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:
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
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:
|Enable a commander to move his unit from one place to another in an
|Aid in disciplinary training by instilling habits of precision and
response to the leader's orders.|
||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.|
|Provide for the development of all soldiers in the practice of
FM 22-5 Drill and Ceremonies, Headquarters, Department of the Army (December,
|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
|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
Koster v. United States, 231 Ct.Cl.
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
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
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
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
,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:
|Is my mission lawful?|
|What elements must I consider in decision making?|
|How much control must I exercise over my troops who carry
out the mission?|
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
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,
Compare the Tribunal's statement with the following
allegation regarding Japanese Emperor Hirohito's responsibility for the Bataan
|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,
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
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
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
A. Frank Reel, The Case of General Yamashita at pp. 148-149, Octagon Books (New York,
|...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.
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:
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
German commanders were certainly aware of law of war
requirements. The following exert is from the interrogation of Col. Gen. Heinz
|...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
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
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.
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 War.
For 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.
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
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?
|What if he loses control due
to enemy degradation of his command and control structure?|
|What if he gives orders requiring proper conduct but doesn't
enforce them as strongly as he might have?|
|What 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.
| 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?|
|In 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.|
|You 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.|
|You 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
|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?
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.
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
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:
|Crimes 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."|
|Crimes 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
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
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:
|Making use of poisoned & otherwise forbidden arms or ammunition|
|Treacherous request for quarter|
|Maltreatment of dead bodies|
|Abuse or firing on the flag of truce|
|Misuse of the
Red Cross emblem|
|Use of civilian clothing by troops to conceal their military character
|Improper use of privileged buildings for military purposes|
|Poisoning of wells or streams|
|Pillage or purposeless destruction|
|Compelling prisoners of war to perform prohibited labor|
|Violation 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
On The Crime Of Genocide, (German
language version) Articles 4, 5 and 6.
Questions To Consider About Liability for
|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
crimes changed since 1918?
|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.,
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
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
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
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
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
from Afghanistan and Iraq, Volume I, Center for Law and Military
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.
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
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
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?
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
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
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
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
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
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
"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).
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,
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
|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.
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.
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?