYD J. MATHEWS & DALE E. BROWN, THE CHALLENGE OF MILITARY LEADERSHIP 23 (1989) (quoting Napoleon to Marshal Berthier, June 8, 1811, CORRESPONDENCE DE NAPOLEON, Corres. No. 17782, vol. XXII, 215 (32 Vols.; Paris 1858-70)).
2. LLOYD J. MATHEWS & DALE E. BROWN, THE CHALLENGE OF MILITARY LEADERSHIP 23 (1989) (quoting Napoleon to Marshal Berthier, June 8, 1811, CORRESPONDENCE DE NAPOLEON, Corres. No. 17782, vol. XXII, 215 (32 Vols.; Paris 1858-70)).
3. Because there is no supranational legislature with prescriptive jurisdictional power over the various independent national sovereigns that make up the international community, the law of nations is, to a large extent, created by custom. See infra note 181. Customary international law, "results from a general and constant practice of states followed by them from a sense of legal obligation . . . ." RESTATEMENT THIRD, THE FOREIGN RELATIONS LAW OF THE UNITED STATES, § 102 (1987). The first step then in determining the normative aspect of a particular custom then, is to look to the actual practice of states in terms of their conduct in the international community. Second, if the custom is to rise to the level of law, binding on all states, a determination must be made that the state conduct involved is based on an apparent belief that compliance with the practice is required. Evidence that a particular custom has become a shared international community expectation requiring compliance can be found in the practice of states, including policy pronouncements, general principles of law applied in domestic systems of law, international and domestic "judicial decisions . . ." applying international law, "and the teachings of the most highly qualified publicists of the various nations. . . ." The Statute of the International Court of Justice, art. 38, June 26, 1945, 59 Stat. 1055, 1066 (1954).
4. Because there is no supranational legislature with prescriptive jurisdictional power over the various independent national sovereigns that make up the international community, the law of nations is, to a large extent, created by custom. See infra note 181. Customary international law, "results from a general and constant practice of states followed by them from a sense of legal obligation . . . ." RESTATEMENT THIRD, THE FOREIGN RELATIONS LAW OF THE UNITED STATES, § 102 (1987). The first step then in determining the normative aspect of a particular custom then, is to look to the actual practice of states in terms of their conduct in the international community. Second, if the custom is to rise to the level of law, binding on all states, a determination must be made that the state conduct involved is based on an apparent belief that compliance with the practice is required. Evidence that a particular custom has become a shared international community expectation requiring compliance can be found in the practice of states, including policy pronouncements, general principles of law applied in domestic systems of law, international and domestic "judicial decisions . . ." applying international law, "and the teachings of the most highly qualified publicists of the various nations. . . ." The Statute of the International Court of Justice, art. 38, June 26, 1945, 59 Stat. 1055, 1066 (1954).
5. ROBERT A. FITTON, LEADERSHIP: QUOTATIONS FROM THE MILITARY TRADITION 149 (1990) (quoting Euripides).
6. CARL VON CLAUSEWITZ, ON WAR 75, 77 (1984).
7. See generally THE JOINT CHIEFS OF STAFF, JOINT PUB. 3-0, DOCTRINE FOR JOINT OPERATIONS, app. A (Principles of Warfare) (1 Feb. 1995) [hereinafter JOINT PUB. 3-0]; U.S. DEP'T OF ARMY, FIELD MANUAL 100-5, OPERATIONS, 2-0 through 2-24 (June 1993) [hereinafter FM 100-5].
8. See generally THE JOINT CHIEFS OF STAFF, JOINT PUB. 3-0, DOCTRINE FOR JOINT OPERATIONS, app. A (Principles of Warfare) (1 Feb. 1995) [hereinafter JOINT PUB. 3-0]; U.S. DEP'T OF ARMY, FIELD MANUAL 100-5, OPERATIONS, 2-0 through 2-24 (June 1993) [hereinafter FM 100-5].
9. See generally U.S. DEP'T OF ARMY, FIELD MANUAL 22-100, ARMY LEADERSHIP (Aug. 1999) [hereinafter FM 22-100].
10. FM 100-5, supra note 6, at 2-11.
11. See generally IRIS CHANG, THE RAPE OF NANKING: THE FORGOTTEN HOLOCAUST OF WORLD WAR II (1998); ARYEH NEIER & ARYEN NEIER, WAR CRIMES: BRUTALITY, GENOCIDE, TERROR, AND THE STRUGGLE FOR JUSTICE (1998); SU ZHIGENG, LEST WE FORGET: NANJING MASSACRE 1937 (1995).
12. See generally IRIS CHANG, THE RAPE OF NANKING: THE FORGOTTEN HOLOCAUST OF WORLD WAR II (1998); ARYEH NEIER & ARYEN NEIER, WAR CRIMES: BRUTALITY, GENOCIDE, TERROR, AND THE STRUGGLE FOR JUSTICE (1998); SU ZHIGENG, LEST WE FORGET: NANJING MASSACRE 1937 (1995).
13. See generally IRIS CHANG, THE RAPE OF NANKING: THE FORGOTTEN HOLOCAUST OF WORLD WAR II (1998); ARYEH NEIER & ARYEN NEIER, WAR CRIMES: BRUTALITY, GENOCIDE, TERROR, AND THE STRUGGLE FOR JUSTICE (1998); SU ZHIGENG, LEST WE FORGET: NANJING MASSACRE 1937 (1995).
14. TIM O'BRIEN, THE THINGS THEY CARRIED 88 (1990).
15. See generally NICO KEIJZER, THE MILITARY DUTY TO OBEY (1977). For a superb work on the duty to obey and the defense of superior orders, see MARK J. OSIEL, OBEYING ORDERS: ATROCITY, MILITARY DISCIPLINE & THE LAW OF WAR (1999).
16. See generally NICO KEIJZER, THE MILITARY DUTY TO OBEY (1977). For a superb work on the duty to obey and the defense of superior orders, see MARK J. OSIEL, OBEYING ORDERS: ATROCITY, MILITARY DISCIPLINE & THE LAW OF WAR (1999).
17. See generally OSIEL, supra note 11.
18. Military Operations Other Than War (MOOTW) is a term used to denote "[o]perations that encompass the use of military capabilities across the range of military operations short of war." THE JOINT CHIEFS OF STAFF, JOINT PUB. 1-02, DEPARTMENT OF DEFENSE DICTIONARY OF MILITARY AND ASSOCIATED TERMS 283 (23 Mar. 1994) (amended through 6 Apr. 1999). "MOOTW focus on deterring war and promoting peace while war encompasses large-scale, sustained combat operations to achieve national objectives or to protect national interests." THE JOINT CHIEFS OF STAFF, JOINT PUB. 3-07, JOINT DOCTRINE FOR MILITARY OPERATIONS OTHER THAN WAR, exec. summary, vii (16 June 1995) [hereinafter JOINT PUB. 3-07]. The sixteen doctrinal types of MOOTW include: (1) arms control, (2) combatting terrorism, (3) Department of Defense (DOD) support to counterdrug operations, (4) enforcement of sanctions/maritime interdiction operations, (5) enforcing exclusion zones, (6) ensuring freedom of navigation and overflight, (7) humanitarian assistance, (8) military support to civil authorities (MSCA), (9) nation assistance/support to counterinsurgency, (10) noncombatant evacuation operations (NEO), (11) peace operations (PO), (12) protection of shipping, (13) recovery operations, (14) show of force operations, (15) strikes and raids, and (16) support to insurgencies. Id. ch. III.
19. Military Operations Other Than War (MOOTW) is a term used to denote "[o]perations that encompass the use of military capabilities across the range of military operations short of war." THE JOINT CHIEFS OF STAFF, JOINT PUB. 1-02, DEPARTMENT OF DEFENSE DICTIONARY OF MILITARY AND ASSOCIATED TERMS 283 (23 Mar. 1994) (amended through 6 Apr. 1999). "MOOTW focus on deterring war and promoting peace while war encompasses large-scale, sustained combat operations to achieve national objectives or to protect national interests." THE JOINT CHIEFS OF STAFF, JOINT PUB. 3-07, JOINT DOCTRINE FOR MILITARY OPERATIONS OTHER THAN WAR, exec. summary, vii (16 June 1995) [hereinafter JOINT PUB. 3-07]. The sixteen doctrinal types of MOOTW include: (1) arms control, (2) combatting terrorism, (3) Department of Defense (DOD) support to counterdrug operations, (4) enforcement of sanctions/maritime interdiction operations, (5) enforcing exclusion zones, (6) ensuring freedom of navigation and overflight, (7) humanitarian assistance, (8) military support to civil authorities (MSCA), (9) nation assistance/support to counterinsurgency, (10) noncombatant evacuation operations (NEO), (11) peace operations (PO), (12) protection of shipping, (13) recovery operations, (14) show of force operations, (15) strikes and raids, and (16) support to insurgencies. Id. ch. III.
20. Because MOOTW are by definition, operations short of war, MOOTW generally do not involve high intensity combat and the rules of engagement (ROE) are normally more restrictive than those typically promulgated in war. JOINT PUB. 3-07, supra note 13, at I-1. However, MOOTW, such as peace enforcement operations and raids and strikes, have characteristics of war and sometimes employ combat tactics and techniques involving significant uses of force. For example, in October of 1993, during humanitarian assistance operations in Somalia, a force of U.S. soldiers attempted to capture a Somali warlord. The operation resulted in a protracted combat operation in Mogadisu, resulting in the deaths of 18 U.S. service members and an estimated 500 Somalis. See generally MARK BOWDEN, BLACK HAWK DOWN: A STORY OF MODERN WAR (1999).
21. John Dermont et al., Bitter to the End: The Somalia Inquiry Takes its Best Shot-and Ottawa Fires Back, MACLEAN'S, July 14, 1997 (citing a Canadian Government "Somalia Commission" report).
22. Id.
23. Id.
24. L.C. Green, Command Responsibility in International Humanitarian Law, 5 TRANSNAT'L L. & CONTEMP. PROBS. 319, 370 (1995).
25. Id.
26. Dermont et al., supra note 15.
27. Green, supra note 18.
28. Id.
29. Id.; Dermont et al., supra note 15.
30. Dermont et al., supra note 15;
31. Colin Nickerson, Canada's Sterling Military Reputation Tarnished by Scandal, FORT WORTH STAR-TELEGRAM, Nov. 9, 1997. There were also reported abuses by Belgian and Italian paratroopers as well. Pictures appeared in Belgian newspapers showing Belgian soldiers "roasting" a Somali over an open fire and of soldiers forcing Somalis to eat vomit. One Somali died in the hands of Belgian soldiers while confined in a metal container for two days in the blazing sun without water. Italian soldiers have been accused of starving, torturing, shocking Somalis with electricity and throwing Somalis on razor sharp barbed wire. They were also alleged to have tortured children and raped women. According to one Italian Paratrooper, their officers participated in the torture and ordered them to "not treat the Somalis like human beings."
32. More Evidence of Torture by Italian Troops in Somalia, AGENCE FRANCE-PRESSE, June 13, 1997;
33. Andrew Duffy, Now it's Belgian Soldiers: Paratroopers Charged for Holding Somali Over Fire, OTTAWA CITIZEN, Apr. 12, 1997, at A1;
34. Soldiers Face Charges of Torture on UN Mission, IRISH TIMES, June 23, 1997;
35. Robert Fox, Belgian Troops Admit to "Roasting" Somali Boy, DAILEY TELEGRAPH LONDON, June 24, 1997.
36. The traditional and doctrinally recognized Principles of War, the factors that lead to a successful conclusion in high intensity conflict, are: objective, offensive, mass, economy of force, maneuver, unity of command, security, surprise, and simplicity. JOINT PUB. 3-0, supra note 6, app. A. The Principles for MOOTW however include: objective, unity of effort, security, restraint, perseverance, and legitimacy. Id. at V-2. Therefore, although legitimacy is important in any military operation, the principle has been highlighted by doctrine in MOOTW. In MOOTW, legitimacy is a condition based on the perception by a specific audience of the legality, morality, or rightness of a set of actions. This audience may be the U.S. public, foreign nations, the populations in the area of responsibility/joint operations area (AOR/JOA), of the participating forces. If an operation is perceived as legitimate, there is a strong impulse to support the action. JOINT PUB. 3-07, supra note 13, at II-5. Certainly this passage is referring generally to the legitimacy of the operation itself rather than the idea of maintaining legitimacy through the proper conduct of the soldiers involved. The Jus ad Bellum rather than the Jus in Bello of the operation is the focus. However, the publication goes on to say: Legitimacy may depend on adherence to objectives agreed to by the international community, ensuring the action is appropriate to the situation and fairness in dealing with various factions. It may be reinforced by restraint in the use of force, the type of forces employed, and the disciplined conduct of the forces involved. Id. (emphasis added). For an interesting view on the importance of morality in foreign relations, see John Norton Moore, Morality and the Rule of Law in the Foreign Policy of the Democracies, Andrew R. Cecil Lectures on Moral Values in a Free Society, University of Texas (Nov. 14, 1999) reprinted in CENTER FOR NATONAL SECURITY LAW, NATIONAL SECURITY LAW, SUPPLEMENTARY READINGS, UNIVERSITY OF VIRGINIA, NATIONAL SECURITY LAW SUMMER INSTITUTE (Summer 1999).
37. The traditional and doctrinally recognized Principles of War, the factors that lead to a successful conclusion in high intensity conflict, are: objective, offensive, mass, economy of force, maneuver, unity of command, security, surprise, and simplicity. JOINT PUB. 3-0, supra note 6, app. A. The Principles for MOOTW however include: objective, unity of effort, security, restraint, perseverance, and legitimacy. Id. at V-2. Therefore, although legitimacy is important in any military operation, the principle has been highlighted by doctrine in MOOTW. In MOOTW, legitimacy is a condition based on the perception by a specific audience of the legality, morality, or rightness of a set of actions. This audience may be the U.S. public, foreign nations, the populations in the area of responsibility/joint operations area (AOR/JOA), of the participating forces. If an operation is perceived as legitimate, there is a strong impulse to support the action. JOINT PUB. 3-07, supra note 13, at II-5. Certainly this passage is referring generally to the legitimacy of the operation itself rather than the idea of maintaining legitimacy through the proper conduct of the soldiers involved. The Jus ad Bellum rather than the Jus in Bello of the operation is the focus. However, the publication goes on to say: Legitimacy may depend on adherence to objectives agreed to by the international community, ensuring the action is appropriate to the situation and fairness in dealing with various factions. It may be reinforced by restraint in the use of force, the type of forces employed, and the disciplined conduct of the forces involved. Id. (emphasis added). For an interesting view on the importance of morality in foreign relations, see John Norton Moore, Morality and the Rule of Law in the Foreign Policy of the Democracies, Andrew R. Cecil Lectures on Moral Values in a Free Society, University of Texas (Nov. 14, 1999) reprinted in CENTER FOR NATONAL SECURITY LAW, NATIONAL SECURITY LAW, SUPPLEMENTARY READINGS, UNIVERSITY OF VIRGINIA, NATIONAL SECURITY LAW SUMMER INSTITUTE (Summer 1999).
38. The traditional and doctrinally recognized Principles of War, the factors that lead to a successful conclusion in high intensity conflict, are: objective, offensive, mass, economy of force, maneuver, unity of command, security, surprise, and simplicity. JOINT PUB. 3-0, supra note 6, app. A. The Principles for MOOTW however include: objective, unity of effort, security, restraint, perseverance, and legitimacy. Id. at V-2. Therefore, although legitimacy is important in any military operation, the principle has been highlighted by doctrine in MOOTW. In MOOTW, legitimacy is a condition based on the perception by a specific audience of the legality, morality, or rightness of a set of actions. This audience may be the U.S. public, foreign nations, the populations in the area of responsibility/joint operations area (AOR/JOA), of the participating forces. If an operation is perceived as legitimate, there is a strong impulse to support the action. JOINT PUB. 3-07, supra note 13, at II-5. Certainly this passage is referring generally to the legitimacy of the operation itself rather than the idea of maintaining legitimacy through the proper conduct of the soldiers involved. The Jus ad Bellum rather than the Jus in Bello of the operation is the focus. However, the publication goes on to say: Legitimacy may depend on adherence to objectives agreed to by the international community, ensuring the action is appropriate to the situation and fairness in dealing with various factions. It may be reinforced by restraint in the use of force, the type of forces employed, and the disciplined conduct of the forces involved. Id. (emphasis added). For an interesting view on the importance of morality in foreign relations, see John Norton Moore, Morality and the Rule of Law in the Foreign Policy of the Democracies, Andrew R. Cecil Lectures on Moral Values in a Free Society, University of Texas (Nov. 14, 1999) reprinted in CENTER FOR NATONAL SECURITY LAW, NATIONAL SECURITY LAW, SUPPLEMENTARY READINGS, UNIVERSITY OF VIRGINIA, NATIONAL SECURITY LAW SUMMER INSTITUTE (Summer 1999).
39. The traditional and doctrinally recognized Principles of War, the factors that lead to a successful conclusion in high intensity conflict, are: objective, offensive, mass, economy of force, maneuver, unity of command, security, surprise, and simplicity. JOINT PUB. 3-0, supra note 6, app. A. The Principles for MOOTW however include: objective, unity of effort, security, restraint, perseverance, and legitimacy. Id. at V-2. Therefore, although legitimacy is important in any military operation, the principle has been highlighted by doctrine in MOOTW. In MOOTW, legitimacy is a condition based on the perception by a specific audience of the legality, morality, or rightness of a set of actions. This audience may be the U.S. public, foreign nations, the populations in the area of responsibility/joint operations area (AOR/JOA), of the participating forces. If an operation is perceived as legitimate, there is a strong impulse to support the action. JOINT PUB. 3-07, supra note 13, at II-5. Certainly this passage is referring generally to the legitimacy of the operation itself rather than the idea of maintaining legitimacy through the proper conduct of the soldiers involved. The Jus ad Bellum rather than the Jus in Bello of the operation is the focus. However, the publication goes on to say: Legitimacy may depend on adherence to objectives agreed to by the international community, ensuring the action is appropriate to the situation and fairness in dealing with various factions. It may be reinforced by restraint in the use of force, the type of forces employed, and the disciplined conduct of the forces involved. Id. (emphasis added). For an interesting view on the importance of morality in foreign relations, see John Norton Moore, Morality and the Rule of Law in the Foreign Policy of the Democracies, Andrew R. Cecil Lectures on Moral Values in a Free Society, University of Texas (Nov. 14, 1999) reprinted in CENTER FOR NATONAL SECURITY LAW, NATIONAL SECURITY LAW, SUPPLEMENTARY READINGS, UNIVERSITY OF VIRGINIA, NATIONAL SECURITY LAW SUMMER INSTITUTE (Summer 1999).
40. JOINT PUB. 3-07, supra note 13, at II-5.
41. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, Dec. 12, 1977, art. 1, 1125 U.N.T.S. 609 [hereinafter Protocol II]; COMMENTARY ON THE THIRD GENEVA CONVENTION RELATIVE TO THE TREATMENT OF PRISONERS OF WAR 36 (Jean S. Pictet et al. eds., 1958).
42. GPW, supra note 27, art. 4; Protocol I, supra note 27, art. 1.
43. GPW, supra note 27, art. 4; Protocol I, supra note 27, art. 1.
44. See generally JAMES DUNNIGAN & KANIEL MASTERSON, THE WAY OF THE WARRIOR, BUSINESS TACTICS AND TECHNIQUES FROM HISTORY'S TWELVE GREATEST GENERALS (1997).
45. SUN TZU, THE ART OF WAR 125 (Samuel B. Griffith trans., Oxford Univ. Press 1963) (500 BC).
46. AUBREY S. NEWMAN, WHAT ARE GENERALS MADE OF? 41 (1987).
47. U.S. DEP'T OF ARMY, REG. 600-20, ARMY COMMAND POLICY, para. 2-1b (30 Mar. 1988); W. Hays Parks, A Few Tools in the Prosecution of War Crimes, 149 MIL. L. REV. 73, 74 (1995).
48. U.S. DEP'T OF ARMY, REG. 600-20, ARMY COMMAND POLICY, para. 2-1b (30 Mar. 1988); W. Hays Parks, A Few Tools in the Prosecution of War Crimes, 149 MIL. L. REV. 73, 74 (1995).
49. FM 22-100, supra note 7, para. 6-100-103.
50. U.S. DEP'T OF ARMY, FIELD MANUAL 101-5, STAFF ORGANIZATION AND OPERATIONS, 1-1 (May 1997).
51. CLAUSEWITZ, supra note 5, at 187.
52. Mark S. Martins, "War Crimes" During Operations Other Than War: Military Doctrine and Law Fifty Years after Nuremberg - And Beyond, 149 MIL. L. REV. 145, 176 n.141 (1995) (quoting Hague IV, supra note 27, pmbl.). The Convention states that the parties were: Animated by their desire to serve, even in this extreme case, the interests of humanity and the ever progressive needs of civilization; Thinking it important, with this object, to revise the general laws and customs of war, either with a view to defining them with greater precision or to confining them within such limits as should mitigate their severity as far as possible; . . . . Id.
53. Jeffrey F. Addicott & William A. Hudson, Jr., The Twenty-Fifth Anniversary of My Lai: A Time to Inculcate the Lessons, 139 MIL. L. REV. 153, 169 (1993).
54. FM 100-5, supra note 6, at 2-3, 4.
55. See generally In Re Yamashita, 327 U.S. 1 (1946).
56. Martins, supra note 37, at 177-78 n.146.
57. Frederik Harhoff, Consonance or Rivalry? Calibrating The Efforts to Prosecute War Crimes in National and International Tribunals, 7 DUKE J. COMP. & INT'L L. 571 n.1 (citing Elisabeth Neuffer, Amid Tribal Struggles, Crimes Go Unpunished; War Tribunal Stalls Over Mass Killings, BOSTON GLOBE, Dec. 8, 1996, at A1).
58. Frederik Harhoff, Consonance or Rivalry? Calibrating The Efforts to Prosecute War Crimes in National and International Tribunals, 7 DUKE J. COMP. & INT'L L. 571 n.1 (citing Elisabeth Neuffer, Amid Tribal Struggles, Crimes Go Unpunished; War Tribunal Stalls Over Mass Killings, BOSTON GLOBE, Dec. 8, 1996, at A1).
59. Order of General Douglas MacArthur Confirming Death Sentence of General Tomoyuki Yamashita, February 6, 1946, reprinted in LEON FRIEDMAN, THE LAW OF WAR, A DOCUMENTARY HISTORY 1598-99 (1972); TELFORD TAYLOR, NUREMBERG AND VIETNAM: AN AMERICAN TRADGEDY frontispiece (1970); A. FRANK REEL, THE CASE OF GENERAL YAMASHITA 235 (1949).
60. Order of General Douglas MacArthur Confirming Death Sentence of General Tomoyuki Yamashita, February 6, 1946, reprinted in LEON FRIEDMAN, THE LAW OF WAR, A DOCUMENTARY HISTORY 1598-99 (1972); TELFORD TAYLOR, NUREMBERG AND VIETNAM: AN AMERICAN TRADGEDY frontispiece (1970); A. FRANK REEL, THE CASE OF GENERAL YAMASHITA 235 (1949).
61. Order of General Douglas MacArthur Confirming Death Sentence of General Tomoyuki Yamashita, February 6, 1946, reprinted in LEON FRIEDMAN, THE LAW OF WAR, A DOCUMENTARY HISTORY 1598-99 (1972); TELFORD TAYLOR, NUREMBERG AND VIETNAM: AN AMERICAN TRADGEDY frontispiece (1970); A. FRANK REEL, THE CASE OF GENERAL YAMASHITA 235 (1949).
62. Order of General Douglas MacArthur Confirming Death Sentence of General Tomoyuki Yamashita, February 6, 1946, reprinted in LEON FRIEDMAN, THE LAW OF WAR, A DOCUMENTARY HISTORY 1598-99 (1972); TELFORD TAYLOR, NUREMBERG AND VIETNAM: AN AMERICAN TRADGEDY frontispiece (1970); A. FRANK REEL, THE CASE OF GENERAL YAMASHITA 235 (1949).
63. Timothy Wu & Young-Sung Kang, Criminal Liability for the Actions of Subordinates - The Doctrine of Command Responsibility and its Analogues in United States Law, 38 HARV. INT'L L. J. 272, 290 (1997). Even the soldiers involved in the actual commission of war crimes may be the unrecognized victims of a commander's failure to fulfill his duty as a leader. One legal expert in this area has suggested that: [t]he most important basis of the laws of war is that they are necessary to diminish the corrosive effect of mortal combat on the participants . . . . Unless troops are trained and required to draw the distinction between military and non-military killings, and to retain such respect for the value of like than unnecessary death and destruction will continue to repel them, they may lose the sense for that distinction for the rest of their lives. TELFORD TAYLOR, WAR CRIMES, WAR MORALITY AND THE MILITARY PROFESSION 337-38 (Malham M. Walkin ed., 2d rev. ed. 1986).
64. Timothy Wu & Young-Sung Kang, Criminal Liability for the Actions of Subordinates - The Doctrine of Command Responsibility and its Analogues in United States Law, 38 HARV. INT'L L. J. 272, 290 (1997). Even the soldiers involved in the actual commission of war crimes may be the unrecognized victims of a commander's failure to fulfill his duty as a leader. One legal expert in this area has suggested that: [t]he most important basis of the laws of war is that they are necessary to diminish the corrosive effect of mortal combat on the participants . . . . Unless troops are trained and required to draw the distinction between military and non-military killings, and to retain such respect for the value of like than unnecessary death and destruction will continue to repel them, they may lose the sense for that distinction for the rest of their lives. TELFORD TAYLOR, WAR CRIMES, WAR MORALITY AND THE MILITARY PROFESSION 337-38 (Malham M. Walkin ed., 2d rev. ed. 1986).
65. William G. Eckhardt, Command Responsibility: A Plea for A Workable Standard, 97 MIL. L. REV. 1 (1982).
66. William V. O'Brien, The Law of War, Command Responsibility and Vietnam, 60 GEO. L. J. 605, 661 (1972); see U.S. DEP'T OF DEFENSE, DIR. 5100.77, DOD LAW OF WAR PROGRAM, para. 4.1-4.3 (Dec. 9, 1998) [hereinafter DOD DIR. 5100.77]; CHAIRMAN, JOINT CHIEFS OF STAFF INSTR. 5810.01A, para. 5a(1)-(3) (27 Aug. 1999).
67. William V. O'Brien, The Law of War, Command Responsibility and Vietnam, 60 GEO. L. J. 605, 661 (1972); see U.S. DEP'T OF DEFENSE, DIR. 5100.77, DOD LAW OF WAR PROGRAM, para. 4.1-4.3 (Dec. 9, 1998) [hereinafter DOD DIR. 5100.77]; CHAIRMAN, JOINT CHIEFS OF STAFF INSTR. 5810.01A, para. 5a(1)-(3) (27 Aug. 1999).
68. William V. O'Brien, The Law of War, Command Responsibility and Vietnam, 60 GEO. L. J. 605, 661 (1972); see U.S. DEP'T OF DEFENSE, DIR. 5100.77, DOD LAW OF WAR PROGRAM, para. 4.1-4.3 (Dec. 9, 1998) [hereinafter DOD DIR. 5100.77]; CHAIRMAN, JOINT CHIEFS OF STAFF INSTR. 5810.01A, para. 5a(1)-(3) (27 Aug. 1999).
69. FRIEDMAN, supra note 43 (Order of General MacArthur).
70. See O'Brien, supra note 46, at 661; Eckhardt, supra note 45, at 4; Parks, supra note 33, at 76; Wu & Kang, supra note 44, at 290.
71. Id. In a case commonly referred to as the German High Command Case, the military tribunal opined: Modern war entails a large measure of decentralization. A high commander cannot keep completely informed of the details of military operations of subordinates. . . . He has a right to assume that details entrusted to responsible subordinates will be legally executed. . . . Criminal acts committed by those forces cannot in themselves be charged to him on the theory of subordination. UNITED NATIONS WAR CRIMES COMMISSION, XII LAW REPORTS OF TRIALS OF WAR CRIMINALS 1, 76 (1948) [hereinafter German High Command Case].
72. See generally In re Yamashita, 327 U.S. 1 (1946);
73. William H. Parks, Command Responsibility For War Crimes, 62 MIL L. REV. 1 (1973); Addicott & Hudson, supra note 38, at n.66.
74. UNITED NATIONS SECURITY COUNCIL, LETTER, 24 MAY 1994, FROM THE SECRETARY GENERAL TO THE PRESIDENT OF THE SECURITY COUNCIL, U.N. Doc. S/1994/674, at 17 (1994).
75. German High Command Case, supra note 49.
76. UCMJ art. 92 (LEXIS 2000).
77. HUGO GROTIUS, DE JURE BELLI AC PACIS 523 (C.E.I.P. ed., Kelsy trans., 1925).
78. In 1439, Charles VII of France issued an Ordinance at Orleans creating command responsibility for a failure to investigate and take action in response to atrocities committed by subordinates. He wrote: The king orders that each captain or lieutenant be held responsible for the abuses, ills and offenses committed by members of his company, and that as soon as he receives any complaint concerning any such misdeed or abuse, he bring the offender to justice so that the said offender be punished in a manner commensurate with his offence, according these Ordinances. If he fails to do so or covers up the misdeed or delays taking action, or if, because of his negligence or otherwise, the offender escapes and thus evades punishment, the captain shall be deemed responsible for the offense as if he had committed it himself and shall be punished in the same way as the offender would have. Green, supra note 18, at 321 (quoting ORDONNANCES DES ROIS DE FRANCE DE LA TROISIEME RACE (Louis Guillaume de Vilevault & Louis G.O.F. de Brequigny eds., 1782)); quoted in THEODOR MERON, HENRY'S WARS AND SHAKESPEARE'S LAWS 149 n.40 (1993).
79. In 1439, Charles VII of France issued an Ordinance at Orleans creating command responsibility for a failure to investigate and take action in response to atrocities committed by subordinates. He wrote: The king orders that each captain or lieutenant be held responsible for the abuses, ills and offenses committed by members of his company, and that as soon as he receives any complaint concerning any such misdeed or abuse, he bring the offender to justice so that the said offender be punished in a manner commensurate with his offence, according these Ordinances. If he fails to do so or covers up the misdeed or delays taking action, or if, because of his negligence or otherwise, the offender escapes and thus evades punishment, the captain shall be deemed responsible for the offense as if he had committed it himself and shall be punished in the same way as the offender would have. Green, supra note 18, at 321 (quoting ORDONNANCES DES ROIS DE FRANCE DE LA TROISIEME RACE (Louis Guillaume de Vilevault & Louis G.O.F. de Brequigny eds., 1782)); quoted in THEODOR MERON, HENRY'S WARS AND SHAKESPEARE'S LAWS 149 n.40 (1993).
80. In 1439, Charles VII of France issued an Ordinance at Orleans creating command responsibility for a failure to investigate and take action in response to atrocities committed by subordinates. He wrote: The king orders that each captain or lieutenant be held responsible for the abuses, ills and offenses committed by members of his company, and that as soon as he receives any complaint concerning any such misdeed or abuse, he bring the offender to justice so that the said offender be punished in a manner commensurate with his offence, according these Ordinances. If he fails to do so or covers up the misdeed or delays taking action, or if, because of his negligence or otherwise, the offender escapes and thus evades punishment, the captain shall be deemed responsible for the offense as if he had committed it himself and shall be punished in the same way as the offender would have. Green, supra note 18, at 321 (quoting ORDONNANCES DES ROIS DE FRANCE DE LA TROISIEME RACE (Louis Guillaume de Vilevault & Louis G.O.F. de Brequigny eds., 1782)); quoted in THEODOR MERON, HENRY'S WARS AND SHAKESPEARE'S LAWS 149 n.40 (1993).
81. See generally Parks, supra note 50 (providing an excellent discussion on the historical development of command responsibility). Hagenbach was tried by an international tribunal of twenty-eight judges from states within the Holy Roman Empire. The accused was charged with murder, rape, perjury, and other crimes against "the laws of God and man." Today these crimes could be classified as crimes against humanity. After being convicted, Hagenbach was stripped of his knighthood and executed for failing in his duty to prevent the listed crimes. Parks , supra note 50, at 4 (citing Waldamer Solf, A Response To Telford Taylor's Nuremberg and Vietnam: An American Tragedy, 5 AKRON L. REV. 43 (1972)). Parks also gives several other examples of early command responsibility cases in U.S. military history. Actions were taken against U.S. Army commanders in domestic courts for failing to supervise their troops in the War of 1812, the Black Hawk War of 1832, the War with Mexico in 1846, the Modoc Indian campaign in Northern California. A young Captain Abraham Lincoln was convicted and sentenced to carry a wooden sword for two days during the Black Hawk War of 1832 for failing to control his men. It seems the troopers opened the officer's supply of whiskey and freely helped themselves while others straggled on a march. See Parks, supra note 50, at 6 (citing C. SANDBURG, ABRAHAM LINCOLN: THE PRAIRIE YEARS AND THE WAR YEARS 30 (1961)). See also FRIEDMAN, supra note 43, at 783. The author explains that Captain Henry Wirz, a Swiss born physician and Confederate commander of the infamous Andersonville Confederate Prisoner of War Camp, was convicted and ordered to hang by a military commission. Captain Wirz violated the Lieber Code by ordering and permitting the torture, maltreatment, and death of Union prisoners of war in his custody.
82. See generally Parks, supra note 50 (providing an excellent discussion on the historical development of command responsibility). Hagenbach was tried by an international tribunal of twenty-eight judges from states within the Holy Roman Empire. The accused was charged with murder, rape, perjury, and other crimes against "the laws of God and man." Today these crimes could be classified as crimes against humanity. After being convicted, Hagenbach was stripped of his knighthood and executed for failing in his duty to prevent the listed crimes. Parks , supra note 50, at 4 (citing Waldamer Solf, A Response To Telford Taylor's Nuremberg and Vietnam: An American Tragedy, 5 AKRON L. REV. 43 (1972)). Parks also gives several other examples of early command responsibility cases in U.S. military history. Actions were taken against U.S. Army commanders in domestic courts for failing to supervise their troops in the War of 1812, the Black Hawk War of 1832, the War with Mexico in 1846, the Modoc Indian campaign in Northern California. A young Captain Abraham Lincoln was convicted and sentenced to carry a wooden sword for two days during the Black Hawk War of 1832 for failing to control his men. It seems the troopers opened the officer's supply of whiskey and freely helped themselves while others straggled on a march. See Parks, supra note 50, at 6 (citing C. SANDBURG, ABRAHAM LINCOLN: THE PRAIRIE YEARS AND THE WAR YEARS 30 (1961)). See also FRIEDMAN, supra note 43, at 783. The author explains that Captain Henry Wirz, a Swiss born physician and Confederate commander of the infamous Andersonville Confederate Prisoner of War Camp, was convicted and ordered to hang by a military commission. Captain Wirz violated the Lieber Code by ordering and permitting the torture, maltreatment, and death of Union prisoners of war in his custody.
83. See generally Parks, supra note 50 (providing an excellent discussion on the historical development of command responsibility). Hagenbach was tried by an international tribunal of twenty-eight judges from states within the Holy Roman Empire. The accused was charged with murder, rape, perjury, and other crimes against "the laws of God and man." Today these crimes could be classified as crimes against humanity. After being convicted, Hagenbach was stripped of his knighthood and executed for failing in his duty to prevent the listed crimes. Parks , supra note 50, at 4 (citing Waldamer Solf, A Response To Telford Taylor's Nuremberg and Vietnam: An American Tragedy, 5 AKRON L. REV. 43 (1972)). Parks also gives several other examples of early command responsibility cases in U.S. military history. Actions were taken against U.S. Army commanders in domestic courts for failing to supervise their troops in the War of 1812, the Black Hawk War of 1832, the War with Mexico in 1846, the Modoc Indian campaign in Northern California. A young Captain Abraham Lincoln was convicted and sentenced to carry a wooden sword for two days during the Black Hawk War of 1832 for failing to control his men. It seems the troopers opened the officer's supply of whiskey and freely helped themselves while others straggled on a march. See Parks, supra note 50, at 6 (citing C. SANDBURG, ABRAHAM LINCOLN: THE PRAIRIE YEARS AND THE WAR YEARS 30 (1961)). See also FRIEDMAN, supra note 43, at 783. The author explains that Captain Henry Wirz, a Swiss born physician and Confederate commander of the infamous Andersonville Confederate Prisoner of War Camp, was convicted and ordered to hang by a military commission. Captain Wirz violated the Lieber Code by ordering and permitting the torture, maltreatment, and death of Union prisoners of war in his custody.
84. See generally Parks, supra note 50 (providing an excellent discussion on the historical development of command responsibility). Hagenbach was tried by an international tribunal of twenty-eight judges from states within the Holy Roman Empire. The accused was charged with murder, rape, perjury, and other crimes against "the laws of God and man." Today these crimes could be classified as crimes against humanity. After being convicted, Hagenbach was stripped of his knighthood and executed for failing in his duty to prevent the listed crimes. Parks , supra note 50, at 4 (citing Waldamer Solf, A Response To Telford Taylor's Nuremberg and Vietnam: An American Tragedy, 5 AKRON L. REV. 43 (1972)). Parks also gives several other examples of early command responsibility cases in U.S. military history. Actions were taken against U.S. Army commanders in domestic courts for failing to supervise their troops in the War of 1812, the Black Hawk War of 1832, the War with Mexico in 1846, the Modoc Indian campaign in Northern California. A young Captain Abraham Lincoln was convicted and sentenced to carry a wooden sword for two days during the Black Hawk War of 1832 for failing to control his men. It seems the troopers opened the officer's supply of whiskey and freely helped themselves while others straggled on a march. See Parks, supra note 50, at 6 (citing C. SANDBURG, ABRAHAM LINCOLN: THE PRAIRIE YEARS AND THE WAR YEARS 30 (1961)). See also FRIEDMAN, supra note 43, at 783. The author explains that Captain Henry Wirz, a Swiss born physician and Confederate commander of the infamous Andersonville Confederate Prisoner of War Camp, was convicted and ordered to hang by a military commission. Captain Wirz violated the Lieber Code by ordering and permitting the torture, maltreatment, and death of Union prisoners of war in his custody.
85. See generally Parks, supra note 50 (providing an excellent discussion on the historical development of command responsibility). Hagenbach was tried by an international tribunal of twenty-eight judges from states within the Holy Roman Empire. The accused was charged with murder, rape, perjury, and other crimes against "the laws of God and man." Today these crimes could be classified as crimes against humanity. After being convicted, Hagenbach was stripped of his knighthood and executed for failing in his duty to prevent the listed crimes. Parks , supra note 50, at 4 (citing Waldamer Solf, A Response To Telford Taylor's Nuremberg and Vietnam: An American Tragedy, 5 AKRON L. REV. 43 (1972)). Parks also gives several other examples of early command responsibility cases in U.S. military history. Actions were taken against U.S. Army commanders in domestic courts for failing to supervise their troops in the War of 1812, the Black Hawk War of 1832, the War with Mexico in 1846, the Modoc Indian campaign in Northern California. A young Captain Abraham Lincoln was convicted and sentenced to carry a wooden sword for two days during the Black Hawk War of 1832 for failing to control his men. It seems the troopers opened the officer's supply of whiskey and freely helped themselves while others straggled on a march. See Parks, supra note 50, at 6 (citing C. SANDBURG, ABRAHAM LINCOLN: THE PRAIRIE YEARS AND THE WAR YEARS 30 (1961)). See also FRIEDMAN, supra note 43, at 783. The author explains that Captain Henry Wirz, a Swiss born physician and Confederate commander of the infamous Andersonville Confederate Prisoner of War Camp, was convicted and ordered to hang by a military commission. Captain Wirz violated the Lieber Code by ordering and permitting the torture, maltreatment, and death of Union prisoners of war in his custody.
86. Green, supra note 18, at 326 (citing 7 JOHN MOORE, A DIGEST OF INTERNATIONAL LAW 187 (1906)).
87. Green, supra note 18, at 326 (citing 7 JOHN MOORE, A DIGEST OF INTERNATIONAL LAW 187 (1906)).
88. S. Doc. 213, 57th Cong. 2nd Session, at 5.
89. Hague IV, supra note 27, art 3.
90. Id.
91. CARNEGIE ENDOWMENT FOR INTERNATIONAL PEACE, DIVISION OF INTERNATIONAL LAW, PAMPHLET No. 32, reprinted in Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties, 14 AM. J. INT'L L. 95, 117 (1920).
92. CARNEGIE ENDOWMENT FOR INTERNATIONAL PEACE, DIVISION OF INTERNATIONAL LAW, PAMPHLET No. 32, reprinted in Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties, 14 AM. J. INT'L L. 95, 117 (1920).
93. Green, supra note 18, at 323.
94. Treaty of Versailles, June 28, 1919, art. 227, 225 Consol. T.S. 189, 285 [herein after Treaty of Versailles]. At the outset of the War, the Kaiser stated: My soul is torn but everything must be put to fire and sword: men women and children and old men must be slaughtered and not a tree or house left standing. With these methods of terrorism, which are alone capable of affecting a people as degenerate as the French, the war will be over in two months, whereas if I admit considerations of humanity it will be prolonged for years. In spite of my repugnance, I have therefore been obliged to choose the former system. HOWARD S. LEVIE, TERRORISM IN WAR: THE LAW OF WAR CRIMES 18 n.75 (1993).
95. Treaty of Versailles, June 28, 1919, art. 227, 225 Consol. T.S. 189, 285 [herein (continued) after Treaty of Versailles]. At the outset of the War, the Kaiser stated: My soul is torn but everything must be put to fire and sword: men women and children and old men must be slaughtered and not a tree or house left standing. With these methods of terrorism, which are alone capable of affecting a people as degenerate as the French, the war will be over in two months, whereas if I admit considerations of humanity it will be prolonged for years. In spite of my repugnance, I have therefore been obliged to choose the former system. HOWARD S. LEVIE, TERRORISM IN WAR: THE LAW OF WAR CRIMES 18 n.75 (1993).
96. Treaty of Versailles, supra note 63, art. 228.
97. Green, supra note 18, at 324.
98. Id. at 325.
99. Convention for the Amelioration of the Condition of the Wounded and Sick of Armies in the Field, Geneva, art. 26 (12 July 1929).
100. Eckhardt, supra note 45, at 3; Michael A. Newton, Continuum Crimes: Military Jurisdiction Over Foreign Nationals Who Commit International Crimes, 153 MIL. L. REV. 1, n.13 (1996).
101. Eckhardt, supra note 45, at 3; Michael A. Newton, Continuum Crimes: Military Jurisdiction Over Foreign Nationals Who Commit International Crimes, 153 MIL. L. REV. 1, n.13 (1996).
102. TELFORD TAYLOR, THE ANATOMY OF THE NUREMBERG TRIALS 21 (1992); Mathew Lippmann, Conundrums of Armed Conflict: Criminal Defenses to Violations of the Humanitarian Law of War, 15 DICK. J. INT'L L. 1 (1996). For example, some 5700 Japanese were tried for war crimes and approximately 920 were executed. RICHARD H. MINEAR, VICTOR'S JUSTICE: THE TOKYO WAR CRIMES TRIALS 6 (1971).
103. TELFORD TAYLOR, THE ANATOMY OF THE NUREMBERG TRIALS 21 (1992); Mathew Lippmann, Conundrums of Armed Conflict: Criminal Defenses to Violations of the Humanitarian Law of War, 15 DICK. J. INT'L L. 1 (1996). For example, some 5700 Japanese were tried for war crimes and approximately 920 were executed. RICHARD H. MINEAR, VICTOR'S JUSTICE: THE TOKYO WAR CRIMES TRIALS 6 (1971).
104. TELFORD TAYLOR, THE ANATOMY OF THE NUREMBERG TRIALS 21 (1992); Mathew Lippmann, Conundrums of Armed Conflict: Criminal Defenses to Violations of the Humanitarian Law of War, 15 DICK. J. INT'L L. 1 (1996). For example, some 5700 Japanese were tried for war crimes and approximately 920 were executed. RICHARD H. MINEAR, VICTOR'S JUSTICE: THE TOKYO WAR CRIMES TRIALS 6 (1971).
105. TAYLOR, supra note 69; ROBERT H. JACKSON, THE CASE AGAINST NAZI WAR CRIMINALS 3 (1946). In his opening statement before the Nuremberg Tribunal, Justice Robert H. Jackson said: The privilege of opening the first trial in history for crimes against the peace of the world impose a grave responsibility. The wrongs which we seek to condemn and punish have been so calculated, so malignant and devastating, that civilization cannot tolerate their being ignored because it cannot survive their being repeated. . . . The common sense of mankind demands that law shall not stop with the punishment of petty crimes by little people. It must also reach men who possess themselves of great power and make deliberate and concerted use of it to set in motion evils which leave no home in the world untouched. TRIALS OF THE MAJOR WAR CRIMINALS, 2 INTERNATIONAL MILITARY TRIBUNAL NUREMBERG 98-99 (1947).
106. TAYLOR, supra note 69; ROBERT H. JACKSON, THE CASE AGAINST NAZI WAR CRIMINALS 3 (1946). In his opening statement before the Nuremberg Tribunal, Justice Robert H. Jackson said: The privilege of opening the first trial in history for crimes against the peace of the world impose a grave responsibility. The wrongs which we seek to condemn and punish have been so calculated, so malignant and devastating, that civilization cannot tolerate their being ignored because it cannot survive their being repeated. . . . The common sense of mankind demands that law shall not stop with the punishment of petty crimes by little people. It must also reach men who possess themselves of great power and make deliberate and concerted use of it to set in motion evils which leave no home in the world untouched. TRIALS OF THE MAJOR WAR CRIMINALS, 2 INTERNATIONAL MILITARY TRIBUNAL NUREMBERG 98-99 (1947).
107. TAYLOR, supra note 69; ROBERT H. JACKSON, THE CASE AGAINST NAZI WAR CRIMINALS 3 (1946). In his opening statement before the Nuremberg Tribunal, Justice Robert H. Jackson said: The privilege of opening the first trial in history for crimes against the peace of the world impose a grave responsibility. The wrongs which we seek to condemn and punish have been so calculated, so malignant and devastating, that civilization cannot tolerate their being ignored because it cannot survive their being repeated. . . . The common sense of mankind demands that law shall not stop with the punishment of petty crimes by little people. It must also reach men who possess themselves of great power and make deliberate and concerted use of it to set in motion evils which leave no home in the world untouched. TRIALS OF THE MAJOR WAR CRIMINALS, 2 INTERNATIONAL MILITARY TRIBUNAL NUREMBERG 98-99 (1947).
108. Parks, supra note 50, at 14.
109. Id. at 15 (citing 89 CONG. REC. 1773 (Mar. 9, 1943)).
110. FRIEDMAN, supra note 43, at 778; UNITED NATIONS WAR CRIMES COMMISSION, HISTORY OF THE UNITED NATIONS WAR CRIMES COMMISSION AND THE DEVELOPMENT OF THE LAWS OF WAR 51, 52 (1948); THE UNITED NATIONS SECRETARIAT, HISTORICAL SURVEY OF THE QUESTION OF INTERNATIONAL CRIMINAL JURISDICTION 8-12, U.N. Doc. A/CN.4/7Rev. 1 (1949).
111. FRIEDMAN, supra note 43, at 778; UNITED NATIONS WAR CRIMES COMMISSION, HISTORY OF THE UNITED NATIONS WAR CRIMES COMMISSION AND THE DEVELOPMENT OF THE LAWS OF WAR 51, 52 (1948); THE UNITED NATIONS SECRETARIAT, HISTORICAL SURVEY OF THE QUESTION OF INTERNATIONAL CRIMINAL JURISDICTION 8-12, U.N. Doc. A/CN.4/7Rev. 1 (1949).
112. FRIEDMAN, supra note 43, at 778; UNITED NATIONS WAR CRIMES COMMISSION, HISTORY OF THE UNITED NATIONS WAR CRIMES COMMISSION AND THE DEVELOPMENT OF THE LAWS OF WAR 51, 52 (1948); THE UNITED NATIONS SECRETARIAT, HISTORICAL SURVEY OF THE QUESTION OF INTERNATIONAL CRIMINAL JURISDICTION 8-12, U.N. Doc. A/CN.4/7Rev. 1 (1949).
113. 203 JUDGMENT OF THE INTERNATIONAL JAPANESE WAR CRIMES TRIALS IN THE INTERNATIONAL MILITARY TRIBUNAL FOR THE FAR EAST 49,748 (1948). Secretary Hull 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." Id. Several Allies sent numerous messages to the Japanese Government protesting the illegal treatment of prisoners of war and civilians. Id. at 49,738-71.
114. 203 JUDGMENT OF THE INTERNATIONAL JAPANESE WAR CRIMES TRIALS IN THE INTERNATIONAL MILITARY TRIBUNAL FOR THE FAR EAST 49,748 (1948). Secretary Hull 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." Id. Several Allies sent numerous messages to the Japanese Government protesting the illegal treatment of prisoners of war and civilians. Id. at 49,738-71.
115. 75. Id. at 49,749; FRIEDMAN, supra note 43, at 1118.
116. W.J. Fenrick, Some International Law Problems Related to Prosecutions before the International Criminal Tribunal for the Former Yugoslavia, 6 DUKE J. COMP. & INT'L L. 103, 112-13 (1995).
117. Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, Aug. 8, 1945, art. 7, 59 Stat. 1544, 1548, 82 U.N.T.S. 279, 288 (London Charter, sometimes referred to as the Nuremberg Charter) [hereinafter London Charter].
118. Id. art. 6; Martins, supra note 37, at 152.
119. London Charter, supra note 77, art. 6.
120. Parks, supra note 50, at 17 (quoting United States Armed Forces, Pacific, Regulations Governing the Trial of War Criminals (24 Sept. 1945); United States Armed Forces China, Regulations (21 Jan. 1946)).
121. Parks, supra note 50, at 17 (quoting United States Armed Forces, Pacific, Regulations Governing the Trial of War Criminals (24 Sept. 1945); United States Armed Forces China, Regulations (21 Jan. 1946)).
122. Parks, supra note 50, at 17 (quoting United States Armed Forces, Pacific, Regulations Governing the Trial of War Criminals (24 Sept. 1945); United States Armed Forces China, Regulations (21 Jan. 1946)).
123. Id.
124. Fenrick, supra note 76, at 112.
125. Parks, supra note 50, at 18 (citing TRIALS OF WAR CRIMINALS BEFORE NUERMBURG MILITARY TRIBUNALS UNDER CONTROL COUNCIL LAW No. 10, Punishment of Persons Guilty of War Crimes, Crimes Against Peace and Crimes Against Humanity, art. II (2) (1946-1949)).
126. Parks, supra note 50, at 18 (citing TRIALS OF WAR CRIMINALS BEFORE NUERMBURG MILITARY TRIBUNALS UNDER CONTROL COUNCIL LAW No. 10, Punishment of Persons Guilty of War Crimes, Crimes Against Peace and Crimes Against Humanity, art. II (2) (1946-1949)).
127. Id. at 16-19. Parks lists several ordinances from World War II. One such ordinance is Article 4 of the French Ordinance of August 28, 1944. The ordinance reads in part, "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." UNITED NATIONS WAR CRIMES COMMISSION, 4 LAW REPORTS OF TRIALS OF WAR CRIMINALS 87 (1948) [UNITED NATIONS WAR CRIMES COMMISSION].
128. UNITED NATIONS WAR CRIMES COMMISSION, supra note 84, at 87.
129. Wu & Kang, supra note 44, at 274; Parks, supra note 33, at 74.
130. In its request for clemency to General MacArthur, the defense in Yamashita alleged that: This is the first time in modern history that a commanding officer has been held criminally liable for acts committed by his troops. It is the first time in modern history that any man has been held criminally liable for acts, which according to the conclusion of the Commission therefore by its findings created a new crime. The accused could not have known, nor could a sage have predicted, that at some time in the future a Military Commission would decree acts which involved no criminal intent or gross negligence to be a crime, and its is unjust, therefore, that the punishment for that crime should be the supreme penalty. RICHARD L. LAEL, THE YAMASHITA PRECEDENT, WAR CRIMES AND COMMAND RESPONSIBILITY 97 (1982) (quoting Defense Clemency Petition, Y119-3, Book 34, at 2, Washington National Records Center, Suitland, MD); see also In re Yamashita, 327 U.S. 1, 43 (1946) (Rutledge, J., dissenting).
131. In its request for clemency to General MacArthur, the defense in Yamashita alleged that: This is the first time in modern history that a commanding officer has been held criminally liable for acts committed by his troops. It is the first time in modern history that any man has been held criminally liable for acts, which according to the conclusion of the Commission therefore by its findings created a new crime. The accused could not have known, nor could a sage have predicted, that at some time in the future a Military Commission would decree acts which involved no criminal intent or gross negligence to be a crime, and its is unjust, therefore, that the punishment for that crime should be the supreme penalty. RICHARD L. LAEL, THE YAMASHITA PRECEDENT, WAR CRIMES AND COMMAND RESPONSIBILITY 97 (1982) (quoting Defense Clemency Petition, Y119-3, Book 34, at 2, Washington National Records Center, Suitland, MD); see also In re Yamashita, 327 U.S. 1, 43 (1946) (Rutledge, J., dissenting).
132. Parks, supra note 50, at 22. Parks lists various reasons including: (a) the opinion was ill worded and sua sponte by a lay court; (b) one of the defense counsel involved wrote a critical book of the trial; and (c) it was one of the first war crimes trials and was reviewed by the Supreme Court. There were also very spirited dissents by Justices Murphy and Rutledge of the Supreme Court. See Yamashita, 327 U.S. at 41-81 (Murphy and Rutledge, J.J, dissenting).
133. United States of America v. Tomoyuki Yamashita, Military Commission Appointed by Paragraph 24, Special Orders 110, Headquarters United States Army Forces Western Pacific, 1 Oct. 1945 [hereinafter Yamashita Commission].
134. Parks, supra note 50, at 30.
135. LAEL, supra note 87, at xi; REEL, supra note 43, at 8.
136. REEL, supra note 43, at 4; Parks, supra note 50, at 24.
137. Fenrick, supra note 76, at 113.
138. General Yamashita was a military professional. He was born in 1885 and had become a lieutenant general in 1937 after serving for thirty-one years in the Japanese Army. About the time the Japanese attacked Pearl Harbor, Yamashita was leading the 25th Army on an invasion of Malaya. Yamashita, despite being critically low on supplies and ammunition, was able to secure the surrender of a British force over twice the size of his own. He became known as the "Tiger of Malaya." See LAEL, supra note 87, at 6, 7.
139. Id.; Parks, supra note 50, at 22; Lippman, supra note 68, at 71; Bruce D. Landrum, The Yamashita War Crimes Trial: Command Responsibility Then and Now, 149 MIL. L. REV. 293 (1995).
140. Id.; Parks, supra note 50, at 22; Lippman, supra note 68, at 71; Bruce D. Landrum, The Yamashita War Crimes Trial: Command Responsibility Then and Now, 149 MIL. L. REV. 293 (1995).
141. Landrum, supra note 95, at 293 (citing LAEL, supra note 87, at 8).
142. Parks, supra note 33, at 22; Landrum, supra note 95, at 295.
143. LAEL, supra note 87, at 37.
144. Id.
145. The crimes committed by troops under Yamashita's command were divided
146. reprinted in COURTNEY WHITNEY, THE CASE OF GENERAL YAMASHITA: A MEMORANDUM 60, 69 (1959)).
147. In Manila: Eight thousand residents were killed and over seven thousand were mistreated, maimed and wounded without cause of trial. Hundreds of females were beaten and raped, their breasts and genitals abused and mutilated. The military Commission concluded that the Filipino people, including thousands of women and children, were tortured, starved, beaten, bayoneted, clubbed, hanged, burned alive and subjected to mass executions rarely rivaled in history, more than 30,000 deaths being revealed by the record. Prisoners of war and civilian internees suffered systematic starvation, torture, withholding of medical and hospital facilities and execution in disregard of the rules of international law. . . . [There] were systematic. . . [executions] with indescribable bestiality of little girls and boys only months or even days old . . . . Id. at 72-73.
148. Lippman, supra note 69, at 72; Landrum, supra note 95, at 296; Green, supra note 18, at 336; Parks, supra note 50, at 24; UNITED NATIONS WAR CRIMES COMMISSION, supra note 84, at 23-29.
149. UNITED NATIONS WAR CRIMES COMMISSION, supra note 84, at 30, 34-35.
150. Parks, supra note 50, at n.89. Parks points out: General Yamashita's headquarters were at Fort McKinley until December 23, 1944 where four hundred disabled American prisoners of war were held from October 31, 1944 until January 15, 1945. The prisoners were crowded into one building, furnished no beds or covers and kept within the enclosure of a fence extending thirty feet beyond each side of the building. Their two meals a day consisted of one canteen cup of boiled rice, mixed with greens; once a week the four hundred men were given twenty-five to thirty pounds of rotten meat, filled with maggots. Occasionally they would go a day or two without water and at times were reduced to eating grass and sticks they dug in the yard. These conditions within walking distance of General Yamashita's headquarters. . . . Id.
151. Id. at 27; Landrum, supra note 95, at 297.
152. Parks, supra note 50, at 27.
153. FRIEDMAN, supra note 43, at 1596 (quoting Yamashita Commission, supra note 89; UNITED NATIONS WAR CRIMES COMMISSION, supra note 84, at 34-35).
154. In re Yamashita, 327 U.S. 1 (1946). The fact that the Supreme Court reviewed the application of the doctrine of command responsibility as applied by the military commission in the trial of General Yamashita, gives great precedential value to both the Court gives great precedential value to both the Court decision and the trial conducted by the commission. Although the Yamashita trial is controversial, it is the only command responsibility case to have been reviewed by the Supreme Court. It also stands for the proposition that military commissions are competent to try soldiers in war for command responsibility based violations.
155. Id. at 14-15. The court wrote: "[W]e conclude that the allegations of the charge, tested by any reasonable standard, adequately allege a violation of the law of war and that the Commission had authority to try and decide the issue which it raised." Id.
156. Id. at 16.
157. Landrum, supra note 95, at 296-98.
158. Wu & Kang, supra note 44, at 275.
159. REEL, supra note 43; see also Parks, supra note 33, at 74. Although Parks strenuously disagrees that Yamashita was held to a strict liability standard, he addresses the arguments made by those that assert that General Yamashita was strictly liable.
160. Parks, supra note 33, at 74.
161. For example, distinguished jurists from eleven countries sat on the International Tribunal for the Far East in Tokyo. Twenty-eight of the former leaders of Japan were charged with various war crimes, many related to command responsibility. Some have suggested that the opinions from these trials are more carefully worded than Yamashita. There were a number of trials in Europe involving lesser commanders as well. See generally Parks, supra note 50, at 64-73; Lippmann, supra note 69, at 85-86.
162. Parks, supra note 50, at 64; Wu & Kang, supra note 44, at 275.
163. Fenrick, supra note 76, at 113 n.31 ; Parks, supra note 50, at 38-39; Green, supra note 18, at 333; German High Command Case, supra note 49, at 73-74. With regard to passing on illegal orders, the Tribunal wrote: Many of the defendants here were field commanders and were charged with heavy responsibilities in active combat. Their legal facilities were limited. They were soldiers - not lawyers. Military commanders in the field with far reaching military responsibilities cannot be charged under international law with criminal participation in issuing orders which are not obviously criminal or which they are not shown to have known to be criminal under international law. Id.
164. German High Command Case, supra note 49, at 73-74. The Tribunal also considered the duties of a commander in managing occupied territory: Concerning the responsibility of a field commander for crimes committed within the area of his command, particularly as against the civilian population, it is urged by the prosecution that under the Hague Convention, a military commander of an occupied territory is per se responsible within the area of his occupation . . . We are of the opinion, however, as above pointed out in other aspects of this case, that the occupying commander must have knowledge of these offenses and acquiesce or participate or criminally neglect to interfere in their commission and that the offenses committed must be patently criminal. Id. at 76-77 (emphasis added).
165. See generally German High Command Case, supra note 49, at 73-77; Wu & Kang, supra note 44, at 285 (citing United States v. Jewell, 532 F.2d 697 (9th Cir. 1976)).
166. UNITED NATIONS WAR CRIMES COMMISSION, VIII LAW REPORTS OF TRIALS OF WAR CRIMINALS 34 (1948); XI TRIALS OF WAR CRIMINALS BEFORE THE NUERNBERG MILITARY TRIBUNALS UNDER CONTROL COUNCIL No. 10, 757 (1950) [hereinafter Hostage Case].
167. UNITED NATIONS WAR CRIMES COMMISSION, VIII LAW REPORTS OF TRIALS OF WAR CRIMINALS 34 (1948); XI TRIALS OF WAR CRIMINALS BEFORE THE NUERNBERG MILITARY TRIBUNALS UNDER CONTROL COUNCIL No. 10, 757 (1950) [hereinafter Hostage Case].
168. Parks, supra note 50, at 63.
169. Id.; Hostage Case, supra note 119, at 1259-60. With regard to command responsibility and the knowledge required, the Tribunal wrote: We have been confronted repeatedly with contentions that reports and orders sent to the defendants did not come to their attention . . . . We desire to point out that the German Wehrmacht was a well equipped, well trained and well disciplined army. . . . The evidence shows . . . that they were led by competent commanders who had mail, telegraph, telephone, radio, and courier service for the handling of communications. Reports were made daily, sometimes morning and evening . . . Any army commander will not ordinarily be permitted to deny knowledge of reports received at his headquarters, they being sent there for his special benefit. Neither will he ordinarily be permitted to deny knowledge of happenings within the area of his command while he is present therein. 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 war-time . . . . Id. General List, one of the accuseds, asserted that he was gone during the time of many of these reports came in. The Tribunal responded: Want of knowledge of the contents of reports made to him is not a defense. Reports to commanding generals are made to 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. . . . The reports made to . . . List . . . charge him with notice of the unlawful killing of thousands of innocent people. . . . His failure to terminate these unlawful killings and to take adequate steps to prevent their recurrence constitutes a serious breach of duty and imposes criminal responsibility. Id. at 1271-72.
170. Id. This is the standard adopted in Protocol I, supra note 27, art. 86(2).
171. Green, supra note 18, at 341.
172. U.S. DEP'T OF ARMY, FIELD MANUAL 27-10, THE LAW OF LAND WARFARE, para. 501 (July 1956) [hereinafter FM 27-10].
173. Id. Although the manual has been in publication since 1956, with Change No. 1 in 1976, it is still current Army doctrine. Note the sentence discussing massacres does so in the context of occupation or prisoners of war. Virtually all of the command responsibility cases following World War II dealt with occupation or cases involving the custody of prisoners of war. Although, for example, the treatment of civilians by U.S. Army forces in My Lai in Vietnam could be characterized as a massacre of civilians, it did not occur during an occupation and may therefore be outside the scope of this paragraph. This apparent limitation to situations involving prisoners of war or occupation may be based on the definition of "grave breach" of one of the Geneva Conventions. As correctly noted in paragraph 502 of FM 27-10, to have a grave breach, the victim must be a protected person under one of the four Geneva Conventions. Id. para. 179 (citing Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in the Field, Aug. 12, 1949, art. 50, 6 U.S.T. 3114, 75 U.N.T.S. 31 [hereinafter GWS]; Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea, Aug. 12, 1949, art. 51, 6 U.S.T. 3217, 75 U.N.T.S. 85 [hereinafter GWSS]; GPW, supra note 27, art. 130; Geneva Convention Relative to the Protection of Civilians in Time of War, Aug. 12, 1949, art. 147, 6 U.S.T. 3516, 75 U.N.T.S. 287 [hereinafter GC]). Civilians are "protected persons" if they are in the "hands of a Party to the conflict or Occupying Power of which they are not nationals. . . . Nationals of a neutral State . . . . and nationals of a co-belligerent State shall not be regarded as protected persons. . . ." GC, supra, art. 4. Certainly the slaughter of innocent Vietnamese at My Lai was a war crime, but not a grave breach as defined above. The Vietnamese were civilians belonging to a co-belligerent, and thus not "protected." Id. Perhaps, therefore, the drafters of FM 27-10 were trying to limit holding commanders liable for crimes committed by subordinates to cases the underlying war crimes committed by the subordinates were grave breaches of the Geneva Conventions.
174. Kenneth A. Howard, Command Responsibility for War Crimes, 21 J. PUB. L. 7, 16 (1972); Roger S. Clark, Medina: An Essay on the Principles of Criminally Liability for Homicide, 5 RUT-CAM. L.J. 59, 71 (1973).
175. Kenneth A. Howard, Command Responsibility for War Crimes, 21 J. PUB. L. 7, 16 (1972); Roger S. Clark, Medina: An Essay on the Principles of Criminally Liability for Homicide, 5 RUT-CAM. L.J. 59, 71 (1973).
176. FM 27-10, supra note 124, para. 1, states: The purpose of this Manual is to provide authoritative guidance to military personnel on the customary and treaty law applicable to the conduct of warfare . . . . This Manual is an official publication of the United States Army. However, those provisions of the Manual which are neither statutes nor the text of treaties to which the United States is a party should not be considered binding upon courts and tribunals applying the law of war. However, such provisions are of evidentiary value insofar as they bear upon questions of custom and practice.
177. Id.
178. Id.
179. Landrum, supra note 95, at 299; see generally Eckhardt, supra note 45, at 12-13; Addicot & Hudson, supra note 37, at 156-60; MARY MCCARTHY, MEDINA (1972).
180. LT. GEN. W.R. PEERS (USA RET.), THE MY LAI INQUIRY 24, 165 (1979). Lieutenant General Peers headed the "Peers Commission," the official Army investigation into the incident and the actions or lack thereof that followed. See generally U.S. DEP'T OF ARMY, REPORT OF THE DEPARTMENT OF ARMY, REVIEW OF THE PRELIMINARY INVESTIGATIONS INTO THE MY LAI INCIDENT (Mar. 14, 1970) (copy maintained at The Judge Advocate General's School, U.S. Army, Charlottesville, Va.). The Peers Commission report consists of four volumes and contains over 20,000 pages of interviews and other documents. It is over six feet thick.
181. LT. GEN. W.R. PEERS (USA RET.), THE MY LAI INQUIRY 24, 165 (1979). Lieutenant General Peers headed the "Peers Commission," the official Army investigation into the incident and the actions or lack thereof that followed. See generally U.S. DEP'T OF ARMY, REPORT OF THE DEPARTMENT OF ARMY, REVIEW OF THE PRELIMINARY INVESTIGATIONS INTO THE MY LAI INCIDENT (Mar. 14, 1970) (copy maintained at The Judge Advocate General's School, U.S. Army, Charlottesville, Va.). The Peers Commission report consists of four volumes and contains over 20,000 pages of interviews and other documents. It is over six feet thick.
182. PEERS, supra note 130, at 166.
183. Id.
184. Id. at 37.
185. Id.
186. Id.
187. Id.
188. Id.
189. Id. at 167.
190. Id.
191. Id.
192. Id. at 169.
193. Id. at 170.
194. Id.
195. Id. See generally RICHARD HAMMER, THE COURT-MARTIAL OF LT. CALLEY (1971) (providing more detail on Lieutenant Calley's participation and subsequent court-martial).
196. PEERS, supra note 130, at 172. One helicopter did report they were receiving fire from the area of the LZ.
197. Id. at 172-75.
198. Id. at 175.
199. Id.
200. Id. at 178.
201. Id.
202. Id. at 179.
203. Id. at 180.
204. Id. at 180, 295.
205. Id. at 221, 222, 227. It is possible that others may have been charged. However, some participants in the operation had been killed in action after the incident, and others had been discharged from the military. See generally id.; WAR CRIMES ACT OF 1996: REPORT ON H.R. 3680, COMMITTEE ON THE JUDICIARY, 104th Cong. 2nd Sess. (July 24, 1996), H.R. 104-698, 104 HR 698, sec. IIC [hereinafter JUDICIARY COMMITTEE REPORT].
206. PEERS, supra note 130, at 227. Lieutenant General Peers was often asked if he thought that Lieutenant Calley was a "scapegoat." He writes: On the one hand, I think it most unfortunate that, of the twenty-five men who were charged with committing war crimes or related acts, he was the only one tried by a court martial and found guilty. On the other hand, I think he was fortunate to get out of it with his life. He was in command of his platoon and was fully aware of what they were doing. Above and beyond that, he personally participated in the killing of noncombatants: he was convicted of killing at least twenty-two civilians but his platoon may have killed as many as 150 to 200 innocent women, children and old men. So I don't consider him a scapegoat. On the contrary, I think the publicity given him by the news media and the notoriety he has gained are all wrong. He is certainly no hero as far as I am concerned. Id. at 227-28.
207. Id. at xi-xii.
208. United States v. Medina, C.M. 427162 (1971).
209. Id.
210. Id.
211. Id.
212. Id.; Clark, supra note 125, at 67; Howard, supra note 125, at 8 (the author of this article was the military judge in the Medina court-martial).
213. Eckhardt, supra note 45.
214. United States v. Medina, C.M. 427162 (1971), reprinted in Howard, supra note 125, at 8-12. The prosecutor in Medina opined that Judge Howard's summary of the facts quoted in the instructions were both "accurate and concise." Eckhardt, supra note 45, at n.49.
215. FM 27-10, supra note 124, para. 507. The paragraph reads in part: 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 within the United States that code. . . . Id. The Manual for Courts-Martial further explains that "[o]rdinarily persons subject to the code should be charged with a specific violation of the code rather than a violation of the law of war." MANUAL FOR COURTS-MARTIAL, UNITED STATES, R.C.M. 307(c)(2), discussion [hereinafter MCM].
216. Howard, supra note 125, at 15.
217. Id. The relevant edition of the UCMJ during the Medina court-martial was the 1969 MANUAL FOR COURTS-MARTIAL, UNITED STATES app.2 (1969) [hereinafter 1969 MANUAL). However, Article 77 itself has not changed since the Medina trial. The phrase, "this chapter," in UCMJ, Article 77 is referring to chapter 47 of Title 10, Armed Forces, of the United States Code. The punitive articles of the UCMJ, including Article 77, Principals; Article 118, Murder; which Captain Medina was originally charged with, and Article 119(b), Manslaughter; the charge that actually went to the jury are all codified in the United States Code, Chapter 47 of Title 10. See 10 U.S.C. §§ 877-934. Article 77 is actually very similar to the statutes used in the World War II tribunals for determining who could be personally responsible for criminal activity. As has been discussed, the "knew or should have known" standard came into being despite the World War II statutes that on their face seem to require actual knowledge. See generally discussion supra notes 79-85 and accompanying text.
218. 1969 MANUAL, supra note 166, at 28-4, 28-5.
219. UCMJ art. 77 (LEXIS 2000).
220. Id.
221. Id.
222. Id.
223. Howard, supra note 125, at 17-21.
224. Id. at 22.
225. See generally Clark, supra note 125.
226. Id. at 74.
227. UCMJ art. 119(b) (LEXIS 2000).
228. See generally Clark, supra note 125.
229. See generally Eckhardt, supra note 45.
230. See generally Clark, supra note 125.
231. (continued) United States federal courts have determined the status of customary international law following a similar set of factors. In Filartiga v. Pena-Irala, the United States Court of Appeals wrote: The Supreme Court has enumerated the appropriate sources of international law. The law of nations "may be ascertained by consulting the works of jurists, writing professedly on public law; or by the general usage and practice of nations; or by judicial decisions recognizing and enforcing that law." The Paquete Habana reaffirmed that where there is no treaty, and no controlling or legislative act or judicial decision, resort must be had to the custom and usages of civilized nations; and as evidence of these works of jurists and commentators, who by years of labor, research and experience, have made themselves peculiarly well aquatinted with the subjects of which they treat. Such works are resorted to by judicial tribunals, not for the speculations of their authors concerning what the law ought to be, but trustworthy of evidence of what the law really is. Filartiga v. Pena-Irala, 630 F.2d 876, 880-81 (2d Cir. 1980) (citations omitted).
232. FM 27-10, supra note 124, para. 501.
233. Id. para. 1.
234. Id.; ICJ Statute, supra note 181.
235. Eckhardt, supra note 45, at 16.
236. Protocol I, supra note 27, art. 86.
237. Id. art. 86(1).
238. Id. art. 86(2); Parks, supra note 33, at 76.
239. Protocol I, supra note 27, art. 86(2). The "had information" requirement is reflective of the standard applied in the Hostage Case. See discussion supra note 121. In analyzing this provision, the Official Commentary states: This provision, which should be read in conjunction with paragraph I and Article 87 (Duty of Commanders), which lays down the duties of commanders, raises a number of difficult questions. The strongest objection which could be raised against this provision perhaps consists in the difficulty of establishing intent (mens rea) in case of a failure to act, particularly in the case of negligence. For that matter, this last point gave rise to some controversy during the discussions in the Diplomatic Conference, particularly due to the fact that the Conventions do not contain any provision qualifying negligent conduct as criminal. However, one delegate, referring to the concept expressly reflected in the English version (which was not included in the French text, curiously enough, namely, information which "should have" enabled them to conclude that a subordinate was committing or was going to commit a breach, remarked that this was undoubtedly a case of responsibility incurred by negligence, and that it was important to make this clear. However, this does not mean that every case of negligence may be criminal. For this to be so, the negligence must be so serious that it is tantamount to malicious intent, apart from any link between the conduct in question and the damage that took place. . . . COMMENTARY ON THE ADDITIONAL PROTOCOLS OF 8 JUNE 1977 TO THE GENEVA CONVENTIONS OF 1949 1011, 1012 (S. Pictet et al. eds., 1958) [hereinafter OFFICIAL COMMENTARY PROTOCOLS] (citations omitted).
240. Protocol I, supra note 27, art. 86(2). The "had information" requirement is reflective of the standard applied in the Hostage Case. See discussion supra note 121. In analyzing this provision, the Official Commentary states: This provision, which should be read in conjunction with paragraph I and Article 87 (Duty of Commanders), which lays down the duties of commanders, raises a number of difficult questions. The strongest objection which could be raised against this provision perhaps consists in the difficulty of establishing intent (mens rea) in case of a failure to act, particularly in the case of negligence. For that matter, this last point gave rise to some controversy during the discussions in the Diplomatic Conference, particularly due to the fact that the Conventions do not contain any provision qualifying negligent conduct as criminal. However, one delegate, referring to the concept expressly reflected in the English version (which was not included in the French text, curiously enough, namely, information which "should have" enabled them to conclude that a subordinate was committing or was going to commit a breach, remarked that this was undoubtedly a case of responsibility incurred by negligence, and that it was important to make this clear. However, this does not mean that every case of negligence may be criminal. For this to be so, the negligence must be so serious that it is tantamount to malicious intent, apart from any link between the conduct in question and the damage that took place. . . . COMMENTARY ON THE ADDITIONAL PROTOCOLS OF 8 JUNE 1977 TO THE GENEVA CONVENTIONS OF 1949 1011, 1012 (S. Pictet et al. eds., 1958) [hereinafter OFFICIAL COMMENTARY PROTOCOLS] (citations omitted).
241. Protocol I, supra note 27, art. 87.
242. Id. art. 87(1).
243. Id. art. 87(2).
244. Id. art. 87(3).
245. The Official Commentary explains: In the first place, it should be noted that there is a significant discrepancy between the English version, "information which should have enabled them to conclude," and the French version, "des informations leur permettant de conclue," which means "information enabling them to conclude." In such a case the rule is to adopt the meaning which best reconciles the divergent texts, having regard to the object and purpose of the treaty, and therefore the French version should be given priority since it covers both cases. . . OFFICIAL COMMENTARY PROTOCOLS, supra note, at 1013-14.
246. Id. at 1014.
247. DRAFT, ADDITIONAL PROTOCOLS TO THE GENEVA CONVENTIONS OF 12 AUGUST 1949, ICRC OFFICIAL RECORDS, vol. 1, pt. 3, at 25.
248. Id.; Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, I/306 vol. III, at 328 (1974-77); OFFICIAL COMMENTARY PROTOCOL, supra note 184, at 1013.
249. Id.; Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, I/306 vol. III, at 328 (1974-77); OFFICIAL COMMENTARY PROTOCOL, supra note 184, at 1013.
250. Id.; Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, I/306 vol. III, at 328 (1974-77); OFFICIAL COMMENTARY PROTOCOL, supra note 184, at 1013.
251. Eckhardt, supra note 45, at 18.
252. Protocol II, supra note 28, art. 1(1): This Protocol, which develops and supplements Article 3 common to the Geneva Conventions of 12 August 1949 without modifying its existing conditions of application, shall apply to all armed conflicts which are not covered by Article 1 of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I) and which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol.
253. Id.
254. Duncan B. Hollis, Accountability In Chechnya - Addressing Internal Matters With Legal and Political International Norms, 36 B.C. L. REV. 793, 794 (1995).
255. U.N. CHARTER art. 2, para. 7.
256. ICTR Statute, supra note 204.
257. Id.
258. Id. art. 6(3).
259. Rome Statute of the International Criminal Court, as corrected by the proc'es-verbaux of 10 November 1998 and 12 July 1999, UN DOC. A/CONF. 183/2/Add. 1 (1998) [hereinafter ICC Statute]. As of 14 March 2000, 95 countries have signed the treaty and 7 nations have ratified it. See Rome Statute of the International Criminal Court, Ratification Status (14 Mar. 2000) (visited Mar. 14, 2000) 〈http://www.un./org/law/icc/statute/status.htm〉.
260. ICC Statute, supra note 214, art. 8.
261. Id. arts. 6, 7. For crimes against humanity however, the abuses must be widespread and systematic or ICC jurisdiction will not attach.
262. Id. art. 28.
263. Id. art. 28.
264. Id. There is no distinction, in terms of a standard, to be drawn between military commanders and civilian supervisors in the International Criminal Tribunal for the Former Yugoslavia. ICTY Statute, supra note 203, art. 7(3).
265. ICTY Statute, supra note 203, art. 7(3).
266. United States v. Medina, C.M. 427162 (1971). Because this was a trial court case that resulted in an acquital, it can hardly be seen as binding precedent in United States court-martial practice.
267. The Nereide, 13 U.S. (9 Cranch) 388 (1815).
268. U.S. CONST. VI, cl. 2.
269. Id. art. II, § 2, cl. 2.
270. See generally Lewis Henkin, International Law as Law in the United States, 82 MICH. L. REV. 1555 (1984). Professor Henkin asserts: 226. (continued) Much is made also of the fact that, unlike treaties, customary law is not mentioned expressly in the Supremacy Clause or in the constitutional listing of U.S. law in article III. I do not consider that omission significant for our purposes. The Supremacy Clause was addressed to the states, and was designed to assure federal supremacy. The federal law whose binding quality was mentioned in the Supremacy Clause included the Constitution and the laws and treaties made under the authority of the United States - acts taken under the authority of the new United States Government, authority which had to be impressed on the states and state courts. The law of nations of the time was not seen as something imposed on the states by the new U.S. government; it had been binding on and accepted by the states before the U.S. government was even established. It was "supreme" over federal as well as state laws, and binding on federal as well as state courts. There was no fear that the states would flout it, and therefore no need to stress its supremacy. Id. at 1565-66.
271. 11 Op. Att'y Gen. 297, 299 (1865) (citation omitted). In this opinion, the Attorney General of the United States opined that a military commission could be used to try persons charged with the offense of having assassinated President Abraham Lincoln.
272. Id.; U.S. CONST. art. I, § 8, cl. 10.
273. 11 Op. Att'y Gen. 297, 299 (1865).
274. United States v. Yunis, 924 F.2d 1086, 1091 (D.C. Cir. 1991); Committee of U.S. Citizens Living in Nicaragua v. Reagan, 859 F.2d 929, 939 (D.C. Cir. 1988); Jack M. Goldklang, Back on Board The Paquete Habana: Resolving the Conflict Between Statutes and Customary International Law, 25 VA. J. INT'L L. 143 (1984).
275. United States v. Yunis, 924 F.2d 1086, 1091 (D.C. Cir. 1991); Committee of U.S. Citizens Living in Nicaragua v. Reagan, 859 F.2d 929, 939 (D.C. Cir. 1988); Jack M. Goldklang, Back on Board The Paquete Habana: Resolving the Conflict Between Statutes and Customary International Law, 25 VA. J. INT'L L. 143 (1984).
276. United States v. Yunis, 924 F.2d 1086, 1091 (D.C. Cir. 1991); Committee of U.S. Citizens Living in Nicaragua v. Reagan, 859 F.2d 929, 939 (D.C. Cir. 1988); Jack M. Goldklang, Back on Board The Paquete Habana: Resolving the Conflict Between Statutes and Customary International Law, 25 VA. J. INT'L L. 143 (1984).
277. FM 27-10, supra note 124, para. 511. This provision warns readers that "[t]he fact that domestic law does not impose a penalty for an act which constitutes a crime under international law does not relieve the person who committed the act from responsibility under international law." Id.
278. FM 27-10, supra note 124, para 507(b). MCM, supra note 164, R.C.M. § 307.
279. U.S. CONST. art. 1, § 8, cl. 14.
280. Compare 10 U.S.C. §§ 801-946 with UCMJ arts. 1-146.
281. FM 27-10, supra note 124, para. 507(b). It is perhaps beneficial from a policy standpoint for the military to try those that violate the law of war as common criminals rather than war criminals which may trigger a host of international legal requirements based on United States treaty obligations; for example, the Geneva Conventions requirement to prosecute or extradite those that commit Grave Breaches of the Conventions. GWS, supra note 124, art. 49; GWSS, supra note 124, art. 50; GPW, supra note 27, art. 129; GC, supra note 124, art. 146. Moreover, asserting that domestic jurisdiction exists to cover alleged violations of the law of war may prevent jurisdiction from being asserted by another country or an international tribunal.
282. ICC Statute, supra note 214, art. 28.
283. See supra notes 196-197 and accompanying text.
284. Such a limitation could be very difficult in terms of defining what an armed conflict would be for the purposes of such a statute. For example, DOD DIR. 5100.77, supra note 46, para. 5.1, 5.3 requires, "The heads of the DOD Components shall: Ensure that the members of their Components comply with the law of war during all conflicts, however such conflicts are characterized, and with the principles and spirit of the law of war during all other operations." CJCS INST. 5801.01A, supra note 45, para. 5A states: "The Armed Forces of the United States will comply with the law of war during all armed conflicts however such conflicts are characterized and unless otherwise directed by competent authorities, will comply with the principles and spirit of the law of war during all other operations . . . ." Although both of these policies require that the law of war be applied in all armed conflicts, neither policy attempts to define "armed conflict." Further, these policies do not create criminal liability in and of themselves. Even Common Article 3 of the Geneva Convention of 1949 specifically deals with armed conflicts of a non-international nature. However, the article does not define the term "armed conflict." Where common crime ends and internal armed conflicts begin is not clear looking solely to Common Article 3. See GWS, supra note 124, art. 3; GWSS, supra note 124, art. 3; GPW, supra note 27, art. 3; GC, supra note 124, art. 3.
285. Wu & Kang, supra note 44, at 288-89.
286. UCMJ art. 18 (LEXIS 2000).
287. Sections 801 through 946 of Title 10 are reprinted as Articles 1 through 146 of the UCMJ and reprinted in the Manual for Courts-Martial.
288. UCMJ art. 2. The issue of personal jurisdiction over civilians si beyond the scope of this paper. This paper focuses on substantive criminal jurisdiction for uniformed commanders. Members of the uniformed armed forces are clearly within the jurisdiction of such a court, as are uniformed mbembers of the enemy captured as prisoners of war. Id. With regard to United States civilians who are subject to UCMJ jurisdiction in certain cases, the U.S. Supreme Court has decided a series of cases, based on constitutional grounds, which suggest a civilian cannot be tried by a courts-martial for violations of domestic law during conflicts short of war. See generally McElroy v. Guagliardo, Wilson v. Bohlender, 361 U.S. 281 (1960); Grisham v. Hagen, 361 U.S. 278 (1960); Kinsella v. Singleton, 361 U.S. 234 (1960); Reid v. Covert, 345 U.S. 1 (1957); Toth v. Quarles, 350 U.S. 11 (1955). In 1970, the U.S. Court of Military Appeals, now referred to as the Court of Appeals for the Armed Forces, examined the issue of courts-martial jurisdiction over civilians based on the language of the UCMJ itself. United States v. Averette, 41 C.M.R. 363 (C.M.A. 1970). The court noted: "The concept of military jurisdiction over specified classes of civilians in time of peace and war was continued in the enactment of Article 2(10) and (11) of the Uniform Code of Military Justice." Id. The court explained that Article 2(10) jurisdiction over civilians existed according to the statute "in time of war." Id. The court concluded that "in time of war" means "a war formally declared by Congress." Id. at 365. The court further explained: We do not presume to express an opinion on whether Congress may constitutionally provide for court-martial jurisdiction over civilians in time of a declared war when these civilians are accompanying the armed forces in the field. Our holding is limited - for a civilian to be triable by court-martial in "time of war," Article 2(10) means a war formally declared by Congress. Id. This case however does not decide whether a civilian could be tried in a court-martial for violations of the law of war rather than the punitive articles in conflicts short of declared war. The limitations of Article 2(10) only apply when the jurisdiction of the court is based on the punitive articles of the UCMJ. See generally supra notes 241, infra notes 249-263 accompanying text When the court-martial jurisdiction is based on the law of war jurisdiction, the jurisdiction of the court is identical to military tribunals that have the authority to try civilians. Of course, the constitutionality of trying U.S. citizens at court-martial is another issue altogether. It appears that U.S. citizens may not be tried in courts-martial during peacetime for violations of domestic law. Averette 41 C.M.R. at 363; Kinsella, 361 U.S. at 234; McElroy, 361 U.S. at 281; Wilson, 361 U.S. at 281; Grisham 361 U.S. at 278; Reid, 345 U.S. at 1; Toth, 350 U.S. at 11.
289. UCMJ art. 77-134.
290. UCMJ art. 18.
291. MCM, supra note 164, R.C.M. art. 201(f).
292. Quirin, 317 U.S. at at 24 (citing WINTHROP, MILITARY LAW AND PRECEDENTS 831-41 (1920)).
293. Johnson, 339 U.S. at 786 (quoting Duncan, 327 U.S. at 312-14 (citing Quirin, 317 U.S. at 1; Yamashita, 327 U.S. at 1)).
294. Quirin, 317 U.S. at 25.
295. UCMJ art. 2(a)(1).
296. Martins, supra note 249, at 40 (citing UCMJ art. 18).
297. 11 Op. Att'y Gen. 297, 304 (1865).
298. The law of war is oftentimes referred to in recent times as international humanitarian law. The ICRC defined the law of war as: [T]he expression of international humanitarian law applicable in armed conflict means international rules, established by treaties or custom, which are specifically intended to solve humanitarian problems directly arising from international or non-international armed conflicts and which, for humanitarian reasons, limit the right of Parties to a conflict to use the methods and means of warfare of their choice or protect persons and property that are, or may be, affected by conflict. OFFICIAL COMMENTARY PROTOCOLS, supra note 186, at xxvii.
299. Quirin, 317 U.S. at 12.
300. 11 Op. Att'y Gen. 297, 299-300 (1865).
301. In re Yamashita, 327 U.S. 1, 30 (1946).
302. UCMJ arts. 77-134 (LEXIS 2000).
303. Id. arts. 18, 21. Congress has the specific constitutional authority to define the law of nations. U.S. CONST. art. I, § 8, cl. 10.
304. Quirin, 317 U.S. at at 29 (citations omitted).
305. Yamashita, 327 U.S. at 12, 13.
306. FM 27-10, supra note 124, para. 4.
307. Id. para. 6.
308. RESTATEMENT THIRD, THE FOREIGN RELATIONS LAW OF THE UNITED STATES, § 404 (1987).
309. FM 27-10, supra note 124, para. 498.
310. Id. para. 499.
311. Id. paras. 502, 504.
312. ICTY Statute, supra note 203, commentary, para. 34, 32 I.L.M. at 1170. The Charter referred to by the Secretary General is commonly referred to as the London Charter. See London Charter, supra note 77. The London Charter defined the crimes that would be heard by the Nuremberg Tribunal, which included: Crimes Against Peace; Crimes Against Humanity, which was "murder, extermination, enslavement, deportation, before or after the war, or persecution on political, racial or religious grounds"; and War Crimes, which included "murder, 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." Id. art. 6, at 286-88. Although not mentioned by the Secretary General, and although the United States is not a party to either treaty, many provisions of the 1977 Additional Protocols I and II to the Geneva Conventions of 1949 have risen to the level of customary international law and therefore part of the law of war. THEODOR MERON, HUMAN RIGHTS AND HUMANITARIAN NORMS AS CUSTOMARY LAW 62-70, 75-78 (1989).
313. ICTY Statute, supra note 203, arts. 2-5. Of course, like the London Charter, each of the categories of crime is further defined in the statute.
314. ICTR Statute, supra note 204, arts. 2-4. The Violations of Article 3 common to the Geneva Convention basis for prosecution will be discussed infra notes 303-343 and accompanying text.
315. ICC Statute, supra note 214, art. 5. Of significant interest is that war crimes are defined in Article 8. The article further allows for some offenses to be charged in both international and internal armed conflicts, while permitting some offenses to be charged only in international conflicts. Id. art. 8.
316. UCMJ art. 18 (LEXIS 2000).
317. In re Yamashita, 327 U.S. 1, 14-15 (1946).
318. Id.
319. Id.
320. Id. at 16.
321. Id.
322. UCMJ art. 18 (LEXIS 2000).
323. With the exception of Article 3, common to the Geneva Conventions of 1949, the Conventions only apply to "cases of declared war or any any armed conflict