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Chapter Four

Decision Making In War


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Never mind, General, all this has been my fault. It is I that have lost this fight, and you must help me out of it the best you can.

Robert E. Lee to General C. M. Wilcox, Gettysburg, 3 July, 1863


   A Note To The Reader: This interactive text contains hyperlinks both to complete copies of important document found at other sites and to abridged versions of the same document on this site. Those abridged versions are noted after the first link as "abridged." They have been provided for the convenience of the reader interested in substantive versions of treaties but absent information regarding such matters as structure of secretariats and provisions for entry into effect. The text is color coded as follows:

Major Headings
Question Headings
Summaries of the law

    A Note To The Law Of War Student: Particularly relevant sections of underlying case readings are yellow highlighted. The student is, however, expected to at least be familiar with the entire reading. Where the case title is highlighted, as in Yamashita, the student is expected to read carefully the entire case.

    A Note to German Students: To facilitate your understanding I have included German language texts of treaties where available. The hyperlink will be identified by the words "German language version."


4.1 Command Responsibility

Command responsibility revolves largely around the necessity that a commander maintain discipline of troops in combat. That obligation is a complex one, for it involves the interplay of severe psychological and physical stress on the commander and those commanded, the tactical and strategic needs of the contesting forces, geography, weather, and, not least, the requirements of the laws of war. It is certainly not a new question, nor a new defense to claims of violations of the laws of war. See, Mitchell v. Harmony. Professor Hanson provides a nice discussion of discipline:

This Western obsession with close-order drill is hinged on the fact that whereas all men are prone to bolt and run when the situation becomes hopeless, training and belief can alter such behavior...How is discipline achieved and sustained over centuries? Greek, Roman and later European Armies found the answer through drill and a clear-cut written contract between soldier and state...The ability to march in order and line up in rank has immediate and more abstract advantages. Troops can be deployed and given orders more quickly and efficiently when they march in close formations...But drill itself in a larger sense reinforces the soldier's attention to commands. The willingness to march in step is at the source of a Western soldier's readiness to do exactly what his commanding officer orders.

Hanson, Carnage and Culture at 330.

The purpose of drill is to:
bulletEnable a commander to move his unit from one place to another in an orderly manner.
bulletAid in disciplinary training by instilling habits of precision and response to the leader's orders.
bullet Provide a means, through ceremonies, of enhancing the morale of troops, developing the spirit of cohesion, and presenting traditional, interesting and well-executed military parades.
bulletProvide for the development of all soldiers in the practice of commanding troops

FM 22-5 Drill and Ceremonies, Headquarters, Department of the Army (December, 1988).

The principle of "command responsibility" that holds a superior responsible for the actions of subordinates appears to be well accepted in U.S. and international law in connection with acts committed in wartime, as the Supreme Court's opinion in In Re Yamashita indicates...

Hilao v. Estate of Marcos
,103 F.3d 767, 776 to 778 (9th Cir. 1996).

The U.S. Supreme Court precisely addresses the core of command responsibility in Yamashita:

It is evident that the conduct of military operations by troops whose excesses are unrestrained by the orders or efforts of their commander would almost certainly result in violations which it is the purpose of the law of war to prevent. Its purpose to protect the civilian population and prisoners of war from brutality would largely be defeated if the commander of the invading army could with impunity neglect to take reasonable measures for their protection. Hence the law of war presupposes that its violation is to be avoided through the control of operations of war by commanders who are to some extent responsible for their subordinates.

In Re Yamashita
, 327 U.S. 1, 15 (1946).

    The International Criminal Tribunal for Former Yugoslavia relied, inter alia, on Yamashita, in Delalic et al (the "Celebici Case") to determine that command responsibility is a part of customary international law. 

    The combat commander's responsibility wears heavily. The commander must not only decide how, when and where  to send troops into combat, but how they must conduct themselves to obey the laws of war. Failure to do so invites retribution not only at the hands of an enemy, but increasingly, by the nation the commander serves.

...a commander clearly must be held responsible for those matters which he knows to be of serious import, and with respect to which he assumes personal charge. Any other conclusion would render essentially meaningless and unenforceable the concepts of great command responsibility accompanying senior positions of authority.

Koster v. United States, 231 Ct.Cl. 301(1982).

    General William T. Sherman's conduct during the American Civil War is often cited as an example of command excesses. Sherman, however, was a much more complex character than he is often portrayed. His biographer notes:

As for Sherman, his order books and correspondence indicate that for the first two and a half years of the war, into the fall of 1863, he personally carried on a serious and sustained effort to rein in the predatory and destructive tendencies of his soldiers. He harangued his troops verbally and issued written appeals to their honor and patriotism as well as threats of hard labor and summary execution....He set up mounted patrols around his camps and authorized them to shoot down pillagers. He ordered surprise inspections of his entire command...He requested and obtained authorization to deduct from the pay of an entire [unit] sufficient sums to compensate for property damages done by one or more of its members...Still, he confessed, "it is a herculean task to impress on our men that whilst the U.S. may rightfully take anything, it is wrong for them to clean out the Secesh." For him the sanction of law made the difference between day and night...Why did he persist as long as he did? Because he believed--as did every military professional--that the habits of maurading, theft and barn-burning would engender other forms of indiscipline and convert an army into an ungovernable mob.

Lee Kennett, Sherman: A Soldier's Life at 224, Perennial (New York, 2001).

    According to the United States Army a commander is criminally responsible for the acts of his subordinates if he/she ordered or permitted the offenses, or knew or should have known of the offenses, had the means to prevent or halt them, and failed to take appropriate action. The commander is also responsible for training troops to obey the laws of war. DA Pam. 27-161-2 pp.240-243. An intermediate commander is responsible for superior orders carried out by troops under his/her command only if the command is patently illegal. Ibid. at pp. 243-244. The essence of the U.S. position is stated in FM 27-10:

501. Responsibility for Acts of Subordinates

In some cases, military commanders may be responsible for war crimes committed by subordinate members of the armed forces, or other persons subject to their control. Thus, for instance, when troops commit massacres and atrocities against the civilian population of occupied territory or against prisoners of war, the responsibility may rest not only with the actual perpetrators but also with the commander. Such a responsibility arises directly when the acts in question have been committed in pursuance of an order of the commander concerned. The commander is also responsible if he has actual knowledge, or should have 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 take the necessary and reasonable steps to insure compliance with the law of war or to punish violators thereof.

    The most important recent command responsibility decision is found in the Delalich Case in which the Tribunal provided an excellent synopsis of the history of the doctrine. See also, Article 7 of the Statute of the ICTY.  In its opinion, the Tribunal notes:

We wish to emphasize the duty of a commander of any detention facility during an armed conflict…… Mr. Mucic was clearly derelict in this duty and allowed those under his authority to commit the most heinous of offences, without taking any disciplinary action. Furthermore, as commander of the Celebici prison-camp, he was the person with the primary responsibility for the conditions in which the prisoners were kept.

See commentary in  European Journal of International Law.

  In this chapter, you will closely study three cases, Calley ,Yamashita, (including the separate report of the Yamashita Military Commission) and List in which commanders were held responsible for the murders of civilians, and one, Leeb, in which the tribunal articulated exceptions to command responsibility. In one, at a small unit level during the United States' war in Vietnam, Lieutenant William Calley participated in the actual killing. In another, General Tomoyuki Yamashita was tried by a U.S. military commission for conduct by troops nominally under his command but against his direct orders. In Yamashita, the United States Supreme Court said that "the law of war presupposes that its violation is to be avoided through the control of the operations of war by commanders who are to some extent responsible for their subordinates." In Calley, the Court of Military Appeals admonished that "An officer especially must exert his mind to keep his emotions in check, so that his judgment is not destroyed by fear, hate, or frustration."

    These cases raise troubling questions for the combat commander:

bulletIs my mission lawful?
bulletWhat elements must I consider in decision making?
bulletHow much control must I exercise over my troops who carry out the mission?

In the High Command (United States v. Wilhelm Leeb) case following World War Two a U.S. Military Tribunal held:

[u]nder basic principles of command authority and responsibility, an officer who merely stands by while his subordinates execute a criminal order of his superiors which he knows is criminal violates a moral obligation under international law. By doing nothing he cannot wash his hands of international responsibility.

*        *           *            *         *         *         *          *

The authority, both administrative and military, of a commander and his criminal responsibility are related but by no means coextensive. (...) There must be a personal dereliction that can occur only where the act is directly traceable to him or where his failure to properly supervise his subordinates constitutes criminal negligence on his part. In the latter case, it must be a personal neglect amounting to a wanton, immoral disregard of the actions of his subordinates amounting to acquiescence.

United States v. Wilhelm Leeb et al, Vol XI 462, 512.

    At a later point, the Tribunal echoes the "wanton disregard standard" and speaks with a haunting resonance:

The President of the United States is Commander in Chief of its military forces. Criminal acts committed by those forces cannot in themselves be charged to him on the theory of subordination.  The same is true of other high commanders in the chain of command. Criminality does not attach to every individual in this chain of command from this fact alone.  There must be a personal dereliction.  That can occur only where the act is directly traceable to him or where his failure to properly supervise his subordinates constitutes criminal negligence on his part.   In the latter case, it must be a personal neglect amounting to a wanton, immoral disregard of the actions of his subordinates amounting to acquiescence."

United States v. Wilhelm Leeb et al, Vol XI 462, 543.

    Compare the Tribunal's statement with the following allegation regarding Japanese Emperor Hirohito's responsibility for the Bataan death march:

What is certain is that when, in 1943, a detailed account of the horrors of the Bataan death march was released to the world, and brought to Hirohito's attention ... the emperor changed the subject, and never ordered an investigation into the conduct of those responsible.

Edwin Behr, Hirohito: Behind The Myth, at 259. Villard Books, (New York, 1989).


    Similarly, in United States v. List, the Hostages Case, the Tribunal warned a commander that if he:

...fails to require and obtain complete information, the dereliction of duty rests upon him and he is in no position to plead his own dereliction as a defence .... Want of knowledge of reports made to him is not a defence. 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.

United States v. List (Hostages Case) Judgment.

    Yamashita testified at his trial that he took command of his units shortly before the occurrence of the incidents charged, and that he experienced severe difficulties in asserting command and control:

...I was constantly under attack by large American forces, and I have been under pressure day and night. ...At the time of my arrival I was unfamiliar with the Philippine situation and nine days after my arrival I was confronted with a superior American force....I was not able to make a personal inspection and to co-ordinate the units under my command...; the troops were scattered about a good deal...but the Japanese communications were very poor...; ...I was forced to confront the superior United States forces with subordinates whom I did not know and with whose character and ability I was unfamiliar. ...These were insufficiently trained troops, and for a long time they had been under the influence of a tropical climate, and due to the lowering of morale, my plan became even more difficult.... When the Americans landed...the situation came to a point where our communications were completely disrupted....we managed to maintain some liaison, but it was gradually cut off, and I found myself completely out of touch with the situation.

Certain testimony has been given that I ordered the massacre of all the Filipinos, and I wish to say that I absolutely did not order this, nor did I receive the order to do this from any superior authority, nor did I ever permit such a thing, or if I had known of it would I have condoned such a thing, and I will swear to heaven and earth concerning these points.

A. Frank Reel, The Case of General Yamashita at pp. 148-149, Octagon Books (New York, 1971).

...if participation by a soldier in a war of aggression is really to become an offense punishable under international law then every soldier in every country will have to be accorded the right, on the outbreak of war, to call upon his government to justify its action and to demand access to all political documents which have any bearing on the outbreak of war

Karl Doenitz, Memoirs, Ten Years And Twenty Days, DaCapo Press (Annapolis, 1997) at 52. 

    What Doenitz misses, however, is that in a democracy, to a very great extent, that right exists and is exercised. Part of that exercise, in the context of the armed forces, is one role of military lawyers.  As the Tribunal points out in Leeb, supra:

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. Such a commander cannot be expected to draw fine distinctions and conclusions as to legality in connection with orders issued by his superiors. He has the right to presume, in the absence of specific knowledge to the contrary, that the legality of such orders has been properly determined before their issuance. He cannot be held criminally responsible for a mere error in judgment as to disputable legal questions.

United States v. Von Leeb et al, Vol XII 1, 73-74. Finally, any serious student of the subject of command responsibility needs to read the Einsatzgruppen Case. It contains extensive analysis of all aspects of this doctrine, and though unusually painful reading, even for this course, is highly  commended to the serious student. 

    German commanders were certainly aware of law of war requirements. The following exert is from the interrogation of Col. Gen. Heinz Guderian:

...I did not take the [Commisar Order] with me into the field and did not distribute it. Therefore Panzer group No. 2 treated the civilian population in conformance with the Geneva Convention and international law.

Q: Can we say throughout the entire activities of Panzer Group no. 2 under your command International Law and the provisions of the Geneva Convention were complied with?

A: I commanded the Second Panzer Group for six months. During those six months I learned of only one case where two soldiers violated provisions of International Law.  They were members of a service unit.  I did not approve the sentence against these two soldiers, which was rather mild, and I ordered capital punishment against them.

    Richard Overy, Interrogations: The Nazi Elite in Allied Hands at 529, Penguin Press (London, 2001).

    Following the post-WWII trials the United Nations adopted the Nuremberg Principles which, inter alia, established beyond argument that command responsibility and the rejection of superior orders as an absolute defense, had been recognized as binding international law.

    Once the point is decided though, the fundamental role of lawyers in war-making is to ensure the commander can carry out the mission in a lawful manner. The general field of practice has begun to coalesce under the rubric of Operations Law. Advice to the commander is necessary at all levels, although generally only directly given to officers above the battalion level. It is the function of Rules of Engagement (discussed below) to disburse that advice to troops and commanders at all levels.

    How then, is the commander required to fulfill the responsibilities imposed by the laws of war? According to the International Committee of the Red Cross the Hague and Geneva conventions require that the commander 1) search for information, 2) take precautions to avoid or minimize civilian damage 3) and consider the elements of the tactical situation and military necessity. The ICRC states that "[t]he exercise of control is the last step in the exercise of command," and that it enables the commander to ensure his subordinates "respect and ensure respect for the law of war within their sphere of responsibility." Frederic De Mulinen, Handbook On The Law Of War For Armed Forces, (ICRC, Geneva, 1987). See, Michael Smidt, Yamashita, Medina and Beyond, Command Responsibility in Contemporary Military Operations, 164 Military Law Review 155 (June, 2000).

    The doctrine is strict but it is not absolute, in the sense of strict liability. As the ICTY recently noted:

The doctrine of superior responsibility does not establish a standard of strict liability for superiors for failing to prevent or punish the crimes committed by their subordinates. Instead, Article 7(3) provides that a superior may be held responsible only where he knew or had reason to know that his subordinates were about to or had committed the acts referred to under Articles 2 to 5 of the Statute. A construction of this provision in light of the content of the doctrine under customary law leads the Trial Chamber to conclude that a superior may possess the mens rea required to incur criminal liability where: (1) he had actual knowledge, established through direct or circumstantial evidence, that his subordinates were committing or about to commit crimes referred to under Article 2 to 5 of the Statute, or (2) where he had in his possession information of a nature, which at the least, would put him on notice of the risk of such offences by indicating the need for additional investigation in order to ascertain whether such crimes were committed or were about to be committed by his subordinates.


Delalich Case at 383. See also, Ann B. Ching, Evolution of the Command Responsibility Doctrine in Light of the Celebici Decision of the International Tribunal for the Former Yugoslavia, North Carolina Journal of International Law and Commercial Regulation 167 (1999). The other side of the coin is represented by United States v Sawada et al, the trial of the Japanese officers who tried eight captured American airmen from the 1942 Doolittle raid on Tokyo.

Command responsibility includes a requirement that the commander, arguably including the civilian head of government, investigate evidence of war crimes under his command, and punish those whose subordinates have committed them:

[Japanese Prime Minister Tojo] took no adequate steps to punish offenders (who ill-treated POWs) and to prevent the commission of similar offenses in the future...No one was punished...Thus the head of the Government of Japan knowingly and willfully refused to perform the duty which lay upon that Government of enforcing performance of the laws of war. 

Judgment IMTFE Vol 20 pp. 49,845-49,846.    

For an excellent general discussion of the law relating to command responsibility see, Hays Parks' Command Responsibility for Warcrimes, 62 Mil. L. Rev. 1 (1973). See also lecture outline, P. Whitney Lackenbauer, Lecture,University of Waterloo (2008)  War Crimes and Command Responsibility, Brigadefuhrer Karl Meyer and the Murder of Candadian Prisoners of War During the Second World WarFor a discussion of application of the doctrine to events in Iraq since the U.S. invasion in 2003, see, Command's Responsibility, a Human Rights First report.

Questions To Consider About Command Responsibility


4.1.1  A unit commander calls for an artillery strike on an enemy position. Due to enemy jamming his transmission is garbled and the rear area artillery unit shells a civilian village by mistake. Is the commander liable under Article 27 of the Geneva Civilians Convention? Suppose, the commander misread his map under the stress of an enemy attack and that he actually called in the wrong coordinates? Has he committed a war crime? What if his radio equipment would have overridden the enemy jamming but for improper maintenance by the division communications battalion? Is anyone liable?

4.1.2 Is a commander liable for any unlawful act done by his troops? 

bulletWhat if he loses control due to enemy degradation of his command and control structure?
bulletWhat if he gives orders requiring proper conduct but doesn't enforce them as strongly as he might have?
bulletWhat if the commander learns of the criminal conduct after the fact and doesn't seek the maximum penalty against the perpetrators?

4.1.3 Read Calley, Leeb, List, and Yamashita

bullet        You’re defense counsel for Yamashita. What points do you make to the court regarding the legitimacy of trying him under the doctrine of command responsibility? The following points may assist in your defense: 1) Yamashita gave orders which were disobeyed, 2) his inability to communicate was caused by US attacks, and 3) allied troops also committed war crimes, are US commanders responsible?
bulletIn light of Yamashita was Lt. Calley's commander Gen. Westmoreland guilty of war crimes under the doctrine of command responsibility? Articulate the reasons for your answer.
bulletYou are counsel for Yamashita on appeal to the U.S. Supreme Court. What errors were made by the military commission which convicted him? Look closely at the evidence upon which the prosecution relied.
bulletYou are prosecution counsel in the Calley case. Review the documents and trial excerpts found at the My Lai Web Page. Articulate an argument against his mitigation defense discussed by the Court in the Calley Decision. For excellent background material see, Vietnam Studies, Law At War: Vietnam 1964-73.
4.1.4. You are the Iraqi ground forces commander in Baghdad. Your command and communications facilities have been destroyed by allied air attacks in the first days of the Gulf War. The U.S. claims your troops are engaged in looting in Kuwait City. What action do you take to deal with that claim?
4.1.5 Read Section 501 of FM 27-1. What does it tell you about Yamashita's liability?
4.1.6 Is a commander responsible for actions undertaken with a lack of adequate information? If so, what steps must reasonably be taken to obtain that information? Must a commander risk the lives of troops to obtain information necessary to distinguish between military and civilian targets? What if that information can only be obtained by spying? Must the commander place someone at risk of death when captured?
4.1.7 Consider the proper instructions in a command responsibility case. Read the jury instructions given by the district court in Ford et al v. Garcia and Casanova, Case No 99-8359-CIV (S.D. FL., 2000). Would Yamashita have been convicted under this instruction?
4.1.8 The Plaintiff in Koster v. US protested his punishment arguing that he had ordered an investigation into the Mei Lei massacre and that it had been inadequate solely due to misconduct by his subordinates. Should a commander be held strictly liable for misconduct by his subordinates regardless of whether he knew or should have known of their acts? Compare Secretary Reasor's memo in Koster with the rationale for liability in  Yamashita.
4.8.9 How far does command responsibility reach up the chain of command? In a state where a civil government controls the military are civilians liable, and if so under what standards, for violations of the laws of war by the armed forces? Must the civilian commander have actual knowledge? Is there an obligation to investigate allegations of war crimes, and if so is there criminal liability for any breach of that duty?

4.2 Liability For War Crimes


    A war crime is, according to the United States Marine Corps:

   Any violation of the law of war which injures the opponent, a neutral or a noncombatant, or which gains a military advantage for the person or force committing the violation. Any act of intentional misconduct by a Marine during an actual combat or military operation, if directed at someone other than U.S. personnel, or at property not belonging to the United States, is likely to be a war crime.

Marine Corps Law Of War Course Deskbook, p. 92.

    Criminal activity in connection with an armed conflict may consist of war crimes as defined above, as well as:

bulletCrimes against humanity defined at Nuremberg as "Atrocities and offenses, including but not limited to murder, extermination, enslavement, deportation, imprisonment, torture, rape, or other inhuman acts committed against any civilian population, or persecutions on political, racial or religious grounds whether or not in violation of the domestic laws of the country where perpetrated."
bulletCrimes against peace: The Nuremberg definition included "Initiation of invasions of other countries and wars of aggression in violation of international laws and treaties, including but not limited to planning, preparation, initiation or waging a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for accomplishment of any of the foregoing."

See, Article I of Control Council Law No. 10, December 20, 1945, Allied Control Council For Germany.

...Israeli law punishes with the death penalty any "crime against the Jewish people," any "crime against humanity," and any "war crime." Nazis and Nazi Collaborators (Punishment) Law, 1950, S.H. 57(1)(a). ...

The term "crime against humanity" includes the following acts: "murder, extermination, enslavement, starvation or deportation and other inhumane acts committed against any civilian population, and persecution on national, racial, religious, or political grounds." Id.

The term "war crime" means any of the following acts:

murder, ill-treatment or deportation to forced labour or for any other purpose, of civilian population [sic] of or in occupied territory; murder or ill treatment of prisoners of war or persons on the seas; killing of hostages; plunder of public or private property; wanton destruction of cities, towns or villages; and devastation not justified by military security. Nazis and Nazi Collaborators (Punishment) Law, 1950, S.H. 57(1)(b).

U.S. v. Gecas, 120 F.3d 1419, 1415, FN 5 (11th Cir. 1997).

    War crimes are generally recognized as falling into two categories with the more serious being "grave breaches" of the Geneva Conventions of 1949. These are defined slightly differently by each convention. Thus, for example, Article 50 of the Wounded And Sick Convention defines grave breaches as including:

...wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.

    Article 130 of the Geneva Prisoner Of War Convention uses different language to cover the special rights and circumstances of prisoners of war:

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.

    The U.S. Army Field Manual lists the following examples of war crimes not falling within the grave breaches category:

bulletMaking use of poisoned & otherwise forbidden arms or ammunition
bulletTreacherous request for quarter
bulletMaltreatment of dead bodies
bulletAbuse or firing on the flag of truce
bulletMisuse of the Red Cross emblem
bulletUse of civilian clothing by troops to conceal their military character during battle
bulletImproper use of privileged buildings for military purposes
bulletPoisoning of wells or streams
bulletPillage or purposeless destruction
bulletCompelling prisoners of war to perform prohibited labor
bulletViolation of surrender terms

    War crimes are subject to prosecution both by international tribunal or by military courts or commissions. In some instances, such as genocide, it is arguable that States are obligated by treaty to either prosecute or extradite suspected violators. See, 1948 Convention On The Crime Of Genocide, (German language version) Articles 4, 5 and 6.

Questions To Consider About Liability for War Crimes

4.2.1 Should a military commander be able to avoid responsibility for crimes committed by troops under his or her command if the troops are rebellious or undisciplined? What if irregular forces are assigned to the commander? Must a commander refuse to use or work with partisans and guerillas where they are not subject to firm military discipline? Consider the interplay of Common Article 3 of the 1949 Geneva Conventions.
4.2.2 How far up the chain of command does responsibility climb? In the United States the President is the commander in chief of the armed forces. Was President Johnson responsible for Lt. Calley's criminal conduct?  What is distinction, if any, is there between the Westmoreland example given above and the President?
4.2.3 Review the list of war crimes alleged against Germany following World War One. Note that the allegations involve, inter alia, crimes against women including rape and enforced prostitution. How has the legal basis for punishing such crimes changed since 1918? 


4.3 Rules Of Engagement


Directives issued by competent military authority to delineate the circumstances and limitations under which its own naval, ground and air forces will initiate and/or continue engagement with other forces encountered.

The Judge Advocate General's School, United States Army, International & Operational Law Department, Operational Law Handbook, para. 8.1 (1st Rev. ed., 1997).

    Rules of Engagement are policies developed by the command structure which govern the means by which individual military personnel and units may engage in armed conflict with a hostile force. See Joint Chiefs of Staff Standing Rules of Engagement, and U.K. Ministry of Defense Aide Memoire on the Law of Armed Conflict.  See, Mark Martins Rules of Engagement for Land Forces: A Matter of Training, Not Lawyering,143 Mil. L. R. (1994). Varying definitions exist, but a very well done case study and discussion of the intricate and conflicting factors involved, and the role of the lawyer in their drafting, may be found in the Aerospace Chronicles.

    If those intricate conflicts create genuine issues upon which lawyers may in good faith differ, how then can the soldier in the field rely upon them? Consider the following quote:

   When you receive your Rules of Engagement, you can rest assured that they have been through successive layers of technical and legal review. The Army continues to develop a sophisticated system for training soldiers in the Rules of Engagement prior to deployment. Just as with any other military skill, you should absolutely rely on that instinctive training base that you have learned and practiced. From the soldier's perspective, this means that if you train yourself and your subordinates in those Rules of Engagement, and subsequently follow [them] to the best of your ability, you can be confident in the fulfillment of your duties. The bottom line is that every feasible precaution has been built into the operation to ensure compliance with applicable international law, particularly the laws of armed conflict.


Address to U.S. Army First Corps, David J. Scheffer, U.S. Ambassador at Large for War Crimes Issues, May 4, 2000.

    The following discussion from a history of the Vietnam War considers command responsibility and rules of engagement in the Calley context:

The ... conviction of Lieutenant Calley ... provoked charges that he had been made a scapegoat for policies that emanated from the highest levels of political and military command. Citing principles laid down by the Nuremberg Tribunals, some claimed that because they had knowingly instituted or permitted the employment of tactics that were in themselves illegal and that could lead to no other result than the murder of civilians, it was General Westmoreland and President Johnson who should be called to account for the war crimes...

The historian Gunther Lewy, who has maintained that U.S. military tactics in Vietnam were neither illegal nor in the main irresponsible, has suggested nonetheless that Rules of Engagement were "not applied and enforced as they should have been." As the commander of U.S. forces "Westmoreland should have known that in the Vietnam environment inadequate understanding of the ROE could and would lead to violations of the law of war." Failing to insure that the regulations were more rigorously enforced, he was guilty of "at least dereliction of duty or perhaps even criminal negligence..."

Edward Doyle & Stephen Weiss, The Vietnam Experience: A Collision of Cultures, Boston Publishing Company  (1984).

    American troops are trained extensively in rules of engagement. That training and application always involves attorneys at some level. Soldiers are taught mnemonics such as "VEWPRIK" or the "5 S's." The first reminds a soldier that he or she may escalate force (although not all steps are necessarily required) with Verbal warning, Exhibit Weapon, Warning shot, Pepper spray, Rifle buttstroke, Injure with bayonet, Kill with fire. The second, involves Shout warning, Show weapon, Shove, Shoot non-lethal, Shoot lethal. The involvement of Judge Advocates in ROE training, development and application is discussed extensively in the Lessons Learned from Afghanistan and Iraq, Volume I, Center for Law and Military Operations (2004).

    In addition to area specific rules, the United States maintains Standing Rules Of Engagement which apply during all military operations and contingencies outside the United States. 

     The Standing ROE authorizes the use of all "necessary means available and all appropriate actions" in self-defense. They specify:

(1) "Attempt to De-Escalate the Situation" if possible by providing the hostile force a warning and "opportunity to withdraw or cease threatening action;"

(2) "Use Proportional Force-Which May Include Nonlethal Weapons-to Control the Situation;" and

(3) "Attack to Disable or Destroy" when "the only prudent means to stop a hostile act or intent.

While these three measures appear conservative, the guidance further states "pursue and engage hostile forces that continue to commit hostile acts or exhibit hostile intent...Furthermore, the standing ROE do not impose a duty to retreat in self-defense. Instead, they contemplate escalating measures, beginning with a warning, if feasible, and culminating in an offensive pursuit.  They also confirm that "[t]he individual's inherent right of self-defense is an element of unit self-defense."

W. A. Stafford, How to Keep Military Personnel from Going to Jail for Doing the Right Thing: Jurisdiction, ROE & the Rules of Deadly Force, The Army Lawyer, November, 2000.

...the rules of engagement imposed by a commander are guidelines pertaining to firing of weapons. Those rules generally are aimed at preventing needless casualties and unnecessary destruction. Even if the rules of engagement are violated, however, the lawfulness of the killing resulting from the firing will be determined by the UCMJ and the law of war. Thus, even though a particular shooting may violate a command-imposed rule of engagement, and thus be subject to punishment under the UCMJ, the killing resulting from that shooting may nevertheless be lawful.

U.S. v. McMonagle, 34 M.J. 852, 870 (1992).

    Consider the following analysis of the political aspects inherent in all determinations of rules of engagement:

In Britain during the Falklands War, Prime Minister Margaret Thatcher followed combat activity very closely. The War Cabinet met virtually every day to decide on major political and strategic questions which of course, had a direct bearing on operations. The Cabinet also ruled on such matters as Rules of Engagement, which is a decision of primary political nature [emphasis added], one of the principal ways of exercising political control, especially in the period leading up to full-scale hostilities. For instance, the Cabinet had to decide itself on changing the Rules of Engagement to allow the nuclear submarine HMS Conqueror to sink the Argentine cruiser Belgrano at the outbreak of hostilities. But by and large the overall operational plan for the recapture of the Falkland Islands, which required professional decisions, was left to the military planners at the JHQ and in the theatre.

Rudolf Joo, The Democratic Control Of The Armed Forces, Institute For Security Studies (1996).

Questions To Consider About Rules Of Engagement


4.3.1 If lawyers draft rules of engagement and combat soldiers are the people guided by those rules, consider the appropriate balance between the flexibility needed on the battlefield and the specificity needed to avoid criminal liability. How is that balance reached? List five factors which must be considered by someone drafting rules of engagement.
4.3.2 You are a JAG officer in the armed forces of the United States and have been charged with drafting the rules of engagement for air forces attacking Serbian forces in Kosevo. You know the terrain is rough, the weather cloudy, and that the civilian population is fleeing Serbian attacks. Now, you have learned the Serbian armed forces are mixing into the civilian refugee columns to avoid attack, and that intelligence reports they may also be attacking those refugees. List ten rules for the allied air force as it seeks to engage hostile ground forces. 
4.3.3 Can rules of engagement ever effectively guide all conduct by troops in conduct? If not, do they have any value?
4.3.4 If rules of engagement are violated, does that violation necessarily constitute a war crime? Can an international tribunal punish someone for violating a rule of engagement which would not be mandated under international law?


4.4 The Reality Of Combat


    Consider the following examples of the stresses which impact a combat soldier. They can give only a bare hint of the combination of terror and exhilaration, adrenaline and exhaustion which are the lot of the front line trooper. Try, however, to keep them in mind as you apply the laws of war to regulate chaos.

    And it came to pass, when the Philistine arose, and came and drew neigh to meet David, that David hastened, and ran toward the army to meet the Philistine. And Davis put his hand in his bag, and took thence a stone, and slang it, and smote the Philistine in his forehead, that the stone sunk into his forehead, and he fell upon his face to the earth.

    So David prevailed over the Philistine with a sling and with a stone, and smote the Philistine and slew him, but there was no sword in the hand of David. Therefore David ran, and stood upon the philistine, and took his sword and drew it out of the sheath thereof, and slew him, and cut off his head therewith.

I Samuel 17, verses 48-51.

   The truly terrifying character of a naval engagement lies in the fact that it is a clash of machine against machine. An airman flying high over the battle area would see only a seemingly calm procession of little ships following one behind the other in accurately spaced distance, and emitting white puffs of smoke and darker clouds from belching funnels. Surrounded by fountains of water, he would see them proceeding with foaming prows toward an imaginary goal. But he would not see what is going on deep down in the bellies of the ships.

    There the stokers are shoveling mountains of coal into the glowing furnaces working as fast as they can-- and yet they might be working thus on any peaceful day in May. Only the rumbling echo of the impact of shells against the steel hulls shows the sweating stokers that up on deck unimaginable things must be happening. Fortunately they do not know what is going on above them. They cannot see the number of wounded carried to crowded sick-bays and improvised dressing stations. They do not know that part of the superstructure is burning fiercely, that enemy hits have torn gaping holes in the hulls, that engineers are working frantically to flood the wing passages and right the ship, that shells filled with poison gas are claiming their toll among the crew.

    Suddenly the stokers ... were shaken from their calm. The whole ship appeared to be keeling over. Like children on a slide, the men were propelled toward the gaping, firey mouths of their furnaces. Staring at each other in horror, they could hear steam escaping from the boilers, and a terrifying gurgling noise like the death-throes of a gigantic animal went through the ship.  Then the air became difficult to breathe, and from the air-ducts at the ceiling foul, poisonous vapors descended into their case. The light went out and only the glowing coal in the furnace cast an eerie, red light over the scene. Their screams died in their parched, choking throats.

Frank Thiess, Tsushima, describing the battle of Tsushima in 1906 in Men At War, Hemmingway, Ed. (Crown, 1942).

  Groups of Federals are surrounded by Confederates--Confederates surrounded by Federals. Shots, shrieks, imprecations, shouts and yells; fierce calls for surrender, with defiant answers; all mingle together in a devilish uproar of sounds.  Men fight with clubbed muskets, rifles, pistols, bayonets and color staffs.

Warren Goss, a Northern soldier describing Gettysburg in 1863. Richard Wheeler, Voices of the Civil War, Crowell (1976).

    At their first sight of the Germans they [two platoons of American infantry--approximately 80 men] broke over with wild shouts, hip-firing, brandishing the bright steel of bayonets, using rifles ... as clubs when out of ammunition, driving into the heart of two German companies on the river side of the embankment, killing and being killed. [Their officers] unable to restrain them, joined and led them...[The Germans counter-attacked with two elite Grenadier Brigades]... The first shock of the charge, led by a captain of the 5th Grenadiers...was met by Lieutenant Mercer M. Phillips...platoon. Phillips was wounded in the head, and as his corporal knelt to bandage him, the grenadier captain was upon him. Phillips was up in a flash with the corporal's rifle, bayoneting the German captain, who as he fell back dying, put a pistol bullet into the ...lieutenant's brain.  [The company commander of the Americans doing this fighting--a company was about 200 soldiers] searched for survivors, found only Private Weiner, and together they  moved to the left to collect the wreck of the platoon, but all the rest had been killed in the attack. [The Captain] with the last bullet in his last clip, killed the machine gun officer who was the cause of all this trouble, and Weiner with his bayonet accepted the surrender of the three surviving German gunners...[The Captain] soon killed the staff major of the leading [German] battalion too. He was not of a mind to kill him at first; he merely shot him in the hand at a distance of three feet before the German could pull his pistol from his holster. The major, staring at [the Captain] then slowly moved his left hand across his body to the butt of his pistol. [The Captain] started to raise his knee to boot the fellow to the ground, but the heat of battle was on him and when the German still tried to draw his pistol, he killed him instead.

Laurence Stallings, The Doughboys, describing the Second Battle of the Marne, 1918, Harper & Row (1963).

    Stalling's example is bolstered by Adrian Gilbert's:

    Front-line soldiers accepted the brutal morality of those who surrendered "too late." In the First World War, Charles Carrington, a British officer, proposed that "no soldier can claim a right to 'quarter' if he fights to the extremity." Ernst Junger, from the other side of no man's land agreed: "The defending force, after driving their bullets into the attacking one at five paces' distance, must take the consequences. A man cannot change his feelings during the last rush of blood before his eyes. He does not want to take prisoners but to kill."

Adrian Gilbert, POW: Allied Prisoners in Europe, 1939-1945, John Murray (London, 2006) at p.4.

"In my mind the situation is the result of the enemy's law of war violations," he says. "When the enemy purposely positions themselves within civilians, it makes the complexity of my decision-making or that of my Marines ten times more difficult.  They hope to draw more casualties on our side because of the restraint that we show. It's a deadly situation, and we have to make twenty to thirty life-or-death decisions every hour, and often we do this without sleep. I'm amazed it's going as well as it has."

He brings up the moral dilemma posed by the situation the battalion was in yesterday. "At Ar Rifa," he says, "we were lying in front of God and everybody as an easy target. Hostile forces were on the rooftops. Based on intelligence gathered by the interpreter from the townspeople, I believed we'd located a military headquarters in that town. I ordered artillery rounds dropped on that building to prevent them from organizing an attack on us. Was I right?" he asks.

"I can't say for sure they were organizing for an attack, or even that the building we hit was a headquarters. What I do know is, we dropped artillery. I'm certain civilians did die as a result of my order to do so.  I don't like making this kind of choice, but I will err to protect these Marines when I can.

Lt. Col. Ferando a USMC Battalion Commander in Iraq.

Evan Wright, Generation Kill, Putnam, New York (2004).

...there had occurred in F Company the event known as the Great Turkey Shoot.  In a deep crater in a forest, someone had come upon a squad or two of Germans, perhaps fifteen or twenty in all.  Their visible wish to surrender--most were in tears of terror and despair--were ignored by our men lining the rim.  Perhaps some of our prisoners had recently been shot by the Germans. Perhaps some Germans hadn't surrendered fast enough and with suitable signs of contrition (We were very hard on snotty German adolescents). Whatever the reason, the Great Turkey Shoot resulted. Laughing and howling, hoo-ha-ing and cowboy and good-old-boy yelling, our men exultantly shot into the crater until every single man down there was dead. A few tried to scale the sides but there was no escape. If a body twitched or moved at all, it was shot again.  The result was deep satisfaction, and the event was transformed into amusing narrative, told and retold over campfires all that winter.  If it made you sick you were not supposed to indicate.  I was beginning to understand what a marine sergeant told Philip Caputo during the Vietnam War: "Before you leave here, Sir, you're going to learn that one of the most brutal things in the world is your average nineteen-year-old American boy."

Paul Fussell, Doing Battle at 124, Little Brown, (Boston, 1996).

     The best catch of this whole campaign was a group of three prisoners taken lately who gave more information than anyone had been able to get before. A lieutenant, a warrant officer, and a sergeant were surrounded and captured alive and uninjured. The two officers offered to talk, but the sergeant who evidently spoke English, was stubborn and smart. One of the [U.S.] infantrymen simply took his sharp machete and severed his head with one blow. Surprising? Not at all. It is done often, as I saw with my own eyes, so I have no reason to doubt a word of the story.

     The irony of the whole thing was that just the same day I had read a memorandum on our bulletin board that gave a hair raising account of an American soldier having his head cut off with a samurai sword. It had been taken from the diary of a Japanese sergeant killed near Hollandia...War is war, and the Geneva Red Cross Convention (quoted often in articles about 'humane treatment of enemy prisoners') is a long way from the front line. Three is but one law here, KILL, KILL, KILL!

Richard Aldrich, The Faraway War at 461-162 from the Diary of John Gaitha Browning, 21 August, 1944, Doubleday, (London, 2005).

Questions To Consider About The Reality Of Combat


4.4.1 Can the laws of war and the rules of engagement ever control troops in the heat of this sort of battle?
4.4.2 You are charged with defense of the American Captain who shot the German Major but the facts are slightly changed. The German officer didn't reach for his pistol but just stood there motionless after being shot. The American has been charged with violating the laws and customs of war and unchivalrous conduct. Structure his defense.
4.4.3 You are charged with the prosecution of an American soldier who accepted the surrender of an enemy soldier. The enemy soldier then pulled out a concealed pistol and attempted to kill his captor. In the course of the ensuing struggle the defendant knocked the enemy soldier unconscious. After determining the enemy was indeed completely unconscious the American soldier shot her several times. He asserts as his defense that he acted in the heat of combat. How do you deal with that defense.
4.4.4 Consider the "Great Turkey Shoot" described by Paul Fussell. You are the JAG charged with defense of the American soldiers involved. What is the basis for your defense?


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