II. WORLD WAR I1 TRIALS

A. “WAR CRIMES” DEFINED

Before proceeding, the term (“war crimes” as used generally and in this thesis warrants definition. The United States Army defines (“war crimes” as “the technical expression for a violation of the law of war by any person or persons, military or civilian.”[57] The present British definition is similarly imprecise.[58]

Field Manual 27-10 provides some delineation by including those acts defined by the Geneva Conventions of 1949 as (“grave breaches,’’ if committed against persons or property protected by those Conventions;[59] Paragraph 504 includes other acts as “representative” of war crimes, viz.:

a. Making use of poisoned or otherwise forbidden arms or ammunition.

b. Treacherous request for quarter.

c. Maltreatment of dead bodies.

d. Firing on localities which are undefended and without military

e. Abuse of or firing on the flag of truce.

f. Misuse of the Red Cross emblem.

g. Use of civilian clothing by troops to conceal their military character during    battle.

h. Improper use of privileged buildings for military purposes.

i. Poisoning of wells or streams.

j. Pillage or purposeless destruction.

k. Compelling prisoners of war to perform prohibited labor.

1. Killing without trial spies or other persons who have committed hostile acts.

m. Compelling civilians to perform prohibited labor.

n. Violation of surrender terms.[60]

The United States Navy has defined war crimes

. . . as those acts which violate the rules established by customary and conventional international law regulating the conduct of warfare. Acts constituting war crimes may be committed either by members of the armed forces of a belligerent or by individuals belonging to the civilian population.[61]

The Charter of the International Military Tribunal established by the Allied Powers at the conclusion of World War I1 for prosecution and punishment of the major war criminals of the European axis defined “war crimes” as:

. . . namely, violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment or deportation to slave labor or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity . .[62]

The definition formulated by the United Nations in the Nuremburg Principles of 1946 is similar in language. France in contrast left the term undefined, feeling that any offenses to be punished were such infractions of French law as were not made justifiable by the laws and customs of war.[63] This is not unlike the Navy definition and the general definition, rather than specific definition, would seem to be preferred: a war crime is any act not justified by military necessity and otherwise prohibited by custom or international convention regulating the conduct of war.

B. THE TRIAL OF GENERAL TOMOYUKI YAMASHITA [64]

Of the trials which address the question of command responsibility, the trial of Japanese General Tomoyuki Yamashita by Military Commission remains the most controversial, primarily (a) because of an ill-worded opinion prepared sua sponte by the lay court; (b) because of a book written by one of General Yamashita’s defense counsel; and (e) inasmuch as it was one of the first war crimes trials completed, it gained the benefit of judicial review by the United States Supreme Court.

General Tomoyuki Yamashita served as commanding general of the Fourteenth Army Group of the Imperial Japanese Army in the Philippine Islands from October 9, 1944, until his surrender on September 3, 1945. [65]As such, the evidence established conclusively that he was the commander of all Japanese forces in the Philippines.[66] He served concurrently as the military governor of the Philippines. [67]

On October 2, 1945, General Yamashita was served with the following Charge:

Tomoyuki YAMASHITA, General Imperial Japanese Army, between 9 October 1944 and 2 September 1945, at Manila and at other places in the Philippine Islands, while commander of armed forces of Japan at war with the United States of America and its allies, unlawfully disregarded and failed to discharge his duty as commander to control the operations of the members of his command, permitting them to commit brutal atrocities and other high crimes against people of the United States and its allies and dependencies, particularly the Philippines; and he, General Tomoyuki YAMASHITA, thereby violated the law of war.[68]

On October 8, 1945, as a result of a motion made by the defense during arraignment of the accused[69] the prosecution submitted a Bill of Particulars containing sixty-four specifications. Prefaced by the statement that

Between 9 October 1944 and 2 September 1946, at Manila and other places in the Philippine Islands, members of Armed Forces of Japan under the command of the Accused committed the following: . . .[70]

Subsequently, on October 29, 1945, a Supplemental Bill of Particulars was filed containing an additional fifty-nine specifications, prefaced by the allegation that

. . . members of the armed forces of Japan, under the command of the Accused, were permitted to commit the following during the period from 9 October 1944 to 2 September 1945 at Manila and other places in the Philippine Island: . .,. [71]

Trial on the merits commenced on October 29, 1945, concluding December 7, 1945, after hearing 286 witnesses and receiving 423 documents in evidence.[72] The evidence substantially supported the crimes alleged in most of the 123 particulars; General Yamashita admitted neither the commission of the acts nor that they were violations of the laws of war.[73] Rather, he denied ordering the offenses alleged, and denied having any knowledge of their commission, the latter as a result of the extreme tactical situation in which he found himself from the very outset of assumption of command.’[74].‘ Had he known of or foreseen these acts, he would have concentrated all of his efforts toward preventing them.[75] In concluding his testimony, General Yamashita specifically denied either receiving from superior authority or giving any order to massacre “all the Filipinos.” [76]

The evidence presented the Commission directly and circumstantially refuted the testimony of General Yamashita, the latter on five bases: (a) the number of acts of atrocity, (b) the number of victims, (c) the widespread occurrence of atrocities, (d) the striking similarity in the method of execution, and (e) the vast number of atrocities carried out under the supervision of an officer.

Of the 123 atrocities included within the Charge, evidence was adduced on ninety.[77] Forty-four occurred in Manila substantially during the two-week period from 6 to 20 February 1945,during which time  over 8,000 men, women, and  children, all  unarmed non-combatant civilians, were killed  and  over  7,000  mistreated, maimed  or wounded. [78]While  General  Yamashita had  displaced his headquarters from  Manila  some two  months  previous,  and while communications were generally precarious, his headquarters nevertheless possessed and utilized the capability of  communication  with  Manila until June, 1945.[79] The war  crimes which  occurred in Manila were carried out pursuant to written orders [80] and  under  the  supervision  of   officers  of   the  army  and navy.[81] Many  advised  their  victims-to-be  that  they  were  acting  pursuant to  orders from higher authority.[82] A  pattern  of  execution  and  an orderliness and dispatch emerged: assembly of the victims in a central location, usually a house or large building,‘[83] where the most “economical” means of execution were utilized in order to conserve the expenditure of ammunition.[84] In a number of instances extensive advance preparation of the site, for example, installing strings to set off explosives, cutting holes in the floor for bodies to fall through, digging mass graves, and staging gasoline for the burning of bodies and buildings, was made to facilitate executions.[85] The bodies were then disposed of by throwing in the river, burning with a house or building, or burying in mass graves. [86]Similar war crimes were documented throughout the Philippines, manifesting the same pattern of orderliness, planning, and direction for the most part during the same two-week period in February, 1945.[87] In addition, there was extensive evidence concerning the starvation, torture, lack of medical care for, and murder of American prisoners of war and civilian internees.[88]

General Yamashita never inspected any of the prisoner of war camps, even though his headquarters was located within, adjacent to, or in the vicinity of two different camps where a substantial number of violations occurred.[89] After General Yamashita personally ordered the suppression of guerrilla activities in December, 1945, two thousand Filipinos incarcerated in Manila as guerrilla suspects were given cursory trials, none of which lasted more than five minutes and none of which even conformed to Japanese legal requirements, transported to North Cemetery in trucks, and beheaded.[90]  General Yamashita’s staff judge advocate, Colonel Hideo Nishiharu, testified that he advised General Yamashita that these guerrilla suspects were in custody, that there was insufficient time to give them proper trials, and that the Kempei Tai “would punish those who were to be punished.”[91] Knowing that this meant that these guerrillas would be executed without trial, General Yamashita nodded in apparent approval.[92]

 General Yamashita subsequently issued a written order to the Kempei Tai unit responsible for the executions commending them for their “fine work.” [93]

Two other witnesses appeared on behalf of the prosecution to directly link General Yamashita to the offenses alleged. While both were in the custody of United States forces as suspected collaborators, and while both previously had offered to exchange information as to Filipino and Japanese collaborators in return for their freedom, both testified that they had received no promise or reward for their testimony in the trial of General Yamashita. [94]

The first, Narciso Lapus, was private secretary from June 1942 to December 1944 to General Artenio Ricarte, a prominent member of the Japanese puppet government of the Philippines. Lapus was advised by Ricarte in October 1944 that Yamashita had informed him that:

We take the Filipinos 100 percent as our enemies because all of them, directly or indirectly, are guerrillas or helping the guerrillas. In a war with the enemies [sic] we don’t need to give quarter. The enemies should go.[95]

According to Lapus, General Yamashita then advised Ricarte that he planned to allow the Americans to enter Manila; he would then counter-attack, destroying Manila, the American forces, and the population of Manila. His plan of defense coincided with orders he had received to destroy Manila, particularly the populated and commercial areas of the city. General Yamashita further advised General Ricarte that he had ordered Japanese forces to wipe out any population area that gave any signs of pro-American movement or action; and that when Ricarte asked General Yamashita to rescind the order, General Yamashita refused.[96]

The second witness, Joaquin S. Galang, testified that he overheard a conversation between Generals Yamashita and Ricarte in December 1944 in which General Ricarte asked General Yamashita to rescind his order to kill all Filipinos. General Yamashita replied: “The order is my order. And because of that it should not be broken or disobeyed. It ought to be consumed, happen what may happen.” [97]

The testimony of Galang was rebutted by the defense: Galang had testified that General Ricarte’s 12-year-old grandson had served as an interpreter for the conversation overheard by Galang; the defense produced the grandson, Bislumo Romero, who denied interpreting the conversation in question.[98]

The trial concluded on December 7, 1945. In reaching a finding of guilty, the Commission, none of whom were lawyers, saw fit to issue a written opinion, which states in part:

The Prosecution presented evidence to show that the crimes were so extensive and wide-spread, both as to time and area, that they must have been wilfully permitted by the Accused, or secretly ordered by the Accused . . .

The Accused is an officer of long years of experience, broad in its scope, who has had extensive command and staff duty in the Imperial Japanese Army in peace as well as war in Asia, Malaya, Europe, and the Japanese Home Islands. Clearly, assignment to command military troops is accompanied by broad authority and heavy responsibility. This has been true in all armies throughout recorded history. It is absurd, however, to consider a commander a murderer or rapist because one of his soldiers commits a murder or a rape. Nonetheless, where murder and rape and vicious, revengeful actions are widespread offenses, 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. Should a commander issue orders which lead directly to lawless acts, the criminal responsibility is definite and has always been so understood. The Rules of Land Warfare, FM 27-10, United States Army. are clear on these points. It is for the purpose of maintaining discipline and control, among other reasons, that military commanders are given broad powers of administering military justice. The tactical situation, the character, training and capacity of staff officers and subordinate commanders as well as the traits of character, and training of his troops are other important factors in such case‘s. These matters have been the principle considerations of the Commission during its deliberations. . . .

. . . The Commission concludes: (1) That a series of atrocities and other high crimes have been committed by members of the Japanese armed forces under your command against people of the United States, their allies and dependencies throughout the Philippine Islands; that they were not sporadic in nature but in many cases were methodically supervised by Japanese officers and non-commissioned officers; (2) that during the period in question you failed to provide effective control of your troops as was required by the circumstances.”)[99]

Review of the evidence presented, the record of trial, and the Commission’s “opinion” indicates four theories of command responsibility upon which the Commission could have depended to reach their decision: (1) that General Yamashita ordered the offenses committed; (2) that, learning about the commission of the offenses, General Yamashita acquiesced in them; (3) that, learning about the commission of the offenses, General Yamashita failed to take appropriate measures to prevent their reoccurrence or to halt them; (4) the offenses committed by the troops under General Yamashita were so widespread that under the circumstances he exhibited a personal neglect or abrogation of his duties and responsibilities as a commander amounting to wanton, immoral disregard of the action of his subordinates amounting to acquiescence.

The question of knowledge, an element of the first three theories, was the subject of re-examination during the trial of General Yamashita’s Chief of Staff, Lieutenant General Akira Muto. Tried by the International Military Tribunal for the Far East, a tribunal composed of lawyer-judges from eleven nations, Muto was charged with the same offenses as Yamashita; much of the evidence received was taken directly from the Yamashita transcript. Muto’s defense to these charges was the same: lack of knowledge owing to the extreme tactical situation. In addressing this defense, the Tribunal stated:

. . . During his tenure of 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 defense that he knew nothing of these occurrences. It is wholly incredible.[100]

General Yamashita’s case received daily review during the progress of the trial by the staff judge advocate for the convening authority.[101] A daily summary of evidence was made and as a result the staff judge advocate’s review of the case was completed on December 9, 1945. In conclusion, the staff judge advocate stated:

The evidence affirmatively shows a complete indifference on the part of accused as commanding officer either to restrain those practices or to punish their authors. The evidence is convincing that the overall responsibility lay with the Army Commander, General Yamashita, who was the highest commander in the Philippines; that he was charged with the responsibility of defending the Philippines and that he issued a general order to wipe out the Philippines if possible and to destroy Manila; that subsequently he said he would not revoke the order.

The pattern of rape, murder, mass execution and destruction of property is wide spread both in point of time and of area to the extent a reasonable person must logically conclude the program to have been the result of deliberate planning.

From all the facts and circumstances of record, it is impossible to escape the conclusion that accused knew or had the means to know of the widespread commission of atrocities by members and units of his command; his failure to inform himself through official means available to him of what was common knowledge throughout his command and throughout the civilian population can only be considered as a criminal dereliction of duty on his part.[102]

Defense counsel for General Yamashita had previously filed a petition for writs of habeas corpus and prohibition with the United States Supreme Court on November 25, 1945; [103]a petition for writ of certiorari was subsequently filed on January 7, 1946.[104] In the interim, the military continued its review process. On December 26, 1945, the review of the theater staff judge advocate was completed. After extensive review of the evidence, the theatre staff judge advocate stated:

The only real question in the case concerns accused’s responsibility for the atrocities shown to have been committed by members of his command. Upon this issue a careful reading of all the evidence impels the conclusion that it demonstrates this responsibility [reciting facts]. All this leads to the inevitable conclusion that the atrocities were not the sporadic acts of soldiers out of control but were carried out pursuant to a deliberate plan of mass extermination which must have emanated from higher authority or a t least had its approval. From the widespread character of the atrocities as above outlined, the orderliness of their execution and the proof that they were done pursuant to orders, the conclusion is inevitable that the accused knew about them and either gave his tacit approval to them or at least failed to do anything either to prevent them or to punish their perpetrators. Accused himself admitted that he ordered the suppression or “mopping up” of guerrillas and that he took no steps to guard against any excesses in the execution of this order. One cannot be unmindful of the fact that accused, an experienced officer, in giving such an order must have been aware of the dangers involved when such instructions were communicated to troops the type of the Japanese. Accused stoutly insists that he knew nothing of any of the atrocities and assigns as the reason for his lack of knowledge the complete breakdown of communications incident to the swift and overpowering advance of the American forces and to his complete preoccupation with plans for the defense of the Philippines. He states that his troops were disorganized and out of control, leaving the inference that he could not have prevented the atrocities even had he known of them. With respect to Manila, he insists that he had only tactical command of naval troops operating in the city and although he had authority to restrain such troops committing disorders, he could not discipline them, the situation being thus complicated by dual control between himself and the Navy. Here in particular the defense witnesses testified to a breakdown of communications with the forces in Manila. While, however, it may be conceded that the accused was operating under some difficulty due to the rapidity of the advance of the Americans, there was substantial evidence in the record that the situation was not so bad as stated by the accused. General Yokoyama admitted that he had communication with troops in Manila until 20 February and with the accused until June and made frequent reports to him. Surely a matter so important as the massacre of 8,000 people by Japanese troops must necessarily have been reported. (Since accused had authority to control the operations of the naval troops he cannot absolve himself of responsibility by showing that others had the duty of punishing them for disorders.) There is no suggestion as to any breakdown in communications with Batangas where late in February some of the most widespread atrocities occurred, nor is there any substantial proof that communications with other points in the islands at which atrocities occurred were at all interrupted. It is also noteworthy that the mistreatment of prisoners of war at Ft. McKinley occurred while accused was present in his headquarters only a few hundred yards distant and some of the other atrocities transpired close to the proximity of Baguio where he had his headquarters after removal from Manila. Taken all together, the court was fully warranted in finding that accused failed to discharge his responsibility to control his troops thereby permitting the atrocities alleged and was thus guilty as charged.[105]

In re Yamashita was argued before the Supreme Court of the United States on January 7, 1945.

The substance of the Court's opinion [106] addressed three issues: (a) jurisdiction of a military commission over the accused; (b) failure to state an offense against the law of war, that is, jurisdiction over the offenses; and (c) entitlement to and denial of the accused’s fundamental right of a fair trial thereby divesting the Commission of jurisdiction to proceed.

This article limits its discussion to (b)-was there such a duty imposed upon a military commander that its disregard constituted a violation of the law of war? In determining that the acts alleged stated an offense against the law of war, the Court first addressed the question of command responsibility:

. . . 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 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 the civilian population 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.[107]

Citing the provisions relative to command of Articles 1 and 43 to the Annex of the Fourth Hague Convention of 1907, Article 19 of the Tenth Hague Convention, and Article 26 of the Geneva Red Cross Convention of 1929,[108] the Court stated:

These provisions plainly imposed on petitioner . . . 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.[109]

In concluding that the charge stated an offense against the law of war, the majority, in refusing to review the evidence before the Commission, nevertheless noted:

There is no contention that the present charge, thus read, is without the support of evidence, or that the Commission held petitioner responsible for failing to take measures which were beyond his control or inappropriate for a commanding officer to take in the circumstances . . . It is plain that the charge on which petitioner was tried charged him with a breach of his duty to control the operations of the members of his command, by permitting them to commit the specified atrocities. This was enough to require the Commission to hear evidence tending to establish the culpable failure of petitioner to perform the duty imposed on him by the law of war and to pass upon its sufficiency to establish guilt.

. . . we conclude that the allegations of the charge, tested by any reasonable standard, adequately allege a violation of the law of war and that the Commission had authority to try and decide the issue which it raised.[110]

The majority thus concluded (a) that a commander has a duty to control the conduct of his subordinates, insuring their compliance with the law of war, and (2) that where such a duty exists, a charge alleging less than personal participation in or ordering of an act in violation of the law of war states a violation of the law of war.

In a dissent laden with emotion, Justice Murphy charged:

. . . He was not charged with personally participating in the acts of atrocity or with ordering or condoning their commission. Not even knowledge of these crimes was attributed to him. It was simply alleged that he unlawfully disregarded and failed to discharge his duty as commander to control the operations of the members of his command, permitting them to commit the acts of atrocity. The recorded annals of warfare and the established principles of international law afford not the slightest precedent for such a charge.[111]

However, Justice Murphy conceded that “inaction or negligence may give rise to liability, civil or criminal,’’ [112]subsequently observing that “this is not to say that enemy commanders may escape punishment for clear and unlawful failures to prevent atrocities.”[113] Justice Murphy’s objection was not to the standard of responsibility, but to the seeming inconsistency in the facts between the picture painted, first, of a thoroughly defeated commander, retaining operational command but having lost tactical control, under constant attack by vastly superior forces and, second, a commander who was not exercising proper administrative control over his subordinate units. This is a factual determination balanced by the Commission and eventually determined adversely to the accused based on their professional opinion, as soldiers, that the accused failed to fulfil his duties as a commander as required by the circumstances.

It has been fairly speculated that the emotive dissents of Justices Rutledge and Murphy-manifested by the shaking voice and castigating looks of Justice Murphy in reading his dissent came about as a result of the serious procedural questions raised by the case.[114] Unable to accept the majority’s logic on these points, the dissenting justices accepted all arguments of counsel for the accused.[115] The respective petitions were denied, and the case was returned to the military for disposition on February 4, 1946, the date of the Court’s decision. [116]

General Yamashita’s fate lay in the hands of General Douglas MacArthur, Commanding General, United States Army Forces, Pacific. That decision came on February 7, 1946: General MacArthur approved the findings and sentence of the commission [117] and on February 23, 1946, General Yamashita was hanged.[118]

The value of the study of the Yamashita trial lies not in its often misstated facts nor in the legal doctrine of strict liability it purportedly espoused (but did not), but in the legal conclusions it actually reached, Yamashita recognized the existence of an affirmative duty on the part of a commander to take such measures as are within his power and appropriate in the circumstances to wage war within the limitations of the laws of war, in particular exercising control over his subordinates; it established that the commander who disregards this duty has committed a violation of the law of war; and it affirmed the summum jus of subjecting an offending commander to trial by a properly constituted tribunal of a state other than his own. In the latter it became the foundation for all subsequent trials arising from World War 11. In the former its value lies primarily in the general rather than the specific sense-while recognizing the duty of the commander and the violation of the law of war for failure to exercise that duty, the duty was all the more absolute in Yamashita because of General Yamashita’s additional responsibilities as military governor of the Philippines. As military governor, all trust, care, and confidence of the population were reposed in him. This was in addition to his duties and responsibilities as a military commander, a point refined in the High Command and Hostages cases which follow. [119]

C. THE “HIGH COMMAND” CASE

Perhaps the most important of the war crimes trials involving the question of command responsibility was the Nuremburg trial of United States v. Wilhelm von Leeb,[120] also known as “The High Command Trial.” The accused were thirteen of the higher ranking German officers in American custody;[121] all held important staff and/or command positions in the German military. The Tribunal hearing the case was composed of Presiding Judge John C. Young, former Chief Justice of the Supreme Court of Colorado; Associate Judge Justin W. Harding, formerly U.S. District Judge, First Division, District of Alaska; and Associate Judge Winfield R. Hale, a Justice on the Tennessee Court of Appeals on leave of absence.[122]

The indictment alleged four offenses: (1) Crimes Against Peace[123] (2) War Crimes[124] (3) Crimes Against Humanity[125] (4) Conspiracy to Commit the Crimes Charged in Counts One, Two, and Three.[126] Before entering judgment as to the guilt or innocence of each of the accused, the Tribunal discussed the offenses at length. As in Yamashita, there was no question that the offenses occurred; the only questions to be resolved concerned the standard of responsibility and, based on that standard, the individual responsibility of each accused.

It was to the standard of responsibility that the Tribunal first addressed itself. Initially, the Tribunal stated:

For a defendant to be held criminally responsible, there must be a breach of some moral obligation fixed by international law, a personal act voluntarily done with knowledge of its inherent criminality under international law.[127]

From the outset the prosecution urged a theory of strict liability of the commander, even where orders were not obviously criminal or where an order is routinely passed without review by a commander from a superior headquarters to a subordinate. The Tribunal rejected these arguments, stating that

. . . to find a field commander criminally responsible for the transmittal of such an order, he must have passed the order to the chain of command and the order must be one that is criminal upon its face, or one which he is shown to have known was criminal.[128]

The Tribunal next addressed the problem of the commander's criminal responsibility for actions committed within his command pursuant to criminal orders passed down independent of his command.[129] The Tribunal stated the commander has four alternatives in such a situation: (1) he can issue an order countermanding the order; (2) he can resign his commission; (3) he can sabotage the enforcement of the order within a somewhat limited sphere; or (4) he can do nothing. In discussing these alternatives under the pluralistic or dual command system which existed in Nazi Germany, the Tribunal found none of the alternatives viable, yet nevertheless concluded that the commanders concerned must be responsible.[130] Citing Control Council Law No. 10, Article 11, paragraph 2,[131] the Tribunal concluded that " [a]ny participation in implementing such orders, tacit or otherwise, any silent acquiescence in their enforcement by his subordinates, constitutes a criminal act on his part.”[132] The Tribunal found the situation analogous to any other plea of superior orders; while no defense, it was a mitigating circumstance.[133]

 In next considering the responsibility of commanders for orders issued by members of their staff, the Tribunal did not see fit, under ordinary circumstances, to vary the traditional military adage that while a commander may delegate authority, he may never delegate responsibi1ity.[134]

After considering the legality of the various orders which the accused allegedly issued, the Tribunal again addressed the collective question of command responsibility and again rejected any concept of strict liability:

Military subordination is a comprehensive but not conclusive factor in fixing criminal responsibility. The authority, both administrative and military, of a commander and his criminal responsibility are related but by no means coextensive. Modern war such as the last war entails a large measure of decentralization. A high commander cannot keep completely informed of the details of military operations of subordinates and most assuredly not of every administrative measure. He has the right to assume that details entrusted to responsible subordinates will be legally executed. The President of the United States is Commander in Chief of its military forces. Criminal acts committed by those forces cannot in themselves be charged to him on the theory of subordination. The same is true of other high commanders in the chain of command. Criminality does not attach to every individual in this chain of command from that fact alone. There must be a personal dereliction. That can occur only where the act is directly traceable to him or where his failure to properly supervise his subordinates constitutes criminal negligence on his part. In the latter case, it must be a personal neglect amounting to a wanton, immoral disregard of the action of his subordinates amounting to acquiescence. Any other interpretation of international law would go far beyond the basic principles of criminal law as known to civilized nations.[135]

The Tribunal next addressed the duties and responsibilities of a military commander of an occupied territory whose authority has been limited by his own government or is not otherwise absolute:

Concerning the responsibility of a field commander for crimes committed within the area of his command, particularly as against the civilian population, i t is urged by the prosecution that under the Hague Convention, a military commander of an occupied territory is per se responsible within the area of his occupation, regardless of orders, regulations, and the laws of his superiors limiting his authority and regardless of the fact that the crimes committed therein were due to the action of the state or superior military authorities which he did not initiate or in which he did not participate. In this respect, however, 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 superiors and the state itself as to his jurisdiction and functions. He is their agent and instrument for certain purposes in a position from which they can remove him at will. In this connection the Yamashita case has been cited. While not a decision binding upon this Tribunal, it is entitled to great respect because of the high court which rendered it. It is not, however, entirely applicable to the facts in this case for the reason that the authority of Yamashita in the field of his operations did not appear to have been restricted by either his military superiors or the state, and the crimes committed were by troops under his command, whereas in the case of the occupational commanders in these proceedings, the crimes charged were mainly committed at the instance of higher military and Reich authorities.

It is the opinion of this Tribunal that a state can, as to certain matters, under international law limit the exercise of sovereign powers by a military commander in an occupied area, but we are also of the opinion that under international law and accepted usages of civilized nations that he has certain responsibilities which he cannot set aside or ignore by reason of activities of his own state within his area. He is the instrument by which the occupancy exists. It is his army which holds the area in subjection. It is his might which keeps an occupied territory from reoccupancy by the armies of the nation to which it inherently belongs. It cannot be said that he exercises the power by which a civilian population is subject to his invading army while at the same time the state which he represents may come into the area which he holds and subject the population to murder of its citizens and to other inhuman treatment. The situation is somewhat analogous to the accepted principle of international law that the army which captures the soldiers of its adversary has certain fixed responsibilities as to their care and treatment.

We are of the opinion, however, as above pointed out in other aspects of this case, that the occupying commander must have knowledge of these offenses and acquiesce or participate or criminally neglect to interfere in their commission and that the offenses committed must be patently criminal.[136]

Where such authority has been allegedly removed from a commander, or where a commander has denied knowledge of illegal activities by other units, the Tribunal stated a court should examine both objective and subjective factors in considering the validity of any such defense.[137]

The Tribunal, in concluding, turned to the individual accused and their responsibility for the acts alleged. [138]

1. Wilhelm von Leeb: Von Leeb, a former General of the Army, was charged with offenses committed during the period in which he was commanding general of Army Group North.[139] These offenses dealt with: (a) The Commissar Order; (b) crimes against prisoners of war; (c) The Barbarossa Jurisdiction Order; (d) crimes against civilians; (e) pillage of public and private property; and (f) criminal conduct pertaining to the seige of Leningrad. The Tribunal considered each seriatum; in preface the Tribunal stated:

The evidence establishes the criminal orders were executed by units subordinate to the defendant and criminal acts were carried out by agencies within his command. But it is not considered under the situation outlined that criminal responsibility attaches to him merely on the theory of subordination and over-all command. He must be shown both to have had knowledge and to have been connected to such criminal acts, either by way of participation or criminal acquiescence.[140]

a. The Commissar Order. The evidence showed that von Leeb recognized the Commissar Order to be in violation of international law from the outset, and voiced his opposition to those senior to him on a continuous basis. As a result of the resistance to the order by von Leeb and his fellow Russian front commanders, von Rundstedt and von Bock, the question of its application was resubmitted to Hitler on September 23, 1941, who refused to change the decree. In putting the order into effect, von Leeb’s headquarters had no implementing authority; merely the administrative function of passing it to subordinate commanders. Yet the evidence showed that von Leeb not only advised his subordinate commanders of his opposition to the order, but advised them that he would fully implement the German high command’s “maintenance of discipline” order, which provided for strict measures to be taken against any soldier committing war crimes. He continued to resist the order until his retirement in January, 1942. The Tribunal concluded:

. . . we cannot find von Leeb guilty in this particular. He did not disseminate the order. He protested against it and opposed it in every way short of open and defiant refusal to obey it. If his subordinate commanders disseminated it and permitted its enforcement, that is their responsibility and not his.[141]

b. Crimes Against Prisoners of War. The Tribunal entered a finding of not guilty to this charge as the evidence failed to show von Leeb possessed either knowledge or a duty to know of crimes committed against prisoners of war. All responsibility for prisoners at that time was in the hands of the quartermaster general, who was responsible directly to the German High Command and Hitler rather than through the tactical chain of command. Subordinate units within General von Leeb’s command responsible for the handling of prisoners of war were similarly responsible directly to the German High Command.’)[142] As General von Leeb was heavily engaged during this period with the initial phases of the seige of Leningrad, a matter he was desperately attempting to conclude before winter, he had neither the authority nor the means of ascertaining what treatment prisoners of war were receiving.[143] As the Tribunal stated:

. . . [H]e . . . had the right to assume that the officers in command of those [subordinate] units [charged with responsibility] would properly perform the functions which had been entrusted to them by higher authorities, both as to the proper care of prisoners of war or the uses to which they might be put.[144]

c. The Barbarossa Jurisdiction Order. The evidence established that von Leeb, while expressing personal disapproval, implemented this order by passing it into the chain of command. The order was illegal in part; and, as his implementing order made no effort to clarify its instructions or prevent its illegal application, “having set this instrument in motion, he must assume a measure of responsibility for its illegal application.” [145]

d. Crimes Against Civilians. This charge derived from the activities of a Nazi Security Police unit, which was assigned to and operated within General von Leeb’s Army Group North area. While these activities included acts of mass murder-some by units subordinate to Army Group North but on order of the Security Police-and recruitment of slave labor, with one exception there was no evidence to establish that the orders for these illegal activities or reports thereof passed through or were received by Army Group North. In that one case, although reported to von Leeb as having been carried out by a local self-defense organization of Latvians, he immediately took action to prevent any reoccurrence. The Tribunal concluded that insufficient evidence existed to establish General von Leeb’s knowledge of the acts alleged.[146]

e. Pillage of Public and Private Property. The evidence presented failed to establish that the acts committed were illegal under the circumstances, based on questions of military necessity.[147] Similar findings were made to charges concerning conduct pertaining to the siege of Leningrad.[148] The Tribunal recognized several subjective matters in conclusion:

We believe that there is much to be said for the defendant von Leeb by way of mitigation . . . . He was a soldier and engaged in a stupendous campaign with responsibility for hundreds of thousands of soldiers, and a large indigenous population spread over a vast area. It is not without significance that no criminal order has been introduced in evidence which bears his signature or the stamp of his approval.  [149]

2. Hugo Sperrle: Former commanding general of the “Condor Legion” during the Spanish Civil War and the representative of the Luftwaffe in the High Command trial, Sperrle was acquitted of all charges, the Tribunal finding that Sperrle, rather than implementing the one order which formed the basis of the charge against him, on principle opposed it and sought to make it ineffective.[150]

3. Georg Karl Friedrich-Wilhelm von Kuechler: General von Kuechler served as a subordinate commander to General von Leeb, succeeding him as Commanding General of Army Group North in January 1942. He continued in this command until January 1944, when he was placed in the Reserves. The Tribunal addressed the list of charges in order.

a. The Commissar Order. Although von Kuechler testified concerning his opposition to the Commissar Order, the Tribunal found his testimony irreconcilable with an earlier affidavit in which he denied any knowledge of the order. There was no question that the order was transmitted to and through his headquarters, nor that it was enforced by subordinate units. Reports were made by these subordinate units to his headquarters that commissars were being executed by them. General von Kuechler denied knowledge of those reports, to which the Tribunal replied: “It was his business to know, and we cannot believe that the members of his staff would not have called these reports to his attention had he announced his opposition to the order.” [151]

b. Neglect of Prisoners of War and Their Use in Prohibited Labor. Based on an order to subordinate units that General von Kuechler admitted must have passed through his headquarters, both civilians and prisoners of war were utilized for improper and dangerous work. The Tribunal concluded that the evidence supported a finding that General von Kuechler had knowledge of and approved such practice.

c. Illegal Execution of Russian Soldiers and Murder and Ill-treatment of Prisoners of War. While the evidence was extensive that Russian prisoners of war had been illegally executed and that they were executed pursuant to orders of the German High Command, the Tribunal did not feel that the evidence adequately established General von Kuechler’s transmittal of them. The Tribunal did find that subordinate units submitted reports to his headquarters over a wide period of time, and noted: “These reports must be presumed in substance to have been brought to his attention.”[152] His own testimony indicated he was aware of the reports, yet took no corrective action. The Tribunal concluded that he not only tolerated but approved the execution of these orders.[153] Nor was there any question, based on numerous reports received by his headquarters, the inordinately high death rate,[154] and by his own admission that he had personally visited every prisoner of war camp in his area, that he had knowledge of the extensive neglect and ill-treatment of prisoners of war in his area. The Tribunal held von Kuechler to be guilty of criminal neglect of prisoners of war within his jurisdiction.[155]

d. Deportation and Enslavement of the Civilian Population. The massive deportation program was carried out pursuant to orders executed by General von Kuechler, which the Tribunal found “establish beyond question the ruthless manner in which he contributed to this program and also the ruthless manner in which he evacuated hundreds of thousands of helpless people, contrary to the dictates of humanity and the laws of war.” [156]

e. Murder, Ill-treatment, and Persecution of Civilian Population; and Enforcement of the Barbarossa Jurisdiction Order. Citing Yamashita, the prosecution again argued General von Kuechler’s absolute liability as commanding general of the occupied territory for offenses committed by the Security Police.[157] While rejecting this argument “for substantially the same reasons as given in the judgment concerning von Leeb,” [158]the Tribunal found that both acts alleged were carried out pursuant to orders promulgated or disseminated by General von Kuechler by units under his command.[159] Initially manifesting knowledge of the illegal activities of the Security Police through a directive to his troops to avoid contact or interference with any such units, he subsequently distributed the anti-Semitic Reichenau Order on October 10, 1941, which the Tribunal set out in full in its opinion “because of its inhumanity.’’ [160]Conviction on these counts, then, was based on his knowledge of, acquiescence in and, in some cases, direct order of the offenses alleged.

4. Hermann Hoth: General Hoth was also charged with offenses relating to commands held on the Russian front.

a. The Commissar Order. General Hoth was found to have passed to subordinate units an order which the Tribunal found was criminal on its face. The Tribunal concluded: “When those units committed the crimes enjoined by it, the superior commander must bear a criminal responsibility for such acts because he ordered their commission.” [161]

After unsuccessfully pleading the defense of superior orders, Hoth offered the following in defense or mitigation (in the words of the Tribunal):

. . . he simply passed it down without emphasizing it or attempting to mitigate it . . . he was certain that his subordinates were sufficiently radar-minded to pick up the rejection impulses that radiated from his well known high character and that he believed that they would have the courage he lacked to disobey the order.[162]

The Tribunal in rejecting his argument stated:

. . . the mere unexpressed hope that a criminal order given to a subordinate will not be carried out is neither a defense nor a ground for the mitigation of punishment. That the character impulses were too weak or the minds of the subordinates were too insensitive to pick them up is shown by the documents.[163]

b. Prisoner mistreatment. Hoth was also charged with ill-treatment and improper use of prisoners of war, war crimes and crimes against humanity consisting of crimes against civilians, and cooperation with the Security Police in execution of their illegal programs. He was found guilty on all counts on the basis of orders issued by him and carried out by units of his command.[164]

5. Hans Reinhardt: General Reinhardt was charged with offenses that occurred while he was commander of Panzer Group 3, 3rd Panzer Army, and Commander in Chief of Army Group Center, all on the Russian Front.

a. The Commissar Order. General Reinhardt testified that in transmitting this order, he simultaneously issued verbal orders that it was not to be carried out. After an extensive listing of executions of Russian commissars by General Reinhardt’s command, the Tribunal in rejecting this argument stated:

If international law is to have any effectiveness, high commanding officers, when they are directed to violate it by committing murder, must have the courage to act, in definite and unmistakable terms, so as to indicate their repudiation of such an order. The proper report to have been made . . . when a request was made from the top level to report the number of commissars killed would have been that this unit does not murder enemy prisoners of war.[165]

In passing on this criminal order, the Tribunal found General  Reinhardt bore the responsibility for its execution in his area.

b. The Commando Order: General Reinhardt was found guilty of passing this order, although the Tribunal noted:

It may be stated as a matter somewhat in mitigation and as showing the personal attitude of . . . Reinhardt, that in November 1943, he issued an order that parachutists are lawful combatants and are to be treated as prisoners of war. That was at a time when the German Army was not so flushed with success and when it was a little more inclined to soften the treatment meted out to the Russians. The Tribunal has noted it as being a matter proper, at least for consideration, on the matter of mitigation. It should further be noted in this connection that it does not appear that Reinhardt, thought he received it, ever passed on literally or in substance the notorious Reichenau Order. [166]

c. Prohibited Labor of Prisoners of War, Murder, and Ill-Treatment of Prisoners of War, and Turning Over of Prisoners to the Security Police. The Tribunal found that Reinhardt had issued orders concerning the use of prisoners of war in prohibited labor and had received reports at his headquarters concerning all three illegal activities, in one instance manifesting his knowledge of these activities by opposing authorizing the Red Cross to make any search for prisoners missing in action for the following reason: “Overwhelmingly large number of POW’S deceased without documentary deposition, and of civilians who disappeared due to brutal actions.” [167]

Citing the opinion in United States v. List,[168] the Tribunal concluded that any reports made to General Reinhardt’s headquarters were made for his benefit; therefore he was responsible for knowledge of their contents.[169]

d. Deportation and Enslavement of Civilians. The Tribunal found the evidence established that in the area of General Reinhardt’s army, enforced labor by civilians was carried out as it policy and that it was implemented ruthlessly with General Reinhardt’s knowledge and consent, and even pursuant to his orders;[170] forcible conscription for deportation was a fixed policy. In replying to Reinhardt’s denial of such a policy, the Tribunal stated:

. . . the orders and reports cited, and others to which we have not referred, show clearly that the deportation of civilian workers to the Reich was of such long continued and general practice, that even were there no orders signed by the defendant authorizing it, he must be held to have had knowledge of the practice and of its extent.[171]

e. Murder, Ill-Treatment, and Persecution of Civilian Populations; the Barbarossa Jurisdiction Order. Not only was it established that General Reinhardt passed on the Barbarossa Jurisdiction Order, but that he issued implementing instructions and received extensive reports concerning its execution. Addressing only the point of slave labor, the Tribunal stated “Slave hunting in his area was so general and long continued that without the direct evidence pointed out, knowledge would be imputed to him.” [172]

6. Hans von Salmuth: General von Salmuth was charged with offenses which occurred while in command at the Corps and Army level on the Russian front.

a. The Commissar Order. Upon its receipt, General von Salmuth distributed the Order to his subordinate units, advising them that he rejected it and acquainting his division commanders with his objections. The Tribunal felt that the evidence tended to bear this out as the order was never carried out while General von Salmuth was in command, and acquitted him of this charge.[173]

b. The Commando Order. The Order was transmitted to subordinate units by General von Salmuth’s Chief of Staff with directions that all copies be returned within twelve days. The Tribunal found General von Salmuth guilty of issuance of the Order despite his protestations that the chief of staff should not have signed the letter and was not authorized to do so, as he had done nothing to repudiate his subordinate’s action nor did he reprimand him in any way. He subsequently requested clarifying instructions concerning the Order’s application from higher headquarters, and through his Quartermaster issued further instructions to a subordinate command, both acts manifesting his knowledge of the order and its implementation within his command.[174]

c. Prohibited Labor of Prisoners of War; Murder and Ill-treatment of Prisoners of War; Deportation and Enslavement and Enslavement of Civilians; Illegal Reprisals. While the Tribunal could not conclude that General von Salmuth transmitted the Barbarossa Jurisdiction Order, he did issue orders implementing the execution of the provisions of the order and remained actively interested in their implementation.[175] In yet another basis for holding General von Salmuth criminally responsible, the Tribunal stated:

Concerning the treatment of prisoners of war in the areas under the defendant, numerous reports from these areas show what must be considered an excessive number of deaths by shooting and otherwise among the prisoners of war. They imply a degree of negligence on the part of the defendant . . . . These reports show that prisoners of war were handed over to the SD, a police organization, and that thereafter the army exercised no supervision over them and apparently had no control or record as to what became of them.

Whether or not they were liquidated, as many of them undoubtedly were, is not the question. The illegality consists in handing them over to an organization which certainly by this time [1941] the defendant knew was criminal in nature.

. . , he must accept criminal responsibility for the illegal transfer of these prisoners to the SD. [176]

7. Karl Hollidt: General Hollidt was charged with offenses that occurred while he served as a division, corps, and army commander.

a. The Commissar Order. General Hollidt testified that on receipt of the Order he instructed his regimental commanders not to comply with it. The one isolated incident reported was described by the Tribunal as ambiguous. Furthermore, there was some question as to whether General Hollidt had actually assumed command of the unit at the time of the incident. Hence he was found not guilty of the offense.[177]

b. The Commando Order, General Hollidt acknowledged receipt of the Order but denied its transmittal. As there was no evidence that it was ever carried out by units under General Hollidt's command, the Tribunal found General Hollidt not guilty of this charge.[178]

c. Prohibited Labor of Prisoners of War. The evidence indicated that over a wide period of time prisoners of war were used by his subordinate units in the combat zone for construction of field fortifications. The Tribunal concluded this could only have been done with his knowledge and approval; thus, criminal responsibility attached.[179]

d. Murder and Ill-treatment of Prisoners of War. This charge constituted yet another refusal by the Tribunal to apply the strict liability theory urged by the prosecution. Concluding even if an assumption were made that certain executions were unjustified, the Tribunal concluded no criminal connection to General Hollidt was established.[180]

e. Deportation and Enslavement of Civilians. General Hollidt was found criminally responsible for the deportation and enslavement of civilians as orders were issued in the former case which also tended to show his knowledge and consent, if not preference, for use of labor forces locally for construction of field fortifications.[181]

8. Otto Schniewind: Admiral Schniewind was acquitted of those charges under Counts Two and Three inasmuch as there was no evidence showing implementation or enforcement by any of the units subordinate to him of the orders alleged, the Barbarossa Jurisdiction Order and the Commando Order. In discussing the Barbarossa Jurisdiction Order, the Tribunal refused to adopt the prosecution’s argument that would have shifted the burden of proof to the defendant to show what he did to discourage or stop implementation of the order (which did not occur until after Admiral Schniewind’s departure from the command) , finding such argument “rather naive.” [182]

9. Karl von Roques: Lieutenant General von Roques was charged with offenses committed while Commanding General of Rear Area of Army Group South (March 1941 to 15 June 1942) and Rear Area of Army Group A (July 1942 to December 1942). By his own testimony, General von Roques had executive power as the representative of the occupying power in his area. As such, he owed a duty to the civilians, he felt, because he needed their cooperation. The Tribunal noted despite this representation “neither his testimony nor his actions show that he appreciated the fact that he owed a duty as an occupying commander to protect the population and maintain order.”[183] The Tribunal deemed it appropriate at this point to define executive power and the responsibility of a commander holding that power:

General Halder in his testimony succinctly defines executive power as follows:

“The bearer of executive power of a certain area unites all the legal authorities of a territorial nature and legislative nature in his own person.”

The responsibility incident to the possession of executive power is well stated in the judgment [in the List case] as follows: “ . . . 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 territories 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 SS 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 defense 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 defense.” [184]

After citing the duties of a commander of occupied territory as recited by the Supreme Court in Yamashita, the Tribunal concluded:

We are of the opinion that command authority and executive power obligate the one who wields them to exercise them for the protection of prisoners of war and the civilians in his area; and that orders issued which indicate a repudiation of such duty and inaction with knowledge that others within his area violating this duty which he owes, constitute criminality.[185]

a. The Commissar Order. General von Roques denied issuing this order, a denial which the Tribunal found contrary to the facts but a factual differentiation unnecessary to resolve. The Tribunal found that whether or not the order was or was not passed on by him was immaterial; its implementation was so extensive in his territory as to require some action on his part to prevent the criminal action that was carried on by the units subordinate to his command and by agencies in his area. Commissars were regularly shot with his knowledge, and he did nothing about it. Furthermore, the Commissar Order which he received provided:

11. In the rear areas - Commissars arrested in the rear area . , . are to be handed over to the ‘Einsatzgruppe’ or the ‘Einsatzkommandos’ of the SS Security Service (SD) , respectively.[186]

During the periods in question, these security service units were subordinate to Lieutenant General von Roques. The evidence showed that in one instance he received a direct written report of 1,896 executions by an SS Brigade during one two-week operation; and that he continued to receive similar reports as well as issue orders directing the security police to participate in other operations. He also received and implemented an order which the Tribunal described as “So bestial as to be fit to be seen only by those to whom it was addressed” providing for extermination by security police elements of “unbearable elements.” [187]The Tribunal concluded that General von Roques knew of the carrying out of the Commissar Order and therefore bore criminal responsibility for its implementation in his area.

b. Murder and Ill-treatment of Prisoners of War. The evidence was conclusive that General von Roques ordered the execution of paratroopers as guerrillas; that he had knowledge of and acquiesced in the execution of others; and through gross neglect of the sanitary conditions and lack of food in four prisoner of war camps permitted others to die at the rate of 100 per day, in three of those camps at rates in excess of 80 percent per year. The Tribunal concluded responsibility lay in General von Roques.[188]

c. The Barbarossa Jurisdiction Order. General von Roques was found criminally responsible for implementation of this order as he passed it down to his subordinates; personally issued other orders in the implementation of it or pursuant to it which the Tribunal found criminal; and that these subordinate units thereafter carried out these orders with his full knowledge, acquiescence and approval.[189]

d. Hostages and Reprisals. While General von Roques passed on an order directing that reprisals be taken against saboteurs, the Tribunal found themselves believing General von Roques’ testimony that no such acts were actually carried out.[190]

e. Ill-treatment and Persecution of the Civilian Population. The evidence reflected the complete subservience of army units in General von Roques’ area to the security police and their full cooperation with the security police program with “knowledge of its debased and criminal character.”[191] While General von Roques issued orders directing his troops not to participate in the “arbitrary shooting” of Jews, he directed them to otherwise assist the security police in carrying out their orders.[192]

10. Otto Woehler: General Woehler was charged with offenses committed both as a commander and as a staff officer; concern here is only with the former.

a. Murder and Ill-treatment of Prisoners of War. One isolated incident involving the illegal execution of two Russian soldiers was reported by General Woehler to his next higher headquarters. While the evidence tended to show that he did nothing about this incident, the Tribunal refused to conclude that this established acquiescence and approva1.[193]

b. Prohibited Labor of Prisoners of War. The Tribunal found that General Woehler had knowledge of and acquiesced in the use of prisoners of war by regiments of his command as illegal labor in forward combat areas. They rejected the tu quoque argument, stating “The fact that similar use was made of German prisoners by the enemy is only a factor in mitigation and not a defense.” [194]

D. THE HOSTAGE CASE

The second significant joint trial at Nuremburg involving the question of command responsibility was the trial of United States v. Wilhelm List, also known as “The Hostage Case,” tried between July 8, 1947 and February 19, 1948.[195] The accused, all high-ranking officers of the military,[196] were charged with being principals and accessories to the murder and deportation of thousands of persons from the civilian populations of Greece, Yugoslavia, Norway and Albania between September 1939 and May 1945 by troops under their command who were acting pursuant to orders issued, distributed and executed by the defendants.[197] Members of the Tribunal were two civilian jurists and an equally-distinguished civilian practitioner.[198]

The main precedental value of the Hostage Case is its examination of the law of reprisal; this concept will not be examined. Additionally, this review will concern itself only with those defendants charged with offenses allegedly committed while the defendants were holding positions of command.

In initially dealing with the question of command responsibility, the Tribunal found it necessary to address a factual dispute and its legal implications:

We have been confronted repeatedly with contentions that reports and orders sent to the defendants did not come to their attention. Responsibility for acts charged as crimes have been denied because of absence from headquarters at the time of their commission. These absences generally consisted of visitations to points within the command area, vacation leaves and leaves induced by illness . . .

We desire to point out that the German Wermacht was a well equipped, well trained, and well disciplined army. Its efficiency was demonstrated on repeated occasions throughout the war.

The evidence shows . . . that they were led by competent commanders who had mail, telegraph, telephone, radio, and courier service for the handling of communications. Reports were made daily, sometimes morning and evening. Ten-day and monthly reports recapitulating past operations and stating future intentions were regularly made. They not only received their own information promptly but they appear to have secured that of the enemy as well. We are convinced that military information was received by these high ranking officers promptly, a conclusion prompted by the efficiency of the German armed forces.

An army commander will not ordinarily be permitted to deny knowledge of reports received at his headquarters, they being sent there for his special benefit. Neither will he ordinarily be permitted to deny knowledge of happenings within the area of his command while he is present therein. It would strain the credulity of the Tribunal to believe that a high ranking military commander would permit himself to get out of touch with current happenings in the area of his command during wartime. No doubt such occurrences result occasionally because of unexpected contingencies, but they are the unusual. With reference to statements that responsibility is lacking where temporary absence from headquarters for any cause is shown, the general rule to be applied is dual in character. As to events occurring in his absence resulting from orders, directions, or a general prescribed policy formulated by him, a military commander will be held responsible in the absence of special circumstances. As to events, emergent in nature and presenting matters for original decision, such commander will not ordinarily be held responsible unless he approved of the action taken when it came to his knowledge.[199]]

Turning to acts committed by units not subordinated to a commander or by independent units subordinated to agencies other than the German Wermacht, the Tribunal stated:

The matter of subordination of units as a basis of fixing criminal responsibility becomes important in the case of a military commander having solely a tactical command. But as to the commanding general of occupied territory who is charged with maintaining peace and order, punishing crime, and protecting lives and property, subordination are relatively unimportant. His responsibility is general and not limited to a control of units directly under his command. Subordinate commanders in occupied territory are similarly responsible to the extent that executive authority has been delegated to them.[200]

As in the High Command case, the Tribunal began its findings by rejecting the contentions that the accused were party to any overall conspiracy to decimate and exterminate the population. In determining questions of guilt or innocence, the Tribunal declared it would require proof

. . . of a causative, overt act or omission from which a guilty intent can be inferred . . . . Unless this be true, a crime could not be said to have been committed unlawfully, willfully, and knowingly as charged in the indictment.[201]

The Tribunal, after brief historical review, turned itself to the individual defendants.

1. Wilhelm List: General List, fifth ranking field marshal in the German Army, was charged with offenses committed by units of his command while serving as Armed Forces Commander Southeast and as commander in chief of Army Group A on the Russian front. In the former position he was the supreme representative of the armed forces in the Balkans, exercising executive authority in the territories occupied by German troops. The evidence showed that General List both passed to subordinates illegal orders from the high command as well as issuing orders demanding “ruthless . . . measures” against the local population.[202] Of other orders, General List denied knowledge as he was away from his headquarters at the time the reports came in. The Tribunal reiterated its previous position regarding a commander’s responsibility in such a case:

A commanding general of occupied territory is charged with the duty of maintaining peace and order, punishing crime, and protecting lives and property within the area in his command. His responsibility is coextensive with his area of command. He is charged with notice of occurrences taking place within that territory. He may require adequate reports of all occurrences that come within the scope of his power and, if such reports are incomplete or otherwise inadequate, he is obliged, to require supplementary reports to apprise him of all the pertinent facts. If he fails to require and obtain complete information, the dereliction of duty rests upon him and he is in no position to plead his own dereliction as a defense. Absence from headquarters cannot and does not relieve one from responsibility for acts committed in accordance with a policy he instituted or in which he acquiesced. He may not, of course, be charged with acts committed on the order of someone else which is outside the basic orders which he has issued. If time permits he is required to rescind such illegal orders, otherwise he is required to take steps to prevent a recurrence of their issue.

Want of knowledge of the contents of reports made to him is not a defense, Reports to commanding generals are made to their special benefit. Any failure to acquaint themselves with the contents of such reports, or a failure to require additional reports where inadequacy appears on their face, constitutes a dereliction of duty which he cannot use in his own behalf.

The reports made to . . , List , . . charge him with notice of the unlawful killing of thousands of innocent people. . . . Not once did he condemn such acts as unlawful, Not once did he call to account those responsible for these inhumane and barbarous acts. His failure to terminate these unlawful killings and to take adequate steps to prevent their recurrence constitutes a serious breach of duty and imposes criminal responsibility.[203]

The Tribunal found General List guilty of counts one and three of the indictment.[204]

2. Walter Kuntze: General Kuntze was charged with offenses committed during his service as Armed Forces Commander Southwest. The Tribunal noted that General “Kuntze assumed command on October 27, 1941, a month which exceeded all previous monthly records in killing innocent members of the population in reprisal for the criminal acts of unknown persons.'' [205] The Tribunal found it highly improbable that General Kuntz could assume command in the midst of the carrying out and reporting of these reprisal actions without gaining knowledge thereof and acquiescing in their execution. Other evidence indicated Kuntze personally ordered other reprisals and received confirming reports on their completion. The Tribunal found that he was advised of all such killings, and that he not only failed to take measures to prevent their recurrence but on several occasions urged more severe action to be taken by his subordinate commanders. The Tribunal ruled that his ordering of and acquiescence in these and other offenses made him criminally responsible for charges alleged under counts one, three, and four.[206]

3. Lothar. Rendulic: General Rendulic was charged with offenses committed while he was serving as commander of 2nd Panzer Army, 20th Mountain Army, and Army Group North. All the charges related to offenses resulting from his orders or orders he passed on to subordinate units. He was found not guilty of issuing the Commando Order and was found justified by military necessity in his utilization of scorched earth tactics in a retreat under severe conditions and against overwhelming odds in Norway.[207]

4. Ernst Dehner: As commander of the LXIX Reserve Corps, Lieutenant General Dehner was charged with unlawful killing of hostages and reprisals taken against prisoners, and with wanton destruction of towns and villages, both in an effort to suppress guerrilla activities operating in his area of responsibility. Specifically, General Dehner was charged as one of the subordinate commanders of General Rendulic. The Tribunal noted:

It appears to us from an examination of the evidence that the practice of killing hostages and reprisal [against] prisoners got completely out of hand, legality was ignored, and arbitrary action became the accepted policy. The defendant is criminally responsible for permitting or tolerating such conduct on the part of his subordinate commanders.[208]

5. The Remaining Commaders: The remaining commanders were found guilty of similar action or inaction. Lieutenant General von Leyser was found guilty of illegally conscripting indigenous persons for military service and compulsory labor service, as well as issuing the Commissar Order.[209] Lieutenant General Helmuth Felmy was found guilty of passing on illegal reprisal orders resulting in extensive unwarranted, excessive and illegal reprisals; in one instance, on receipt of reports concerning reprisals conducted well in excess of existing orders, General Felmy recommended the most lenient punishment of the regimental commander responsible without follow-up to determine what punishment, if any, was assessed.[210] Lieutenant General Hubert Lanz was convicted of failing to prevent illegal reprisals of which he had knowledge, and with ordering the unlawful execution of Italian officers and soldiers of the surrendered Italian army.[211] Finally, Lieutenant General Wilhelm Speidel was convicted of permitting illegal acts to occur of which he had knowledge.[212]

E. THE HIGH COMMAND AND HOSTAGE CASES-IN SUMMARY

In the High Command and Hostage cases, commanders at division, corps, and army level-men prominent in their profession were tried by three-judge tribunals, also men of professional prominence. Each tribunal was presented a variety of situations involving the intricacies and complexities of command and control of a military force in combat; the considered responses of the tribunals offer some of the more definitive reasoning and logic in arriving at standards of responsibility for commanders.

As in Yamashita, there was seldom any question that the offenses occurred; the question left for resolution concerned the standard of responsibility and, given the determination of that standard, the individual responsibility of each accused. Yamashita had confirmed the existence of duty and responsibility; the High Command and Hostage tribunals sought to achieve some definitional value for each. Yamashita addressed the duty and responsibility of the commander with a broad brush; the High Command and Hostage cases provided much of the detail necessary to complete the picture. Significantly, both minimum and maximum lines were drawn, the latter in express rejection of any purported Yamashita-strict liability theory. That rejection was not merely of the strict liability theory per se but of the proposition that Yamashita represents such a theory.

The High Command and Hostage cases are of greater value than Yamashita in that the respective opinions rendered therein are the product of judicial minds rather than of lay jurors, and prepared under less emotive circumstances; the blaze of war had died sufficiently to permit juristic scholarship providing necessary light for future interpretation rather than mere heat. The results of this careful examination have previously been analyzed.

F. THE TOKYO TRIALS

Of the war crimes trials conducted after World War 11, the “International Japanese War Crimes Trial in the International- Military Tribunal for the Far East,” otherwise known as and hereinafter called “The Tokyo Trial” was the longest, most complex, and perhaps least known.

Heard by distinguished jurists from eleven countries,[213] the Tokyo Trial brought before an international tribunal twenty-eight of the former leaders of Japan,[214] charged with crimes against peace, murder and conspiracy to commit murder, and war crimes and crimes against humanity. Counts 54 and 55, part of the latter group of charges, accused certain of the defendants with having ordered, authorized and permitted conduct in violation of the Laws and Customs of War ; and with violating the laws of war by deliberately and recklessly disregarding their legal duty to take adequate steps to secure observance of the Laws and Customs of War and to prevent their breach, respectively.[215] It is with these latter counts, 54 and 55, that this article is concerned.[216]

As in the High Command and Hostage cases, the Tribunal attempted to define the appropriate rules of law before examining the individual responsibility of each accused. In discussing the question of duties, responsibilities and responsibility under Counts 54 and 55, the Tribunal stated :

(b) RESPONSIBILITY FOR WAR CRIMES AGAINST PRISONERS

Prisoners taken in war and civilian internees are in the power of the Government which captures them. For the last two centuries, this position has been recognized and the customary law to this effect was formally embodied in the Hague Convention No.IV in 1907 and repeated in the Geneva Prisoner of War Convention of 1929. Responsibility for the care of prisoners of war and of civilian internees (all of whom we will refer to as “prisoners”) rest therefore with the Government having them in possession. This responsibility is not limited to the duty of mere maintenance but extends to the prevention of mistreatment. In particular, acts of inhumanity to prisoners which are forbidden by the customary law of nations as well as by conventions are to be prevented by the Government having responsibility for the prisoners.

In the discharge of these duties to prisoners, governments must have resort to persons. In the multitude of duties and tasks involved in modern government there is of necessity an elaborate system of subdivision and delegation of duties.

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 prisoner ;

(4) Officials, whether civilian, military, or naval, having direct and immediate control of prisoners.

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) If 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. 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 those 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. Army or Navy Commanders can, by order, secure proper treatment and prevent ill treatment of prisoners. 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.[217]

Two points previously raised in the Yamashita trial were again raised by the military leaders in the Tokyo trial. The first was an objection to the theory of vicarious responsibility for acts committed by subordinates; this matter was dealt with in the Tribunal's general judgment previously discussed. Where a commander had the responsibility to act, while he could delegate the authority, he could not delegate the responsibility; in the words of the Tribunal, “He does not discharge his duty by merely instituting an appropriate system and thereafter neglecting to learn of its application.” [218]

The second defense went to the subjective standards in individual cases. Like General Yamashita, the defendants argued that their failure of compliance was based upon impossibility of performance; that the allied offensive had forced conditions to deteriorate not only in prisoner of war camps but overall, and that it was impossible for military commanders in the field to maintain communication and control of their troops because of the deteriorating conditions.[219] The Tribunal chose to consider this argument on an individual basis, although noting (1) that once Japanese forces had occupied territory and fighting had ceased, massacres were freely committed in subjecting the local population to the domination of the Japanese ;[220] (2) that massacres of prisoners of war and civilian internees or conscripted laborers during the occupation were committed because they were no longer of any use or for other reasons had become a burden to the Japanese occupation force;[221] and (3) that other massacres were perpetrated in anticipation of a Japanese withdrawal or of an Allied attack.[222] The fact that these massacres occurred throughout the war tended to militate against this argument; rather, the Tribunal’s detailed analysis of acts of murder, torture, mistreatment, vivisection, cannibalism, and neglect, often occurring as a result of direct orders from the Imperial Headquarters, often on a systematic basis throughout an occupied territory, led the Tribunal to conclude that such actions were carried out as a matter of policy by the Japanese Government or individual members thereof and by the leaders of the armed forces.[223]

In submitting specific findings as to each accused, the Tribunal first considered the case of General Konji Dohiharu. As commander of the 7th Area Army-an area which encompassed Malaya, Sumatra, Java, and for a time Borneo from April 1944 until April 1945, he was responsible for the care of prisoners of war within his command. The evidence established prisoner deaths at an “appalling rate” due to starvation, malnutrition, and food deficiency diseases. General Dohiharu submitted such instances occurred due to the deterioration of Japan’s war position and the severance of communications. The Tribunal, in noting that these conditions applied only to prisoners and not among their captors, concluded that food and medical supplies were available but withheld upon a policy for which Dohiharu bore responsibility.[224]

General Shunroko Hata was commander of forces in China which committed atrocities on a large scale over an extended period of time. In finding him guilty of a breach of duty under Count 55, the Tribunal concluded :

Either Hata knew of these things and took no steps to prevent their occurrence, or he was indifferent and made no provision for learning whether orders for the humane treatment of prisoners of war and civilians were obeyed.[225]

Defense counsel for General Heitaro Kimura argued his innocence on the basis that he had issued orders to his troops to conduct themselves in a proper soldierly manner and to refrain from ill-treating prisoners. While doubting that such orders were even issued because of the extent of ill-treatment, the Tribunal found him at a minimum negligent in his duty to enforce the rules of war, stating:

The duty of an army commander in such circumstances is not discharged by the mere issue of routine orders . . . . His duty is to take such steps and issue such orders as will prevent thereafter the commission of war crimes and to satisfy himself that such orders are being carried out. This he did not do. Thus he deliberately disregarded his legal duty to take adequate steps to prevent breaches of the laws of war.[226]

General Iwane Matsui was held criminally responsible for the infamous “Rape of Nanking.’’ The Tribunal stated :

. . . from his own observations and the reports of his staff he must have been aware of what was happening. . . . The Tribunal is satisfied that Matsui knew what was happening. He did nothing, or nothing effective to abate these horrors. He did issue orders before the capture of the city enjoining propriety of conduct upon his troops and later he issued further orders to the same purport. These orders were of no effect as is now known and as he must have known , . . . He had the power as he had the duty to control his troops and to protect the unfortunate citizens of Nanking. He mustbe held criminally responsible for his failure to discharge this duty.[227]

After finding that General Akira Muto shared criminal responsibility for the starvation, neglect, torture and murder of prisoners of war and civilian internees and the massacre of civilians by virtue of orders which he promulgated as Japanese military commander in Northern Sumatra, the Tribunal turned to a review of his activities as Chief-of-Staff to General Yamashita :

Muto further demonstrated his disregard for the laws of war upon his transfer to become Chief-of-Staff under General Yamashita. . . , During his tenure , . . a campaign (of) massacre, torture, and other atrocities were waged by the troops under Yamashita and Muto on the civilian population of the Philippines, including the massacres in Batangau and massacres and other atrocities at Manila. These bore the same features and followed the pattern set eight years earlier at Nanking when Muto was a member of Matsui’s staff. During this period prisoners of war and civilian internees were starved, tortured and murdered.[228]

Concluding, the Tribunal stated “. . . Muto shares responsibility for these gross breaches of the Laws of War. We reject his defense that he knew nothing of these occurrences. It is wholly incredible.” [229]

G. THE TRIAL OF ADMIRAL TOYODA

Admiral Soemu Toyoda, former Commander-in-Chief of the Japanese Combined Fleet, the Combined Naval Forces, and the Naval Escort Command, occupying all three positions concurrently from May 3, 1944, to May 29, 1945, and Chief of the Naval General Staff from May 30, 1945 to September 2, 1945, was tried by military tribunal in Tokyo in a trial which commenced on October 29, 1948 and concluded in Admiral Toyoda’s acquittal on September 6, 1949 --One of the last, if not the last, of the major war crimes trials concluded. It is a case of some significance to the subject of this article.

Admiral Toyoda was charged with violating “the laws and customs of war,” the Charge setting out five specifications :

(Specification 1 ) wilfully and unlawfully disregarding and failing to discharge his duties by ordering, directing, inciting, causing, permitting, ratifying and failing to prevent Japanese Naval personnel of units and organizations under his command, control and supervision to abuse, mistreat, torture, rape, kill and commit other atrocities ; (Specification 2 ) wilfully permitting, etc. unlawful pillage, plunder and destruction ; (Specification 3) unlawful use of non-military objects and places such as churches and hospitals as fortifications ; (Specification 4 ) wilful and unlawful disregard and failure to discharge his duties by ordering and permitting the unlawful interment, mistreatment, abuse, starvation, torture and killing of prisoners of war; (Specification .5) conspiracy to commit the above offenses.

The Bill of Particulars listed eighty-six separate offenses, approximately one-half of which originated in the Yamashita Bills of Particulars.

The seven-member military tribunal had as its president a Brigadier of the Australian Army. Three of its members were from the Air Force, three from the Army, including the law member of the Tribunal. It is suggested that in so composing the court-adding a member of a foreign service as the President and a law member-General MacArthur sought to avoid further criticism based on command influence, such as was alleged in the Yamashita trial, as well as to gain a more carefully-worded judgment in the event the Tribunal was disposed to writing one.[230]

The Tribunal was so disposed and contributed to the law of command responsibility in three ways :

(1) It resolved certain factual questions rising from the Yamashita judgment. Because many of the charges against Admiral Toyoda were the same or similar charges as those for which General Yamashita was tried, the Tribunal heard the same evidence and reviewed the record of that trial, as well as those of thirty-one other trials which the Tribunal deemed might have some relevance to or bearing on the trial of Admiral Toyoda.

The first point concerned command responsibility for the naval forces which perpetrated the “Rape of Manila.” The defense in Yamashita maintained that while General Yamashita had operational control of those forces, administrative control flowed through a naval chain of command and it was through this latter chain of command that any responsibility should flow. The Tribunal, in addressing this point, declared :

This Tribunal is convinced - as were the Commissions in the trials of Yamashita, Muta, and Yokoyama, with the conclusions of which this Tribunal can find no point of major issue – that these naval personnel were both legally and in fact commanded by the Japanese Army at the times and under the conditions here under consideration.[231]

After carefully documenting and delineating the joint army-navy agreements [232] which provided for this command arrangement, the Tribunal concluded :

The Tribunal concludes that the so-called “Rape of Manila” was perpetrated by a force of 22,000 men, some 20,000 of whom were Navy personnel, under Rear Admiral Iwabuchi, the commander of the operation, who was under command of General Yokoyama, Commanding General of the Shimbu Shudan. The naval command channel . . . is not evident and the Tribunal cannot but conclude that it did not, in fact, exist. The much disputed definition of operational and administrative authority is not a point of issue here. The practicabilities of the situation, the obligations and duties of the immediate command, must be viewed with realism. The responsibility for discipline in the situation facing the battle commander cannot, in the view of practical military men, be placed in any hands other than his own. Whatever theoretical division of such responsibility may have been propounded, it is, in fact, impossible of delineation in the heat of “trial by fire.”[233]

The second point of factual significance dealt with clarification of the issue of knowledge raised by the wording of the judgment of the commission in Yumashita. The Tribunal stated:

It is not within the province of this Tribunal to comment on the action of the United States Supreme Court taken in the cases of General Yamashita and Lieutenant General Homma . . . . Their lives were not forfeited because their forces had been vanquished on the field of battle but because they did not attempt to prevent, even to the extent of issuing orders, the actions of their sub-ordinates, of which actions the commanders must have had knowledge.[234]

(2) In addressing the question of command responsibility, the Tribunal determined, after review of the trials which had preceded it, what it considered the essential elements of command responsibility to be :

1. That offenses, commonly recognized as atrocities, were committed by troops of his command;

2. The ordering of such atrocities.

In the absence of proof beyond a reasonable doubt of the issuance of orders then the essential elements of command responsibility are :

1. As before, that atrocities were actually committed;

2. Notice of the commission thereof. This notice may be either:

a. Actual, as in the case of an accused who sees their commission or who is informed thereof shortly thereafter; or

b. Constructive. That is, the commission of such a great number of offenses within his command that a reasonable man could come to no other conclusion than that the accused must have known of the offenses or of the existence of an understood and acknowledged routine for their commission.

3. Power of command. That is, the accused must be proved to have had actual authority over the offenders to issue orders to them not to commit illegal acts, and to punish offenders.

4. Failure to take such appropriate measures as are within his power to control the troops under his command and to prevent acts which are violations of the laws of war.

5. Failure to punish offenders.

In the simplest language it may be said that this Tribunal believes the principle of command responsibility to be that, if this accused knew, or should by the exercise of ordinary diligence have learned, of the commission by his subordinates, immediate or otherwise, of the atrocities proved beyond a shadow of a doubt before this Tribunal or of the existence of a routine which would countenance such, and, by his failure to take any action to punish the perpetrators, permitted the atrocities to continue, he has failed in his performance of his duty as a commander and must be punished?[235]

(3) The Tribunal re-emphasized the practical limitations of command responsibility, reviewing those subjective factors which would determine whether a commander knew or had the means to know of the commission of offenses by units subordinate to him. By so doing, it refused to accept the vicarious responsibility or strict liability theory which Yamashita purportedly established :

In determining the guilt or innocence of an accused, charged with dereliction of his duty as a commander, consideration must be given to many factors. The theory is simple, its application is not. One must not lose sight of the facts that even during the accused’s period as Commander-in-Chief of Yokosuka Naval District, his nation had already begun to lose battles, its navy and, indeed, the war. The climax was being reached. His duty as a commander included his duty to control his troops, to take necessary steps to prevent commission by them of atrocities, and to punish offenders. His guilt cannot be determined by whether he had operational command, administrative command, or both. If he knew, or should have known, by use of reasonable diligence, of the commission by his troops of atrocities and if he did not do everything within his power and capacity under the existing circumstances to prevent their occurrence and punish the offenders, he was derelict in his duties. Only the degree of his guilt would remain.[236]

Admiral Toyoda was acquitted of all charges.

H. OTHER TRIALS

The trials of lesser commanders support the general body of law conceived by the preceding tribunals. General Anton Dostler, tried by United States military commission in Rome[237] and Generals Mueller and Braver, tried by Greek court-martial in Athens,[238] were convicted of ordering subordinates to commit war crimes, General Kurt Meyer, tried before a Canadian military tribunal, was convicted of “inciting and counselling” troops under his command to execute prisoners of war.[239] In the Essen Lynching case, German Captain Erich Heyer gave instructions to a prisoner escort-before a crowd of angry townspeople-that the three Allied prisoners of war in his custody were to be taken to a Luftwaffe unit for interrogation. He ordered the escort not to interfere if the townspeople attempted to molest the prisoners, adding that the prisoners would or should be shot. The townspeople subsequently murdered the prisoners as the escort stood by.

Heyer was sentenced to death for inciting the offenses.[240] An unidentified commander was reportedly found responsible for the murder of partisans, following his issuance of an order which read in part: “I will protect any commander who exceeds usual restraint in the choice and severity of the means he adopts while fighting partisans.” [241]

Lieutenant General Harukei Isayama was convicted by a United States military commission in Shanghai of permitting, authorizing, and directing an “illegal, unfair, unwarranted and false trial” before a Japanese court-martial of American prisoners of war.[242] Yuicki Sakamoto was convicted by a United States military commission in Yokohama for “permitting members of his command to commit cruel and brutal atrocities” against American prisoners of war.[243] Lieutenant General Yoshio Tachibana and Major Sueo Matoba of the Japanese Army and Vice-Admiral Kunizo Mori, Captain Shizuo Yoshii and Lieutenant Jisuro Sujeyoshi of the Japanese Navy were tried and convicted of like charges by a United States military commission at Guam,[244] as were General Hitoshi Imamura and Lieutenant General Masao Baba by Australian military courts sitting at Rabaul.[245] In a trial by British military court at Wuppertal, Germany, Major Karl Rauer was charged with neglect in the treatment of prisoners of war. Subordinates of Major Rauer were charged with and convicted of illegally executing British prisoners of war, then returning to report to Rauer the prisoner’s death “while attempting to escape.” Major Rauer was acquitted of the first charge, but convicted of the latter two, the court feeling that it was less reasonable for Rauer to believe after the second incident that the prisoners involved were shot while trying to escape, and that measures should have been taken to investigate and prevent repetition of the incident.[246]

The cases dealt with crimes committed in the commanding officer’s absence. Major General Shigeru Sawada was tried by United States Military Commission in Shanghai for permitting the illegal trial and execution of three United States airmen. The trial occurred in General Sawada’s absence; informed of the trial and its results, Sawada endorsed the record and forwarded it to the chain of command, making only verbal protest of the severity of the death sentences, which were subsequently carried out. The Court held General Sawada had ratified the illegal acts which occurred in his absence and therefore bore the responsibility for them.[247] General Tanaka Hisakasu was tried by similar Commission at Shanghai for the trial and execution of an American aviator, both of which occurred in his absence. Convicted by the Commission and sentenced to death, the findings and sentence were disapproved by the confirming authority on the basis of insufficiency of evidence of wrongful knowledge on his part.[248] Evidence of what action he took to punish his subordinates for this crime was apparently not raised or presented.

One case dealt with the question of responsibility for passing illegal orders. In the Jaluit Atoll case, a lieutenant in the Japanese Navy received an order from Rear Admiral Nisuke Masuda to execute three American aviators, an order which the lieutenant, the custodian of the prisoners, passed to three warrant officers who carried out the order. The warrant officers received death sentences ; the lieutenant, ten years’ imprisonment.”[249]

Virtually simultaneous with the trial of General Yamashita occurred the trial of General Masaharu Homma, Japanese commander in the Philippines at the time of the Bataan Death March.[250] The evidence established that of 70,000 American and Filipino prisoners taken in the surrender of Bataan Peninsula on April 8-9, 1942, in excess of 10,000 ---2,000 American and 8,000 Filipino-were executed or perished from maltreatment during the 120-kilometer march from Mariveles to San Fernando.[251] Other charges alleged and proved included massacre of 400 Filipino soldiers on April 12, 1945; failure to provide adequate prisoner of war facilities, illegal prisoner of war labor, torture and execution of civilian internees, refusal to accept the surrender of enemy forces, bombing of hospitals, and bombing of an open city (Manila).[252]  Tried in the Philippines by a United States military commission convened by General MacArthur, General Homma was found guilty of permitting members of his command to commit “brutal atrocities and other high crimes.” [253]An appeal to the Supreme Court of the United States was unsuccessful.[254] In confirming the death sentence of General Homma, Genera1 MacArthur, a commander for forty-four years at that time, commented aptly in conclusion of this chapter :

Soldiers of an army invariably reflect the attitude of their general. The leader is the essence. Isolated cases of rapine may well be exceptional but widespread and continuing abuse can only be a fixed responsibility of highest field authority. Resultant liability is commensurate with resultant crime. To hold otherwise would prevaricate the fundamental nature of the command function. This imposes no new hazard on a commander, no new limitation on his power. He has always, and properly, been subject to due process of law. Powerful as he may become in time of war, he still is not an autocratic or absolute, he still remains responsible before the bar of universal justice . . . . [255]

I . SUMMARY

The trials upon the conclusion of World War I1 gave international application on a major scale[256] to a custom first given substantial recognition by its codification in Hague Convention IV of 1907. While that custom-an imposition of responsibility upon a commander for the illegal acts of his subordinates-existed prior to World War 11, it was the action of commanders and national leaders during that conflict which so shocked the conscience of the world as to demand a strict accounting for the commencement and conduct of those hostilities. Seldom have judges been appointed to the bench with such a clear mandate of public opinion as were the judges of the World War I1 tribunals. The law of war, and as a part thereof the law of command responsibility, witnessed great progression through definition and delineation, perhaps reaching a high water mark as international jurists concentrated their efforts on the subject. In this sense the law of war is like all other parts of international law in its progression: “Its principles are expanded and liberalized by the spirit of the age . .’ . . Cases, as they arise under it, must be brought to the test of enlightened reason and of liberal principles. . , .” [257]