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	Murdoch University Electronic Journal of Law

Command Responsibility and Superior Orders in the Twentieth Century - A Century of Evolution

Author:	Stuart E Hendin BA, MA, LLB, LLM, QC Barrister & Solicitor
Subjects:	Military Law War crimes (4 other articles) War International Law (3 other articles)
Issue:	Volume 10, Number 1 (March 2003)

Contents:

• Acknowledgement
• Introduction
• Historical Perspective
• Up to 1900
• To World War I
• World War I
• World War II
• The United Nations War Crimes Commission
• Nuremberg
• Control Council Law No. 10
• The Far East
• The Far Eastern Commission
• International Military Tribunal Far East
• The Middle East - Suez Crisis-1956
• Viet Nam
• 1977 Protocol Additional to the Geneva Conventions
• South Lebanon, 1982
• Canada
• Ad Hoc Tribunals
• The International Criminal Tribunal for the Former Yugoslavia
• International Criminal Tribunal for Rwanda
• International Criminal Court
• Article 28(a)
• Article 28(b)
• Conclusion
• Bibliography
• Notes

Acknowledgement

The author wishes to thank Dr. Malle Ryan and Major-General Brian Vernon (ret) for their patience, and encouragement. The author also wishes to thank Niamh Gallagher and Anthony Nelson for their technical assistance. "The honor of a general consists . . . in keeping subalterns under his orders on the honest path, in maintaining good discipline...".[1]

Introduction

1. The one constant of the evolution of civilization, as history records it, is conflict. As communities and civilizations developed, so did conflict. It can be legitimately said that the one constant of man's evolution in various societies has been, as well, the evolution of conflict.

2. The search for long lasting peace has been much like the quest the long sought Holy Grail. As societies became more complex so did the nature of conflict. As conflicts became more complex, so did the organizations of those that engaged in them. As the organizations engaging in the conflicts became more complex, attempts were made to try and codify the rules to be adhered to by those who followed the profession of arms.

3. This paper will not attempt to discuss the history of armed conflict, but, rather, will attempt to chronicle of the history of the concept of what is described as the doctrine of command responsibility, as part of the law of armed conflict, particularly, during the last century. It will follow a chronological pattern and will focus on both treaty as well as judicial developments. The paper, as well, will not limit itself to the strictly military cases, but, will as well follow the interweaving of the conduct of both military as well as non-military individuals and to revue how the conduct of each has been viewed or treated by different bodies.

4. As noted by Green:

   The concept of command responsibility embraces two branches. In the first place it concerns the responsibility of a commander who has given an order to an inferior to commit an act which is in breach of the law of armed conflict or whose conduct implies that he is not adverse to such in breach being committed. It also covers the plea of the inferior that he is not responsible for breach because he was acting in accordance with orders or what he presumed to be the wishes of his commander, a plea that is more commonly described as that of "compliance with Superior orders". The inferior putting forward such a plea contends that the Superior alone is responsible.[2]

   It might be suitable to broadly define command responsibility as the "responsibility of military commanders for war crimes committed by subordinate members of their armed forces or other persons subject to their control".[3] Accepting this definition, then superior orders is by necessity simply one of the defenses available to an individual accused of a war crime. An individual soldier accused of a war crime may rely on the defense of superior orders to avoid liability on the basis that 'they acted on an obligation and were merely "following orders" from their military superiors'.[4]

   Historical Perspective

   Up to 1900

5. While, as will be seen, the actual development of laws regarding armed conflict is in the overall scope of history a recent development, nevertheless, attempts to develop guidelines as to how those engaged in combat trace back over two thousand years. Roberts, in his text, identified a Chinese manual that described strategies for the conduct of military affairs. He notes: "So, chariot battles with chariots are captured, the ten-chariot commander will reward the first to capture them and will switch their battle standards and flags; their chariots are mixed with ours and driven; their soldiers are treated kindly when given care".[5]

6. In 1439, Charles VII of France promulgated an order holding: "that each captain or lieutenant be held responsible for the abuses, ills and offences committed by members of his company, and as soon as he receives any complaint complaining any such misdeed or abuse, he bring the offender to justice so that the said offender be punished in a manner commensurate with his office, according to these Ordinances. If he fails to do so or covers up the misdeed or delays in taking action, or if, because of his negligence or otherwise, the offender escapes investigation or punishment, the captain shall be responsible for the offence as if he had committed it himself and shall be punished in the same way as the offender would have been."[6]

7. The Swedish King, Gustavus Adolphus approximately two hundred years later ordered that: "No Colonell or Capitaine shall command his soldiers to doe any unlawful thing: which who so does, shall be punished according to the discretion of the Judges."[7]

8. In 1775 the Massachusetts Provisional Congress adopted:

   Every Officer commanding, in quarters , or on the march, shall keep good order, and to the utmost of his power, redress all such abuses or disorder which may be committed by any Officer or a Soldier under his command; if upon complaint made to him of Officer or Soldiers beating or otherwise ill-treating any persons, or committing any kind of riots to the disquieting of the inhabitants of this Continent, he, the said commander, who shall refuse or admit to see Justice done this offender, or offenders, and reparations made to the party or parties injured, as soon as the offender's wages shall enable him or them, upon due proof thereof, be punished, as ordered by General Court-Martial, in such manner as if he himself had committed the crimes or disorders complained of.[8]

9. The 1827 American decision in the Martin v Mott.[9] matter set forth succinctly the legal theory of command responsibility that was to be, in due course overturned and radically changed. The Court in Mott suggested that anything that would cause hesitation or otherwise would adversely affect military efficiency would not be tolerated.[10] The Court further said, in obiter, that any concern that the following of orders would incur any form of legal consequence: "..would be subversive of all discipline, and expose the best-disposed officers to the chances of litigation".[11] However, less than twenty five years later, in the decision of Mitchell v Harmony[12] a case dealing with the seizure of property owned by an American businessman by members of the United States military during the Mexican-American war, the Court clearly held: "It can never be maintained that a military officer can justify himself for doing an unlawful act, by producing the order of his superior. The order may palliate, but it cannot justify."[13]

10. It was in the midst of the American Civil War, at the behest of President Lincoln that Francis Lieber prepared what was, for its day. one of the most comprehensive manuals dealing with the conduct of military forces in the field.[14] However, as comprehensive as the 'Lieber Code' was, and in particular, while it enumerated the duties of a commander it did not contain any sections that dealt with the penalties to be imposed in the event that the articles were not followed or, in the event of illegal conduct on the part of superior officers.

11. Subsequent to the promulgation of the 'Lieber Code' was the trial of Captain Henry Wirz, the Commandant of the Andersonville prisoner of war facility. While it could be legitimately argued that the trial and subsequent conviction on charges of conspiracy as well as direct acts of cruelty and murder was a form of 'victors justice,' nevertheless the comments of the court that the situation at this camp came about from the "intrinsic wickedness" of a few desperate leaders who were assisted by heartless monsters".[15] The court went on to say that "no sympathy, no code of morals" that could in any way offer explanation for the actions of Wirz.[16]

12. The court did not accept, for example, the evidence of Wirz that the successes of the Union Army were such then he could not receive full medical supplies.[17] Further, the court seemed to reject evidence that he offered to the effect that he both needed and requested additional supplies and resources to provide even minimum standards for the prisoners in the camp he commanded.[18] The judgment suggests that Wirz had been measured against a standard of absolute or strict liability.[19] One has to question whether or not the judgment in Wirz differs (as will be discussed) with the decision in the World War II trial of General Yamashita.

13. The first modern attempt to codify what could be described as the laws of war came as a result of conference called by the Russian Czar, Nicholas II at the Hague which in due course led to the 1907 Hague Convention.[20] While the original intention of the Czar, when the conferences were called, was to establish a mechanism to find some form of disarmament, nevertheless as Roberts notes, particularly, as it pertained to the conduct of land war the basic skeleton of international humanitarian law became engrossed in a form of international treaty[21] Of particular note is Article 3 of this Convention (IV) which provided that if there was a violation of the articles or regulations that the belligerent State so violating them would be responsible for the acts committed by its military and would be liable to pay compensation for the same.[22]

    To World War I

14. Very early in the last century, as a result of orders[23] that he gave in the Samur campaign in the Philippines, Brigadier-General Jacob Smith was put on trial, and a court martial court found him guilty of prejudicing the 'good order and discipline.' In confirming Smith's conviction, President Theodore Roosevelt said:

    ...the very fact that warfare is of such a character as to afford infinite provocation for the commission of acts of cruelty by junior officers and enlisted men, must make the officers in high and responsible positions peculiarly careful in their bearing and conduct so as to keep a moral check over the acts of an improper character by their subordinates.[24]

15. In an interesting footnote to the Jacob Smith matter, one Major Littleton Waller was charged with murder as a result of carrying out the orders of Smith, but he (Waller) was acquitted based in the defense argument that he was only following the orders of Smith. A century ago, the difference between the concepts of 'command responsibility' and 'superior orders' was already rearing its head.

16. At approximately the same time, a similar issue was dealt with during the Boer was in South Africa involving the Australian, Lieutenant Harry 'Breaker' Morant. By 1901, conventional fighting had wound down, however the Boers had resorted to guerrilla type tactics, and the British under Lord Kitchener were having little success dealing with the same. One of the units formed to attempt to deal with the continuing Boer resistance was the 'Bushvelt Carbineers' of which Morant was an officer. Central to the issue in the Morant matter was an order given by Kitchener to the effect that any Boer found wearing a British uniform, or with British kit (military equipment), was to be shot, and then a further order came out to the effect that no quarter was to be shown to any captured Boer.[25] It is well settled that Morant was involved in what may be called either executions or murders of a number of Boers, and in addition (possibly) the killing of a German missionary who may have witnessed some of the incidents in which he was involved.

17. At trial, the Morant defense was founded on the principal that he (Morant) was following orders that he had been directly given to the effect that no prisoners were to be brought in alive[26] and further that when he had filed, as required, his after action reports had noted the killings of the Boers. It was further pleaded that no repercussions had come down from his chain of command. The prosecution founded its case, in large part, on the basis that the order was both illegal and improper and, therefore it ought not have been carried out. The Court apparently, in convicting Morant accepted the same.

18. Lippman notes and comments that the killing of Boers, captured by members of the British forces was not uncommon, and at the same time that no British soldiers were put on trial for the same type of action.[27] Not dissimilar to events that transpired subsequent to the end of the First Great War, it is suggested that the execution of Morant, and one of his colleagues was an attempt to appease public as well as political pressure from Germany as a result of the killing of the German missionary. As a footnote to the matter, Morant was found not guilty of the killing of the missionary in question.

19. Further, the actual trial transcripts were lost or otherwise destroyed. It also came about later that Lord Kitchener in a confidential communication admitted had given the orders in question, and this being the case the question begs to be asked as to whether or not Kitchener himself ought not to have been the subject of both a military board of inquiry and a subsequent court martial.

    World War I

20. Subsequent to the termination of hostilities the Commission on the Responsibility of the Authors of the War and on the Enforcement of Penalties[28] was established in 1919. One of the first recommendations of this Commission was that individuals, irregardless of rank or position, could be held criminally culpable for certain acts that contravened the (then) laws and customs of war.[29] Further, it was recommended by the Commission that an international court or tribunal ought to be created to deal with the alleged criminal acts or orders of individuals that may be deemed to offend the laws of nations.[30]

21. It is worthwhile to note that there was considerable debate within the Commission on the issue of command responsibility. The report is significant because of the discussion contained in it to the effect that both military as well as civilians ought not to be relieved of culpability for either orders or acts simply because a superior had been held accountable for the same acts or orders.[31] The converse was recognized in the Commission's report when it noted that if a defense of superior orders was put forward, and if in point of fact, no prosecution of the superior had taken place, the trial of the individual perpetrator might be put at risk.[32]

22. The actual peace treaty, the Treaty of Versailles[33] contained provision for the establishment of an ad hoc international tribunal to prosecute the German Kaiser.[34] Further there was provision in the treaty for the trial of German military personnel for violations of the laws and customs of war before either allied military tribunals or in the alternative, before individual military courts.[35] While the Commission had recommended that both military as well as non-military personnel be put on trial, the Treaty referred only to military personnel.

23. It should also be remembered that Turkey was at war, allied with Germany, and the conclusion of hostilities also brought attempts to seek trial of a number of Turkish officials and others for what were called violations or crimes offending the laws of humanity.[36] In due course, and for the expediency of political stability of the day, no trails were ever undertaken as against any of the Turkish officials identified in the document. The subsequent Treaty of Lausanne[37] not only contained no provision for what could be called war crimes prosecutions, but it had an annex that granted amnesty to Turkish officials for acts including the 1915 large scale murder of Armenians.[38]

24. The trials of alleged German war criminals, in the overall scope tended not to fare that much better. A list of some 895 alleged war criminals had been prepared by the Commission,[39] and for political rather than judicial reasons the Allies had reached agreement that the German government would try the various accused before the German Supreme Court in Leipzig rather than have a series of war crimes trials before various Allied tribunals.[40] There were at the end of the day only twelve officers brought to trial before the German Supreme Court[41] in spite of the request that the Germans bring to trial some forty-five individuals for war crimes.[42] The longest sentence meted out by the Leipzig court was four years in length. The German Court gave acceptance to the defense of superior orders, which is the logical adjunct to the concept of command responsibility. It is useful to see how the German Supreme Court, the Reichsgericht dealt with four of them, two involving naval officers, the third and fourth involving the actions of an army officers.

    Karl Neumann

25. Karl Neumann was the commander of a German submarine that sank the British hospital ship, the Dover Castle, in late May of 1917. The hospital ship had been transporting, at all material times, sick and wounded from Malta to Gibraltar. At the time of the sinking, Neumann was under orders from his superiors that British hospital ships were being used for military purposes, and consequently not only could they be attacked, but further they should be attacked.[43] The Court found that the officer had relied on this information and order, and further, the Court found that the officer believed he was acting in performing a legitimate act of reprisal as against the enemy. The judgment noted that as a military principal one who receives an order is bound to obey the same. Further, the Court in Neumann, noted that if the order involved a criminal act that the superior officer who issued the order would be solely criminally liable.[44]

26. A reading of the judgment in Neumann makes it clear that the Court was of the view that as an officer the accused had no alternative but to obey orders that he had received from his higher command and so long as he was acting pursuant to, and within the confines of his orders, he was free from criminal liability. Perhaps, however, the judgment in Neumann is tempered somewhat by the obiter of the Court to the effect that a subordinate officer would attract culpability in a situation where he had gone beyond, in his actions, the requirements of the orders given, or where he had participated in an act that he knew was a crime.[45]

    Dithmar and Boldt

27. The second case that involved a naval officer came about subsequent to the sinking of the English hospital ship, the Llandovery Castle in late June of 1918. This vessel was attacked off the coast of Ireland, and as a result of this attack there were only twenty-four survivors. There were two serious issues attendant to this attack. The first problem was that the vessel was outside of the designated area of combat, and the officer in command of the submarine was aware of the same. Secondly, subsequent to the actual sinking of the hospital ship, the submarine surfaced and the commander of the submarine (one Patzig) gave orders that the survivors in lifeboats were to be fired upon with machine guns sinking two or three lifeboats with attendant loss of life. The commander the submarine was never brought trial, however, two of his officers, one Dithmar, and one Boldt were brought trial because during the attack they had been stationed on the deck of the submarine and had assisted by passing on information related to the attack itself.[46]

28. The Court found firstly that it was contrary in law for an attack to have been made on an enemy who is unarmed or upon individuals who are shipwrecked at sea.[47] The Court then found that the two junior officers, who were on the deck of the submarine and who were relaying information did not have the specific and necessary intent to commit murder, however, the two were convicted of the lesser offence of being accessories to the crime.[48]

29. There are portions of the Llandovery judgment that do merit some attention because a review of the same will demonstrate the change in international judicial attitudes regarding the concept of command responsibility between the time of the two wars. The Court in this case held that if a superior officer, in this case, the commander of the submarine, issues and order that, on its face, violates international law, that he, the commander is solely responsible for the carrying out of the same.[49] The Court, in finding these two defendants liable for the lesser offences found that as officers, subordinate, they knew that the order given was manifestly illegal and should have refused to comply with the same.[50] There was one final footnote that is perhaps reflective of the sentiments of the day. In 1928, the Court quashed the connections of the two junior officers in the Llandovery case.[51]

    Stenger and Crusis

30. The third case to be considered involved orders allegedly given by General Stenger, and followed by one Major Crusius to kill wounded French war prisoners.[52] In his defense at trial the General said that firstly he had heard shooting apparently emanating form the ranks of French wounded, and that he may have advised his subordinates, that in his view, the French could fake wounds and then take up arms again, attacking German formations from the (unprotected) rear.[53] While the General admitted, at trial, that he made the comment to the effect that wounded were to be considered as still being armed combatants and could be killed, that nevertheless this was only an admonishment of some sort, denying that he ever gave an order to shoot wounded enemy soldiers.[54] The German Supreme Court accepted Stenger's evidence and acquitted him of the charges of issuing order to kill wounded French prisoners, which would have been a criminal act.

31. The matter as it pertained to Stenger's subordinate, Crusis, was more difficult. Not only had this officer received and passed on what may have been the order of General Stenger, but, further, he (Crusius) had participated in the actual killing of a number of French wounded war prisoners on more than one occasion.[55]

32. The German Supreme Court treated the two incidents involving Crusis independently. As it pertained to the first incident, that is, the time when the officer first received what he believed to be a legitimate order and then not only passed it on, but, further participated in the killing, the Court found that he (Crusis) was, at all material times, acting under the mistaken belief that the General had actually issued this order and that he was obliged to carry out. The Court, however, found that because of the officer's state of mind at the time he was unable to appreciate that the killing of wounded prisoners was an unjustifiable act[56] While the officer was convicted of negligent homicide, he was, nevertheless, sentenced to a prison term of only two years.[57]

33. As it pertained to the second incident in which this officer, Crusis, was involved, the Court was more generous. While the Court accepted, as a matter of fact, that the officer was involved in the killing of wounded French war prisoners, nevertheless, the Court also found that an all material times his mental state was such that he was incapable of committing the act on a voluntary basis, and for that reason he was acquitted.[58]

    Muller

34. The final World War I case involving the issue of command responsibility was the trial of a German officer, Captain Muller. The Muller case is, on reflection, perhaps not that dissimilar from the American Civil War prosecution of Henry Wirz. Muller was the officer commanding a prisoner of war camp, in France, that housed English prisoners of war. He was in command of this facility during the first half of 1918 for perhaps two or three months.[59] The prison camp in question was located in a dirty swamp setting, and at the trial Court found, as a matter of fact, that disease, inadequate food and water and improper sanitation existed at the relevant time. The Court further accepted evidence that on a number of occasions Muller had sent, via his chain of command, requests for supplies to improve conditions.[60]

35. Muller was charged with two main offences; (1) willful neglect and (2) improper punishment of prisoners. As it pertained to the first allegation, that is, the charge of willful neglect, the trial Court found that the officer had done everything within his power to properly treat his prisoners and that the ongoing conditions continued as a result of circumstances which were beyond his control.[61] The trial of Henry Wirz reached an entirely different judgment.

36. Muller also faced charges of mistreating prisoners. On one occasion it was alleged that he allowed them to have been tied or otherwise bound in such a way that they were being mistreated. The Court found that these acts had been perpetrated by others, and that they were done without the knowledge of the defendant, Muller, and, therefore, he was acquitted.[62] However, Muller was also alleged to have witnessed a prisoner being abused by a German non-commissioned officer and, in registering a conviction on a charge of ill-treatment of prisoners, the Court found, as a matter of fact, that Muller, even though he did not give the order to have this particular prisoner beaten, nevertheless he either tolerated or condoned the same. He was convicted and sentenced to six months imprisonment.[63]

37. Lippman characterizes the various judgments of the German Supreme Court by observing:

    ..that a defendant might rely on the superior orders defence in those instances in which he harbored a good faith belief in the legality of an otherwise illicit command. Such a claim was morally in those instances in which the order contravened a "simple" and "universally-known" rule of international law. Combatants carrying and such a command was presumed to possess criminal intent. A soldier's subjective and false belief in the existence of an illegal order also was not adjudged exculpatory. The superior orders defence was likewise inapplicable in those instances in which a subordinate independently and intentionally exceeded the scope of a criminal command. The fact that combatants had acted in response to an illegal order, or believed in good faith that such an order had been issued, was considered in mitigation of punishment. Combatants were not charged with the duty to investigate were questioning order and were able to rely on the factual validity of a command.[64]

    World War II

    The United Nations War Crimes Commission

38. Early in 1942, the Declaration of St James was signed by the Allied powers in London[65] which led to the establishment of the United Nations War Crimes Commission. This Commission comprised of members who were representatives of seventeen nations, however, a substantial number of the same were really governments in exile. The purpose of this body was to conduct investigations and to obtain evidence of war crimes, as distinct from what became later known as crimes against humanity. Notwithstanding the limitations of this Commission, it was, nevertheless, the first step, albeit a preliminary one, to the establishment of the International Military Tribunal at Nuremberg.

39. The Commission, while it did attempt to come to some consensus on the issue of command responsibility was unable to adopt a common principle regarding the same. However, it should be clearly recognized that this Commission still reached unanimous accord on the fact that a subordinate would not be able to escape liability for the commission of war crimes simply because it was in pursuance of a superior order.[66]

40. During its existence, this Commission compiled over eight thousand files representing information on more than twenty-four thousand actual accused persons.[67] While information compiled by this Commission was used by a number of governments in subsequent prosecutions of war criminals, there was no formal relationship between the United Nations War Crimes Commission and the International Military Tribunal at Nuremberg, or the International Military Tribunal for the Far East.

    Nuremberg

41. While the Nuremberg Tribunal was established as a result of the signing of the London Declaration[68] nevertheless it is certainly common ground that well before the execution of this document there was every clear intent to bring alleged war criminals to trial in one form or another.[69]

42. It is perhaps worthwhile to note that the Nuremberg Tribunal was the product of a particular treaty. During the lead-up negotiations and discussions to the execution of this treaty, discussions and deliberations took place on the issue of command responsibility and how the same was to be applied. Article 8 of the Nuremberg Charter dealt specifically with the defense of superior orders and the non-applicability of the same.[70] It is of note that while superior orders is not a defense, that nevertheless it 'may' be considered after a finding of culpability when considering the imposition of sanction.[71]

43. It should come as no surprise that there was, before the enactment of the Nuremberg Charter, considerable discussion regarding command responsibility. For example, Herschel Lauterpacht advocated that in certain circumstances in individual who had acted in good faith and followed the orders of a superior ought to be relieved of liability, or to be exposed to "diminished liability".[72] However, Lauterpacht was also of the view that if the orders that were issued and followed were, on their face, obviously illegal or criminal to an ordinary individual having some basic understanding of the rule of law that this defence would not be available. The opinion seems to be qualified with the postulation that if the illegal order (in question) did not appear to be patently illegal, then an individual obliged to follow a military chain of command ought not to be convicted, but, rather, ought to be able to rely upon the defence of superior orders.[73]

44. There were twenty-four individuals indicted at the Nuremberg Tribunal. Of that number, twenty-two were brought to trial. Of the group of defendants who were tried, three were acquitted, twelve were sentenced to death, three were sentenced to life imprisonment and the rest received terms of imprisonment that ranged from ten years to twenty years in length.

45. It was the primary contention of the various defendants that they were entitled to rely upon the defence of superior orders, particularly, where the individual lacked the specific knowledge that the order in question was illegal.[74] However the judgment was clear that an individual was obliged to possess certain universal obligations that took clear precedence over a specific set of domestic orders.[75] A reading of the judgments suggests that superior orders has never been considered as the defence to criminal acts contravening the law of war, however, and at the same time, the judgment also reminds that superior orders was still available in mitigation of penalty. The matter of command responsibility was canvassed in some detail when the Tribunal dealt with Generals Keitel and Jodl.

46. It must be remembered that one of the 'offences' that was to be prosecuted by the Nuremberg Tribunal was the offence of 'Crimes Against Peace'[76] in addition to the offences of 'War Crimes' and 'Crimes Against Humanity.' General Keitel was, and all material times, the Chief of the High Command of the (German) Armed Forces. The Tribunal found that he had developed orders to organize the military campaigns against, inter alia, Austria, Czechoslovakia, Russia, Greece and Yugoslavia and Norway.[77] The Tribunal further found that General Keitel had promulgated or directed orders that clearly contravened laws of war. In particular, the Tribunal noted that General Keitel was involved either in the promulgation or distribution of the 'Commando Order',[78] which amounted to an order for the execution of any commando who may be taken prisoner.

47. The Tribunal found that there were very strict controls regarding the copying of this order and further it was understood that under no circumstances were copies of this document (Commando Order) to fall into Allied hands. Further, the 'Commando Order', which was signed by Adolf Hitler, also provided for sanction if it was neither disseminated nor followed.[79] Further, and again, in his role as Chief of the High Command he (Keitel) was also charged with the implementation of orders concerning the handling of Russian prisoners of war as well as the killing of political officers attached to the Russian army.

48. As part of his defence General Keitel tried to rely on the doctrine of superior orders,[80] however the Tribunal refused to accept that, not only as a defence, but also, in mitigation of punishment where "crimes so shocking and extensive had been committed consciously, ruthlessly and without military excuse or justification".[81]

49. General Keitel's subordinate, General Jodl, while being junior in position, nevertheless as the Tribunal found, reported to Hitler for purposes of certain aspects of military planning and operations.[82] The Tribunal found that General Jodl had both initialed as well as issued certain military orders that dealt with the attacks upon Russia and Albania,[83] The Tribunal further found that he had distributed (in a function other than as a staff officer) the orders for the destruction upon evacuation of German forces from Norway, of the country.[84] Further, of importance, was the finding that General Jodl had circulated the 'Commando Order'.[85]

50. As part of his defence he pleaded that he was obliged to follow the orders of his superior, in this case, Adolf Hitler.[86] However the Nuremberg Tribunal rejected that defence and noted that the defence of following orders which this case included the giving orders to commit criminal acts would not only be no defence, but further, in this case, would not be considered in mitigation of penalty.[87]

51. The Nuremberg Tribunal not only did not accept superior orders as a defence, but also was clear in its judgments that the same would only be considered once culpability was found in dealing with disposition of penalty or sentence.[88] However, and at the same time, the Tribunal was careful not to create a standard of strict liability, but, rather, noted that a defence of superior orders might be available in the case where an individual was allowed no choice or option, and further, that the act in question was committed while the defendant was under threat.[89]

    Control Council Law No. 10

52. Subsequent to the unconditional surrender in the spring of 1945, Germany was occupied by the four main Allied Powers; the United States, Great Britain, France and Russia. In late 1945, and subsequent to the London Charter, Allied Control Council Law No 10 was promulgated.[90] Control Council Law No 10 (hereinafter referred to as CCL) was enacted to try and provide a degree of uniformity or consistency in the prosecution of war criminals in the four occupied areas.[91] CCL contained a section that referred to the potential defence of superior orders (and by analogy, therefore, command responsibility) by using language that was a mirror of the Nuremberg statute. Further, and of note is the fact that it referred to superior orders using the term 'a person' implying that charges could be brought against both military as well as civilian individuals. It is proposed to examine a number of the proceedings brought under this enactment and by so doing canvas the development and refinement of the principal of command responsibility subsequent to the surrender of Germany.

    The Hostage Case

53. In the Hostage case some twelve military officers were charged with murdering civilians in Albania, Greece and Yugoslavia, and as well with committing acts of devastation in Norway as well as other countries. They were, further, charged with the ordering of the killing of surrendered combatants and, were also charged with the denial of basic rights to prisoners of war. Of the twelve officers charged, eight were convicted, two were acquitted, and two committed suicide prior to the judgment being delivered.[92]

54. In September 1941, Field Marshal Keitel issued an order[93] dealing with the suppression of insurgent activities in the German occupied territories. In due course, Field Marshal List distributed this order to his subordinate commanders.

55. The Tribunal, firstly, held that General who was in command of an occupied territory was accountable for the conduct of all of the units within the scope of the territory in question irregardless of the chain of command.[94] This meant that the territorial commander had not only military command authority, but as well, was deemed to have 'executive' authority over the territory in question.[95] As a matter of fundamental principle the (American) Tribunal held the territorial commander was charged with the prevention of war crimes (or any other offences within the ambit of CCL No 10) within his jurisdiction and he could not in due course plead as a defence that he had no knowledge that the crimes had taken place.[96]

56. The Tribunal went further and held that the commending generals were deemed to have 'constructive' knowledge of reports forwarded to their headquarters that were intended for their review.[97] Further, the Tribunal also held that if material by way of reports intended for the commending general's review was either incomplete or inadequate, then he (the commanding general) was under a duty to obtain further information. The failure to obtain such further information could constitute a dereliction of military duty.[98]

    Wilhelm List

57. Field Marshal List was the commander-in-chief of the German Twelfth Army during the invasion of Greece and Yugoslavia. Further, in June 1941 he was also the Wehrmacht Commander Southeast, a position that he retained until he took a temporary retirement from active service in mid October of that year. Evidence tendered at the Tribunal showed that subsequent to the German occupation of both Greece and Yugoslavia guerrilla resistance began. By early September, the resistance movement was at such a level that Field Marshal List had personally issued orders in an attempt to force suppression of this resistance.[99] There was further evidence that Adolf Hitler, around the middle of September 1941, had personally signed an order mandating Field Marshal List to undertake the suppression of resistance activity in the Southeast (Greece and Yugoslavia)

58. The Tribunal found that the order given by Field Marshal Keitel, and passed on by Field Marshal List was nothing more than a seeking of revenge and was not intended to be a deterrent.[100] Further, the Tribunal found that by passing on the order, Field Marshal List was participating in an order of simple murder.[101]

59. Part of the defence of Field Marshal List was based on the fact that he was away from his headquarters at the time the killings had taken place. The Tribunal, however, held that his exposure in culpability was based on the fact that the killings had been committed as a result of orders that had come from his headquarters[102] and further that reports of the killings were contained in materials received either by, or in the alternative, available for him.[103]

60. The Tribunal held that Field Marshal List had a positive obligation or duty to maintain the protection all persons within his territorial jurisdiction whether or not he had tactical command over all of the forces in that geographical area. Further, in attaching culpability to the Field Marshal the Tribunal found that he was responsible for the military as well as the actions of other 'armed units' within his territorial responsibility.[104]

    Herman Foertsch

61. At all material times General Foertsch was Field Marshal List's Chief of Staff. As such he was in charge of the various departments of the military staff and had been found by the Tribunal to be Field Marshal List's first advisor. It was the duty of this officer to provide all the basic information to allow the commander to make his decision, and further, it was his responsibility to direct the flow of all reports and orders to and from the commander. In considering the nature of the orders in question, it was of significance that the Tribunal found that his function as chief of staff entitled him to no formal or de jure control, nor did he exercise any de facto control, over the legal department, that reported to the overall commander. Further, the Tribunal found that this defendant had no command or tactical authority over forces. His function permitted him to sign orders on behalf of the commander only when they did not require a decision to be taken, or where no discretion was to be exercised as to who would receive the orders in question.

62. However, the Tribunal found that a number of reprisals had been undertaken even before the order was given by Field Marshal Keitel and, in particular, the Tribunal noted that this defendant's signature appeared on reports of reprisals (which included killings) prior to the Keitel order. However, the tribunal found that while General Foertsch had knowledge, nevertheless, he did not participate in issuing orders, and in particular, he had given no orders himself as he lacked the authority to do so. The Tribunal found that knowledge only of a criminal act was not sufficient to attract a finding of culpability.[105]

    Superior Orders

63. The Tribunal's judgment made specific reference to, and considered the various defenses of superior orders as tendered. Of note the judgment contained:

    The defendants invoke the defensive plea that the acts charged as crimes were carried out pursuant to orders of superior officers whom they were obliged to obey. That brings into operation the rule just announced. The rule that superior order is not a defence to a criminal act is a rule of fundamental criminal justice that has been adopted by civilized nations extensively. It is not disputed that the municipal law of civilized nations generally sustained principle at the time the alleged criminal acts were committed. This being true, it properly may be declared as an applicable rule of international law.

    It cannot be questioned that acts done in time of war cannot involve any criminal liability on the part of officers or soldiers if the acts are prohibited by the conventional or customary rules of war. Implicit obedience to orders of superior officers is almost indispensable to every military system. But this implies obedience to lawful orders only. If the act pursuant to a superior's order be murder, the production of the order will not make it any less so. It may mitigate but it cannot justify the crime. We are the view, however, that if the illegality of the order was not known to the inferior, and he could not reasonably have been expected to know of its illegality, no wrongful intent necessary to the commission of the crime exists, and the inferior will be protected. But the general rule is that members of the Armed Forces are bound to obey only the lawful orders of commanding officers and they cannot escape criminal liability by obeying a command, which violates international law and outrages international law...

    It is true that the foregoing rule compels a commander to make a choice between possible punishment by his government for the disobedience of the legal order of his superior officer, or that of lawful punishment for the crime under the law of nations. To choose the former in the hope that victory will cleanse the act of its criminal characteristics manifests only weakness of character and had nothing to the defence...

    The defence relies heavily upon the writings of Professor L. Oppenheim to sustain their position. It is true that he advocated this principle throughout his writings...The (Oppenheim) statement completely overlooks the fact that any illegal order is no sense of the word a valid law, which one is obliged to obey...

    International Law has never approved the defensive plea of superior order as a mandatory bar to the prosecution of war criminals. This defensive plea is not available to the defendants in the present case, although if the circumstances warrant, it might be considered in mitigation of punishment under the express provisions of Control Council Law No.10.[106]

    The Einsatzgruppen Case[107]

64. The Einsatzgruppen was perhaps the most important of the large-scale trials of alleged German war criminals. The twenty-four accused were alleged to have been involved in the supervision and implementation of mass murder. The Einsatzgruppen were four special units of the SS (as distinct from the army) whose functions included the murder of individuals of specific groups during the German military campaign in Russia. Those to be killed included political commissars, Gypsies, Jews, partisans, certain prisoners of war and others. While the Einsatzgruppen units in question were under the operational control of the military, nevertheless they received and carried out orders directly from the SS hierarchy (including Himmler and Heydrich).

65. The prosecution case was, in terms of time, fairly short, lasting only a few days and comprising, primarily, documentary evidence. The defence lasted much longer and was in large part based on the principle of superior orders. A large part of a defence theory was premised on the position that if the orders were not followed, and implemented (which included the passing on to subordinates) that the result would have been discipline or punishment rather than a withdrawal or change of orders.[108]

66. The Tribunal accepted the principle that a subordinate is bound to carry out the orders of superior so long as those orders are within the scope of the superior's authority[109] Intrinsic in this comment was the principle that the order given must relate to a military duty. The superior cannot order a military subordinate to commit what would amount to a civilian crime.[110] It is further of note that the Tribunal described 'superior' as encompassing dominance in capacity as well as the power to compel a particular act. The Tribunal noted that it was possible for a lower ranking individual to have actually directed a superior in rank to commit an (illegal) act.[111] The Tribunal found that if individual had demonstrated an agreement with the (illegal) order in question that he could not later raise a defence of superior orders.[112] The Tribunal judgment was clear in it's reasoning that a soldier is a "reasoning agent" and not an automaton that did nothing more than follow orders given.[113]

67. The Tribunal held that while a soldier is obliged to follow the orders of a superior, which includes the passing on of orders to subordinates, that nevertheless obedience is requisite only when the orders received (and perhaps passed on) were lawful. The defence of superior orders was not available where the order given, and subsequently passed on was so done knowing that the same was criminal.[114] In the case where a subordinate was able to demonstrate, by way of credible evidence, that he had 'excusable ignorance' or similar lack of knowledge of the criminal nature of the order that the same might be accepted as a defence.[115]

68. The Tribunal was also very clear in its holding that a subordinate (at any level) who shared the same intentions and goals of his superior could not, then, plead and rely upon superior orders as a defence.[116] In conceding, however, that superior orders, as a concept, was available in mitigation of penalty the Tribunal noted that the criminal act in question must have been done in an 'involuntary' state. The rationale for the same being that the soldier who participated with a group of criminals in undertaking a criminal act could not a later stage, and in his defence, plead that he was compelled to do the same.[117]

    Erich Naumann

69. This defendant was a Brigadier General in the SS and was the commander of one of the Einsatzgruppen units. It was his defence, in part, that when he assumed command of his unit the orders at issue were already in effect.[118] However, in rejecting this proposition as a legitimate defence the Tribunal held that Naumann was, and all material times, aware of the orders in question, and he could have rejected the same. The Court further noted that it would have been incumbent upon the defendant to demonstrate that while he was aware of the orders in question, he was not in agreement with the same but that he was compelled to follow the orders out of fear of severe consequences for not so doing.[119] In putting the evidence of this defendant in proper perspective, and in support of its judgment of guilt, the Tribunal found that Naumann had seen nothing wrong with the orders in question even though the same involved the murder of 'defenseless' people.[120]

    Erwin Schultz

70. Like Naumann, Schultz was a Brigadier General in command of an Einsatzkommando unit and, as such, had participated in the killing of a number of innocent Jews.[121] As part of his defence, Schultz claimed that he disagreed with the order and that he had taken steps to have himself removed from his position of command.[122] However, the Tribunal found that during one particular time frame, of less than a week, while he claimed he was away from his command trying to have himself removed, a substantial number of innocent Jews were murdered. The Tribunal noted that the planning for these killings had been undertaken prior to the defendant's leaving, and that he could not then plead his absence as a defence.[123]

    High Command Case[124]

71. The case as against von Leeb and the other thirteen defendants, all whom were senior officers in the German army, navy or in the German High Command took place after the trial in the Hostage case.[125] Amongst others, the defendants were charged with war crimes and crimes against humanity in connection with the 'Commissar Order', the 'Barbarossa Order', the 'Jurisdiction Order', the "Night and Fog Degree', the 'Hostages Order,' and the 'Reprisals Order'. As well, they were charged with the murder and\or ill treatment of prisoners of war and of civilians in the occupied territories. They were, further, charged with the use of civilians and prisoners of war as slave labourers. Lastly, for purposes of this discussion they were also charged with instituting co-operation between the military and the SS in connection with the persecution, plunder and execution of Jews and others.

72. The Tribunal noted that command liability was premised on the personal action, or lack thereof, on the part of the individual. In so doing this Tribunal followed the earlier 'Hostage' decision.[126] Further this decision was very clear in reminding that a territorial commander had both military as well as executive authority and, as it pertained to executive authority, unless there were specific limitations on these executive powers, he had the duty not only to maintain order, but, further, to protect the civilian population in the geographical area.[127]

73. Further the Tribunal held that, in considering the criminal conduct of subordinates, the actions in question had to be traceable to a superior order and have resulted from the disregard of legality or acquiescence to the act or conduct in question.[128] However, and at the same time, the Tribunal also held that senior officers were entitled to assume that subordinates were carrying out orders properly unless information had been given to the superior indicating the contrary. Put another way, the Tribunal held that there was no positive ongoing obligation on the part of the superior to monitor the conduct of a subordinate without some cause or reason.[129]

74. While this Tribunal (High Command) accepted in principle the obligation of a territorial commander as enunciated in the 'Hostage' case, nevertheless, this Tribunal applied supplementation or parameters to the same. This Tribunal declined to find a presumption of knowledge on the part of the territorial commander based only on the criminal acts themselves. In holding that each fact situation must be decided on its merits the Tribunal noted in some situations the criminal acts in question had taken place a substantial distance from the territorial commander's headquarters, and, as well, there were instances where the reports (of the criminal activities) where not routed to the headquarters in question.[130] However, the Tribunal was very clear in its principle that once the territorial commander had knowledge of criminal conduct on the part of a subordinate, even if that subordinate was outside of his chain of commander, there was a positive duty to intervene.

75. This Tribunal, as well, noted at the while staff officers, as a generality, incurred little criminal liability in the exercise of their functions, there were exceptions to the same. For example, the Tribunal noted that if a staff officer put into the form of a military order what was a criminal idea, either himself, or by members of his staff that this could attract the finding of criminal culpability. Further, if the staff officer in question took personal action (as distinct from his role of a staff officer) to pass on a criminal order that this, as well, could attract the finding of criminal conduct.[131] The Tribunal further attached criminal responsibility to staff officers who participated in the preparation, or even in the assisting in the preparation of criminal orders.[132]

    Wilhelm von Leeb

76. Field Marshal von Leeb was, and all material times a commander of an army group. The Tribunal found that he had given, in a number of areas, executive responsibility to subordinate commanders. The Tribunal further found that while he maintained the inherent authority to intervene in situations, nevertheless, he relied on his subordinate commanders and officers.[133] The Tribunal, when reviewing the implementation of the 'Commissar Order'[134] found, as a matter of fact, that the same had not been promulgated or issued from von Leeb's headquarters, but rather, had been issued directly to subordinate units bypassing von Leeb's headquarters[135] Further the Tribunal accepted evidence that von Leeb not only refused to pass this order on, but also, was opposed to it vocally.[136]

77. A substantial portion of von Leeb's defence was based on his position that he had no knowledge of certain events that had transpired within his territorial command. When presented with evidence of the abuse of prisoners of war von Leeb argued (and the Tribunal accepted) that these prisoners were under the command responsibility of the quartermaster general's office that was outside of his chain of command. Further the Tribunal accepted that the quartermaster general's office had direct command over von Leeb's subordinates as it pertained to prisoners of war. The Tribunal further found, again, as a matter of fact, that von Leeb had never been made aware of the illegal use of prisoners of war.[137]

    Karl Friedrich-Wilhelm von Kuechler

78. Field Marshal von Kuechler, like Field Marshal von Leeb was an army group commander. It was his defence that he was opposed to the 'Commissar Order,' however notwithstanding this defense theory the Tribunal found, as a matter of fact, that he had caused the same to be distributed to his subordinate commanders.[138] Further, as part of his defence, this defendant argued that he had no knowledge of any of the criminal acts having taken place, notwithstanding the fact that his subordinate commanders had, as part of usual process delivered reports of the killings to his headquarters.[139] The Tribunal, in this case, also held that there was a positive duty on the part of the commander to be aware of the activities of subordinates.[140] In convicting von Kuechler, and, in attacking both his credibility as well as his competence, the judgment noted that the members of the Tribunal did not believe that members of this defendant's staff would not have made him aware of the various reports of which he denied knowledge.[141]

    Hans Reinhardt

79. General Reinhardt commanded a panzer corps. The Tribunal found, as a matter of fact, that he had received, and then passed on the 'Commissar Order.' It was his evidence that he had expressed concerns about this order upwards in his chain of command, and further, expressed the same concerns to his subordinates.[142] However, the Tribunal also found that in due course he had received reports as to the implementation of this order.[143] The Tribunal, in convicting General Reinhardt, was clear that the superior, in the face of a criminal order, must act in such fashion that his repudiation of the same is without equivocation.[144] Further, the Tribunal also rejected the General Reinhardt's defence that knowledge of the criminal order in question was so widespread that whether he did anything or not, the criminal acts were already going to be carried out.[145] In rejecting this portion of the defence the Tribunal accepted the concept of a positive duty to act on the part of the superior in the face of a criminal order.

    Hermann Reinecke

80. General Reinecke was, and all material times, the chief of staff at the General Wehrmacht Office, and, was found to have had authority over matters including prisoners of war. The Tribunal found, as a matter of fact, that he had formulated, drafted and as well had prepared certain orders under the authority of his superior, Field Marshal Keitel.[146] The Tribunal noted, with particularity, in convicting General Reinecke, that the orders in question were issued under his signature and the Tribunal rejected the defence that the same head been issued under some form of residual authority of Keitel.

    Medical Trial[147]

81. As Reich Commissioner for Medical and Health Services, Karl Brandt along with others who were members of the military, the SS, and civilians were charged and (all but two) were convicted for organizing or allowing medical experiments that were conducted on concentration camp prisoners and others. Brandt was charged with failing to monitor the experiments in question, and, as well, he was charged with failing to investigate or take necessary steps when information was brought to his attention concerning these experiments that were patently criminal.

82. The Tribunal found that this defendant had not only received reports concerning experiments, but, as well, attended meetings where the results of the same were reviewed.[148] The Tribunal found, as a matter of fact, that those who participated in these experiments were nothing more than human guinea pigs who incapable of offering any consent to be part of these experiments. In convicting Brandt, the Tribunal found that he was under an obligation to conduct investigations as to the propriety of the experiments and that he failed in that duty.[149] Further, the Tribunal found that once this defendant, in his official capacity, was made aware of the experiments he was under an absolute duty to order his subordinates to immediately terminate the same, and by doing nothing he attracted criminal culpability.[150]

    The Farben Case[151]

83. As part of the horrific 'final solution' prisoners in concentration camps such as Auschwitz were put to death systematically in gas chambers using a chemical, Cyclon-B gas that was manufactured and delivered by the Degesch company. The Tribunal found, as a matter of fact that Degesch was in large part controlled by the I.G. Farben Industrial complex.[152] Compounding the matter was the fact that the Tribunal had found that the manager of the Degesch plant had clear knowlege of the fact that the Cyclon-B chemical was being used to kill concentration camp victims.[153]

84. While the Tribunal accepted that the members of the Farben board of directors, who were on the board of directors of Degesch, had approved of the sale of the chemical and that, notwithstanding the size of the order or its destination, this was insufficient to put them on notice of the intended purpose of the chemical.[154] Further the Tribunal took note of fact that meetings of the Board of Directors of Degesch were held infrequently, and when they were undertaken materials given to the members of the board were incomplete at best.[155] In discharging the 'Farben' directors Tribunal accepted evidence that it was possible that the accused believed that the chemical was being used for disinfectant purposes.[156] This judgment, like others reflected the fact that the criminal burden of proof had not been met by the prosecution.

    Bruno Tesch

85. While the American Tribunal acquitted the 'Farben' directors, nevertheless, the British Military Tribunal convicted the suppliers other chemicals.[157] The (British) Tribunal was satisfied, in convicting this accused that he knew that the chemical supplied by his firm was being used for killing people.[158] In an interesting footnote to the case, the attorney representing this defendant, in mitigation of sentence, argued that even if Tesch had known the purpose to which the chemical was being put, and even if the had consented to it, that this consent was obtained as a result of extreme pressure being applied by the SS. Further, the lawyer for Tesch also argued that if his firm had not supplied the chemical another firm would have. The Tribunal rejected these arguments in mitigation of sentence subsequent to conviction.[159]

    Roechling

86. A French military Tribunal in the Roechling[160] matter carried the doctrine of command responsibility further by imposing upon civilians with either formal authority or informal influence and power, a positive obligation to remain informed and to intervene.[161] Hermann Roechling was, and all material times, the general director of the Stahlwerke Voelkingen steel plant. The Tribunal found that he played a key role in obtaining, involuntarily, foreign workers for not only his plant, but as well, in his role as chairman of the Reich Association, Iron, for other plants as well.[162]

87. The Tribunal found that the workers in question, in various factories, were subject to 'discipline' by the Gestapo, and, further, that these workers were often beaten and starved.[163] Further the Tribunal found that Roechling had, in his official capacity, inspected a number of the plants in question, and either saw, or must have seen the conditions then existent for the labourers under Gestapo control.[164] While the Tribunal acceded to the argument that Roechling lacked any formal authority to intervene in Gestapo affairs, nevertheless, the Tribunal found that he had acquiesced to the criminal treatment of the individuals in question by doing nothing.[165]

88. A similar American Tribunal adapted the same principle in convicting civilians for, with knowledge, approving the acquisition of prisoners of war for use in other factories.[166]

    The Far East

    The Far Eastern Commission

89. In December 1945, in Moscow, an agreement was reached to establish the Far Eastern Commission, with control of the Commission left with United States. The headquarters of this Commission was in Washington while an advisory group (comprised of Great Britain, Russia, the United States and China) known as the Allied Council for Japan had its headquarters in Tokyo.

90. The Commission was primarily a political body was little or no investigative authority. As observed by Bassiouni:

    Control over occupational matters rested with General Douglas MacArthur as the Supreme Commander for the Allied Powers (SCAP). Virtually every aspect of justice in the Far East was guided by Macarthur's views and his political perspectives of the region. General MacArthur opposed the Commission's establishment because allowed the USSR a role and a veto.[167]

91. In April 1946, the Commission announced a policy allowing General MacArthur to establish a body, under his command, to; (a) investigate reports of war crimes, (b) to collect and analyze evidence and (c) to arrange for the apprehension of suspects alleged to have committed war crimes. Further, and demonstrative of the discretion given to General MacArthur, was the fact that he also had the residual authority to determine who would be tried and which Tribunals would undertake such proceedings.[168]

    International Military Tribunal Far East

92. An order dated January 19, 1946 led to the creation of the Far East Tribunal.[169] The Military Tribunal for the Far East was originally comprised of nine members:[170] Australia, Canada, China, France, Great Britain, Netherlands, New Zealand, Russia and the United States. Subsequently, by further instrument India and the Philippines were added as members.

93. It is of note that this Tribunal only undertook trials for ' war crimes' and 'crimes against peace' but did not undertake prosecutions (as was done in Europe) for 'crimes against humanity'.[171]

    Tomoyuki Yamashita

94. The Yamashita decision[172] is arguably the most well known of the Far Eastern Military Tribunal's decisions dealing with the issue of command responsibility. General Yamashita had taken up the post as the overall Japanese commander for the Philippines on or about October 9, 1994. Inter alia, his responsibilities included all prison camps, both military and civilian. He undertook his command some nine days prior to the American invasion of Philippines. He was subsequently tried and convicted of failing to discharge his military duty to control subordinate troops under his command.[173] Both his conviction and sentence to execution were unsuccessfully appealed to the United States Supreme Court.[174]

95. There is little issue that during the retreat of the Japanese forces, in the Philippines serious war crimes were committed. The charges heard by the Tribunal alleged, inter alia, the killing of twenty-five thousand innocent civilians on the island of Luzon.[175] It was further shown that prisoners of war were ill treated and starved[176] and it was specifically shown that in one instance some fifteen hundred Americans were held prisoner in the cargo hold of a Japanese non-military vessel in starvation conditions.[177]

96. The actual charges against Yamashita were to the effect that forces under his command had committed a substantial number of war crimes including the wanton killing of civilians.[178] It was further alleged that troops under his command demolished homes, churches, hospitals and schools without any military necessity.[179] The substance of the charge was that he had:

    ...lawfully disregarded and failed to discharge his duty as commander to control the operations of members of his command, permitting them to commit brutal atrocities and other high crimes against the people of United States and its allies and dependencies, and in particular show a series of acts which indicate a plan to massacre and exterminate a large part of unarmed noncombatant civilian population of the occupied territory, coupled with other acts of violence, cruelty and homicide inflicted upon civilian population and prisoners of war contrary to principles of international law.[180]

97. The thrust of General Yamashita's defence was that a substantial number of the troops initially under his command had been routed and had lost contact with his headquarters.[181] He further pleaded that part of his command composed of naval forces that disregarded his orders[182] to abandon Manila, but, rather, killed over eight thousand civilians and wounded or otherwise mistreated another seven thousand.[183]

98. Fundamental to the Yamashita defence was the premise that he had in no way, either ordered or authorized, nor had he in any way tolerated such acts by forces under his command. He further was adamant, in his defence, that he had no knowledge of the fact that the war crimes in question were taking place.[184] He also argued that all of his time was committed to the preparation of the battle tasks at hand, that he was unfamiliar with the quality and abilities of the troops under his command, and as well that his communication infrastructure had been substantially compromised by the attacking enemy forces.[185]

99. The case against General Yamashita was premised on the theory that the acts in question had been so widespread that he must have known of them, and that if he did not, that this lack of knowledge was deliberate in that he must have taken some (positive) step to avoid acquiring knowledge.[186]

100. In its judgment the Tribunal held that General Yamashita, at the very least must have tacitly condoned the actions of the Japanese forces in question, and more likely he had both known as well as ordered the crimes. Further, and of significance, in finding knowledge of the acts on his part he was also condemned for failing to punish the perpetrators of these acts who were under his command.[187]

101. A board of review convened by General MacArthur reviewed the conviction, and death sentence[188] This board held the crimes committed by the Japanese forces were so widespread, so obvious or well known, and so ongoing that it was impossible that General Yamashita had not known of them.[189] Further, and specifically, the judgment of the board of review cited that: ..(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 to prevent them or to punish their perpetrators.[190]

102. The Yamashita case was subsequently appealed to the United States Supreme Court by way of an application for habeas corpus. The majority decision, delivered by Justice Stone[191] in large part makes little mention of the facts attendant to the conviction of General Yamashita by the original Tribunal. Rather, the majority judgment, in large part, attended to the technical aspects of the appeal. The majority decision, examined the actual allegation or charge made against Yamashita and noted that the substance of the allegation was that he (Yamashita) as commander had failed to control the actions of his forces by "permitting them to commit the extensive and widespread atrocities during the specified period".[192] However, in the same portion of the majority opinion, the following question is posed and answered:

     The question is then 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 specified acts which are violations of a lot 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.

     It is evident from the conduct of military operations by troops whose excesses are unrestrained by the orders of their commander would almost certainly result in violations which it is the purpose of the law of war to prevent. Its purpose to protect civilian populations and prisoners of war from brutality would largely be defeated if the commander of an invading army could with impunity neglect to take reasonable measures for their protection. Hence, the law of war presupposes that its violation is to be avoided through the control of the operations of war by commanders who are to some extent (emphasis) responsible for their subordinates.[193]

103. In the first paragraph of the above Justice Stone used the phrase, 'as are within his power,' however, and notwithstanding the question posed the Supreme Court in its majority judgment, it does not deal specifically with that issue. However, by virtue of the fact that that particular phrase was used it appears as though the Supreme Court gave credence to the limiting of the ability of a commander to control forces either under his executive or tactical command. Further, the words 'to some extent' suggests that the Court felt that strict liability was not in order, and, further, that each case must be decided on its own merits. It therefore appears as though, in Yamashita United States Supreme Court was, in theory, applying the same principles as were used in the European theatre trials while, at the same time, overlooking the facts attendant to the particular case before them.

104. It is, however, the dissenting decision of Justice Murphy[194] that has attracted greatest attention. For example, Justice Murphy observed:

     Nothing in all history or in international law, at least as far as I am aware, justifies such a charge against a fallen commander of a defeated force. To use the very inefficiency and disorganization created by the victorious forces as the primary basis for condemning officers of the defeated armies bears no resemblance to justice or to military reality.

     International law makes no attempt to define the duties of a commander of an army under constant and overwhelming assault; nor does impose liability under such circumstances for failure to meet the ordinary responsibilities of command. The omission is understandable. Duties, as well as the ability to control troops, vary according to the nature in intensity of the particular battle. To find an unlawful deviation from duty under battle conditions requires difficult and speculative calculations. Such calculations become highly untrustworthy when they are made by the victor in relation to the actions of vanquished commander. Objective and realistic norms of conduct by then extremely unlikely to be used in forming a judgment as to deviations from duty. The probability that vengeance will form the major part of the victor's judgment is an unfortunate but inescapable fact. So great is that probability that international law refuses to recognize such a judgment is a basis for war crime, however fear the judgment may be in a particular instance. It is this consideration that undermines the charge against the petition in this case. The indictment permits, indeed compels, the military commission of a victorious nation to sit in judgment on the military strategy and actions of the defeated enemy into use its conclusions to determine the criminal liability of an enemy commander.[195]

     Justice Murphy further opined:

     No one denies that inaction or negligence may give rise to liability, civil or criminal. But it is quite another thing to say that the inability to control troops under highly competitive and disastrous battle conditions renders one guilty of a war crime in the absence of personal culpability. Had there been some elements of knowledge or direct connection with the atrocities the problem would be entirely different (emphasis).[196]

105. The dissenting opinion of Justice Murphy gives credence or support to the Yamashita defence before the Tribunal that his inability to control troops under his command was caused in large part by the successful American battle. Justice Murphy further appeared to give credence to the fact that the Japanese forces were organizationally deficient, lacked sufficient supplies and training. Further the dissent also noted that the fact that certain naval components involved in the atrocities while under the theoretical command of General Yamashita were receiving their orders through the naval chain of command.

106. It is arguable that United States Supreme Court in the Yamashita decision accepted that there is a positive obligation upon a commander to take steps to prevent acts of criminal behaviour, and when the same have taken place, to appropriately deal with them. However in rejecting the appeal, and notwithstanding the fact that the appeal was based upon a jurisdictional argument, it is arguable that the Supreme Court in the obiter in this case imposed a level of strict liability on a commander or superior for the conduct or criminal behavior of subordinates.

     Tokyo Tribunal[197]

107. In 1946, General Douglas MacArthur established the International Military Tribunal for the Far East. This tribunal was mandated to try senior Japanese officials (both military as well as civilian) accused of having committed war crimes in what was described as the Far Eastern Theatre of the War.[198]

108. In addressing the defence of superior orders Article 6 of the statute of this tribunal bears a remarkable similarity to the Nuremberg Charter. In this statute Article 6 recited:

     Neither the official position, and any time, of an accused, nor the fact that an accused acted pursuant to order of his government or of a superior shall, of itself, be sufficient to free such accused for responsibility for any crime with which he is charged, but such circumstances may be considered in mitigation or punishment if the Tribunal determines the justice or requires.[199]

109. The principles that the Tribunal applied in the case of General Yamashita were further considered in the trial, in Tokyo, of twenty-two former Japanese officials who were charged with, inter alia, war crimes. Amongst those put on trial were former members of the Japanese Cabinet, former high-ranking military officers and, as well, senior officials who had responsibility for the custody care and control of prisoners of war.[200] This Tribunal chose to define command responsibility as:

     if this accused knew, or should by the exercise of ordinary diligence have learned, of the commission by his subordinates... of the atrocities... or of the existence of 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.[201]

110. This Tribunal ruled that, firstly both military personnel as well as civilian officials could be found culpable for war crimes. The Tribunal in refining the same noted that such culpability would attach where either the individual was aware, or in the alternative, should have been aware and failed to take any action of crimes by subordinates. As a corollary, however, the Tribunal also found that if an individual did not have direct responsibility (for those upon whom the crimes were committed) that no such duty attached.[202] In point of fact the Tribunal attached a positive obligation to both military as well as civilians who either had custody of individuals, or, in the alternative, were concerned with their well-being.

111. The Yamashita reasoning was, in this case, modified by the imposition of either actual, or in the alternative, constructive knowledge attaching to be accused for the criminal acts of subordinates.[203] The Tribunal further held that 'constructive' knowledge would be either inferred, or found where information of criminal acts were contained in reports either given to, or in the alternative, intended to be read by the commander.[204]

     Hideki Tojo

112. In refining or elaborating on the decision in the case of General Yamashita, the Tokyo Tribunal in its trial of former Minister of War as well as former Prime Minister Tojo held that once a superior (either military or civilian) has knowledge of war crimes he is under a positive obligation to deal with the same aggressively. The Tribunal considered Tojo's actions subsequent to his being told of the 'Bataan Death March'.[205] The Tribunal found, as a matter of fact, that Tojo was aware of not only the march, but, of the substantial number of casualties and deaths that resulted from it. The Tribunal noted that while he may have made certain preliminary inquiries or observations concerning this matter that he (Tojo) did not demand a detailed investigation nor did he order criminal proceedings against those involved. The Tribunal found, further, that Tojo was aware of either situations or instances where prisoners of war had been mistreated, and again, the Tribunal found him culpable for not instituting any punitive action.[206]

     Koki Hirota

113. The Tribunal, as well, set a standard by which a superior may be deemed to have knowledge of criminal acts committed by his subordinates, and the obligations that arise from the same. At all material times Hirota (1933-1938) was the Japanese Foreign Minister. The Tribunal found that he would have had notice of the war crimes committed by Japanese forces when they captured Nanking[207] as a result receiving diplomatic memoranda or through the international media. The Tribunal accepted that Hirota had made initial inquiries, and the Tribunal further found that he had received assurances from the Ministry of War that the ongoing acts would be halted. The Tribunal found, however, that subsequent to the receipt of advises to the effect that the criminal conduct would be terminated, the same continued for approximately another four weeks. The Tribunal held that Hirota had a positive obligation to take necessary steps to ensure that this conduct was terminated and that he failed by not so-doing. The Tribunal further found Hirota criminally culpable in not demanding from his Cabinet colleagues that immediate action be taken.[208]

     Iwane Matsui

114. General Matsui was the commander of the Japanese China Expeditionary Forces (1937-1938. The Tribunal found that forces under his overall command responsible for the atrocities that took place in Nanking. The Tribunal while accepting evidence that General Matsui had issued orders to the effect that war crimes were not to be committed, noted that given the amount of time during which these atrocities took place that General Matsui had to have had knowledge that his orders were not being followed, and in point of fact, were being ignored. The Tribunal further found that General Matsui had both the responsibility as well as the authority to prevent the (ongoing) atrocities and added that in taking no action to control his subordinates he attracted criminal culpability.[209]

115. As a corollary, the Tribunal also noted that a staff officer (of subordinate rank) while he may have known of the criminal conduct would nevertheless attract no criminal culpability if he had no direct authority to halt the same.[210]

     The Middle East - Suez Crisis-1956

     Kafr Qassem

116. An Israeli military court considered the issue of both command responsibility as well as superior orders and applied the same to lower ranking superior-subordinate situations. As a result of the 1956 Suez Canal crisis Israel occupied, through force of arms the Sinai Peninsula. During the early stages of this occupation a general curfew was imposed on a number of the local communities.[211] At or near the village of Kafr Qassem, in breach of a curfew order, a number of civilians were in the process of returning to the village when members of the Israeli army killed them.

117. For purposes of this case, the Court noted that the victims of this incident had no knowledge of the outstanding curfew order. The soldiers involved in the actual shooting were not members of the Israeli army regular forces, but were police border guards who had been called up from reserve to active status. This group of soldiers were under the command of a junior ranking officer who was, and the time of shooting, not specifically with the unit in question. The Court found that he had been in the area at all material times and had the ability to be in contact with his troops. The Court further found that the soldiers in question had been given a direct order by the junior officer (a lieutenant) that violators of the curfew order were to be shot irregardless of who they were. There was a finding of fact that the order had been given, originally by a brigadier and the same had been passed down the chain of command.

118. The junior officer was charged. While the military Court noted that even though he was not with his men when shooting took place that nevertheless he was in the general area, and not only did he know that the incident was taking place he took no steps to intervene or stop it. The Court found that the failure of the junior officer in this case was equivalent to him acting as an accomplice.[212]

119. The Court accepted evidence that the order in question had come down through the chain of command, and, in particular, it attached culpability to the officer of field grade. The Court specifically found, in attaching culpability for murder that this officer either new, or had to have known that the people out and about this village would likely be civilians, and in all probability would be Arab and not Israeli.

120. The Court specifically commented that, "a reasonable soldier can distinguish a manifestly illegal order on the face of it, without requiring legal counsel and without using the law books" and of further significance is the notation that, "a commander of any rank must consider the order he issues and also its legality".[213]

121. Two private soldiers were acquitted of charges of murder noting that the orders that they received to fire on the civilians had been without advance warning and that they had not had the opportunity or time to consider whether the order was criminal in its nature.[214] The Court, however, did convict one corporal and three other privates holding that they had sufficient time to consider the killing of seventeen civilians, particularly, after having heard and seen women begging for their lives.[215]

     Viet Nam

     My Lai

122. Perhaps the most well known military trial during the second half of the twentieth-century surrounds the incident that took place in the Vietnamese hamlet of My Lai on or about March 16, 1968. Amongst others, William Calley was charged and appeared before military courts. While this incident focused in part on the issues of both command responsibility as well as superior orders, it, as well, also demonstrated that subordinates can legitimately refuse to undertake criminal actions notwithstanding direct orders from a superior.

123. In this fact situation, an infantry platoon led by Lieutenant Calley entered the village of My Lai anticipating substantial resistance. This resistance did not occur, but rather the soldiers met only civilians, mostly women and children. The facts demonstrated that Calley, himself opened fire on groups of unarmed civilians, and, as well, ordered one of his subordinate soldiers (Meadlo), to do the same. The material further indicated that Calley had also ordered two other subordinate soldiers to open fire on civilians but they refused to obey that order.[216]

     William Calley

124. Lieutenant Calley was convicted of murder of a number of innocents in the village of My Lai. The thrust of his defence was that the evening before this mission, while being briefed by his superior (Medina), he had given orders that "they were to kill every living things--- and under no circumstances were made to leave any Vietnamese behind them".[217] Medina denied giving that order, although, at trial evidence was tendered both supporting as well as refuting the position of Calley in this regard.

125. The Court then, in its majority decision, considered Calley's defence, and noted:

     A determination an order is illegal does not, of itself, assign criminal responsibility to the person following the order for acts only in compliance with it. Soldiers are trained to follow orders, and special attention is given to obedience of orders on the battlefield. Military effectiveness depends upon obedience to orders. On the other hand, the obedience of the soldier is not the obedience of an automaton. A soldier is a reasoning agent, not a machine, but a person. The law takes these factors into account in assessing criminal responsibility for acts only in compliance with illegal orders.

     The acts of a subordinate done in compliance with a lawful order given him by his superior are excused and impose no criminal liability unless the superior's order is one which a man of ordinary sense and understanding would, under the circumstances, known to be unlawful, or if order in question is actually known to the accused to be unlawful.[218]

126. The Court was clear in its judgment that even if the order, as alleged by Calley had been given to him, so long as he actually knew the same to be illegal that the defence of superior order would be of no avail[219] and by extrapolation any subsequent continuing orders given by Calley would also be illegal.

127. The Court then canvassed the issue of what standard were to be applied if no actual knowledge of illegal order was found as a matter of fact, and the judgment notes:

     Unless you find beyond reasonable doubt that the accused acted with actual knowledge that the order was unlawful, you must proceed to determine whether, under the circumstances, a man of ordinary sense and understanding would have known the order to be unlawful.......(T)he standard is that of a man of ordinary sense and understanding under the circumstances.[220]

128. In a separate, although concurring judgment the case report notes:

     An act performed manifestly beyond the scope of authority, or pursuant to an order then a man of ordinary sense and understanding would know to be illegal, or are in a wanton manner in the discharge of lawful duty, is not excusable.[221]

129. In an interesting footnote to the Calley decision is the dissent of the Chief Judge of the Court who noted that standard to be applied is not 'the man of ordinary sense' but rather: I am also convinced that the defence of superior orders should have as its principal objective fairness to the unsophisticated soldier and those of somewhat limited intellect who nonetheless are doing their best to perform their duty.[222]

130. This dissent also makes reference to evidence given by Calley to the effect that even though he knew that prisoners were to have been treated with respect, nevertheless, he also believed that where villagers had been left behind that soldiers received sniper fire from the rear. While this dissent goes no further than this comment, as part of an opinion that a new hearing ought to be given, nevertheless, consideration has to be given as to whether or not this part of the judgment referred by implication to the World War I Crusis case.[223]

     Ernest Medina

131. Ernest Medina (the only other officer brought to trial as a result of the My Lai incident) was charged with the killing of over one hundred Vietnamese civilians. One of the fundamentals of the case against Captain Median was the issue of command responsibility. It was the thrust of the case against him that as the officer in command of the infantry company, he was responsible, and therefore, accountable for the actions of his subordinates, particularly, if he knew that the killings were either taking place or were about to take place. The thrust of this is encompassed by the summation of the case made by the prosecution as noted by the summary of Judge Howard:

     ...The prosecution also alleges that captain Medina was in radio contact through the operation with his platoons. It is contended that the accused was aware of almost from the beginning of the operation that units of his company were receiving or hostile fire and in fact early in the morning ordered his men to conserve ammunition. The prosecution also contends that sometime during the morning hours of 16 March 1968, the accused became aware that his men were probably killing noncombatants. It is contended that this awareness arose because of the accused's observations, both by sight and because of the conversation between.... and the accused. The contention is further made that the accused, as company commander, had a continuing duty to control the activities of his subordinates which activities were being carried out as part of assigned military mission, and this became particularly true when he became aware that the military duties were being carried out by his men in an unlawful manner. The prosecution contends that captain Medina, after becoming aware of the killing of noncombatants by his troops, declined to exercise his command responsibility by not taking necessary and reasonable steps because his troops to cease the killing of noncombatants. It is further contended by the prosecution that the accused became aware of these acts of his subordinates, and before he issued an order to cease fire, the number of unidentified Vietnamese civilians were killed by his troops.... It is the prosecution's contention that the accused was capable of controlling his troops .... but once learning he had lost control of his unit, he declined to regain control for a substantial period of time during which the deaths of unidentified Vietnamese civilians occurred. It is finally the prosecution's contention that as a commander the accused, had a duty to interfere (and) he may be held personally responsible because his unlawful inaction was the proximate cause of unlawful homicides by his men.[224]

132. The brief of law filed by the prosecution in the case against Medina contained the following:

     ...The military commander has complete and overall responsibility for all the activities within his unit. He alone is responsible for everything his unit does or does not do. This command responsibility does not, of course, extend to criminal responsibility unless the commander knowingly participated in the criminal acts of his men or knowingly fails to intervene and prevent the criminal acts of his men when he had the ability to do so.

     Military commanders may also be responsible for war crimes committed by their subordinates, 'When troops commit massacres and atrocities against the civilian population in occupied territory or against prisoners of war, but responsibility the rests not only with the actual perpetrators and also with the commander... The commander is also responsible if he had actual knowledge, or should have knowledge through reports received by him or other means, that troops or other persons subject to his control are about to commit or have committed a war crime and he fails to take the necessary and reasonable steps to insure compliance with the law or to punish violators thereof'.[225]

133. Of particular note however are the instructions on the law given to the jury panel by Judge Howard. In particular is the portion of the charge to the jury:

     In relation to the question pretending to the supervisory responsibility of a Company Commander, I can advise you that as a general principle of military law and custom a military superior in command is responsible for, and in the performance of his command duties, to make certain the proper performance by his subordinates on their duties as assigned by him. In other words, after taking action or issuing an order, a commander must remain alert and make timely adjustments as required by a changing situation.

     Furthermore, a commander is also responsible if he has actual knowledge that troops or other persons subject to his control or in the process of committing or about to commit or war crime and he wrongfully fails to take the necessary and reasonable steps to insure compliance with law of war. You will observe that these legal requirements placed upon a commander require actual knowledge plus or wrongful failure to act. Thus mere presence at the scene will not suffice. That is, the commander-subordinate relationship alone will not allow inference of knowledge. While it is not necessary that a commander actually see an atrocity being committed, it is essential that he knows that his subordinates are in the process of committing atrocities or are about to commit atrocities (emphasis).[226]

134. Professor Green correctly observes:

     It is somewhat difficult to appreciate Colonel Howard's remark the mere presence at casino in an atrocity is insufficient. Surely a commander so present must have knowledge of what his troops are doing. Lack of such knowledge suggests an indifference amounting to a failure to command. In Medina's case there was a further complication. He confessed that he subsequently knew of the massacre, but decided to hush up instead of taking steps to punish or report its perpetration or those responsible therefore.[227]

     In a final reference to the military judge's instruction Professor Green notes:

     That their deaths resulted from the omission of the accused in failing to exercise control or subordinates subject to his command after having gained knowledge that his subordinates were killing noncombatants, in or are at the village of My Lai ....;[228]

135. It is more than arguable that, firstly the military judge misapprehended in the standard to be imposed upon a military commander, and, secondly, that this jury instruction represented a retrograde step in the development of the law of commander responsibility.

     1977 Protocol Additional to the Geneva Conventions

136. The issue of command responsibility was addressed, and to a degree clarified by the 1977 Protocols to the Geneva Conventions.[229] Article 86(2) of the Protocol I notes:

     The fact the breach of the Conventions or of this Protocol was committed by a subordinate does not absolve his superiors from penal or disciplinary responsibility, as the case may be, if they knew, or had information which would have enabled them to conclude in the circumstances at the time, that he was committing or was about to commit such a breach and if they did not take all feasible measures within their power to prevent or repressed such a breach.[230]

137. While Article 86(2) deals with the 'Failure to Act' the same must be read in conjunction with the subsequent article that specifically addresses the issue of the responsibility or 'Duty of the Commanders'. Specifically Article 87(1) and (3) note:

     The High Contracting Parties and the Parties to the conflict shall require military commanders, with respect to members of the armed forces under their command and other persons under their control, to prevent and, where necessary, to suppress and to report to competent authorities breaches of the Conventions and of this Protocol. 3. The High Contracting Parties, and Parties to the conflict shall require any commander who was aware that his subordinates or other persons under it his control are going to commit or have committed a breach of the Conventions or of this Protocol, to initiate such steps as are necessary to prevent such violations of the Conventions or of this Protocol, and where appropriate, to initiate disciplinary or penal action against violators thereof.[231]

138. This Protocol attaches responsibility to superiors in those particular situations where they had knowledge, either actual or constructive, that would have given them reason to believe that a prohibited act had either occurred, or in the alternative was about to occur. Liability would attach to the superior where information had been given and was then either disregarded or ignored by the superior. Further liability could also attach to the superior in a situation where the information given had acted upon, but, the action(s) taken may have been totally inadequate in the circumstances then and there are prevailing.

139. While Article 86 addresses the issue of 'Failure to Act' it specifically uses the term 'superior' suggesting that so long as the relationship between subordinate and superior is in existence the obligation attaches. Article 87, is more specific in attaching liability to military commanders for actions of their military subordinates, but also, for the actions of 'other persons under their control'. This phrase carries foreword the judgments of the World War II trials, but, in addition, also now clearly makes military commanders being responsible for the actions of 'non-military' (civilian) personnel under their control (as distinct from command).

140. It is further clear that this Article also requires that a proactive posture be maintained on an ongoing basis by the superior to keep control of the activities of their subordinates. However, the Article does not impose an absolute or totally inflexible standard of conduct on the superior, but, rather, obliges the superior to undertake steps or measures that are, firstly, practicable, and, secondly, 'within their power'. This article modifies, by codification the liability standard that was imposed upon commanders by the Tribunal in Yamashita.

141. Lastly, Article 91 makes the 'Party to the conflict' as distinct from a 'High Contracting Party' responsible "for all acts committed by persons forming part of its armed forces'.[232]

     South Lebanon, 1982

142. In September 1982 the President-elect of Lebanon, a Christian Phalangist, was assassinated. As a result of this incident the Israeli government ordered the Israeli army into portions of west Beirut ostensibly to prevent further hostilities between the Christian and Muslim armed groups.

     Sabra and Shatilla

143. Subsequent to the Israeli army occupation of west Beirut the Israelis, themselves, did not attack or enter the two (Sabra and Shatilla) refugee camps, but, rather, directed that the Phalangists do the same. Over a two-day period whilst the Phalangists were in the two refugee camps, more than seven hundred civilians were killed.[233]

144. Subsequent investigations did not indicate that the Israeli army had participated in this mass murder, nor was there any indication that the actual killings were visible from the Israeli observation posts outside of the camp.[234] However subsequent inquiries indicated that within the senior responsible ranks of the Israeli army it was understood that there was a very high degree of hatred towards the Palestinians on the part of the Phalangists, and that they (the Phalangists) would probably have little respect for any rule of law towards innocent (Muslim) civilians. There was, as well, some indication that certain Israeli army officers had cautioned the Phalangists about engaging in revenge killings.[235]

145. Subsequent to this event, and notwithstanding international outrage, no charges (either military or civilian) were brought as against any member of the Israeli army or any member of the Israeli government. However the Israeli government did strike a formal commission of inquiry[236] and while the findings of the same were to the effect that the actual killings had been done by the Phalangists that, nevertheless, a high degree of responsibility lay with members of both the Israeli government as well as the Israeli military.[237]

     The Kahan Report

146. While the purpose of the Kahan Commission was to inquire into the killings in the refugee camps.[238] The Commission itself did not consider itself limited by either (then) existing domestic or international legal limitations in its attempt to attach liability to both civilian as well as military personnel. It can be strongly argued that this Commission extended, by the scope of its inquiry, the doctrine of command responsibility. Little attention was given to the actual decision to allow the Phalangists to enter the camps, but, rather, the focus was the accountability at various levels for failing to consider the possible effects of the Phalangist actions and failure on the part of Israeli officials to take necessary precautions considering the same.[239]

147. Further, this Commission extended the doctrine of command responsibility by attaching culpability to both senior civilian as well as senior military personnel who had simple 'notice'.[240] The result was to the effect that not only were those, of rank, who were aware of potential criminal conduct, were exposed to liability for failing to take positive action, but, as well, senior officials also attracted culpability for having simple notice and doing nothing.

148. The Kahan Commission also attached liability to commanders who failed to pass on information of relevance up the appropriate chain of command or to the appropriate senior civilian officials.[241] The Commission further expanded the concept of command responsibility by holding that once the decision had been made to allow the Phalangists to enter the camps that an obligation arose to both monitor the actions of the Phalangists, and, at the same time, to take whatever steps necessary to protect the civilian occupants of these camps.[242]

149. The Kahan Commission further imposed a continuing command responsibility obligation by holding that as soon as information is received as to criminal conduct that immediate action, on the part of those in authority, must be taken.[243] The net effect of the findings of the Kahan Commission was that the criminal actions of those outside of a formal chain of command are still the responsibility of those in authority even if the control (as distinct from command) is of an informal as distinct from formal structure.[244]

     Menachem Begin

150. The Commission found, as a matter of fact, that the Prime Minister had not participated in the decision to allow the Phalangists into the refugee camps. Further, the Commission found no fault with the fact that the Prime Minister had relied upon reports from the Defence Minister that the military operations in west Beirut were preceding 'without any hitches and in the most satisfactory manner'. It was further found, again, as a matter of fact, that even though he had been party to a cabinet meeting during which the Deputy Prime Minister had warned of possible 'danger to be expected from the Phalangist's entry into the camps' the Prime Minister may not have been paying attention to the same.

151. Of particular note is the comment contained in the report:

     We have already said above, when we discussed the question of indirect responsibility, in review, because of things that were well known to all, it should have been foreseen that the danger of the massacre existed if the Phalangists were to enter the camps without measures being taken to prevent them from committing acts such as these. We are unable to accept the Prime Minister's remarks that he was absolutely unaware of such a danger.... The Prime Minister was aware of the mutual massacres committed in Lebanon during the civil war, and of the Phalangist's feelings of hatred for the Palestinians, whom the Phalangist held responsible for all the calamities that befell their land.... However, in light of what has already been noted above regarding foresight and probability of acts of slaughter, we are unable to accept the position of the Prime Minister that no one imagined then what happened was liable to happen, or what follows from his remarks that this possibility did not have to be foreseen