III. THE STANDARD DEFINED
Acceptance of command clearly
imposes upon the commander a duty to supervise and control the
conduct of his subordinates in accordance with existing principles of the
law of war. Equally clear, a commander who orders or directs the
commission of war crimes shares the guilt of the actual perpetrators of
the offense. This is true whether the order originates with that commander
or is an order patently illegal passed from a higher command through the
accused commander to his subordinates. Only the genre of
culpability may distinguish the commander from those members of his
command accused of committing the war crimes for which he is charged.
A.
INCITEMENT
No less clear is the
responsibility of the commander who incites others to act, although there
may be extremes in examples in such a case. In the Essen Lynching case,
by ordering his men before an angry crowd not to interfere if the crowd
attempted to mistreat prisoners in their custody, Captain Heyer knowingly
incited (a) an abandonment of responsibility by his subordinates and (b)
perpetration of the main offense by persons not members of his command,
resulting in the deaths of the prisoners. Would his incitement (and
responsibility) be as clear had it been shown that (rather than the events
occurring as they did) these same soldiers, while never receiving an order
from Captain Heyer to neglect their responsibilities, nevertheless had
heard him say that “the only good prisoner is a dead one,” or refer to the
enemy through racial epithets imputing to the enemy a less than human
quality or status? Black’s Law Dictionary defines “incite” as : “to
arouse; urge; provoke; encourage; spur on; goad;
stir up; instigate; set in motion.”
Webster’s
defines “incite” as “to move to a courseof action; stir up; spur on; urge
on.”
Certainly it would depend on the circumstances of the remark, the
recipient, and whether the perpetrator of the offense charged to have
occurred as a result of the alleged incitement was the intended recipient.
The passing remark by the twenty-four year old company commander to his
twenty-three year old executive officer over a drink certainly would not
have the same effect as if that same company commander were briefing his
troop for a combat assault-troops eighteen years old who have been trained
to respect and obey every word uttered by their company commander. While
the qualification, “unless illegal” should be added to the last sentence,
this does not take into account the impressionability of the young
soldier. Even where a commander’s comments are in jest and intended as
casual remarks for the ears of the executive officer or the company first
sergeant, such remarks, particularly where repeated with some frequency,
could lead to questions of incitement where overheard by the “casual
private first class” who then carries them back to the barracks. Here the
incitement abandons the normal image of an explosive, motivating harangue
for the subtle suggestion of toleration of certain offenses. While it
would be most difficult to attach criminal responsibility to such casual
remarks overheard by the unintended eavesdropper, the impact on the
subconscious of the young eavesdropper who subsequently finds himself in
custody of a “mere ------” on a lonely trail cannot be under-estimated.
While it is most unlikely that criminal responsibility would attach for
such a casual remark or remarks, it is nevertheless asserted - for moral
and military mission reasons, if not legal
- that the commander’s responsibility lies or should lie in affirmatively
manifesting an intolerance for illegal acts under any and all
circumstances; and that the dividing line between moral and legal
responsibility as it relates to incitement of others to act is a fine one.
This dividing line could move depending on the tactical situation of the
commander and his command ; the casual remarks of the commander of a
maintenance unit in a conventional war would seem to have less impact than
those of an infantry company commander in a counterinsurgency environment.
Even when remarks which incite violate a legal responsibility, the degree
of culpability may vary. Captain Heyer was found to be a principal for his
remarks and as a result received a death sentence ; while his remarks were
not tantamount to orders, they were (a) given with the intent of inciting
and (b) with full knowledge of the probable consequences. The single or
even occasional castoff remark would not normally indicate the same intent
nor awareness of the possible circumstances, although it could amount to
personal dereliction on the part of a commander if shown that he should
have anticipated the probable consequences ;
and,
taken alone, would only under the rarest circumstances be sufficient to
find its speaker responsible, assuming a direct correlation between remark
and act could be made. Thus, the degree of criminal responsibility may
vary from the situation where the remarks of incitement are synonymous
with orders as opposed to the situation where such remarks are unintended
in the context received and erroneously perceived as a manifestation of
acquiescence on the part of the speaker. The degree of responsibility is
determinative of the degree of culpability, and is of particular
significance where the misconduct charged is alleged to constitute a
“grave breach’’ as that term is defined in the 1949 Geneva Conventions.
B.
ACQUIESCENCE
A commander who is shown to
have knowledge of offenses which have occurred within his command may be
found responsible to some degree for those offenses where he has
manifested acquiescence in their commission. Responsibility may vary from
that of a principal to dereliction of duty; the degree of culpability will
be correlative to the degree of acquiescence, or better said, to the
degree of manifestation of intent to join or assist the principals in
perpetration of the primary offense. There is little difficulty with the
situation where the commander takes no action, or where by his action he
clearly manifests an intent to aid the commission of the offense after the
fact; the difficulty lies in establishing a causal connection where
acquiescence is due to dereliction of duty rather than a manifestation of
specific intent. The commander is deemed to share responsibility where he
has knowledge of an offense and fails to take reasonable corrective
action. Assuming the principal offense and the commander’s knowledge
thereof are established, the commander would be responsible if (a) he took
no action, either intentionally or through personal dereliction; or (b)
the action taken is within the control of the commander and is patently
disproportionate to the offense committed as to result in acquiescence
therein.
Thus a commander would not be
responsible if an accused is referred to a general court-martial for
murder of a noncombatant and is either acquitted or receives what on its
surface appears to be a light sentence, unless there is established a
pattern of such trials which would indicate that they have been no more
than a sham or facade; but the commander who punishes the same accused
through nonjudicial punishment (given circumstances indicating guilt of
the offense charged) would be no less responsible than the one who awards
no punishment. Any such acquiescence must be blatant in character rather
than speculative “second guessing” after the fact.
Field Manual 27-10 fairly
states the commander’s duty relative to this point: “Commanding officers .
. . must insure that war crimes committed by members of their forces . . .
are promptly and adequately punished.”
While this represents a
statement of the commander’s duty, in seeking an answer to
any question of a commander’s acquiescence a reverse tack is
required. Current British military law states this point by considering a
commander to have acquiesced in an offense “if he fails to use the means
at his disposal to insure compliance with the law of war;”
in comment it continues:
The failure to do so raises the presumption - which for the sake of the
effectiveness of the law cannot be regarded as easily rebuttable - of
authorisation [sic], encouragement, connivance, acquiescence, or
subsequent ratification of the criminal acts.
Field Manual 27-10 similarly
provides that a commander may be responsible under a theory of
acquiescence “if he fails to take the necessary and reasonable steps to
insure compliance with the law of war or to punish violations thereof.”
Both the British “means at his
disposal” test and the “necessary and reasonable” language of FM 27-10
suggest that, rather than establishing an absolute norm, the actions
of the commander under the circumstances extant at the time of the
discovery of the offense will determine whether he is deemed to have
acquiesced in the offense.
To the commander whose forces are heavily engaged in an intense operation
or pitched battle, no reasonable means may exist to secure prompt
punishment of an offense prior to conclusion of that engagement ; absent
disengagement, there would come a point where some action must be taken
against an alleged perpetrator of an offense regardless of the
circumstances of the campaign, or where there has been sufficient
disengagement from the campaign for the commander to turn his attention to
matters other than tactics.
Put another way, the theory of prompt investigation, trial and punishment
will be more stringently applied to a commander in a static tactical
situation than one in a very fluid, fast-moving situation requiring
complete devotion to accomplishment of the mission at hand.’
C.
Command and Control
The post-World War II
tribunals concluded that responsibility for control of a unit
existed with command of that unit, for example, the commander had
the duty to control those troops and units subordinate to him in his
command. These tribunals found that identification with and responsibility
for certain units by particular commanders was not always clearly defined.
The tribunals in their
examination of this point in Yamashita,Von Leeb, and List
are in agreement that where a commander exercises executive power over
occupied territory, he is responsible for acts committed within his area
of responsibility regardless of whether a unit is subordinated to his
command or not, As the commander bearing executive power, he is
charged with responsibility for maintaining peace and order within the
area over which his executive authority extends, and the duty of crime
prevention rests upon him.
In List the Tribunal
deftly avoided the question of responsibility of the commander possessed
solely of tactical command, noting in such case that the “matter of
subordination of units as a basis for fixing criminal
responsibility becomes important.’’
No difficulty in ascertaining responsibility exists where the tactical
commander exercises both operational and administrative control; all
authority and responsibility is vested in the single command. The question
raised, but unanswered in List, addresses the splitting of
operational and administrative control – tactical control reposed in one
commander, with the authority to punish in another, as alleged in
Yamashita regarding the atrocities committed by naval troops in
Manila. Setting aside the responsibility of the tactical commander in whom
executive authority also was vested, to what degree can a commander be
said to be responsible for the acts of subordinate units over which he
exercises only operational control? The Supreme Court in Yamashita
discussed responsibility for failure of a commander to take such measures
as were within his power rather than his authority.
The Tribunal in Toyoda, all
professional military officers, did not view any such division of
authority as realistically giving rise to any control problems:
The responsibility for
discipline in the situation facing the battle commander cannot, in the
view of practical military men, be placed in any hands other than his own.
Whatever theoretical division of such responsibility may have been
propounded, it is, in fact, impossible for delineation in the heat of
“trial by fire.”
Thus, where a tactical
commander has only operational control of a subordinate unit and not the
authority to relieve or punish the subordinate commander, he will be
expected to take such measures as are within his physical power under the
circumstances to prevent or stop war crimes by that subordinate commander.
It is the commander’s responsibility to take all measures possible to
prevent the commission of war crimes by subordinates ; lack of
administrative control and hence normal administrative remedies does not
foreclose or preclude use of other measures.
For example, assume an
infantry battalion is operating with an artillery battery attached.
Because of operational exigencies, the battery is under operational
control of the infantry battalion but under administrative control of its
parent (artillery) battalion. The battery commander is authorized to fire
only those missions requested by the supported unit. The battery commander
receives a fire mission from another unit or from his parent artillery
unit which is patently in violation of the rules of engagement or
otherwise violates the laws of war, and the battery commander indicates he
will fire the mission. On monitoring of that message in the supported
infantry battalion’s fire support coordination center by the infantry
battalion commander or his representative, there is no question that he
has the duty, the authority, and the power to prevent
the perpetration of that offense. While certainly this example is more
easily solved under our bureaucratic command system than the pluralistic
system of the Third Reich, and less complex than that with which General
Yamashita was confronted, it nevertheless seems to be the only reasonable
result or conclusion which can be reached. It seems unconscionable in the
example given that the infantry battalion commander could forego his
responsibility by pleading a lack of administrative authority over the
attached battery so long as he has the means of preventing perpetration of
the offense.
Other situations pose
similarly perplexing problems. Assume a commander is assigned a tactical
area of operation over which he exercises no executive authority. Other
forces – whether allied forces from a third nation, forces of the host
nation, or other United States forces - enter that area obviously bent on
the commission of war crimes, for example, announcing openly the taking
and execution of hostages. Certainly a duty exists to exercise those means
within his control to prevent the intended acts, even if those means are
limited to notification of his superiors in an effort of reaching a common
commander with authority to prevent the offense, or to report those
offenses if unsuccessful in their prevention; yet the degree of duty and
commensurate liability for violation thereof, particularly where allied
troops are involved, is not clearly defined. Article 1 of the Geneva
Conventions of 1949 requires that all signatories thereto “respect” and
“ensure respect” for the Conventions “in all circumstances.” This language
has been determined to be permissive rather than mandatory, however.
While Articles 13 and 16 of the Geneva Civilian Convention, taken
together, require a signatory nation to assist, protect and respect, as
far as military considerations allow, “persons exposed to grave danger,”
it has been said that Article 4 of the Convention emasculates any duty of
the individual commander to intervene by suggesting that any intervention
be conducted through normal diplomatic channels.
Insofar as that duty exists with regard to other American units, Field
Manual 27-10 provides that:
The commander is . . .
responsible if he has actual knowledge, or should have knowledge . . .
that troops or other persons subject to his control are about to commit or
have committed a war crime and he fails to take the necessary and
reasonable steps to insure compliance with the law of war . . . .
Combining this definition with
the previously-cited British “means at his disposal” test, it would seem
the commander with means of controlling the commission of war crimes has a
duty to do so, not only within his own command but within his area of
operations and command. While not a commander, an adviser to an allied
unit may be said to have a duty to prevent the commission of war crimes by
the unit to which he is assigned because of his unique position within
that unit. If, for example, an advisor should come upon a situation in
which members of his advisee unit were about to commit a war crime, while
lacking the authority to control the conduct of those forces, his means of
otherwise preventing the commission of the offense are not entirely
foreclosed. After protesting to the unit commander (assuming without
success), he has the means to notify his next higher command by separate
radio net - again in hopes of reaching a common senior headquarters that
can prevent the offense. If the offense occurs, he has the limited means
of preventing its reoccurrence by (a) reporting its occurrence and (b)
seeking relief from his role as adviser to that unit, should the
circumstances warrant. The latter suggestion not only follows the
alternatives proposed in the Tokyo and Von Leeb trials, but would appear to be the practical solution where
the rapport between the adviser and the advisee unit commander has been
seriously jeopardized by their clash. The circumstances for relief as well
as any question of acquiescence on the part of any adviser who remains
with the unit would depend entirely on the circumstances and severity of
the incident, however. The situation is not unlike that which the Tokyo
Tribunal found in convicting Lieutenant General Akira Muto of war crimes
perpetrated as General Yamashita’s Chief of Staff: while not in the
precise position in which the adviser finds himself, he was found
criminally responsible inasmuch as he was deemed to have had the means to
influence substantially command decisions ; thus failure to utilize all
means available to prevent the perpetration of war crimes may legitimately
raise questions of criminal responsibility.
D.
Knowledge
Given the established duty of
a commander to control the conduct of his subordinates, responsibility for
such conduct exists where the commander has or should have had knowledge
of offenses and fails to act. Because of Yamashita, or what might
be called the “popular” view of what Yamashita purportedly
represents, this has been a point begging resolution. It is submitted that
the difficulty lies not with Yamashita but in what a minority with
vested interests claim Yamashita represents.
This so-called popular view,
based on the writings of General Yamashita’s defense counsel, Frank Reel,
and the current writings of Telford Taylor, is that a commander may be
convicted for the war crimes of a subordinate on the basis of
respondeat superior, without any showing of knowledge. As previously
noted, this theory was argued unsuccessfully by Telford Taylor at
Nuremburg and was also rejected by the Tokyo Tribunal. The theory ignores
the basic charge against General Yamashita that he
. . . unlawfully disregarded and
failed to discharge his duty to control the operation of the members of
his command, permitting them to commit brutal atrocities and other
high crimes . . .; and he thereby violated the laws of war.
By definition, “permitting”
implies knowledge of that which is permitted and acquiescence therein,
which would suggest that the standard in Yamashita - of either
knowledge or, possessing knowledge, of a failure to carry out the
commander’s duty to act -- is no less nor more than that stated in the
High Command case “. . . a personal neglect amounting to wanton,
immoral disregard of the action of his subordinates amounting to
acquiescence.”
A
recent discussion of Yamashita can be found
in Professor Arthur Rovine’s writings on command responsibility in
The Air War in Indochina.
In reviewing the Supreme Court’s opinion in Yamashita,
Professor Rovine stated :
Our view is that the Yamashita decision does not carry the weight assigned
to it by ardent supporters or critics. At no point did the military
commission or the Supreme Court hold that knowledge was irrelevant. It is
true that the original decision by the commission did not make a
specific finding of knowledge, it did quote from and apparently accept
prosecution evidence but it did quote from and apparently accept
prosecution evidence “to show that the crimes were so extensive and
widespread, both as to time and area, that they must either have been
wilfully permitted by the accused, or secretly ordered by the accused.”
The Court refused to deal with the evidence on which General Yamashita was
convicted; and did not deal with the question of knowledge one way or the
other.
The Court did decide that the precise substantive question before it was
whether the laws of war imposed on a military commander an obligation to
take such appropriate measures as are within his power to control the
troops under his command for the prevention of war crimes. The Court cited
several provisions of conventional law to demonstrate the existence of an
international legal obligation for the defendant amounting to an
affirmative duty to take such measures as were within his power and
appropriate in the circumstances to protect prisoners of war and the
civilian population.
The proposition of law which General Yamashita was held to have violated
was thus formulated in a rather elliptical manner that avoided the element
of knowledge while leaving it as a variable for consideration by the court
of first instance. Given the significance of the issue and the punishment
of death, it is regrettable that the Supreme Court did not present a
full-scale analysis of the legal significance of a commander’s knowledge,
or lack of knowledge, of war crimes committed by his troops. But the
unsatisfactory nature of the Court’s opinion in 1946 is certainly not to
be taken as a clear statement that there is command responsibility for
crimes of which a commander has no knowledge.
After summarizing the High
Command case, Professor Rovine concludes:
We think the High Command Case is far preferable to the Yamashita
holding, because it deals clearly with a crucial issue – knowledge--
rather than avoiding it, and because the doctrine it evokes appears to be
more equitable and better law. Further, as an expression by an
international tribunal rendering judgment in one of a large series of
war-crimes trials, its legal weight is probably greater than a judgement
(sic) even of the U.S. Supreme Court, at least in terms of formulating
rules of international law. And, ironically, it is far more likely than
the Supreme Court ruling to win acceptance in the United States, among
lawyers, the public, and government and military decision makers.
Professor Rovine’s comments lament the same point noted previously in this
article - in rushing to try Generals Homma and Yamashita in order to
placate his Filipino constituency, General MacArthur committed an equally
great injustice to international law by failing to appoint a law member to
those military tribunals. The resulting credence given the opinion of a
lay jury is unprecedented and disproportionate in light of the number of
high-ranking officers tried by tribunals whose membership included members
of the bar.
Obviously, all trials will not
deal with the question of knowledge to the degree that Yamashita
did. Where knowledge is obvious, given the failure to act, the commander
will be deemed responsible. In other cases, knowledge may be reasonably
imputed. Thus, in List the Tribunal imputed knowledge to a
commander where reports were received by his headquarters, stating as to
General List :
Want of knowledge of the contents of reports made to him is not a
defense. Reports to commanding generals are made for their special
benefit. Any failure to acquaint themselves with the contents of such
reports, or a failure to require additional reports where
inadequacy appears on their face, constitutes a dereliction of duty
which he cannot use in his own behalf.
Similarly, of General von
Kuechler in the High Command case the Tribunal stated
“It was his business to know, and we cannot believe that the members of
his staff would not have called these reports to his attention had he
announced his opposition to the [Commissar Order] .”
These Tribunals, and it is
submitted the Tokyo Tribunal in convicting General Muto and the Military
Commission in convicting General Yamashita, further asserted that a
commander may normally be presumed to have knowledge of offenses occurring
within his area of responsibility while he is present therein. In
addressing this point in the Hostage case, the Tribunal
observed :
It would strain the credulity
of the Tribunal to believe that a high ranking military commander
would permit himself to get out of touch with current happenings in the
area of his command during wartime. No doubt such Occurrences result
occasionally because of unexpected contingencies, but they are unusual.
The Canadian rule of 1945
reflects this.
In discussing the
responsibility of General von Roques for crimes committed within his area
of responsibility, an area over which he also had executive power, the
Tribunal in von Leeb placed this in perspective, quoting from
List: “ [A commander ] cannot ignore obvious facts and plead
ignorance as a defense.”
This is not a presumption to
be rebutted by the commander, but a subjective element which the court in
its discretion may consider. Where the commander denies actual knowledge
of the offenses alleged, it is an imputation of constructive knowledge
where it is established that under the circumstances he must have
known. Other
subjective elements will weigh heavily on the value placed on this factor
in considering whether the commander so accused has been derelict in the
performance of his duties, for example, in obtaining knowledge, and under
the circumstances to what degree he shares the guilt of the principal
accused.
The standard to this point may
be stated as follows: A commander may be liable for the actions of
his subordinates if: (a) he has actual knowledge that an offense has
occurred, and he fails to punish the perpetrators of the offense or take
reasonable preventive measures within his power to prevent reoccurrence ;
or (b) he failed to exercise the means available to him to learn of the
offense and, under the circumstances, he should have known and such
failure to know constitutes criminal dereliction ; or (c) there is
sufficient evidence to impute knowledge.
E. SUBJECTIVE FACTORS
One author has suggested that
(b) and (c) be ascertained by a “reasonable commander” standard.’
The difficulty with this suggestion is just as there is no such thing as a
“reasonable man,” there is no such thing as a “reasonable commander”; and
that the variable of the circumstances of command are too great to be
considered in one “pat” test. Rather than attempt to define the elusive,
it is asserted that a number of subjective criteria be recognized and
considered in ascertaining and imputing knowledge and responsibility.
Although these criteria may also be considered in determining any question
of acquiescence, they are considered here only with regard to resolution
of any question of knowledge. These criteria include :
(1) The rank of the
accused. This may serve as a two-edged sword, for while rank is gained
through experience it also serves to isolate the commander from the
everyday events of the battlefield,
(2) Experience
of the commander.
Ideally officers of equal rank
are equal - in authority, responsibility, ability, and experience.
Realistically nothing could be further from the truth. In the simplest of
examples, a rifle company may be commanded by a captain with up to twelve
years’ commissioned service -- experienced as a platoon leader, company
executive officer, with additional professional schooling, and several
years of experience as a company commander. The adjacent company may be
commanded by another captain who by virtue of accelerated promotions in
time of war may have only two years commissioned service, half of which
was spent in training; or by a second lieutenant who joined the company,
his first assignment, the day before as a platoon leader and who after a
heavy assault finds he is the surviving officer in that company.
Leadership comes not only from training but from experience; with it comes
a sixth sense, an ability to anticipate problems before they arise as well
as being cognizant of a greater variety of means or methods for dealing
with or preventing them. Thus in the trial of General Yamashita the
Commission specifically recognized the extensive and broad experience of
the accused throughout the world in war and peace, in rejecting his plea
of lack of knowledge
Similar consideration would be given to the personal and professional
qualities of the commander - his intelligence, his education, the amount
of time spent in staff duties as opposed to command positions, or
vice-versa, as well as the charisma of the commander. The last point is
most important, however much a will-o’-the-wisp it may be ; the commander
whose troops will follow him to hell and back certainly has greater means
of knowledge, as well as control, simply by virtue of the personal
dedication to him by his subordinates than the commander who lacks the
ability to lead his troops to the chow line. Thus given like facts in all
other factors a court in one case may find a commander should have had
knowledge simply because he was a better commander than his acquitted
counterpart in another case.
(3)
The duties of the commander
by virtue of the command he
held. These considerations will extend not only to the type of command
held by the commander but also to the operational commitments of that
command, Thus it may be reasonable to conclude the commander of a stable
support command should have had knowledge of an offense more readily than
the infantry commander of a highly mobile and widely deployed unit.
Similarly, the commander operating, for example, a battalion with
supporting arms in general and even direct support is operating in a less
complex environment than his counterpart operating with the same forces
attached.
(4)
Mobility of the commander.
What the advent of the
helicopter the commander has extended his means of knowledge. Yet a
disparity exists from unit to unit. The commander of an air cavalry unit
with a seeming overabundance of helicopters may be deemed to have a
greater means of knowledge than his airborne counterpart who after initial
deployment finds he is limited to the infantryman’s traditional means of
transportation -- foot. While personal inspection of units certainly
increases a commander’s means of knowledge, the development of effective
communications may have limited any argument of lack of mobility as a
viable defense. It is nevertheless a point which deserves some
consideration.
( 5 )
Isolation of the commander.
This concept goes hand-in-hand
with its predecessor, the obvious example being the case of Admiral
Toyoda, who was relegated to commanding a vast force covering the Pacific
from a flagship anchored in home
waters. In contrast commanders in Vietnam, if not actually on the
ground with their command, hovered overhead in constant observation of the
tactical situation. Isolation and mobility were usually capable of
correction by a fifteen-minute helicopter flight, yet that same commander
could be virtually as isolated from his command as Admiral Toyoda by
adverse weather conditions.
(6)
The “sliding probability
ration’’ of unit/incident/command. There certainly exists a
sliding probability ratio, that is, the greater the size of the offense
and/or the unit involved, the higher in the chain of command knowledge may
be subjectively imputed. Obviously any one soldier can go out in a combat
environment and murder an unarmed belligerent or non-combatant without
anyone knowing otherwise. The introduction of each additional person,
whether co-participant, observer, or victim, increases the likelihood of
discovery of the offense ; and the greater the number of participants or
victims, the higher in the chain of command that information is likely to
reach - or the more likely that a court will impute knowledge to the
accused commander. It is conceivable that a small patrol could commit
murder and the information not reach above the platoon leader; in such
case, involving one or two deaths, it would be difficult to impute
knowledge to the division commander absent a showing of offenses
systematic in nature. Yet if that patrol walks into a village and executes
fifty non-combatants, or if a platoon or company is witness to the murder
of one non-combatant, or if a platoon or company murders fifty
non-combatants, it would be reasonable for a court to conclude that a
division commander and intermediate commanders between the platoon or
company and the division knew or should have known of the offenses.
Dereliction in failing to learn of the isolated offense may thus be
imputed only to those commanders at lower levels in direct contact with
the situation; but a commander’s duties include as part of the exercise of
command supervision of subordinates to insure that orders are carried out
fully and properly. Hence the greater the severity of the offense or the
frequency of offenses, the higher up the chain of command knowledge may be
imputed because of the commander’s failure to carry out his supervisory
responsibilities.
(7)
Size of the Staff of the
Commander.
While the size of the staff
directly affects the commander’s means of knowledge, and while a court may
give this consideration in imputing knowledge, a Commander may not
“shrink” his staff to avoid learning about activities. He cannot avoid
that which is his duty.
(8)
Comprehensiveness of the
Duties of the Staff of the Commander.
Depending on circumstances, the duties of the staff
may vary considerably in their comprehensiveness, thereby varying the
means of gaining knowledge. Thus the commander and his staff engaged in a
complex amphibious operation will have less opportunity for gaining
knowledge than they would during a sustained land campaign. This does not
permit a commander and his staff to operate in a vacuum, however, ignoring
the obvious.
(9) Communications
Abilities. While arguments were made in the Hostage Case, the
High Command Case, Yamashita, and by General Muto before the Tokyo
Tribunal that inadequate communications were the cause of each accused’s
lack of knowledge, there was sufficient evidence to the contrary in each
case for the court to reject this as a valid defense. Few commanders will
permit their subordinates to lose contact with the command; and while
communications (and hence the means of knowledge) may diminish, seldom
will they cease. There is a disparity among units of equal level as well
as units of different levels, however, and these variations in means
should be taken into consideration by a court.
(10) Training, Age and
Experience of the Men Under His Command. General Douglas MacArthur, in
his Annual Report of the Chief of Staff of the Army, 1933, stated
“In no other profession are the penalties for employing untrained
personnel so appalling or so irrevocable as in the military.’’
Even earlier, General W. T.
Sherman had said of the value of experience:
It was not until after Gettysburg and Vicksburg that the war
professionally began. Then our men had learned in the dearest school on
earth the simple lessons of war. Then we had brigades, divisions and corps
which could be handled professionally, and it was then that we as
professional soldiers could rightly be held to a just responsibility.
Lack of training and
experience is no excuse for the commission of war crimes, yet it may serve
in the way of explanation should they occur and the commander argue his
ignorance of their occurrence. This lack of training and experience may be
deemed to put the commander on notice as to his additional responsibility
of controlling untrained troops, for part of the identified responsibility
of the commander is knowing his command, its capabilities and
limitations.’!’
(11) Composition of Forces
Within the Command. Yamashita emphasized one point: the joint or
combined force is more difficult to control than the unified command,
simply because of interservice or international rivalries. Things are done
differently; hence just as a commander may be limited in his control of
such an “allied” force, so may his means of knowledge be similarly limited
in scope.
(12) Combat Situation.
The extremes are obvious, one being the relatively stable combat
environment as opposed to the fluid, rapid-moving situation. Consideration
must be given to these degrees of engagement as they have perhaps the
greatest effect on the commander’s ability to obtain knowledge and hence
the ability to control his subordinates.
F.
The Standard of Knowledge
Almost universally the
post-World War I1 tribunals concluded that a commander is responsible for
offenses committed within his command if the evidence establishes that he
had actual knowledge or should have had knowledge, and
thereafter failed to act. This remains the standard today. Field Manual
27-10 states that:
The commander is . . .
responsible, if he had actual knowledge or should have had
knowledge, through reports received by him or through other means,
that troops or other persons subject to his control are about to commit or
have committed a war crime and he fails to use the means at his disposal
to insure compliance with the law of war.
Available information
indicates the knew or should have known test was used by the Soviet
Union in their war crimes trials after World War I1 and remains the Soviet
standard of command responsibility.”; The
Netherlands has proposed that the knew or should have known
test be codified as the
international standard for responsibility.”
G.
The Degree
of
Negligence: Enough, Too Much, or Too Little?
While there appears to be
agreement on the general acceptability of the knew or should
have known test, the difficulty lies in establishing the point at
which criminal liability attaches. In the words of the High Command
Case, at what point has a commander been guilty of “a personal neglect
. . . amounting to acquiescence?” In the absence of an international
definition, examination of municipal standards is required.
In order to determine the
degree of negligence required for culpability, a review of the possible
offenses is in order. Under Article 130 of the 1949 Geneva Convention
Relative to the Treatment of Prisoners of War grave breaches of the
Convention are described as
. . . wilful killing, torture or inhuman treatment,
including biological experiments, wilfully causing great
suffering or serious injury to body or health, compelling a
prisoner of war to serve in the forces of the hostile Power,
or wilfully depriving a prisoner of war of the rights of fair and
regular trial prescribed in this Convention.
Article 147 of the 1949 Geneva
Convention Relative to the Protection of Civilian Persons in Time of War
similarly defines grave breaches as
. . . wilful killing, torture or inhuman treatment,
including biological experiments, wilfully causing
great suffering or serious injury to body or health, unlawful
deportation or transfer or unlawful confinement of a
protected person, compelling a protected person to serve in the forces
of a hostile Power, or wilfully depriving a protected
person of the rights of fair and regular trial prescribed in the present
Convention, taking of hostages, and extensive destruction and
appropriation of property, not justified by military necessity and carried
out unlawfully and wantonly.
Article 50 of the 1949 Geneva
Convention for the Amelioration of the Condition of the Wounded and Sick
in Armed Forces in the Field contains similar language to the preceding
provisions. Such grave breaches are punishable by a sentence up to and
including a sentence of death.
The 1949 Conventions thus
codify the apparent degree of negligence used in the High Command
Case: “. . . a personal neglect amounting to wanton, immoral
disregard of the action of his subordinates amounting to acquiescence.”
Thus precedent and present
Conventions appear to indicate that in order to hold a commander
responsible for grave breaches of these Conventions or of war crimes tried
before an international tribunal, absent actual knowledge there must be
either (a) such serious personal dereliction on the part of the commander
as to constitute wilful and wanton disregard of the possible consequences
; or (b) an imputation of constructive knowledge, that is,
that despite pleas to the
contrary under the facts and circumstances of the case the commander must
have known of the offenses charged and acquiesced therein.
The question remains, particularly in light of the severity of the penalty
for commission of a grave breach, if the standard should be lower.
Under domestic law, there
exist three degrees of negligence:
(1) Wanton: This degree
of negligence involves the doing of an inherently dangerous act or
omission with a heedless disregard of the probable consequences.
(2)
Recklessness,
Gross or Culpable
Negligence: Culpable negligence is a degree of carelessness greater
than simple negligence.
It is a negligent act or omission accompanied by a culpable disregard for
the forseeable (but not necessarily probable) consequences to others of
that act or omission.
(3)
Simple Negligence:
Simple negligence is the
absence of due care, that is, an act or omission of a person who is under
a duty to use due care which exhibits a lack of that degree of care for
the safety of others which a reasonably prudent man would have exercised
under the same or similar circumstances.
It is submitted that only
where there is a showing of wanton negligence has the commander
manifested the mens rea to be held criminally responsible for the
primary offense, that is, he has through his dereliction sufficiently
aided and abetted the principals thereto as to make himself a principal or
an accessory after the fact.
Article 77, Uniform
Code of Military Justice, defines a “principal” as :
Any person . . . who-
(1) commits an offense . . .,
or aids, abets, counsels, commands, or procures its commission; or
(2)
causes an act to be done which if directly
performed by him would be punishable by this chapter; is a principal.
In discussing Article 77
the Manual for Courts-Martial states :
To constitute one an aider and
abettor under this article, and hence liable as a principal, mere presence
at the scene is not enough nor is mere failure to prevent the commission
of an offense; there must be an intent to aid or encourage the persons who
commit the crime. The aider and abettor must share
the criminal intent or purpose of the perpetrator.
Article 78, UCMJ, Accessory
after the Fact, states that
Any person . . . who, knowing that an offense . . . has been committed,
receives, comforts, or assists the offender in order to hinder or
prevent his apprehension, trial, or punishment shall be punished as a
court-martial may direct.
In discussing Article 78, the
Manual states that in addition to having actual knowledge that an
offense has occurred “mere failure to report a known offense will not
constitute one an accessory after the fact.”
Yet such failure to report
will give rise to other liability, at least at the domestic level. Article
1139, Navy Regulations, states :
Obligation to
Report Offenses. Persons in the Department of the Navy shall report to the
proper authority offenses committed by persons in the Department of the
Navy which come under their observation.
Likewise, Military Assistance
Command, Vietnam, Directive 20-4
required that any allegation of a war crime be reported not only to the
next higher headquarters but directly to MACV headquarters in Saigon,
bypassing the regular chain of command and communication channels.
Violation of either of these
orders constitutes a violation of Article 92 of the Uniform Code of
Military Justice, either as a
violation of a lawful general order or as an act which constitutes
dereliction of duty. In the former charge, where there is a more
substantial question of criminal intent, the maximum sentence is a
dishonorable discharge (dismissal for officers) and confinement at hard
labor for two years. In the latter case, where commission of the offense
may occur through an act of simple negligence, the maximum punishment is
three months' confinement.
Where there exists the
necessary mens rea, something more than a mere failure or refusal
to disclose an act and some positive act of concealment, the person so
acting is guilty of misprision of a felony, a violation of Article 134, for
which the maximum punishment is a dishonorable discharge (dismissal for
officers) and confinement at hard labor for three years. Any greater
degree of intent would place the individual charged within the realm of
the previously-discussed area of principal or accessory after the fact.
Thus the degree of negligence is in direct relation to the degree of
liability, and under either domestic law, charging one as a principal or
accessory after the fact to murder, or international law, charging one in
essence as a principal or accessory after the fact to a war crime, there
exists a requirement that the negligence of the commander be so great as
to be tantamount to the possession of the necessary mens rea to so
become such an active party to the offense. Only upon a showing of this
degree of negligence can there be imposed the maximum penalty of death.
Thus in the Pohl trial, SS Standartenfuehrer (Colonel) Erwin
Tschentscher was charged with war crimes committed by members of his
battalion in the first Russian campaign from the first of July until
December 31, 1941. The court noted that there was some evidence that he
had constructive knowledge of the participation of members of his command,
but no evidence that he had actual knowledge of such facts. Rejecting any
strict liability theory although quoting Yamashita the court did
not believe the participation was of sufficient magnitude or duration to
constitute notice to Colonel Tschentscher, and thus to give him an
opportunity to control the actions of his subordinates.” Had this been a
court-martial, either of an individual normally subject to the Uniform
Code of Military Justice or of a foreign officer being tried for war
crimes pursuant to Article 18,
the prosecution could have proceeded under multiplicious charges and
theories concerning the degree of negligence, absent actual knowledge and
liability; as a minimum, given the Tribunal’s judgment, Colonel
Tschentscher would have been guilty of dereliction of duty. The standards
of punishment parallel the standards of responsibility and proof under
either domestic or international law ; just as the Tribunal stated with
regard to Colonel Tschentscher, proof of constructive knowledge under the
Uniform Code of Military Justice does not constitute a showing of actual
knowledge.
Where domestic law exists.
however. charges against United States personnel should normally be drawn
under that law rather than under the general “war crime” offense.”.’
No nation is going to charge its own citizen with the commission of a war
crime for obvious political reasons. There certainly exist psychological
reasons why such charges would be drawn alleging specific offenses rather
than the commission of a war crime – a result of the heinous connotation
of those words and, as a result, perhaps a greater reluctance by a court
to convict an accused. A parallel to the Tschenstcher case
would serve to illustrate this point.
The accused was a company
commander in Vietnam. His company occupied a night defensive position with
another company. During the night one of several enemy prisoners taken
during the action of the preceding day was shot and killed. Although the
offense occurred within his perimeter and within sixty feet of his
position, the accused did not investigate; he did, however, receive a
report that one of the prisoners had grabbed a weapon and shot the victim.
He neither investigated the offense further nor did he report the offense
in accordance with existing directives. He was charged with and convicted of failure to obey a lawful general
order and dereliction of duty, both offenses under Article 926. While
the evidence was sufficient to sustain a conviction under the charged
domestic offenses, it is arguable
whether a conviction could have been obtained had the accused been charged
with the commission of a war crime. As in Tschentscher, the
appellate opinion declined to address the international should have
known test, leaving to a commander some area in which he is permitted
to exercise his personal judgment as to the necessity for further
investigation ; absent some serious personal dereliction manifesting some
degree of mens rea the commander must be presumed to have acted in
good faith, given all circumstances, unless the facts become so
overbearing as to point an accusatory finger at him. These circumstances
again require an examination and balancing of the subjective criteria
previously discussed.
BLACK’S LAW DICTIONARY 905 (4th ed. 1951) [Emphasis added].
WEBSTER’S THIRD NEW
INTERNATIONAL DICTIONARY 1142 (1966) [Emphasis added].
The concept of
intolerance of war crimes in order to accomplish the mission is
simply one of not making unnecessary enemies (the civilian
population) who will thus detract you through partisan warfare
from your primary mission, or of giving the natural enemy cause to
fight harder (the enemy soldier who believes he will die if taken
prisoner will fight harder not to be taken prisoner). While the
Vietnam “winning the hearts and minds of the people” program of
civic action is the most recent example of this concept, Emperor
Meiji of Japan, in his “Rescript to Soldiers and Sailors’’ of
January 4, 1883,
admonished :
Those who appreciate true valor should in
their daily intercourse set gentleness first and aim
to win the love and esteem of others. If you affect valor and act
with violence, the world will in the end detest you and look upon
you as wild beasts. Of this you should take heed.
(HEINL, supra n.
15 at 172).
Similarly, Sir Philip Sidney
(1554-1586)
declared: “Cruelty in war buyest conquest at the dearest price.”
(Id. at
20).
In this situation the dereliction may be one of the
commander not knowing his troops. U.S. DEP’T
OF ARMY, FIELD’
MANUAL 101-5,
OPERATIONS OF ARMY FORCES
IN THE FIELD, provides a t paragraph
3-5:
3-5
THE HUMAN ELEMENT
Despite advances in technology, man remains
the most essential element on the battlefield. The commander must
be acutely sensitive to the physical and mental condition of his
troops, and his plans must take account of their strengths and
weaknesses. He must make allowance for the stresses and strains
the human mind and body are subjected to in combat. His actions
must inspire and motivate his command with the will to succeed
under the most adverse conditions. He must assure his troops that
hardship and sacrifice will not be needlessly imposed and that
their well-being is of primary concern to him.
Articles 146-148, Geneva Convention Relative to the
Protection of Civilians: Articles 129-131, Geneva Convention
Relative to the Treatment of Prisoners of War; Articles 49-51,
Geneva Convention for the Amelioration of the Condition of the
Wounded and Sick in Armed Forces in the Field; and Articles
50-52, Geneva Convention for the Amelioration of the Wounded, Sick
and Shipwrecked Members of Armed Forces at Sea.
[Emphasis supplied.] Paragraph
507 (b) strangely
urges prompt
and adequate
punishment of war crimes committed against
enemy personnel
only ; the admonishment applies regardless of the victim.
Supra n. 58 at
paragraph 631.
Id. at n. 1. The note continues (after citing
Yamashita as
the principal case on acquiescence) :
The principle has also been recognized in
the legislation regarding war crimes
of some countries.
However, it is probable that the responsibility of the commander
goes beyond the duty as formulated above. He is also responsible
if he fails,
negligently or deliberately,
to ensure by the
means at his disposal that the guilty are brought to trial,
deprived of their command or ordered out of the theater of war, as
appropriate. [Emphasis supplied].
Para. 501, FM 27-10
(1956).
The French and Luxemborg criteria of “tolerated” used immediately
after World War I1 would seem to be in agreement with the British
and United States views, while the Netherlands criteria of that
period (“deliberately permitted”) appears higher.
Cf. the
Netherlands proposed standard in n. 296 infra. The Republic
of Zaire, in its Code of Military Justice of 1972, provides at
Paragraph 502 that “(S)uperiors can . . . be considered
accomplices to the crime to the extent that they organized or
tolerated the (war) crimes of their subordinates.” Article I1 of
the Convention on the Nonapplicability of Statutory Limitations to
War Crimes and Crimes Against Humanity (U. N. G. A. Res. 2391
[XXIII] December 9, 1968) provides that “ (T) he provisions of
this Convention shall apply to representatives of the state
authority and private individuals who, as principals or
accomplices, participate in or who directly incite others to the
commission of any of those crimes, or who conspire to commit them,
irrespective of the degree of completion, and to representatives
of the state authority who tolerate their commission.”
This is particularly true today with the staff support which the
commander receives. In proceeding against a member of his command
accused of war crimes, there are few matters which require the
personal attention or decision of the commander. With judge
advocates assigned as special staff officers down to and including
brigade or regimental level (the Marine Corps has non-lawyer legal
officers at battalion level), and assuming adequate investigative
services are available, it would seem that the tactical
circumstances would most affect the company grade commander.
Availability of staff assistance is perhaps most illustrative of
the “means at his disposal” test.
Care should be exercised in reading the preceding
statement, as it addresses only the subjective standard to be
utilized in weighing a commander’s conformance with the laws of
war; it in no way suggests that under any circumstances are those
standards decreased. Within individual units, the tactical
situation may fluctuate rapidly and unexpectedly. Allied
commanders on D-Day, June 6, 1944, were of necessity completely
involved in mission accomplishment; thereafter their
responsibility for prompt investigation, trial and punishment of
any alleged offense became of more paramount concern. Initiation
of the German Ardennes Counteroffensive on December 16, 1944,
affected the commander’s ability to obtain prompt investigation,
trial and punishment of an accused as well as his personal ability
to concentrate his attention on disciplinary matters.
A similar
reasonable shifting of priorities would be exemplified by the
United States Marine amphibious assault at Inchon, Korea, on
September 15, 1950; the subsequent strategic withdrawal from the
Chosin Reservoir, commencing December 1, 1950 ; as compared with
the relatively stable six-month-period from October 1952 to March
1953 when Marine units formed a part of the United Nations Command
line. The preoccupation of the commander with strictly tactical
matters in the first two instances is much more significant than
in the latter.
This responsibility is not exclusive but concurrent with
that of unit commanders, whether tactically subordinate to the
area commander or not, and under normal circumstances would be
superior in authority to that of those unit commanders.
Responsibility in this case would not be exclusive. Where
the requested fire mission comes from a separate unit, the
artillery battalion commander has a two-fold responsibility
(assuming he has knowledge before the mission is fired) : (a) to
use all means reasonably available to prevent the firing of the
mission, and (b) to punish those responsible in the battery for
commission of the offense.
IV PICTET, COMMENTARY, GENEVA CONVENTION RELATIVE TO THE
PROTECTION OF CIVILIAN PERSONS IN TIME OF WAR 16 (1958) ; PAUST,
Supra n.
4 at 57 MIL. L.
REV. 157.
PAUST, supra. n. 4
at 57 MIL. L. REV. 158.
Supra n. 57
at para. 501.
THE AIR WAR IN
INDOCHINA (Rev. ed. R. Littauer and N. Uphoff
1972).
Supra n. 65.
Canadian rule 10(4)
provides:
Where there is evidence that more than one
war crime has been committed by members of
a formation, unit,
body, or group while under the command of
a single commander, the court may receive that evidence
as
prima
facie evidence of the responsibility of the commander
for those crimes.
O’Brien, The Law of War, Command Responsibility and Vietnam, 60
GEO. L.J. 605, 629
(1972).
The result of this conclusion is that it encourages
mediocrity, an argument which the author is hard pressed to
refute. The result in actuality, however, is that while a higher
standard of
expected
performance of duty may be considered in the case of a
superior commander, the high standard prescribed by precedent may
never be lowered to accommodate the mediocre performance of a less
capable commander. The same encouragement of mediocrity exists
under the “reasonable commander’’ rule, if not more so.
Utilization of the subjective standards diminishes the likelihood
of culpability turning on the one point.
HEINL, supra n. 15 at
329.
Supra n.
57 at para. 501 (emphasis supplied).
Harbridge House Study, supra n. 6 at
22.
By CE/COM IV/45
the Netherlands recommended that the following paragraph he
added to Draft Article
75 of International Committee of the Red Cross Draft Additional
Protocol to the Four Geneva Conventions of August
12, 1949:
2.
[The civilian and military authorities] shall be criminally
liable for any failure on their part to take all those steps
within their power to make an end to breaches of the laws of war
which were, or ought to have been, within their knowledge.
Treaties and Other International Acts Series
3364 (Emphasis
supplied)
Treaties and Other International Acts Series
3365 (Emphasis
supplied)
XI TWC 543-544
(Emphasis supplied).
Professor O’Brien, supra n. 288 a t 649, utilizes an
indirect/direct liability theory rather than the legal concept of
imputed or constructive knowledge :
. .
. if . . . violations are such
as to reveal
demonstrable direct or implied negligence on the part of the
relevant commanders. Command responsibility dictates indirect
liability for the crimes. If it can be shown that the commanders
must have been aware that torture and mistreatment were regularly
practiced, . . . they become participants with direct
responsibility added to their indirect liability.
Para. 198b, MANUAL
FOR COURTS-MARTIAL, 1969 (REV.
ED.) [hereinafter
cited as MCM, 1969
(Rev. ed.)].
Para. 156, MCM, 1969 (Rev. ed.).
Para. 157, MCM, 1969 (Rev. ed.).
United States Naval Regulations, 1973. These regulations
apply to all members of the United States Navy and Marine Corps,
active or reserve, and to Coast Guard units and personnel when
attached to the Navy.
MACV Directive 20-4 (20 April 1965). This requirement was
in effect throughout the period of major United States’
involvement in Vietnam, being republished in all subsequent
editions of MACV Directive 20-4 (25 March 1966; 10 July 1970; and
2 March 1971).
A commissioned officer additionally may be punished by punitive
separation from the service,
i.e. dismissal,
when convicted by a general court-martial of any offense in
violation of the Uniform Code of Military Justice. Para. 126d,
MANUAL FOR COURTS-MARTIAL,
UNITED STATES, 1969, (REV. E D . )
V TIVC 1010-12. Colonel Tschentscher was found guilty of
other charges and sentenced to ten years' imprisonment.
10 U.S.C. 818. While a foreign officer would normally be
charged with the commission of a war crime, Paragraph
12 Appendix 6a,
Manual for Courts-Martial, United States,
1969 (Revised
edition), states that there is no jurisdictional error in the
erroneous designation of a specification as a violation of an
article of the Uniform Code of Military Justice.
United States v. Curtin,
9 USCMA
427, 26 CMR 207 (1958).
There is no
per
se
equation of the “should have known” test except through the
previously-cited and discussed standards of negligence as applied
to the individual case and its facts.
Paragraph 507b
of FM 27-10 states:
b.
Persons Charges With War Crimes. The United States normally
punishes war crimes as such only if they are committed by enemy
nationals or by persons serving the interests of the enemy State.
Violations of the law of war committed by persons subject to the
military law of the United States will usually constitute
violations of the Uniform Code of Military Justice and, if so,
will be prosecuted under that Code. Violations of the law of war
committed within the United
States by other
persons will usually constitute violations of federal
or state criminal law and preferably will
be prosecuted under such law (see paras.
505 and 506).
USARV Reg 335-6 (24
June 1967), which served as an implementing instruction for all United
States Army Forces in Vietnam for the previously cited MACV
Directive 20-4.
United States v. Golden, 43
C.M.R. 710 (ACMR 1970).
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