Here is the summary and reasoning given in the United Nations War Crimes Commission,
, vol. 15 Digest of Laws and Cases (1949), pp. 62-78
62 THE PARTIES TO CRIMES
(viii) MILITARY OFFICERS AND OTHER SUPERIORS. The question of the extent of responsibility of superiors, particularly superior officers, for the offences of their subordinates has been the subject of comment at several points in these Volumes.(1)
There have been many trials in which an officer who has been shown to have ordered the commission of an offence has been held guilty of its perpetration.
One example among many is the trial of General Anton Dostler, by a United States Military Commission, Rome, 8th-12th October, 1945, in which the accused was found guilty of having ordered the illegal shooting of fifteen prisoners of war.(2) Another example is the trial of Generals Mueller and Braeuer by a Greek Court Martial at Athens ;(3) these accused were found guilty of ordering others to commit war crimes, and were sentenced to death.
While the principle of the responsibility of such officers is not in doubt, it is nevertheless interesting to note that it has even been specifically laid down in certain texts which have been used as authorities in war crime trials. For instance, paragraph 345 of the United States Basic Field Manual, F.M. 27-10, in dealing with the admissibility of the defence of Superior Orders, ends with the words : " .. . The person giving such orders may also be punished."
Similarly the Judge Advocate acting in the Trial of Kurt Meyer by a Canadian Military Court at Aurich advised the court that if an officer, though not a participant in or present at the commission of a war crime incited, counselled, instigated or procured the commission of a war crime, and, a fortiori, if he ordered its commission, he might be punished as a war criminal(4), and the judgment delivered in the High Command Trial contains a number of examples of this well-established responsibility of a superior for offences ordered by him.(5)
The more interesting question, however, is the extent to which a commander of troops can be held liable for offences committed by troops under his command which he has not been shown to have ordered, on the grounds that he ought to have used his authority to prevent their being committed or their continued perpetration, or that he must, taking into account all the circumstances, be presumed to have either ordered or condoned the offences. The extent to which such liability can be admitted is not easy to lay down, either legally or morally. The principles governing this sphere of international law have not yet crystallised, but at least it can be said that it is not in every instance necessary to prove explicitly that the commander actually ordered the offences, and it has frequently been laid down in enactments and in judicial decisions that a commander has a duty to prevent crimes from being committed by his subordinates.
In the circumstances it is inevitable that considerable discretion is left in the hands of the Courts to decide how far it is reasonable to hold a commander
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e) See Vol. IV, pp. 83-96, Vol. V, pp. 78-79, Vol. VI, p. 87, note 2, Vol. VII, pp. 61-64, Vol. VIII, pp. 88-89, Vol. IX, p. 54, Vol. XI, pp. 70-1 and Vol. XII, pp. 105-12.
(2) See Vol. I, pp. 22-34.
(3) Not previously treated in this series.
(4) Vol. IV, p. 107.
(5) See Vol. XII, p. 106.
THE PARTIES TO CRIMES 63
responsible for such offence of his troops as he has not been explicitly proved to have ordered. The relevant trials and municipal law enactments may be classified under the following two categories :
(i) material illustrating how, on proof of certain circumstances, the burden of proof is shifted, so as to place on an accused the task of showing to the satisfaction of the Court that he was not responsible for the offences committed by his troops,
(ii) material actually defining the extent to which a commander may be held responsible for his troops' offences.
The first type of material relates to a matter of evidence, the second type to a matter of substantive law.
(a) TRIALS AND PROVISIONS RELEVANT TO THE QUESTION OF THE BURDEN OF PROOF
Of interest in connection with the shifting of the burden of proof are Regulations 10(3), (4) and (5) of the War Crimes Regulations (Canada).. These Regulations lay down that, in certain stated circumstances, the proof of offences committed by groups of persons shall constitute prima facie evidence of responsibility on the part of certain individuals. Of these provisions, Regulations 10(3), of which the effect is substantially the same as that of Regulation 8(ii) of the British Royal Warrant,('-) runs as follows :
" Where there is evidence that a war crime has been the result of concerted action upon the part of a formation, unit, body, or group of persons, evidence given upon any charge relating to that crime against any member of such a formation, unit, body, or group may be received as prima facie evidence of the responsibility of each member of that formation, unit, body, or group for that crime ; in any such case all or any members of any such formation, unit, body, or group may be charged and tried jointly in respect of any such war crime and no application by any of them to be tried separately shall be allowed by the court."
The Canadian Regulations 10(4) and (5) make the following provisions :
" (4). Where there is evidence that more than one war crime has been committed by members of a formation, unit, body, or group while under the command of a single commander, the court may receive that evidence as prima facie evidence of the responsibility of the commander for those crimes.
" (5). Where there is evidence that a war crime has been committed by members of a formation, unit, body, or group and that an officer or non-commissioned officer was present at or immediately before the time when such offence was committed, the court may receive that evidence as prima facie evidence of the responsibility of such officer or noncommissioned officer, and of the commander of such formation, unit, body, or group, for that crime."
It is clear that these provisions do not purport to define the extent to which a commander is legally liable for offences committed by the troops under
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(1) See p. 92.
64 THE PARTIES TO CRIMES
his command ; they relate to matters of evidence and no substantive law. Furthermore, they provide discretionary powers and are not mandatory in nature.(1)
During the Trial of Kurt Meyer by a Canadian Military Court at Aurich the Court heard discussion of the effect of Regulation 10 (3), (4) and (5).(2) The Judge Advocate advised the Court that by virtue of these Regulations, it was unnecessary, as far as the second, fourth and fifth charges made in the trial were concerned, for the Prosecution to establish by evidence that the accused ordered the commission of a war crime, or verbally or tacitly acquiesced in its commission, or knowingly failed to prevent its commission. The facts proved by the Prosecution must, however, be such as to establish the responsibility of the accused for the crime in question or to justify the Court in inferring such responsibility. The secondary onus, the burden of adducing evidence to show that he was not in fact responsible for any particular war crime then shifted to the accused. All the facts and circumstances must then be considered to determine whether the accused was in fact responsible for the killing of prisoners referred to in the various charges. The rank of the accused, the duties and responsibilities of the accused by virtue of the command he held, the training of the men under his command, their age and experience, anything relating to the question whether the accused either ordered, encouraged or verbally or tacitly acquiesced in the killing of prisoners, or wilfully failed in his duty as a military commander to prevent, or to take such action as the circumstances required to endeavour to prevent, the killing of prisoners, were matters affecting the question of the accused's responsibility.(3)
The Judge Advocate also made some remarks on the proving by circumstantial evidence of the giving of a direct order. Dealing with the third charge, the Judge Advocate said : " There is no evidence that anyone heard any particular words uttered by the accused which would constitute an order, but it is not essential that such evidence be adduced. The giving of the order may be proved circumstantially ; that is to say, you may consider the facts you find to be proved bearing upon the question whether the alleged order was given, and if you find that the only reasonable inference is that an order that the prisoners be killed was given by the accused at the time and place alleged, and that the prisoners were killed as result of that order, you may properly find the accused guilty of the third charge." He drew attention, however, to paragraph 42 of Chapter VI of the Manual of Military Law regarding circumstantial evidence which states : " . . . before the Court finds an accused person guilty on circumstantial evidence, it must be satisfied not only that the circumstances are consistent with the accused having committed the act " (that is, said the Judge Advocate, that he gave the order) " but that they are inconsistent with any other rational conclusion than that the accused was the guilty person. "(4)
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(1) Vol. IV, pp. 128-129.
(2) Insofar as Counsel touched upon these matters, their remarks are set out in Vol. IV, pp. 110-112. The arguments quoted in Vol. IV, pp. 123-124, from the Trial of Kurt Student by a British Military Court also deal with questions of evidence.
(3) Vol. IV, p. 108. During the trial proceedings, a discussion arose as to the extent to which evidence not directly connected with the offences alleged on the Charge Sheet could be rendered admissible by Regulation 10(4). (See Vol. IV, pp. 111-2).
(4) Vol. IV, p. 108.
THE PARTIES TO CRIMES 65
The Trial of Karl Rauer and Six Others by a British Military Court at Wuppertal seems to suggest that responsibility may be inferred from surrounding circumstances, including the prevailing state of discipline in an army.(1) It is also worthy of note that the participation in offences of officers standing in the chain of command between an accused commander and the main body of his troops may be regarded as some evidence of the responsibility of the commander for the offences of those troops.(2) Regulation 10 (5) of the Canadian Regulations makes it possible for a Court to regard even the presence of an officer at the scene of the war crime, either at or immediately before its commission, as prima facie evidence of the responsibility not merely of the officer but also of the commander of the formation, unit, body or group whose members committed the crime.(3) Regulation 8 (ii) of the British Royal Warrant, like Regulation 10 (3) of the Canadian Regulations, may be applied so as to enable suitable evidence to be introduced as prima facie evidence of a commander's responsibility in the same way as it may be as evidence of the responsibility of any other member of a unit or group.(4)
Also of interest in connection with the question of circumstantial evidence as indicating that a superior must be taken to have ordered or connived at offences on the part of his subordinates is a passage from the Judgment of the International Military Tribunal for the Far East :
" During a period of several months the Tribunal heard evidence, orally or by affidavit, from witnesses who testified in detail to atrocities committed in all theatres of war on a scale so vast, yet following so common a pattern in all theatres that only one conclusion is possible—the atrocities were either secretly ordered or wilfully permitted by the Japanese Government or individual members thereof and by the leaders of the armed forces."(5)
(b) TRIALS AND PROVISIONS RELEVANT TO THE QUESTION OF SUBSTANTIVE LAW
It is clearly established that a responsibility may arise in the absence of any direct proof of the giving of an order for the commission of crimes.
The principle that a duty rests on a commander to prevent his troops from committing crimes, the omission to fulfil which would give rise to liability, is illustrated by a number of trials, of which three trials by United States Military Commissions in the Far East and various trials by Australian
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(1) Vol. IV, pp. 113-117.
(2) Compare the words of the Commission which tried Yamashita, set out on pp. 34 and 35 of Vol. IV.
(3) See p. 63.
(4) See p. 92. For a discussion during the Belsen Trial of the application of Regulation 8(ii) and of the possible operation against Kramer, Kommandant of Belsen Concentration Camp, reference should be made to pp. 140-141 of Vol. H.
(5) Official transcript of the Judgment of the International Military Tribunal for the Far East, p. 1001. (Italics inserted).
Stress was also placed, in the discussions referred to on p. 64 footnote 2, and in Regulation 10(4) quoted above, on the repeated occurrence of offences by troops under one command as prima facie evidence of the responsibility of the commander for those offences. For an example of the same line of thought in the Yamashita Trial see pp. 17, 34 and 35 of Vol. IV, and a comment on p. 94 of that Volume.
66 THE PARTIES TO CRIMES
Military Courts have been described or referred to on pages 86-87 of Volume IV.(1) The Judgment of the majority of the United States Supreme Court on the Yamashita Case included these words :
" It is not denied that such acts directed against the civilian population of an occupied country and against prisoners of war [as had been charged against Yamashita] are recognised in International Law as violations of the Law of War. Articles 4, 28, 46 and 47, Annex to Fourth Hague Convention, 1907, 36 Stat. 2277, 2296, 2303, 2306-7. But it is urged that the charge does not allege that petitioner has either committed or directed the commission of such acts, and consequently that no violation is charged as against him. But this overlooks the fact that the gist of the charge is an unlawful breach of duty by petitioner as an army commander to control the operations of the members of his command by ' permitting them to commit ' the extensive and widespread atrocities specified. The question then is whether the Law of War imposes on an army commander a duty to take such appropriate measures as are within his power to control the troops under his command for the prevention of the specified acts which are violations of the Law of War and which are likely to attend the occupation of hostile territory by an uncontrolled soldiery, and whether he may be charged with personal responsibility for his failure to take such measures when violations result. That this was the precise issue to be tried was made clear by the statement of the Prosecution at the opening of the trial.
" 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 civilian populations and prisoners of war from brutality would largely be defeated if the commander of an 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 the operations of war by commanders who are to some extent responsible for their subordinates.
" This is recognised by the Annex to Fourth Hague Convention of 1907, respecting the laws and customs of war on land. Article I lays down as a condition which an armed force must fulfil in order to be accorded the rights of lawful belligerents, that it must be ' commanded by a person responsible for his subordinates.' 36 Stat. 2295. Similarly Article 19 of the Tenth Hague Convention, relating to bombardment by naval vessels, provides that commanders-in-chief of the belligerent vessels ' must see that the above Articles are properly carried out.' 36 Stat. 2389. And Article 26 of the Geneva Red Cross Convention of 1929, 47 Stat. 2074, 2992, for the amelioration of the condition of the wounded and sick in armies in the field, makes it ' the duty of the commanders-in-chief of the belligerent armies to provide for the details of execution of the foregoing articles, (of the Convention) as well as for unforeseen cases.' And, finally, Article 43 of the Annex of the
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(1) One of the Australian trials mentioned, that of Babu Masao has been more fully reported in Vol. XI, at pp. 56-61. See especially pp. 57-60 where, inter alia, some further examples of this type of responsibility are set out.
THE PARTIES TO CRIMES 67
Fourth Hague Convention, 36 Stat. 2306, requires that the commander of a force occupying enemy territory, as was petitioner, shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.'
" These provisions plainly imposed on petitioner, who at the time specified was military governor of the Philippines, as well as commander of the Japanese forces, an affirmative duty to take such measures as were within his power and appropriate in the circumstances to protect prisoners of war and the civilian population. This duty of a commanding officer has heretofore been recognised, and its breach penalised by our own military tribunals. A like principle has been applied so as to impose liability on the United States in international arbitrations. Case of Jenaud, 3 Moore, International Arbitrations, 3000 ; Case of The Zafiro,' 5 Hackworth, Digest of International Law, 707."(1)
During the Belsen Trial, the Judge Advocate, speaking of the allegations regarding Kramer's actions at Belsen, said that he did not think it mattered very much whether he acted wilfully or merely with culpable neglect ; the question was whether the Prosecution had proved that Kramer did not carry out his duties as far as he was able to do and that he had caused at any rate physical suffering upon Allied nationals by reason of his actions ? Further, there was no charge against Dr. Klein of any deliberate acts of cruelty, and it was for the Court to consider whether Klein had a fair opportunity to do anything with regard to the conditions in Belsen and whether he so failed to act that the Court would have to find him guilty of the charge. What had to be decided was whether, in the time when he was really responsible and could improve matters, he failed either deliberately or in a culpable way deserving of punishment to do what he should have done.(2)
The principles governing this type of liability, however, are not yet settled. The question seems to have three aspects.
(i) How far can a commander be held liable for not taking steps before the committing of offences, to prevent their possible perpetration ?
(ii) How far must he be shown to have known of the committing of offences in order to be made liable for not intervening to stop offences already, being perpetrated ?
(iii) How far has he a duty to discover whether offences are being committed ?
Certain relevant provisions of municipal law exist. Thus, Article 4 of the French Ordinance of 28th August, 1944, Concerning the Suppression of War Crimes, provides that :
" Where a subordinate is prosecuted as the actual perpetrator of a war crime, and his superiors cannot be indicted as being equally responsible, they shall be considered as accomplices in so far as they have organised or tolerated the criminal acts of their subordinates."(3)
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(1) Vol. IV, pp. 43-44 (Italics inserted). For the dissenting opinions on this point see pp. 51-54, 57 and 58-61 of that Volume.
(2) Vol. II, p. 120.
(3) Vol. III, p. 94.
68 THE PARTIES TO CRIMES
In a similar manner, Article 3 of Law of 2nd August, 1947, of the Grand Duchy of Luxemberg, on the Suppression of War Crimes, reads as follows :
" Without prejudice to the provisions of Articles 66 and 67 of the Code Penal, the following may be charged, according to the circumstances, as co-authors or as accomplices in the crimes and delicts set out in Article 1 of the present Law : superiors in rank who have tolerated the criminal activities of their subordinates, and those who, without being the superiors in rank of the principal authors, have aided these crimes or delicts."
Article IX of the Chinese Law of 24th October, 1946, Governing the Trial of War Criminals, states that :
" Persons who occupy a supervisory or commanding position in relation to war criminals and in their capacity as such have not fulfilled their duty to prevent crimes from being committed by their subordinates shall be treated as the accomplices of such war criminals."(1)
A special provision was also made in the Netherlands relating to the responsibility of a superior for war crimes committed by his subordinates, The Law of July, 1947, adds inter alia, the following provision to the Extraordinary Penal Law Decree of 22nd December, 1943 :
" Article 27 (a) (3) : Any superior who deliberately permits a subordinate to be guilty of such a crime shall be punished with a similar punishment as laid down in paragraphs 1 and 2."
A similar provision is contained in Article 9 of the N.E.I. Statute Book Decree No. 45 of 1946, which reads :
" He whose subordinate has committed a war crime shall be equally punishable for that war crime, if he has tolerated its commission by his subordinate whilst knowing, or at least must have reasonably supposed, that it was being or would be committed. "(2)
It will be seen that the French enactment mentions only crimes " organised or tolerated," the Luxembourg provision only those " tolerated " and the Netherlands enactments only those deliberately permitted or knowingly tolerated. A reference to an element of knowledge enters into the drafting of each of these three texts.
The Chinese enactment does not define the extent of the duty of commanders " to prevent crimes from being committed by their subordinates." but the extent to which the Chinese Courts have been willing to go in pinning responsibility of this kind on to commanders was shown by the Trial of Takashi Sakai by the Chinese War Crimes Military Tribunal of the Ministry of National Defence, Nanking, 27th August, 1946. Here the Tribunal pointed out that the accused must have known of the acts of atrocities committed by his subordinates ; the question is therefore left open whether he would have been held guilty of breach of duty in relation to acts of which he had no knowledge.(3)
It seems implicit in the Judge Advocate's words in the trial by a British Military Court at Wuppertal, 10th and 11th July, 1946, of General Victor Seeger that some kind of knowledge on the accused's part was necessary to
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(1) Vol. XIV, p. 158.
(2) See Vol. XI, pp. 100-1.
(3) See Vol. IV, p. 88 and Vol. XIV, p. 7.
THE PARTIES TO CRIMES 69
make him guilty,(1) and the three reports by British and Canadian trials contained in Volume IV also provide, inter alia, some evidence that an accused must have had knowledge of the offences of his troops.(2) Similarly, in the trial of Baba Masao by an Australian Military Court at Rabaul, the Judge Advocate advised the Court that " In order to succeed the prosecution must prove . . . that war crimes were committed as a result of the accused's failure to discharge his duties as a commander either by deliberately failing in his duties or by culpably or wilfully disregarding them, not caring whether this resulted in the commission of a war crime or not ".(3)
A study of a passage from the judgment delivered in the Trial of Field Marshal Erhard Milch by a United States Military Tribunal at Nuremberg, from 2nd January, 1947, to 17th April, 1947, in which the Tribunal dealt with the accused's alleged responsibility under Count Two, has shown that the accused was held not guilty of being implicated in the conducting of the illegal experiments referred to because the Tribunal was not satisfied that he knew of their illegal nature ; no duty to find whether they had such a nature is mentioned.(4) Similarly the type of liability described by the Judge Advocate in the Trial of Frans Schonfeld and nine others by a British Military Court, Essen, 1 lth-26th June, 1946, assumed knowledge on the part of the accused : " Criminal responsibility might also arise, in the case of a person occupying a position of authority, through culpable negligence, for example, if Harders had reasonable grounds for supposing that his men were going to indulge in committing a war crime against their opponents—whether they be Dutch Resistance opponents or Allied airmen opponents—and in fact they did so, and he failed to take all reasonable steps to prevent such an occurrence. I think, if such a doctrine were to be invoked in this case, the court, before acting upon it to the detriment of Harders would require to be satisfied that Hardegan, prior to leaving for Tilburg on 9th July, 1944, had apprised Harders that it was their intention to murder any suspicious characters they found. In any event, the court would have to be satisfied that the crimes alleged were the natural result of the negligence of the accused ; in other words, that a direction from Harders, given at the correct time, would have prevented any unjustifiable killing taking place."(5)
Among the accused in the trials reported on in Volume V there appeared two higher officers alleged to have had an overall responsibility for certain purported proceedings taken against Allied victims by persons under their command. Reference should be made in this connection to the evidence relating to Major General Shigeru Sawada(6) and General Tanaka Hisakasu.(7) Both were found guilty, but the Confirming Authority disapproved the sentences passed on the second accused. It will be recalled that both generals were away from the scene at the time when the purported trials were held. Whereas Shigeru Sawada was personally informed of the proceedings on his return, however, and also admitted having had jurisdiction
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(1) See Vol. IV, pp. 88-89.
(2) See Vol. IV, p. 89.
(3) Vol. XI, p. 60.
(4) See Vol. IV, pp. 89-91 and Vol. VII, pp. 61-63.
(5) Vol. XI, pp. 70-1.
(6) See pp. 1, 4-5 and 8 of Vol. V.
(7) See pp. 66, 68 and 70 of Vol. V.
70 THE PARTIES TO CRIMES
over the prison where certain of the victims had been incarcerated under the conditions described on p. 6 of Volume V, Tanaka Hisakasu did not return to his command headquarters until after the execution of the victim and was not proved to have known in advance that the trial would not be fair or to have known or had reasonable grounds to believe that, if the prisoner should be convicted, the execution of the sentence would be carried out without his consent, which was required by Japanese law.(1)
In the judgment in the Pohl Trial, the accused Erwin Tschentscher, who had been a battalion commander of a supply column, and a company commander, on the Russian Front during 1941, was held not responsible for the murder of Jewish civilians and other non-combatants in Poland and the Ukraine by members of his commands at that time. The Tribunal found that he had no " actual knowledge " of these offences, and added that the decision of the Supreme Court in the Yamashita Trial " does not apply to the defendant Tschentscher ", for, " conceding the evidence of the Prosecution to be true as to the participation of subordinates under his command, such participation by them was not of sufficient magnitude or duration to constitute notice to the defendant, and thus give an opportunity to control their actions. Therefore, the Tribunal finds and adjudges that the defendant Tschentscher is not guilty of participating in the murders and atrocities committed in the Russian campaign as alleged by the prosecution. "(2)
The Judgment in the High Command Trial stated that a high commander " has the right to assume that details entrusted to responsible subordinates will be legally executed ". Criminal responsibility does not automatically attach to him for all acts of his subordinates. There must be an unlawful act on his part or a failure to supervise his subordinates constituting criminal negligence on his part. Later the Tribunal stated explicitly that " the commander must have knowledge of these offences and acquiesce or participate or criminally neglect to interfere in their commission and that the offences committed must be patently criminal ".(3) A similar test was applied to offences committed by units taking orders from other authorities : " The sole question then as to such -defendants in this case is whether or not they knew of the criminal activities of the Einsatzgruppen or the Security Police and S.D. and neglected to suppress them. . . . When we discuss the evidence against the various defendants, we shall treat with greater detail the evidence relating to the activities of the Einsatzgruppen in the commands of the various defendants, and to what extent, if any, such activities were known to and acquiesced in or supported by them."(4)
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(1) Vol. V, pp. 78-79.
(2) Vol. VII, pp. 63-64. (Italics inserted). In the Flick Trial, the accused Flick was shown to have had " knowledge and approval " of the acts -of a subordinate, Weiss, for which he was held jointly responsible : See Vol. IX, p. 54.
(3) It will be noted that the last nine words of the passage quoted add a further restriction to the commander's responsibility, one not recognised in other trials reported upon in these volunes, in which trials it was assumed that if the commander knew that his subordinates were carrying out acts which were in fact illegal he would not then be able to plead that he did not know that such acts were illegal.
(4) See Vol. XII, pp. 110-111, where other examples of the Tribunal's attitude to this question of knowledge are set out or referred to.
THE PARTIES TO CRIMES 71
It appears however that, in suitable circumstances, the requirement of knowledge may be dispensed with. On certain occasions(') the Tribunal laid down that accused " should have had . . . knowledge " of reports made to them of offences committed, and the Tribunal adopted " as a correct statement of law " the opinion of the Tribunal in the Hostages Trial that :
" Want of knowledge of the contents 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, 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."(2)
Some support is given, in fact, as will be shown, to the view that a commander has a duty, not only to prevent crimes of which he has knowledge or which seem to him likely to occur, but also to take reasonable steps to discover the standard of conduct of his troops, and it may be that this view will gain ground.
The Supreme Court of the United States held that General Yamashita had a duty to " take such measures as were within his power and appropriate in the circumstances to protect prisoners of war and the civilian population," that is to say to prevent offences against them from being committed. The use of the term " appropriate in the circumstances " serves to underline the remark made previously that a great discretion is left to the Court to decide exactly where the responsibility of the commander shall cease, since no international agreement or usage lays down what these measures are. The Commission which tried Yamashita seemed to assume that he had had a duty to " discover and control "the acts of his subordinates:
" It is absurd . . . to consider a commander a murderer or rapist because one of his soldiers commits a murder or a rape. Nevertheless, where murder and rape and vicious, revengeful actions are widespread offences, and there is no effective attempt by a commander to discover and control the criminal acts, such a commander may be held responsible, even criminally liable, for the lawless acts of his troops, depending upon their nature and the circumstances surrounding them."(3)
The majority judgment of the Supreme Court would appear to have left open the possibility that, in certain circumstances, such a duty could exist. In dissenting, Mr. Justice Murphy expressed the opinion that : " Had there been some element of knowledge or direct connection with the atrocities the problem would be entirely different".
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(1) Quoted in Vol. XII, pp. 111-112.
(2) See Vol. VIII, p. 71 and Vol. XII, p. 112. In the notes to the Yamashita Trial it was suggested that : " Short of maintaining that a Commander has a duty to discover the state of discipline prevailing among his troops, Courts dealing with cases such as those at present under discussion may in suitable instances have regarded means of knowledge as being the same as knowledge itself. This presumption has been defined as follows :
" ' Means of knowledge and knowledge itself are, in legal effect, the same thing where there is enough to put a party on inquiry. Knowledge which one has or ought to have under the circumstances is imputed to him. . . . In other words, whatever fairly puts a person on inquiry is sufficient notice where the means of knowledge are at hand ; and if he omits to inquire, he is then chargeable with all the facts which, by a proper inquiry, he might have ascertained A person has no right to shut his eyes or his ears to avoid information, and then say that he had no notice ; he does wrong not to heed to " signs and signals " seen by him.' (39 Am. Jur., pp. 236-237, Sec. 12.)" (Vol. IV, pp. 94-95.)
(3) Vol. IV, p. 35.
72 THE PARTIES TO CRIMES
Certain passages from the judgment of the United States Military Tribunal which tried Karl Brandt and Others at Nuremburg, from 9th December, 1946, to 20th August, 1947 (The Doctors' Trial), which have been quoted on pages 91-93 of Volume IV, indicate that the Military Tribunal which conducted that trial assumed that certain accused were under a duty to make active investigations to find whether certain experiments made by their subordinates were legal, especially in the sense that the subjects had given their voluntary consent. The Tribunal stated, inter alia : " The duty and responsibility for ascertaining the quality of the consent rests upon each individual who initiates, directs, or engages in the experiment. It is a personal duty and responsibility which may not be delegated to another with impunity".
Elsewhere, the Judgment in the Doctors' Trial stated that : " Occupying the position he did and being a physician of ability and experience, the duty rested upon him [Karl Brandt] to make some adequate investigation concerning the medical experiments which he knew had been, were being, and doubtless would continue to be, conducted in the concentration camps," and it may be that the fact that Milch was not " a physician of ability and experience," and the circumstance that " His position involved vast responsibilities covering a wide industrial field, and there were certainly countless subordinate fields within the Luftwaffe of which he had only cursory knowledge," including the conduct of medical experiments, go far towards explaining why his judges excused Mulch of a duty to discover whether the experiments carried out by persons within his general command were of a legal character.()
Speaking of one of the accused before it, the Tribunal acting in the Pohl Trial said :
" Mummenthy's assertions that he did not know what was happening in the labour camps and enterprises under his jurisdiction does not exonerate him It was his duty to know."(2)
The Judgment delivered in the Tokyo Trial includes an interesting passage on responsibility for offences against prisoners of war which, apart from its general interest, is significant as showing that the International Military Tribunal of the Far East also was willing to postulate a duty on the part of a superior to find out whether offences were being committed by his subordinates :
" In general the responsibility for prisoners held by Japan may be stated to have rested upon :
(1) Members of the Government ;
(2) Military or Naval Officers in command of formations having prisoners in their possession ;
(3) Officials in those departments which were concerned with the well-being of prisoners ;
(4) Officials, whether civilian, military, or naval, having direct and immediate control of prisoners.
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(1) Vol. VII, p. 63.
(2) Italics inserted.
THE PARTIES TO CRIMES 73
" It is the duty of all those on whom responsibility rests to secure proper treatment of prisoners and to prevent their ill-treatment by establishing and securing the continuous and efficient working of a system appropriate for these purposes. Such persons fail in this duty and become responsible for ill-treatment of prisoners if :
(1) They fail to establish such a system ;
(2) Having established such a system, they fail to secure its continued and efficient working.
" Each of such persons has a duty to ascertain that the system is working and if he neglects to do so he is responsible. He does not discharge his duty by merely instituting an appropriate system and thereafter neglecting to learn of its application. An Army Commander or a Minister of War, for example, must be at the same pains to ensure obedience to his orders in this respect as he would in respect of other orders he has issued on matters of the first importance.
" Nevertheless, such persons are not responsible if a proper system and its continuous efficient functioning be provided for, and conventional war crimes be committed, unless :
(1) They had knowledge that such crimes were being committed, and having such knowledge they failed to take such steps as were within their power to prevent the commission of such crimes in the future, or,
(2) They are at fault in having failed to acquire such knowledge.
" If such a person had, or should, but for negligence or supineness, have had such knowledge he is not excused for inaction if his office required or permitted him to take any action to prevent such crimes. On the other hand, it is not enough for the exculpation of a person, otherwise responsible, for him to show that he accepted assurances from others more directly associated with the control of the prisoners if having regard to the position of those others, to the frequency of reports of such crimes, or to any other circumstances he should have been put upon further enquiry as to whether these assurances were true or untrue. That crimes are notorious, numerous and widespread as to time and place are matters to be considered in imputing knowledge.
" A member of a Cabinet which, collectively, as one of the principal organs of the Government, is responsible for the care of prisoners is not absolved from responsibility if, having knowledge of the commission of the crimes in the sense already discussed, and omitting or failing to secure the taking of measures to prevent the commission of such crimes in the future, he elects to continue as a member of the Cabinet. This is the position even though the Department of which he has the charge is not directly concerned with the care of prisoners. A Cabinet member may resign. If he has knowledge of ill-treatment of prisoners, is powerless to prevent future ill-treatment, but elects to remain in the Cabinet, thereby continuing to participate in its collective responsibility for protection of prisoners, he willingly assumes responsibility for any ill-treatment in the future.
" Army or Navy Commanders can, by order, secure proper treatment and prevent ill-treatment of prisoners. So can Ministers of War and
74 THE PARTIES TO CRIMES
of the Navy. If crimes are committed against prisoners under their control, of the likely occurrence of which they had, or should have had knowledge in advance, they are responsible for those crimes. If, for example, it be shown that within the units under his command conventional war crimes have been committed of which he knew or should have known, a commander who takes no adequate steps to prevent the occurrence of such crimes in the future will be responsible for such future crimes.
" Departmental officials having knowledge of ill-treatment of prisoners are not responsible for reason of their failure to resign ; but if their functions included the administration of the system of protection of prisoners and if they had or should have had knowledge of crimes and did nothing effective, to the extent of their powers, to prevent their occurrence in the future, then they are responsible for such future crimes,"(1)
The Tribunal acting in the High Command Trial dealt with, inter alia, the position of a commanding officer who knows that men under his command are committing violations of international law in pursuance of orders from his superiors passed down independently of him. While admitting the difficulty of his position,(2) the Tribunal held that " by doing nothing he cannot wash his hands of international responsibility. His only defence lies in the fact that the order was from a superior, which Control Council Law No. 10 declares constitutes only a mitigating circumstance. "(3)
The Tribunal was willing to admit that a commanding General's responsibility under international law for conditions in territory under the occupation of his troops could to some extent be affected by his status under the military and other municipal laws of his country.(4) The responsibility of commanders of occupied territories was said to be fixed, inter alia, by " the authority of the commander which has been delegated to him by his own government. . .. It must be borne in mind that a military commander, whether it be of an occupied territory or otherwise, is subject both to the orders. of his military superior and the State itself as to his jurisdiction and functions." The Yamashita Case was distinguished from the present on the grounds of a differing extent of authority permitted by the State to the accused involved.
In the Tribunal's opinion, however, the doctrine that a commander's governmental authorities may in effect relieve him of certain of his responsibility under international law has its limits : " . . . under international law and accepted usages of civilised nations " a military commander in an occupied area " has certain responsibilities which he cannot set aside or ignore by reason of activities of his own State within his area ". Furthermore, the Tribunal seems to have felt that, while none of the accused had the
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(1) Official Transcript of the Judgment of the International Military Tribunal for the Far East, pp. 29-32. (Italics inserted).
(2) See Vol. XII, p. 74.
(3) An application of this ruling by the Tribunal is described in Vol. XII, pp. 106-107.
(1) This possibility has not received attention in other reasoned Judgments reported in these volumes. The decision of the Supreme Court in the Yamashita Case laid down the duty of a commander to take such measures as were within his power and appropriate in the circumstances to protect prisoners of war and the civilian population (see Vol. IV, pp. 42-44). The Supreme Court did not use the words " within his authority " and would appear to have meant " within his physical power ".
THE PARTIES TO CRIMES 75
wide powers of a Yamashita, their authority was nevertheless very extensive. The accused would be responsible for all crimes committed by the Einsatzgruppen of the Security Police and S.D. of which they had knowledge and which they neglected to suppress.
The specific reference to the Einsatzgruppen arose from the fact that the Defence had asserted " that the executive power of field commanders did not extend to the activities of certain economic and police agencies which operated within their areas ". It will be recalled that the Tribunal before which the Hostages Trial was held expressed the same opinion as the present Tribunal and a part of the Judgment in that Trial was quoted, inter alia, by the Tribunal acting in the High Command Trial :
" It is the duty of the commanding general in occupied territory to maintain peace and order, punish crime and protect lives and property. This duty extends not only to the inhabitants of the occupied territory but to his own troops and auxiliaries as well. The commanding general of occupied territory having executive authority as well as military command, will not be heard to say that a unit taking unlawful orders from someone other than himself, was responsible for the crime and that he is thereby absolved from responsibility. It is here claimed, for example, that certain S.S. units under the direct command of Heinrich Himmler committed certain of the atrocities herein charged without the knowledge, consent or approval of these defendants. But this cannot be a defence for the commanding general of occupied territory. The duty and responsibility for maintaining peace and order, and the prevention of crime rests upon the commanding general. He cannot ignore obvious facts and plead ignorance as a defence."(1)
Further, it appears that, just as a commanding general has wide responsibilities under international law, so also is he allowed considerable latitude in the ways in which he fulfills these responsibilities ; the Tribunal held that
" the duty imposed upon a military commander is the protection of the civilian population. Whether this protection be assured by the prosecution of soldiers charged with offences against the civilian population, or whether it be assured by disciplinary measures or otherwise, is immaterial from an
international standpoint."(2)
The judgment delivered in the Hostages Trial has already been referred to in these pages on the question of the extent to which a commanding general in occupied territory may be held liable for the offences of troops under his command. It may be convenient to summarise the relevant passages.(3) Three points in particular are worthy of note : (a) a commander having executive authority over occupied territory—in effect the person on whom rests principally the obligations laid down in Section III (Military Authority over the Territory of the Hostile State) of Hague Convention No. IV of 1907 —shall not be able to plead that offences were committed, within the occupied territory under his authority, by persons taking orders from authorities other than himself, as the S.S. took orders directly from Himmler, and the same applies to subordinate commanders to whom executive powers have been delegated ; (b) such a commander—and indeed any commander—will
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(1) See Vol. VII, pp. 69-70 and Vol. XII, pp. 107-110.
(2) See Vol. XII, p. 83.
(3) These are set out in Vol. VIII, pp. 69-70.
76 THE PARTIES TO CRIMES
not usually be permitted to deny knowledge of the contents of reports made specially for his benefit ; and (c) a commanding general will usually be held liable for events during his temporary absence from headquarters which arise out of a " general prescribed policy formulated by him."
The judgment elsewhere reinforced the first principle by stating that a commanding general of occupied territory " cannot escape responsibility by a claim of a want of authority. The authority is inherent in his position as commanding general of occupied territory. The primary responsibility for the prevention and punishment of crime lies with the commanding general, a responsibility from which he cannot escape by denying his authority over the perpetrators." From this rule it follows that a commanding general cannot hide behind a " puppet government " and plead that he is not responsible for their acts ; the Tribunal applied this conclusion to the accused von Leyser who was commanding general of a corps area.(1) Elsewhere, the Tribunal repeated : " We must assert again, in view of the defendant's statement that the responsibility for the taking of reprisal measures rested with the divisional commanders and the Croatian government, that a corps commander must be held responsible for the acts of his subordinate commanders in carrying out his orders and for acts which the corps commander knew or ought to have known about."
(ix) STAFF OFFICERS
A comparison of the evidence relating to the accused Foertsch and von Geitner(2), two of the accused in the Hostages Trial, and the findings of the Tribunal upon them indicates the limits beyond which the Tribunal found it impossible to hold a chief of staff liable for the acts of the subordinates of his commander. The Tribunal took the view, for instance, that a chief of staff could not be held responsible for the outcome of his commander's orders which he approved from the point of view of form, and issued on the latter's behalf.
Of Foertsch the Tribunal concluded that " the nature of the position of the defendant Foertsch as Chief of Staff, his entire want of command authority in the field, his attempts to procure the rescission of certain unlawful orders and the mitigation of others, as well as the want of direct evidence placing responsibility upon him, leads us to conclude that the Prosecution has failed to make a case against the defendant. No overt act from which a criminal intent could be inferred, has been established.
" That he had knowledge of the doing of acts which we have herein held to be unlawful under International Law cannot be doubted. It is not enough to say that he must have been a guilty participant. It must be shown by some responsible act that he was. Many of these acts were committed by organisations over which the Wehrmacht, with the exception of the commanding general, had no control at all. Many others were carried out through regular channels over his voiced objection or passive resistence. The evidence fails to show the commission of an unlawful act which was the result of any action, affirmative or passive, on the part of this defendant. His mere knowledge of the happening of unlawful acts does not meet the requirements of criminal
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(1) See Vol. VIII, pp. 72-74.
(2) For this evidence see Vol. VIII, pp. 42-43.
THE PARTIES TO CRIMES 77
law. He must be one who orders, abets or takes a consenting part in the crime. We cannot say that the defendant met the foregoing requirements as to participation. We are required to say therefore that the evidence does not show beyond a reasonable doubt that the defendant Foertsch is guilty on any of the counts charged."
Von Geitner was also found not guilty, on the grounds of his not having been shown to have taken any consenting part in illegal acts, " coupled with the nature and responsibilities of his position and the want of authority on his part to prevent the execution of the unlawful acts charged. "(1)
On the other hand, two trials reported in Volume V of this series have shown that a Chief of Staff may be held guilty of committing war crimes(2). Certainly the position of Chief of Staff provides no immunity upon its holder and the responsibility of such a person for war crimes must be judged upon the facts of each case. An examination of the relevant facts of the two trials mentioned above shows that the chiefs of staff who were held guilty took a closer and more willing and active part in the offences charged than did Foertsch and von Geitner.(3)
The question of the extent of responsibility of staff officers arose again in the High Command Trial. Here the Tribunal held(4) that the fact that Geitner and Foertsch were acquitted in the Hostages Trial did not signify that staff officers were absolved from all criminal responsibility for matters in which their commanding officer could be held responsible. The Tribunal regarded as sound the finding in the previous trial but held that " the facts in that case are not applicable to any defendant on trial in this case."
On the other hand the Tribunal ruled that " If the basic idea is criminal under international law, the staff officer who puts that idea into the form of a military order, either himself or through subordinates under him, or takes personal action to see that it is properly distributed to those units where it becomes effective commits a criminal act under international law " ; whereas the preparation, and approval as to form, of criminal orders, and the distribution of such orders, appeared among the duties of either Foertsch or von Geitner, who were nevertheless acquitted. It should be added, however, that the detailed legal drafting of these orders was in the hands of a legal department or officer outside the authority of the two accused named.(5)
A chief of staff cannot, apparently, be held guilty of crimes of omission as a commanding general may be.(6) " A failure to properly exercise command authority ", said the Judgment, " is not the responsibility of a chief of staff ".(7) The Tribunal pointed out that " it was of course the duty of a chief of staff to keep [his] commander informed of the activities which took place within the field of his command insofar at least as they were considered of sufficient importance by such commander ", but it appears from the context that the Tribunal regarded such duty as being one laid down by German military law and not one existing under international
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(1) Vol. VIII, pp. 75-76.
(2) See Vol. V, p. 79.
(3) Compare Vol. V, pp. 62, 63, 67, 68 and 69 with pp. 42-43 of Vol. VIII.
(4) See Vol. XII, p. 80.
(5) See Vol. VIII, pp. 42-43.
(6) See p. 62.
(7) See Vol. XII, p. 81.
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law.(1) If it were laid down by international law that a chief of staff must keep his commanding officer informed of certain matters then it would be possible for the chief of staff to be guilty of a war crime of omission, i.e. a failure to fulfil his own duty as a staff officer not his superiors " command authority " referred to above. The Tribunal's words do not, however, allow it to be said that a chief of staff may be guilty of such a war crime of omission.
This conclusion is borne out by other words of the Tribunal indicating that only positive action can make a chief of staff guilty : " In the absence of participation in criminal orders or their execution within a command, a chief of staff does not become criminally responsible for criminal acts occurring therein "(2)
The opportunity of a chief of staff to commit war crimes seems, in the opinion of the Tribunal, to arise from his power " to issue orders and directives in the name of his commander ", a power which varies widely in practice but which may allow sufficient exercise of initiative and discretion to involve the chief of staff in the commission of offences under the laws and usages of war.(3)
Extracts made in Volume XII from the Judgment of the Tribunal on the accused Woehler(4) seemed to indicate that a chief of staff may be held responsible for war crimes committed as a result of his orders if such orders are not " basic orders " such as " necessarily would be submitted to a commander-in-chief " but orders which " a chief of staff would normally issue of his own volition."
The fact that the making of a substantial contribution to the drafting of an illegal order (as distinct from approving it from the point of view of form) may make an accused criminally liable was shown by the passages from the Judgment dealing with the accused Lehmann (5) and Warlimont.(6)
The International Military Tribunal for the Far East had no hesitation in declaring a Chief-of-Staff responsible for war crimes, but it will be observed that the following passage from its Judgment indicates that the accused involved had been " in a position to influence policy " :
" In October, 1944, Muto became Chief-of-Staff to Yamashita in the Philippines. He held that post until the Surrender. His position was now very different from that which he held during the so-called " Rape of Nanking ". He was now in a position to influence policy. During his tenure or office as such Chief-of-Staff a campaign of massacre, torture and other atrocities was waged by the Japanese troops on the civilian population and prisoners of war and civilian internees were starved, tortured and murdered. Muto shares responsibility for these gross breaches of the Laws of War. We reject his defence that he knew nothing of these occurrences. It is wholly incredible. The Tribunal finds Muto guilty on Counts 54 and 55."(7)
(1) See Vol. XII, pp. 80-81.
(2) See Vol. XII, p. 81.
(3) See Vol. XII, pp. 81-82.
(4) See Vol. XII, pp. 113-115.
(5) See Vol. XII, pp. 116-118.
(6) See Vol. XII, p. 118.
(7) Official transcript of the Judgment of the International Military Tribunal for the Far East, p. 1186.
