Command Reaponsibilit, far War Crimes

• Author: By Major William H. Parks
• Pages: 01

An historical and comparative analysis of war crimes teals in- volving commend responsibilitV iw order to detemne the stand-ards of eonduet required of a military eommander in embat with yefard to the prevention, investigation, reporting, and pvosecw tion of way crimes. The author heludes ag part of his emmination

(I eiew of the criminal respansibilitg of the embat commander, iiossibie offenses, and the degree oi intent required under both domestic and international law.

I. INTRODUCTION

The Vietnam conflict and the abberation which occurred in the subhamlet of My Lai (4) in Sang My Village, Quang Nai Province, in the Republic af South Vietnam on March 16, 1968, reawakened questions concerning the responsibility of a military commander for the unlawful acts of his subordinates.' For some, it constituted an opportunity to reassert theories of responsibility previously areued and rejected by courts of law;? others saw it

* This article IS adapted irom B thesis presented to The Judge Adveeate General's School, U. S. Army. Charlattesville. Virpinia, while the author was a member of the 21at Advanced Course. The opinions and em-ciuaion8 presented herein are thore oi the author and do not necennaiily represent the views of The Judge Advocate General's School or any other governmental agency.

I* U. S Marine Carps; Instructor, Criminal Law and International Law Divlsioni. TJAGSA. B A. 1963, J.D. 1966. Bsylar University. Memberof the Bars of Washington and Teras, the U. s. Supreme Court, and the U. S. Court of Military Appeals.1 See. I S . , The Clamar Over Colley Who Shares the Guilt? TIME,

April 12, 1971, at 14: Who Else io Guilty' SEWSWEEK,

April 12. 1871, at30; Sheohan. Shobld We Have War Crrnies Trials". Seattle Part-Intelli-geneer, April 11, 1971, ai 17, e d 6. See yen~rally T. TAYWR, NUREMB~O AND VmraAX: As AIERICAX TRICEDP (1970)

; S HERSH, MY Lu 4 (1970) and R. H~Mhlm, OaE MORNING IN TXE WAR (1970).

2 Ttlford Taylor, chief prosecutor in the Hiph Cmnmond Case, din-cussed mi7m p. 38 i t 8eg.. argued funrucreJsfully) for B theory of strict Liibllrv of a cmmvlder (XI Tm

(IF W u 0Uwmu;- Bmm THE N~eewBLRC MILITARY TRIBUTALS CwaER COZTIRUL CDuxclL LAW NO. 10 [hereinafter "IWC"] 644 [1948]: the aiament IS renewed in .Vuremburg and V%sfnam.

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as yet another way to indict the nation's leaders. and particularly the militar)-. far the United States' involvement m Vietnam.' It

1s not the intent of this article to rebut these arguments. as this has already been done by others: Rather I t is intended to examine the standards of responsibility previously applied in order to ascertain the existin8 standards. municipal and international. and to determine if an identical municipal-internati0nal standard

i i feasible. .a, DEl'ELOP.MEA-T OF ?HE CO.YCEPT-PRE-1 %,i

The concept of command responsibility-and the commensurate duty of a commander to eantro! his troops--\%as dewloped along tna paths. not reaching fruition pei' se until delineated by the posr-World \Vu I1 tribunals. The first path dealt with the ques-lit? of command; the second. with lit? of the commander It ii alternn-natural development of the former irould lead to meritable mclwioii of the latter, and (h) there >\as

,

ECI REIIDV 103

CO\I\IASD RESPOSSIBILITY

satisfactory municipal standard xas to be applied, and the other parties to the conflict were in a position to impose what wad considered to be an appropriate international standard on culpable commanders of the offending state.' When such an international tribunal was conducted, it generally fallowed the municipal standard of responsibility af the convemng state.B

Sun Tzu, in what 18 considered to be the oldest military treatise in the world, wrote in 500 B.C.:

When troop& fiee, are mr,ibardmate, distreiied, collapiso m dir-order, DI are routed, it is the fault of the general. Sone of these diaarders can be attributed to natural causes 7

~

In a report irrued October 28, 1553. the W.S. Army disclosed that in June. 1953, rhirtpfour war crimes eases arising out of the Korean eon. fiict were ready far trial, but that the alleged perpetrators had to be releaied ~n the prisoner exchange following the armistice (July 21. 1958) I" that conflier, GRECXSPAF, THE >IIODERN

LAW OF LAID WARFARE

30, n. 82

(1565) Thus even where a state may legally detain and t n prmnerr of WLI far war crime3 (as 13 recognized by Articles 85, 115, and 118 of the Geneva Coni.ention Relative to the Treatment of Prisoners of War, 1949), this neht mas- be forfeited by the terms of armlitice betreen the conflictingPtaTes. Only where there 16 a clear "winner" and ''loser'' IS there likelihood of international war crimes trials In the Karesn snd Vietnam wars, it was apparent that the Communist states had no intentian of punishing those commander? re?panaible for the ~~mmlasl~nof war crimes; and by the terms of the respective peace agreements between the parties and the circvmstancen of execution of those agreemenre, them adversaries were incapable of im. pming sanctions upon those cammanden, even where they were within the control of the Free Fmld states In the India-PakiJtan-Bangladelh conflict, where military IUCC~JS more readily defined, Bangladeah *as ultimately persuaded by India to postpone Its plans to try 155 Pakirtans accused of war crimes I" the mteies of "fulfillmg a larger vision of harmony and peace m the (Indo-Paki%tani) dxontinent." The Bangladesh inairtenee of trial a i the 195 accused was considered the "mast crueisl point" in negotiations during the twenty month3 between cessation of hostilities and c~nelusion of the peace accord. Sirnoni, Bangludeali Dwtded Oier Issie o i War Crrmes Tdolr, Wash. Port, August 17, 1973, at p. A22, COI. 1. Ratzm, Pakiatun, India Set

Acemd. Wash. Port, August 29. 1973, at p. 1, mi. 8: and India to Reiaosr B0,OOO Pahistans ~n P~ore

Accord. 6 Y. Timea. August 25, 1978. at P 1,eds. 7 8 This dilemma has been the rule more than L e exceptlon and has been &red BP explanation in part far the dearth of intermtiml war crime3 tnak pnm to the uneond~tmnal aurrender of World War 11. Graia. The Punvshmint of Me? Ciimirois, 11 NETHERLAUDS I. L REI 35G (1515) 83 cited ~n Paust, My La> and Vieinon: S o m . .Myths, and Leader Raapanmbiiity. 57 MIL. L. REY 99 at 111, fn. 3 8 (1972).

B This cas advocated by Palish legal scholar >fanired Laehs In 1941 In War Crimss, An Attempt to Define ihs Issues, and generally foilawed by all Tribunali, e.#., the Sariet Wnmn utilized excriminal nerh~enee in defining command respTHE Amw. Pnsonev 01 W a y Studg (Step Tuo: The Funetmmng of the Law[YIII National Attitudes and Legal Standards 2211, 1969 (hereinafter cited

8%

the 'Warbridge Hause Scud)").

7 3 TZU, THE ART OF WAR 125 (S Griffith rrand 1963)

Recogniiing the respmsibilit? of the commander. he also recog-iiized the correlative duty of the commander to contyol his sub-ordinates. Cpon publication of his principles of war, Sun Tzu was summoned before a leading warrior king and asked to submit his theones to a test; Sun Tzu consented. Two companies of women. untrained in military matters. nere formed up and each placed under the command of one of the kinp's favorite concubines. They were armed and given ~ursory mmuction ~n the then-current manual of aim: and close order drill. Then. to the sound of drums. Sun Tzu gale the order, "Right turn!" The only iesponse of the "companies'' was one of lauphter. Sun Tzu remarked: "If the words of command are not clear and di9tincr. if orders are not thoroughly understood. then the general 1s to blame."

Again uttering the same command and receiring the same re-sponse, Sun Tzu then declared:

If the uardi of command a?* not clear 2-.0 di:tmcr if orders arenot rhoroughlv undernod, rhe general IS r~ blame Bur If hlr ordersare cleai, ard +e ia!d,err never+belels diiobei. :hen it 1b the fadt ofthe r ofiseriSo saving and much to the consternation of the warrior king. Sun Tzu ordered rhe two company commanders beheaded and replaced by a member of each company. The execution was viewed by all, the drum was again sounded for drill, and the companie~ thereafter executed all maneuver? with perfect accuracy and precision. nexer venturing to utter a sound,

The concept of national-and Lriminal-respansibilIty \\BE re- corded at an early date, Groriur declaring ", , . a community, or its rulers. may be held responsible for the crime of a subject if they knew it and do not prevent it when they could and should prevent it."

While Grotius' statement on its face limits itself to national responsibility rather than addressing the liability of the indiridual military commander, international recognition of the latter occurred as early as 1474 with the trial of Peter ron Hagenbach. Brought to trial by the Archduke of Austria on charges of murder, rape, peuury and other crime8 against "the l a w of God and man," Hagenbach was tried by an internarional tribunal of lwenty.eight judges from allied states of the Holy Roman Empire.

. 5 TZU. THE ART or WAB 9 IL G3.e~ Traril 1911)

I1 GROTIUJ. DE JURE BELLI Ac PACIS 523 IC E I P ed Keki man: 1526)

COllYASD RESPONSIBILITY

Despite a plea of superior orders, Hagenbach was convicted, dep v e d of his knighthood for crimes which he as a knight was deemed to have a dutu to prevent, and executed. While an "inter-national" trial, his trial in theory was not a "war crimes" trial as no state of war existed at the time of the commission of the of-fenses, the Swiss-Burgundian war not occurring until 1476,'O

In 1621 King Gustavus Adalphus of Sweden promulgated his "Articles of Military Laawes to be Observed in the Warres;' Article 46 of w'hich in part provided: "No Colonel or Captaine shall command his souldiers to do any unlawful thing: which who SO does, shall be punished according to the discretion of the Judges.. ."

In 1689, after unsuccessful Seipe of Calvanist Londonderry, Count Roaen was sternly reprobated and relieved from all further military duties by the exiled James...