CRIMINAL RESPONSIBILITY FOR VIOLATIONS OF THE LAWS OF WAR *

by

Bert V.A. R O L IN GProfessor o f International Law, University

o f Groningen, Director of the Polemologisch Instituut, Groningen

1. IN TR O D U C TIO N

International law is a body of law characteristic o f an underveloped légal community, lacking a central législative body and a central power which is able to enforce the law. This lack of enforcem ent power is one of the characteristics o f the law o f nations, showing clearly its underdeveloped character. A nother feature o f its underdevelopm ent is the absence of a central court which can décidé upon conflicts concerning the in terprétation o f the law. Because such a court with compulsory powers does not exist, international law is compelled to recognize the right o f each party to interpret the law as it chooses. States, and other subjects o f in ternational law, are bound by international law, but their right of autointerpretation of that law is also recognized.

It is in connection with the laws o f w ar that the impossibility o f enforcing the law is most striking. The lack o f a central authoritative pow er leaves the enforcem ent to the parties themselves, first o f ail by m eans of reprisais : acts which are usually forbidden, bu t permissible as a m eans o f com pelling the adversary to stop his violations o f the laws o f war. Reprisal-law is the most

* This paper is part o f a research project on « Respect for Hum an Rights in Armed Conflicts : the Existing and the Emerging Law », directed by Prof. A. Cassese. The project has been made possible by a grant from the Italian « National Council for Research » (CNR).

10 BERT VA. ROLING

The laws o f war dérivé their authority, during a war, from the th reat o f reprisais, prosecution and punishm ent aftèr the war. The prospect o f post- war trials was stressed in the « Moscow D éclaration on Atrocities », o f N ovem ber 6th, 1943, and in a speech by Stalin, o f N ovem ber 1 lth , 1943, where, for the first time, it was stated officially that those responsible for the war would be punished.

Trials have taken place also during a war, bu t only in exceptional circum- stances. Am erican airm en who bom bed cities, were sentenced by Japanese Courts, bu t after the war the Japanese judges involved were hanged (2). In général, it would seem to be unwise to punish captured w ar crim inals in wartime. It is better to wait until the war is over. But then only the victor can décidé w hat kind o f trials will take place, and w hat kind o f crimes will be prosecuted. The danger exists that trials will be used to uphold and m ore or less authenticate the w ar propaganda of the victor. Post war trials m ay be used, and have been used, to distort history. T hat m ore distortion did no t take place is explained by the fact that judges begrudged each other specific distortions. F o r these reasons international tribunals w ith judges from seve- ral countries are to be preferred to national courts o f a victor-State. In this connection, one can com pare the fïndings o f the In ternational M ilitary T ribunal for the F ar East and the judgem ent o f the U SSR T ribunal o f Chaba- rovsk.

Still, international tribunals are the exception, and national (enemy) courts the rule. In every field o f international law, the in ternational legal order depends, for the enforcem ent o f the law, in the first place, on national judges, applying international crim inal law or national crim inal law in which the international rules are inserted.

International law relies heavily on national law. It uses different m eans for assuring that international rules are sanctioned by national courts. One o f the means is, to grant national legislators the liberty (or impose upon them the duty) to apply universally their national pénal provisions : the principle of universality, that is the universal application o f national law.

M ore im portant is the duty of nations to insert into their crim inal code specific « international crimes » : e.g. grave breaches o f the G eneva Conventions. H ere we are dealing with the national application o f universal law.

(2) It is remarkable how quickly official opinion can change. O f the bombing o f Nanking by the Japanese in 1937, the U.S. Government protested : « This Government holds the view that any général bombing of an extensive area wherein there resides a large population engaged in peaceful pursuit is unwarranted and contrary to the principles o f law and hum anity ». Some years later the U.S. began regular attacks on Japanese cities, which culminated in the bombing of Hiroshima and Nagasaki. And even later the Japanese judges who had sentenced the American airmen for their violation of the laws of war were hanged.

A similar very rapid and fundamental change in opinion occurred with respect to unrestricted submarine warfare, which was described in the Nyon Convention of 1936, as « acts contrary to the most elementary dictâtes o f humanity, which should be justly treated as acts o f piracy ». At the Nuremberg trial it transpired that the U.S. and the U.K. had practised this form of warfare from the very start of the war.

RESPONSIBILITY FOR VIOLATIONS OF THE LAWS OF WAR 11

This does not m ean, however, that a national judge would have the com pétence to try everyone who had somewhere violated these provisions. It is necessary for there to be some special link with the national légal order (place, or agent, who m ay be a national, an ally o f an enemy, or a victim). In short : notw ithstanding the wording of the pertinent articles o f the four Geneva Conventions o f 1949, a neutral State has not the duty to prosecute and punish a war crim inal who has corne into its power. The principle of universal application o f national légal provisions dealing with w ar crimes (art. 49 o f Convention I), is only applicable if the State participâtes in the war. This was apparently not the intention o f those who drafted the Conventions, but it follows from the fact that only specific articles (such as art. 4 of Convention I) are applicable to neutral States. Consequently the C onventions did not impose on neu tral States the duty to extradite alleged war criminals. This should be changed : it is now generally recognized tha t a neutral State should have the duty to extradite alleged w ar criminals.

In the Hague Conventions o f 1907, the duty of the national State to prosecute and punish w ar criminals was not recognized. There was at that time little talk o f pénal sanctions. The duty, im posed by in ternational law, of inserting « w ar crimes », — that is grave breaches o f the Conventions — , in the national crim inal law is first found in the G eneva Convention o f 1929.

3. IN D IV ID U A L C R IM IN A LITY A N D SYSTEM C R IM IN A LITY

International Courts or Tribunals, for the trial o f w ar crimes, have been relatively rare. As a rule the accused were tried by the courts o f the enemy. It is interesting to note that countries are in général reluctant to try their own nationals, and their own soldiers. N ational authorities are never eager to punish their own boys, their heroes, for m isconduct in the war. M isconduct is something only found in enemy behaviour. But to understand better this général reluctance to prosecute one ’s com patriots, it is necessary to distin- guish betw een war crimes or w ar criminality. One m ust distinguish two types o f w ar crimes. First o f ail there is incidental criminality, crimes com m itted by the individual for personal, selfxsh reasons, in disregard o f national régulations and superior orders (m urder, rape, looting, etc.). This kind o f crime may be resented by the crim inars superiors. A lthough reluctant to bring such m isbehaviour into the open, they m ay prosecute the criminal, because his conduct underm ines m ilitary discipline, or makes the local population very hostile. I would like to call this kind o f crim inality individual criminality as opposed to crimes com m itted in the national interest, as a conséquence o f a général policy or in accord with the official attitude; crimes com m itted to serve national military goals, or illégal m eans used in the furtherance of victory. Such crimes, e.g. giving no quarter, terrorizing populations, using forbidden weapons, are examples o f the syslem criminality, because they express the tendencies o f the existing system. These tendencies fïnd their

12 BERT VA. ROLING

expression in official attitudes which lead to the commission o f crimes under official orders, official request or official advice, or to crimes which are offïcially tolerated or at least not prevented, either deliberately or by neglect.

This crim inality depends on societal forces, ra ther than on personal inclinations, the effect o f these forces ranging from direct orders, through official favour, to conspicuous indifférence. The crime is caused by the structure o f the situation and the system, and m ight therefore be called system crim inality. It is the most im portant kind o f war criminality. The kind of things which happen in a war are m ainly determ ined by official applied standards. M ost significant is the official policy by which specific activities are p lanned and ordered (e.g. the use o f herbicides, the establishm ent o f free shooting zones, occupation with insufficiënt forces leading to a b ru tal adm inistration, « coercive warfare »), the official policy which permits, tolerates and condo- nes the violations o f the laws o f war, provided these violations contribute to victory, the official policy which is not willing to suppress violations o f the laws o f war if they are com m itted with the purpose o f furthering m ilitary aims.

This sociological distinction o f w ar crim inality goes back, — I am sorry to say —, to a distinction m ade by S.S. G eneral H im m ler, with respect to G erm ans who killed Jews w ithout permission, in his directive « Judener- schiessungen ohne Befehl und Befugnis ». The décision to prosecute depen- ded on the motive : « Bei eigensüchtigen oder sadistischen, bzw. sexuellen M otiven erfolgt gerichtliche Ahndung... Bei rein politischen M otiven erfolgt keine Bestrafung, es sei denn, dass die A ufrechterhaltung der O rdnung eine solche erfordert ».

This distinction betw een individual and system crim inality makes it easier to understand the attitude o f national authorities. As a rule national autho- rities will refuse to prosecute or punish their own soldiers for crim inality which has been officially prom oted or tolerated, or w hich is an expression of the prevailing spiritual climate. A French Law of 1943 declared no t pu- nishable any act com m itted « dans le bu t de servir la cause de la libération de la F rance ». In H olland the same unwillingness existed to prosecute soldiers who had com m itted war crimes during the « police actions » in Indonesia. Westerling, a notorious culprit, was never tried (too m any, and too high authorities, would have got involved). Sometimes it is said that G erm any is an exceptional case, because in tha t country prosecutions for m isbehaviour in W orld W ar II are still taking place. However, it appears from the publication « Justiz und Verbrechen », that prosecution only takes place with respect to crimes against hum anity, and not for « w ar crimes ». In the V ietnam war, with the appearance o f the « body count », and the « m ere gook rule » (3), there was an unwillingness to prosecute any action resulting from such guiding principles. It was only popular A m erican protest that com pelled the

(3) See T a y l o r , T., Nuremberg and Vietnam, an American Tragedy, Bantam Books, 1971, p. 142 ff.

RESPONSIB1L1TY FOR VIOLATIONS OF THE LAWS OF WAR 13

authorities to try people like L ieutenant Calley. But higher ranking officers escaped prosecution, though one général lost his position as governor o f W est Point (4), and a star. W henever national authorities prosecute their own soldiers, it is for individual criminality, and not system criminality. O n the other hand, before enemy or international courts, the m ain issue will be system criminality.

4. CR IM IN A L RESPO N SIBILITY FO R O M ISSIO N TO ACT

N ot every violation o f the laws o f w ar is a w ar crime. In the 1949 G eneva Conventions a distinction is m ade between « grave breaches » and violations which are not grave breaches. In case of grave breaches the obligations o f the national State are :

1. to enact législation providing for effective pénal sanctions,2. to search for persons alleged to have com m itted, or to have ordered to be

com m itted such grave breaches and3. to bring such persons before its own courts, unless the State prefers to

hand such persons over for trial to another High Contracting Party.

In case of non grave breaches the State shall take measures necessary for the suppression o f such acts (the right to punish, bu t not the duty).

W e will consider further grave breaches, which are the m ore im portant violations. The 1949 G eneva Conventions m ention only those who have committed or who have ordered to be committed, that is those who have themselves com m itted the crime. Com pare, however, art. III o f the U.N. Genocide Convention, which lists as punishable the following :

a. genocide,b. conspiracy to com m it genocide,c. direct and public incitem ent, to com m it genocide,d. attem pt to com m it genocide,e. complicity in genocide.The Convention concerning non-applicability o f Statutory Limitations to

War Crimes and Crimes against Humanity (G.A. Res. 2391 XX III, Nov. 26 1968) m entions in art. II « représentatives o f the State authority and private individuals who as principals or accomplices participate in or who directly incite others to the commission of any o f those crimes, or who conspire to commit them, irrespective o f the degree o f com pletion », and « représentatives of the State authority who tolerate their commission ». The G eneva C onventions m ention only those who com m it or order to commit. They do not mention the authorities who tolerate the commission o f crimes, or who, knowing that crimes are being com m itted, do nothing to stop that criminal

(4) T o grasp the prevailing opinion in military circles about this « punishm ent », see E l l is , J., and M o o r e , R., Schoot fo r Soldiers. West Point and the Profession o f Amis, New York, Oxford University Press, 1974, p. 163 ff.

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activity. The G eneva Conventions are in conformity w ith the rules applied in Nurem berg. D oenitz was accused o f having ordered the killing o f shipwrec- ked survivors. In this case the C ourt considered that it was not proved beyond doubt that he had given orders to kill survivors (5). The Court did not go into the question w hether D oenitz m ight have been crim inally responsible as a resuit o f any o f the following facts :

1. the killings took place regularly,2. Doenitz knew about them,3. he could have given orders for the practice to be stopped,4. he had special responsibility for that branch o f warfare.

W e are dealing here with the question o f crim inal responsibility for omission to act, where a person has the duty to act. It is a responsibility not unknown in international law.

The « Commission on the Responsibility o f the Authors o f War and on Enforcement o f Penalties » (1919) m ade up a list o f w ar crimes, and recom- m ended pro§ecution o f : « All authorities, civil or military, belonging to enemy countries, however high their position m ay have been, w ithout distinction of rank, including the heads o f States who ordered, or, with knowledge thereof and with power to intervene, abstained from preventing or taking measures to prevent, putting an end to, or repressing, violations o f the laws or customs o f w ar » (6).

The Am erican m em bers stressed this responsibility : « To establish responsibility in such cases it is elem entary that the individual sought to be punished should have knowledge o f the commission of the acts o f a crim inal nature and that he should have possessed the pow er as well as the authority to prevent, to pu t an end to, or repress them. N either knowledge of commission nor ability to prevent is alone sufficiënt. The duty or obligation to act is essential » (7).

From the treaties, it follows that a responsibility o f authorities exists. The Hague Rules o f 1907 (« Régulations respecting the laws and customs o f w ar on land ») take as their starting point that troops « be com m anded by a person responsible for his subordinates » (art. 1). In Art. 1, com m on to all four 1949 Geneva Conventions, it is stated : « The High C ontracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances ». The fact that N urem berg did not deal with this kind of omission can perhaps be explained by the overwhelming num ber o f cases in which criminal orders were given.

The Tokyo T ribunal had to pronounce judgem ent in far m ore com plicated circumstances. In the Pacific theatre, w ar crimes were com m itted on a mass scale on land and at sea. But the T ribunal did not receive evidence o f central

(5) See Judgment o f Nuremberg, Brit. ed. London 1946, p. 109.(6) Report presented to the preliminary peace conference, March 1919, p. 14.(7) Report cit., p. 59.

RESPONSIBILITY FOR VIOLATIONS OF THE LAWS OF WAR 15

orders to commit w ar crimes. In the trials o f Japanese accused, the prosecu- tion charged that the central authorities had neglected their duty to stop the regular commission o f these crimes. F irst o f all, in the Yamashita case. Yamashita was condem ned to death by an Am erican Court in M anila, because he had not pu t a stop to the regular misconduct o f troops under his Com m and. The US Suprem e C ourt upheld the décision, although some people w ondered w hether Y am ashita had the pow er to do so (in view o f the destruction o f his lines o f com m unication). In the Tokyo Trial before the IM TFE, 19 o f the accused were indicted on C ount 55 because they, « being by virtue o f their respective offices responsible for securing the observance of the said Conventions and the Laws and Customs o f W ar... deliberately and recklessly disregarded their légal duty to take adequate steps to secure the observance and prevent breaches thereof, and thereby violated the laws of war ». It seems to m e that this responsibility is a real and im portant one.

Some are very critical o f this « negative criminality » (8). But there is no reason to m ake a sharp légal différence between commission and omission. Today especially at a tim e o f growing awareness o f interdependence, the attitude is disappearing which m aintains that Society can only forbid acts (crimes), and cannot dem and actions (in such a way that omission is regarded as a crime). How far this responsibility for omission should be taken is a very difficult question. As a judge in the Tokyo Tribunal, I took exception to the sentencing of foreign ministers H irota, Shigemitsu and Togo, who in my opinion had done w hat they could. But the principle o f crim inal responsibility for omission to act cannot be denied, when the m an in authority

1. knew, or should have known, that crimes were regularly being com m itted2. had the pow er o f interfering with the crim inal practices, and3. had special responsibility for the field in question.

The danger o f the responsibility for « omission to prevent the commission of w ar crimes » is tha t this responsibility allows a victor to indict com m an- ding officers o f the vanquished for omission to act. The most celebrated case was the aforem entioned trial o f the Japanese général Y am ashita, who was sentenced by an Am erican C ourt-m artial in M anila for no t having prevented the commission of atrocities by his soldiers. The plea that the com m unications between him and his soldiers had been destroyed by A m erican gunfire, was o f no avail. The sentence was upheld by the US Suprem e C ourt and confirmed by G eneral M acA rthur (9). A fter the Tokyo trial o f Tojo and 28 others was finished, the trial was begun o f A dm irai Soemu Toyoda (29 Oct. 1948 - 6 Sept. 1949), who had been C hief o f the N aval G eneral Staff. Toyoda was acquitted. The différence in the circumstances o f the two trials is clear. A dm irai Toyoda was an officer of even greater prom inence, bu t he was on trial in Tokyo and no t in M anila, in a post-war Japan in which G eneral M acA rthur was m aking every effort to win the confidence and respect o f the

(8) M i n e a r , R., Viclor’s Justice, The Tokyo War Crimes Trial, Princeton 1971, p. 67 ff.(9) See the wording o f this confirmation, quoted in T a y l o r , T ., op. cil., p . 181.

16 BERT V A. ROLING

people. In the trial o f G eneral Yam ashita, in contrast, G eneral M acA rthur’s concern had been for the Filipinos.

Responsibility for omission has also been recognized, in the European theater, in the later N urem berg trials w hen Telford Taylor was chief- prosecutor. In the High Command Case a com m ander’s responsibility was recognized « w here his failure to properly supervise his subordinates consti- tutes crim inal négligence on his part. In the latter case it m ust be a personal neglect am ounting to a w anton, im m oral disregard of the action o f his subordinates ». The same kind o f responsibility, where a com m ander knew o f these actions and failed to take adequate steps to prevent them , is recognized in the Hostage Case (against général List), the Pohl trial and the « Einsatzgruppen trial » (10).

This responsibility for omission is also recognized in national law. Para, 501 o f the US Field M anual (FM 27-10) o f 1958 reads as follows :

« The commander is... responsible if he has actual knowledge, or should have knowledge, through reports received by him or through other means, thaï 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 ensure compliance with the law of war... ».

A separate obligation to prosecute war criminals is m entioned in para. 507 b : « C om m anding officers... m ust insure that war crimes com m itted by m embers o f their forces... are prom ptly and adequately punished ». T he U K M anual of M ilitary Law (Law o f W ar on Land, 1958), para. 631, considers a com m ander to have acquiesced in an offence « if he fails to use the m eans at his disposai to ensure compliance with the law o f w ar ». Such rules can be found in m any national légal systems. They are the logical conséquence o f the duty o f every State to ensure respect for the laws o f war.

In the D raft A dditional Protocol I to the 1949 G eneva Conventions (G eneva 1973), the IC R C has proposed the following provision (Art. 76) on « Failure to act » :

« 1. The High C ontracting Parties undertake to repress breaches o f the Conventions or o f the present Protocol resulting from a failure to perform a duty to act.

2. The fact that a breach o f the Conventions or o f the present Protocol was com m itted by a subordinate does not absolve his superiors from penal responsibility if they knew or should have know n that he was com m itting or would com m it such a breach and if they did not take m easures w ithin their power to prevent or repress the breach ».

(10) For a général survey of the post-war trials dealing with the responsibility for omission to act, see Law Reports o f Trials o f W ar Criminals, selected and prepared by the UNW CC, vol. XV Digest o f Laws and Cases, London, H.M. Stationery Office 1949, p. 65-76.

RESPONSIBILITY FOR VIOLATIONS OF THE LAWS OF WAR 17

At the Conference o f G overnm ent Experts (Second Session), G eneva 3 May - 2 June 1972, the D utch délégation proposed the following text :

« The Civilian and Military Authorities of the High Contracting Parties shall be criminally liable for any failure on their part to take all those steps within their power to make an end to breaches o f the law of war which were, or ought to have been, within their knowledge » (11).

The w ording of art. 76 o f D raft A dditional Protocol I needs changing. I would prefer to form ulate art. 76 sub 2 thus :

« 2. I f breaches o f the Convention or o f the present Protocol are committed by a subordinate his superiors are criminally responsible if they knew or should have known that these breaches were committed, and if they did not take measures within their power to repress those breaches ».

But, whatever the exact form ulation, some provision for the omission to act should be adopted. Such a provision should be directed against the authorities who are responsible for the « climate » which, as during the V ietnam W ar, is, m ore than anything else, the « climate o f opinion » responsible for system crim inality on a massive scale. It is in the interest o f the arm y concerned that such a clim ate of opinion be changed. The events in V ietnam have discredited the Am erican arm y in the eyes o f the civilian population. And it is not good for a country tha t its arm y should be despised. The profession o f arms should be regarded as an honourable profession, for m any reasons, one o f them being that a despised army m ay seek power having lost popular esteem.

5. TH E Q U ESTIO N OF SU PER IO R O RDERS

Especially in situations w here official policy disregards the laws o f war, one is confronted with the problem o f superior orders and the ju rid ical position o f the crim inal who com m itted his criminal act on the com m and o f a superior. It makes no différence w hether or not the crim inal com m and was in accord with national crim inal law. This question was very im portan t in the N urem berg proceedings, because everyone could plead that he was only executing existing G erm an laws on the clear com m ands o f his Führer. The International M ilitary T ribunal based its judgm ent on Article 8 of the Charter o f N urem berg : « The fact that the defendant acted pursuan t to order o f the G overnm ent or o f a superior shall no t free him from responsibility, bu t m ay be considered in m itigation o f punishm ent ».

The Judgm ent o f N urem berg (Brit. ed. 1946, p. 42) reads :« The provisions o f this Article are in conformity with the law of all nations. That a

soldier was ordered to kill or torture in violation of the international law of war has never been recognized as a defence to such acts of brutality, though, as the Charter here provides, the order may be urged in mitigation o f the punishment. The true test, which is found in varying degrees in the criminal law of most nations, is not the existence of the order, but whether moral choiee was in fact possible ».

(11) See Report on the W ork of the Conference, Second Session, Vol. II Annexes p. 107. Doc. CE-COMIV-45, par. 4, 122.

18 BERT V.A. ROLING

One rem ark in this respect : according to the A m erican and the British Army m anuals, published in 1914, a superior order was a complete defence. Telford Taylor stated correctly :

« Both explicitly exempted from liability those whose violations o f the laws of war were committed under orders o f their « government » or « commanders », while declaring that the commanders who ordered or authorized the offences might be punished » (12).

In 1944 this régulation was altered in favour of som ething that m ore or less approached the applicable G erm an law o f 1872 (13). The present A m erican rule reads as follows :

a. « The fact that the law of war has been violated pursuant to an order of a superior authority, whether military or civil, does not deprive the act in question of its character o f a war crime, nor does it constitute a defense in the trial of an accused individual, unless he did not know and could not reasonably have been expected to know that the act ordered was unlawful. In all cases where the order is held not to constitute a defense to an allégation of war crime, the fact that the individual was acting pursuant to orders may be considered in mitigation o f punishment.

b. In considering the question whether a superior order constitutes a valid defense, the court shall take into considération the fact that obedience to lawful military orders is the duty of every member of the armed forces; that the latter cannot be expected, in conditions o f war discipline, to weigh scrupulously the legal merits of the orders received; that certain rules o f warfare may be controversial; or that an act otherwise amounting to a war crime may be done in obedience to orders conceived as a measure of reprisai. At the same time it must be borne in m ind that members o f the armed forces are bound to obey only lawful orders ».

In this provision two rules are em bodied : tha t lack o f know ledge o f an order’s unlawfulness is a defence, and that fear o f punishm ent for disobe- dience may be a m itigating circumstance.

The International Law Commission, in its D raft Code of Offences against the Peace and Security o f M ankind, adopted in 1954, laid down the following rule :

Article 4.« The fact that a person acted pursuant to orders o f his Governm ent or of a superior

does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him ».

It seems to me that the problem o f superior orders has two aspects : The aspect o f knowledge and the aspect o f fear (14).

1. The superior order to commit a war crime is a complete defence i f it leads to an excusable « error juris ». Certain rules o f war are controversial. It may be difficult to come to a correct décision in case o f reprisais. It is possible that the alleged criminal did not know and could not reasonably have been expected to know that the act

(12) Op. cit., p. 47.020 (13) The new English and American rules are quoted in V o g l e r , T. : « The Defense of «5Superior Orders » in International Criminal Law », in B a s s io u n i and N a n d a , A Treatise on International Criminal Law, Vol. I, Crimes and Punishment, Springfield (III), 1973, p. 619-635, p. 632.

(14) For a discussion along these lines, see T a y l o r , op. cit., p. 49-51.

RESPONSIBILITY FOR VIOLATIONS OF THE LAWS OF WAR 19

ordered was unlawful. In case he thought, in good faith, that the superior did not order a war crime to be committed, and i f he was entitled to come to that conclusion — that is : if there did not exist any négligence on his part— the only conclusion should be that he cannot be punished.

He is exonerated, because he was not aware that what he was doing was a criminal act. This is the first aspect, the first line of defence with respect to the superior order : it may lead to a valid excuse.

2. In case he knew that the order was an illégal one, demanding the commission of a crime, then a second defense is feasable. The accused may argue : I knew that what I was going to do was criminal, bu t I did not dare disobey : I would have been shot on the spot. I was in a clear position of duress, because I realised that serious personal harm would be the conséquence of disobedience. This position of duress can have all shades o f intensity. Consequently, this line o f defence may lead to mitigation o f punishment and even to no punishment at all.

In this connection attention should be draw n to the Milgram experiments (15), in which persons were requested to cause pain to others (the persons in question being told that research was done on the question w hether inducing pain m ight accelerate the learning-process). The resuit was that m ore then 60 % o f the persons involved were willing to adm inister electric shocks indicated as « severe, dangerous shocks ». Surroundings, especially after having ente- red « the agentic state », the spiritual climate of the environm ent, have on enormous im pact (16). The conscience o f the individual is replaced by the conscience o f the authorities, or ra ther the individual conscience is dom ina- ted by the duty o f obedience, especially in military circles, where the principle o f hierarchy and obedience is cultivated, because it is needed in times o f stress (17). It will always be very difficult for a soldier to disobey, especially in times o f war, when disobedience is « a capital crime ». Therefore it is necessary that the two features o f a superior order are clearly outlined :— the com m and as cause o f forgivable error juris, and— the com m and as cause o f duress.

This needs to be clearly stated because the persons who are sitting in judgm ent are mostly hostile judges, the victorious enemy.

(15) M i l g r a m , S., Obedience to Authority, Harper and Row, 1974.(16) M i lg r a m (p. 133) defines the agentic state as « the condition a person is in when he sees

himself as an agent for carrying out another person’s wishes », and considers this concept « the keystone » of his analysis. It is the state in which the individual replaces the values of his own conscience by the values ó f the authority, in the system of which he entered. It means a loss of responsibility. « Superego functions shift from an évaluation of the goodness or badness o f the acts to an assessment of how well or poorly one is functioning in the authority system » (op. cit., p. 146). Military éducation tends to replace individual values by the values o f the academy, for instance West Points’ « Honor, Duty, Country ». See E l l i s and M o o r e , op. cit., p. 159-191.

(17) In the case o f the Llandovery Castle against naval lieutenants, the Leipzig Court obser- ved : « A refusai to obey the commander o f a submarine would have been something so unusual, that it is humanly possible to understand that the accused could not bring themselves to disobey (Ta y l o r , op. cit., p. 46).

20 BERT V A. ROUNG

The most im portant sentence, in the N urem berg Judgm ent, concerning the problem o f superior orders, reads :

« the very essence of the Charter is that individuals have international duties which transcend the national obligations o f obedience imposed by the individual State ».

According to this statem ent, rules o f international law exist which prevail over rules o f national law or national orders. It does not im ply tha t all rules o f international law have prevalence over national laws. But in ternational « jus cogens » exists. W ho should be called upon to décidé that a rule o f in ternational law has a spécifié content (interprétation of the mostly confusing juridical situation), and that this rule has the character o f ju s cogens (again interprétation o f a mostly confusing juridical situation) ? In present day international law, the concept o f auto-interpretation is adopted. Every State and every in ternational organization has its own in terprétation of in te rnational law. Com pulsory jurisdiction does not exist. I f different interprétations clash, a dispute exists which should be peacefully solved according to the recom m endation o f art. 33 U N Charter. Every State legislates which organ is to be called upon to give the national in terprétation of in ternational law (government, legislator, judge). In ternational law leaves it to national law to décidé who will interpret. The sentence o f the N urem berg Judgm ent provides an exception to this rule. H ere international law confronts the individual him self with the dem and to give his own interprétation, even w hen his government has given a contrary décision and ordered him to obey the official interprétation. One o f the Judges o f N urem berg, D onnedieu de Vabres, called the N urem berg Judgm ent « une œuvre révolutionnaire ». This is correct. It was so revolutionary, that one m ay doubt w hether m ost States are prepared to accept its rulings as valid in ternational law.

6. TRIALS O F PRISO N ERS OF W AR

Awareness o f the diffïcult position in which the subordinate finds him self and o f the extended duties o f com m anding officers, stresses the significanCe of the traditional rule that a m ilitary m an should be judged by his peers.

D uring and after W orld W ar II a special problem existed with respect to prisoners o f war. Art. 63 of the 1929 Geneva C onvention on Prisoners of W ar reads : « Sentence may be pronounced against a prisoner o f w ar only by the same Courts and according to the same procedure as in the case ó f persons belonging to the arm ed forces o f the detaining Power ». Before W orld W ar II a reluctance existed to m ake régulations concerning the trial and punishm ent by the enemy of w ar criminals. But the rationale o f art. 63 is clear : one needs qualified persons to evaluate the acts o f soldiers and only m ilitary m en equal in rank, who are able to judge the predicam ent o f a com m anding officer, are entitled to sit in judgm ent. Art. 63 has no sense if it is applied only to acts committed in captivity. During the war the US State D epartm ent took the position that art. 63 was applicable to proceedings for alleged w ar crimes

RESPONSIBILITY FOR VIOLATIONS OF THE LAWS OF WAR 21

committed before captivity. After the war, especially in and after the Y am ashita case, it took the standpoint that art. 63 deals only with trials for crimes com m itted during captivity. This latter standpoint is form ulated in the following way : a captured soldier is only entitled to the status o f P.o.W. i f he is not a war criminal. It means, in practice, that a captured soldier is denied the status o f P.o.W. on the mere suspicion that he has com m itted a w ar crime. This is, however, incom patible with the presum ption o f innocence until conviction (Universal D éclaration on H um an Rights, art. 11 ; C ovenant on Civil and Political Rights, 1966, art. 14 sub 2). A m ore reasonable description of these situation would be : a privileged com batant has, in case of capture, the status o f P.o.W. This m eans, inter alia, that he cannot be punished for the act o f fighting, bu t he m ay be tried for war crimes, by a Court, as indicated in art. 63 o f the 1929 Convention on Prisoners o f W ar. This was the line followed by French law. In H olland and many other countries the post- Yamashita Am erican standpoint was followed. It is an in terprétation o f art. 63, based on its place and its history, and disregarding its function (an example o f the général trend in post-war trials to interpret conventions and customs in a way unfavourable to the accused !)

A fter most post w ar trials were over, the G eneva C onvention o f 1949 concerning prisoners o f w ar restated the traditional rule :

Art. 102 :« A prisoner o f war can be validly sentenced only if the sentence has been pro-

nounced by the same Courts according to the same procédure as in the case of members o f the armed forces of the Detaining Power, and if, furthermore, the provisions o f the present Chapter have been observed >>.

This rule applies to all crim inal procedures, including proceedings concerning war crimes com m itted before captivity.

7. TH E PU RPO SE O F PR O SEC U TIN G W A R CRIM IN A LS

A last question should be put, and answered : w hat is the purpose of prosecuting w ar criminals ? This is a diffïcult question, touching upon the général problem of the function o f crim inal law, and upon the special pro- blem o f the function o f the hum anitarian law of war. Here it is helpful to know how m any w ar criminals were prosecuted after the Second W orld W ar. Exact and reliable figures are not available for certain countries, e.g. the USSR and East-European countries. According to a report o f the G erm an M inister o f Justice o f 26th February 1965, 5025 G erm ans were tried in G erm any by French, English and Am erican Courts, 5426 by G erm an Courts, and about 70.000 outside G erm any, mostly in East-European countries (Po- land, Yugoslavia, Czechoslovakia, Soviet Union). It is rem arkable in this respect that so few G erm ans were tried in W estern E uropean countries, where apparently, there was a far greater eagerness to prosecute collabora- tors. For example, D enm ark tried 13.600 Danes (for collaboration), but only 10 G erm ans, N orw ay tried 51.384 Norwegians, bu t only 72 G erm ans. In

22 BERT V.A. ROLING

H olland 4.700 D utchm en were tried, bu t only 241 G erm ans, o f these G erm ans 16 were sentenced to death bu t only 5 executed; this in a country where m ore then 100.000 D utchm en (Jews) were m urdered in cold blood .

One may w onder why so little prosecution took place. In the case o f H olland one category of crimes, those in the economic field, m ight have been purposely neglected because so m any influential D utchm en would have been implicated. But that so m any G erm ans who had been involved in the extermination o f the Jewish part o f the population escaped prosecution may perhaps be explained by the fact that the whole judiciary apparatus was disorganized after the war, and overloaded with work. T hat so m any Germ ans were sent hom e w ithout a trial m ay be partly explained by the fact that the population in général was more interested in D utchm en who had misbehaved. Probably m ore com plaints were m ade to the authorities about that m isbehaviour, concerning e.g. concentration camps in H olland, or poli- tical denunciations, than concerning the persécution o f Jews. W hen the few Jews who had survived cam e hom e, and the full horror o f w hat had happe- ned becam e clear, most o f the G erm ans had already gone. In général, it can be said, that only a few o f the hundreds o f thousands of G erm an criminals have been prosecuted and sentenced. The choice o f criminals to be prosecu- ted seems to have been m ore a question o f chance, o f « bad luck » from the viewpoint o f the guilty, than selection according to ra tional standards concerning the severity of the crime. Some well-known figures were chosen, e.g. R auter in H olland, and some persons who had becom e well-known to their victims, such as the com m anders and torturers in concentration camps. They became the symbol of G erm an criminality, and were sentenced accordingly. The justice m eted out to G erm an criminals in H olland — as in o ther countries — was « exemplary justice ». The purpose was not to punish all cases of criminal guilt, bu t to give expression to the abhorrence of w hat had happe- ned. The exem plary punishm ents served the purpose o f restoring the legal order, that is o f reassuring the whole com m unity that w hat they had witnes- sed for so m any years was crim inal behaviour. A nd this is the foremost, essential function o f crim inal prosecutions : to restore confidence in the rule of law. The legal order is the positive inner relation o f the people to the recognized values o f the community, which relation is d isturbed by the commission o f crimes. If crimes are not punished, the confidence in the validity o f the values o f the com m unity is underm ined and shaken. The effect of the crime on the spectator is neutralized by the m eeting out o f punishm ent, the weight o f which corresponds to the heinousness o f the crime. D eterrence in cases of violations o f the laws o f war, plays only a m inor rôle. F o r a long time the conviction will exist that one’sown party will be victor, and that a victor will not be tried for his m isbehaviour. A nd even in case o f defeat the chances are small that one will be caught, prosecuted and tried. W ith a bit of clevemess and foresight, one can take the necessary precautionary measures, including those that assure that one is back in one’s own country, hidden amongst a friendly population. Post-war punishm ents are no t prim arily concerned with carrying out threats m ade during a war to influence the

RESPONSIBILITY FOR VIOLATIONS OF THE LAWS OF WAR 23

behaviour o f the enemy, as e.g. in the Moscow D éclaration on Atrocities, of 6th N ovem ber 1943. To achieve that aim, the chances o f apprehending the criminal are too small. N or is the aim o f the punishm ent to resocialize the criminal. T hat so m any criminals who behaved as scoundrels during the war, and then lived for years, under an assum ed nam e, peacefully as law-abiding citizens — until they m ere discovered and tried — dem onstrates that people’s behaviour will generally change in peacetim e in response to the changed « m oral climate » (« à la guerre comme à la guerre »). The « exem plary justice » o f post-war trials has as its m ain aim the vindication o f traditional values. But if responsibility for the omission to prevent the commission o f war crimes is clearly recognized, some elem ent o f effective deterrence would be introduced. H igher ranking authorities might thus be influenced by the prospect of future trials, especially w hen the fortunes o f war were clearly turning against them. Crim inal prosecution o f war criminals is only one of the factors contributing to honourable behaviour in war. It m ight be far m ore im portant :

1. that, in peace-tim e, the laws o f war be taught to officers and soldiers (and to civilians) and tha t a général clim ate be brought about according to which, also in the view o f the military, the laws o f w ar are regarded as belonging to the ethics o f the profession;

2. that, in war-tim e, provision be m ade for violations o f the laws o f w ar to be observed and publicised as m uch as possible. The V ietnam war showed the im portance o f the publicity given to the increasingly dishonorable and detestable m ethods o f w arfare practised in that war. The possibility of on-the-spot observation m ight be institutionalized in some way or anot- her. Probably professional news-gathering will be the m ost im portant factor.

A short rem ark about the shady side o f the prosecution o f w ar criminals. First o f all, the proceedings and trials can be misused for purposes o f revenge. Through the trials, the killing m ight continue after the w ar — as it did in former times — now after a trial. The danger o f such a developm ent was apparent after the Second W orld W ar. The N urem berg T iibuna î’s décision with respect to « crim inal organisations » was clearly based on the suspicion that mass killings o f m em bers o f such organisations m ight take place (18). Prosecution o f the vanquished may also be used for the purpose of distorting history. All participants in wars have taken liberties w ith the truth in their

(18) Realizing that a mem ber o f an organisation, which had been declared criminal by the Tribunal, might subsequently be convicted o f the crime o f membership and be punished for that crime by death, the I.M.T. took précautions to prevent mass punishments without previous détermination of personal guilt. Therefore as far as was possible the Tribunal made déclarations of criminality in such a way as to ensure that innocent persons would. not be punished. For instance, with respect to the S.S., it declared that the'criminal group consisted only of those members who knew about the crimes or who were personally implicated in their commission, and excluded those who were drafted into membership in such a way as to give them no choice in the matter, and who had committed no such crimes. See Chapter VII o f the Judgm ent : The Accused Organizations (Brit. Ed., 1946, p. 66 ff.).

24 BERT VA. ROL1NG

war propaganda. Trials can be misused, not only to shift the attention for the crimes of the victor to those o f the vanquished, bu t an attem pt m ay be m ade even to hold the crimes o f the form er against the latter. Judgm ents may be misused to uphold the war propaganda o f the victor.

The prospect o f prosecutions and trials may prolong the w ar and m ake fighting m ore desperate. Certainly the inclination to capitulate will be dimi- nished if the prospects are that the leaders o f the country will be tried and hanged. Just as the dem and for unconditional surrender prolonged the war in Europe, perhaps for years, so the uncertainty about the fate of the Japanese em peror prolonged the w ar in Asia.

Still, the argum ents in favour o f prosecution o f w ar criminals — even if it is a prosecution restricted to exemplary cases — prevail. Letting the m ajor criminals live undisturbed to write their « memoirs » in peace, as Jackson wrote to Roosevelt, « would mock the dead and m ake cynics o f the living ». Shooting the most notorious scoundrels w ithout trial (as Churchill and Cor- dell H uil wished) would « not sit easy on our conscience, and w ould not be rem em bered by our children with pride ». M oreover, as has already been remarked, values which were underm ined by the spectacle o f their conti- nuous neglect, should be restored. From the political point o f view, it is helpful for future peaceful relations with form er enemy countries, that a distinction be m ade, via the Judgm ents, betw een the guilty leaders and their mislead and deceived populations.

8. ON TH E DESIRABILITY OF LAW S O F W A R

The question o f w hether prosecution o f w ar criminals m akes sense and is desirable, depends, in the end, on w hether ör no t it is desirable to have laws of war lim iting the right « to adopt m eans o f injuring the enem y » (art. 22, Hague Rules o f 1907). Especially after the shocking reports o f H enri D unan t about the battlefield o f Solferino, the m ovem ent started to « hum anize » warfare. In the beginning it was restricted to the care o f the w ounded, bu t it expanded to m ethods and m eans of warfare (19). The laws o f hum anity and the dem ands o f the public conscience were to have an im pact on the legality o f specific weapons, o f ways o f fighting, o f specific killings and destructions.

(19) Distinction is often made between « the law of Geneva » and « the law o f the Hague », the law of Geneva giving rules for the protection of and assistance to the victims of war, the law of the Hague giving rules for the prevention of people becoming victims. Stimulated by the appeal made by Henri Dunant, the Red Cross was established, and its primary interest con- cerned the victims of war. But the Conventions adopted at the Second Peace Conference of the Hague, convened on the initiative o f the Russian Czar, in which many rules o f warfare were codified, contained also rules for the protection of victims. A third impulse to the development of the laws of war originated in the human-rights movement. The General Assembly o f the U.N. adopted several resolutions on « hum an rights in armed conflict ». Out o f the coopération of the U.N. and the I.C.R.C. came the present Diplomatic Conference, in which the Draft Additional Protocols to the Geneva Conventions o f August 12, 1949 are discussed.

RESPONSIBILITY FOR VIOLATIONS OF THE LAWS OF WAR 25

One m ay w onder w hether this endeavour to hum anize w arfare has the hidden tendency to m aintain w ar as a recognized institution, as an acceptable way o f behaving. Is the récognition o f laws o f war and the legal restriction of its destructiveness — in the sam e way as the law o f arms control and di- sarm am ent —, one o f the m eans o f upholding the institution o f war ? Does it m ean a taking care that war will no t become « impossible » ? W ould it no t be bettej to leave w ar alone, so tha t it m ay perish through its ever m ore recognized destructiveness and repulsiveness ? It seems to me, tha t war m ight disappear from our world in this m anner, bu t it is probable that the first victim o f this strategy would be our own culture, and only then w ould the rest o f the world have learned the lesson. W ar m ight d isappear at the price o f our civilisation. O ur highly developed part of the world would have been de- stroyed at an earlier date, before the disappearance o f war. As long as we are not been able to abolish war completely we should, especially in the atomic âge in which we live, restrict its violence and its destructiveness, lest « our world » perish through its technology (20).

W ars are still com m onplace today. Since 1945 there have been m ore than 25 international wars and m ore than 100 civil wars. I t would be morally impossible to ignore those wars, to recognize that those wars were not subject to any laws, that everything was perm issible in w ar — hum anly impossible for a world which would the witness the events on T.V. But it is clear, that civil war — in m any respects — has taken over the rôle that w ar played in form er times. The laws o f w ar should be, as far as possible, applied to civil wars. T hat is the purpose o f Protocol II o f the ICRC. But we all know the difficulties in this field :1. Legally : the rebels of the future are not parties to the G eneva Conference.

So we have here clearly the character of législation rather than treaty m aking (binding only on the consenting parties);

2. Factually : rebels usually are no t in the same position as the governm ent; there exists an asym m etry in their respective positions, because a week and unorganised group is revolting against a governm ent with an organi- zed military power. Prohibitions, which do not diminish the pow er o f the powerful, m ight take away all power from the weak. But laws o f w ar are not intended to alter pow er relations, and if they do they will not be observed !

H ere we touch upon an aspect o f the laws o f w ar which should be men- tioned, a dangerous feature which is often overlooked. I f law enters into a relation, granting rights and imposing duties, such a relation becomes ideologically loaded. As such law has a « trip-wire » quality, w hat formerly was merely regarded as a violation o f interests becomes now a violation o f

(20) The main significance of the present development of the laws of war may lie in the fact that this development could lead to the prohibition o f nuclear weapons. Such a prohibition might contribute to the raising of the threshold which separates conventional from nuclear weapons. See on this aspect SIPRI : The Law o f War and Dubious Weapons, Stockholm 1976.

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rights, and as such aggravates a conflict. Law gives an ideological intensity to conflicts. This aspect o f « law » plays also a rôle in the laws o f arm ed conflict. I f the enemy kills and destroys, this will be resented. But there will be even m ore resentm ent if what he does is illégal. Therefore, one should take care not to prohibit w hat will foreseeably occur.

In thinking about the laws o f war, and o f how to strengthen their im pact on warfare, we should not lose sight o f the fact that any developm ent on this score will probably be surpassed by technological developm ents in weaponry, tending to m ake wars m ore and more horrible, devastating, and « inhum an ». The only way to avoid the horrors o f war is to abolish war. This was the conclusion reached by H enri D unant, who started the hum anitarian movem ent after his personal experiences at Solferino. First, D u nan t cared for the wounded, and later the m ovem ent started by him established hum anitarian restrictions in warfare. But in the m eantim e, D u nan t h ad become convinced tha t the struggle for « hum ane warfare » should becom e a struggle against w ar itself. D unan t had given up the hope o f saving hum anity by hum anitarian laws o f war : m ankind needed the élim ination o f w ar itself.

D unant saw the world on the way to world wars. O ur conclusion cannot be different on that score. O ur général conclusion m ight, however, be : it is necessary to elaborate the laws o f war, and to prohibit the kind o f weapons and m ethods o f w arfare which m ight put in jeopardy hum anity itself (that danger is recognized in several treaties concerning weapons o f mass destruction). But the m ain concern o f hum anity should be to find ways and means o f eliminating w ar itself.