July 9, 2000

MEMO FOR HAK

FROM: Rose

RE: *Nuremberg and Vietnam* by General Telford Taylor

I thought you might want to have the book, which I broke into two parts because it got rather fat when I enlarged it.

I will incorporate more considered pointers as I redo Hitchens' chapter 3 which raises the Taylor argument on war crimes, but I can tell you now that Hitchens has used this book out of context.

For one thing, this is a book about Democrats when it gets to the Vietnam chapters - see *Book II*. Hitchens is very clever. In his chapter 3 [*Trial*, p. 25] he refers to Taylor's writings of 1971 [probably a later reprint] - thereby putting it more in the Nixon administration. In fact, the book was first published in 1970 and you know how long publishing takes in academic circles.

To wit, Nixon is mentioned only three times mostly in passing - 106, 126 and 196, and not unhelpfully. *You* are not mentioned *at all*.

On 188, Taylor says of war crimes charges: "Why did things go wrong? Some say it is because our leaders were war criminals. Whether or not that be so, it is an unsatisfactory answer to terms of causation, for it assumes that the leaders wanted things to turn out as

they have, whereas in fact it is plain that those
responsible are exceedingly dissatisfied with the
present consequences of their policies."

And on war blame (205), "It was not President
Kennedy himself, but the men he brought to
Washington as advisers and who stayed on with
President Johnson - the Rusks, McNamaras, Bundys,
and Rostows - who must bear major responsibility for
the war and the course it took."

## ABOUT THE AUTHOR

Professor of Law at Columbia University, Telford Taylor derives his observations in NUREMBERG AND VIETNAM: AN AMERICAN TRAGEDY from his experience as chief counsel for the prosecution, with the rank of brigadier general, at the Nuremberg war-crimes trials. He also served in various official capacities during the Roosevelt and Truman administrations.

A quarter-century ago at Nuremberg, the defeated leaders of Nazi Germany were convicted of war crimes by an international tribunal. Speaking for the United States, Robert H. Jackson condemned not only Germany's aggression but also aggression by any other nations, "including those which sit here now in judgment."

Now the wheel may have spun full circle. Fingers of accusation are pointed at America herself and, worse yet, many of the pointing fingers are our own. A disturbing historic parallel is said to exist between Nuremberg and Vietnam.

In his thoughtful new book, Telford Taylor probes the exact nature of this parallel. Drawing on his profound knowledge of international law and his experience as chief U.S. prosecutor at the original Nuremberg trials, General Taylor confronts every reader with such urgent questions as these:

* Can we apply the legal principles established at Nuremberg to America's involvement in Vietnam?

* Is there justice in the charge that American leaders are as guilty of launching a war of aggression in Vietnam as Hitler was when he invaded Poland?

* Is it right to compare what Americans are charged with doing at Son My (My Lai) with what the Germans did at Lidice?

* Are we capable of judging American actions by the same standards we helped to set for the Germans twenty-five years ago? If we did apply these standards, what would our judgment be?

To discuss these questions, General Taylor ranges across the entire history of the "laws of war," showing the antecedents of the Nuremberg trials and why, for the most part, the judgments there were within the scope of international law. And he offers provocative insights into the meaning of the Son My killings as a war crime under the Nuremberg principles, and into the actual level of responsibility for war crimes.

A New York Times Book published
by Quadrangle Books/Chicago

OTHER BOOKS BY Telford Taylor

Sword and Swastika:

Generals and Nazis in the Third Reich

The March of Conquest

The Breaking Wave

Grand Inquest:

The Story of Congressional Investigations

Two Studies in Constitutional Interpretation

Copyright © 1970 by The New York Times Company.
All rights reserved, including the right to reproduce
this book or portions thereof in any form. For information,
address: Quadrangle Books, Inc., 12 East Delaware Place,
Chicago 60611. Manufactured in the United States of America.
Published simultaneously in Canada by
Burns and MacEachern Ltd., Toronto.
Library of Congress Catalog Card Number: 74-138904

The soldier, be he friend or foe, is charged
with the protection of the weak and un-
armed. It is the very essence and reason
for his being. When he violates this sa-
cred trust, he not only profanes his entire
cult but threatens the very fabric of in-
ternational society. The traditions of fight-
ing men are long and honorable. They are
based upon the noblest of human traits-
sacrifice.

-GEN. DOUGLAS MACARTHUR, 1946, confirming the
death sentence imposed by a United States military
commission on General Tomayuki Yamashita.

Introduction

A QUARTER OF A CENTURY has passed since
Robert H. Jackson, speaking for the United States
of America, opened the war crimes trials of Nazi
German leaders at Nuremberg.

The event cast a long shadow into the future. In
Germany, war crimes trials arising from the Second
World War are being held to this very day. In the
United States, far from being forgotten, the Nurem-
berg trials are invoked today, not in connection
with a war that is ancient history to everyone under
50, but as part of the seething, anguished debate
over the war in Vietnam, which is shaking our
society to its foundations.

"While this law is first applied against German aggressors," said Jackson in his address to the Nuremberg tribunal, "if it is to serve any useful

12 INTRODUCTION

purpose it must condemn aggression by any other
nations, including those which sit here now in
judgment." As he spoke those words, many eyes
in the courtroom shifted to the faces of the two
Soviet members of the court, the judicial represen-
tatives of a country that had invaded Poland in
1939 and Finland in 1940 and was widely believed
to have been responsible in 1941 for the slaughter
of thousands of Polish prisoners-of-war in the Katyn
forest. That Jackson's admonition went unheeded
by the Russians in later years—Hungary in 1956,
Czechoslovakia in 1968—has been the general opin-
ion in the United States. After years of the Iron Cur-
tain and the Berlin wall, most Americans have no
more difficulty in condemning aggressions and
atrocities by the Reds today than they did in the
past when brown and black uniformed Nazis and
Fascists were the culprits.

But now the wheel has spun full circle, and the
fingers of accusation are pointed not at others for
whom we have felt scorn and contempt, but at
ourselves. Worse yet, many of the pointing fingers
are our own. Voices of the rich and poor and black
and white, strident voices and scholarly voices, all
speaking our own tongue, raise question of the
legality under the Nuremberg principles of our
military actions in Vietnam, and in Cambodia as
well. Accounts of the conduct of American troops,
especially at Son My in March, 1968, have stung
the national conscience as nothing else since the
days of slavery, and again Nuremberg is invoked
as the symbol of condemnation.

What are the Nuremberg legal principles, and

INTRODUCTION 13

what is their meaning today as applied to American
involvement in Vietnam? When we sent hundreds
of thousands of troops to South Vietnam, bombed
North Vietnam, and moved into Cambodia, were
our national leaders as guilty of launching a war of
aggression as were Hitler and his generals when
they invaded Poland, or Belgium, or Greece, or
other countries that were way-stations on the Nazi
march of conquest? Will Son My go down in the
history of man's inhumanity bracketed with Katyn,
Lidice, Oradour, Malmédy, and other names that
still ring sadly in the ears of those old enough to
have heard the sound? More generally, are the
people of the United States able to face the propo-
sition that Jackson put forth in their name, and
examine their own conduct under the same princi-
ples that they applied to the Germans and Japanese
at the Nuremberg and other war crimes trials?

These are the questions this book will examine. In undertaking this discussion, I have endeavored to avoid assumptions and preconceptions as to how these questions should be answered, since I believe that they need to be considered quite as carefully and urgently by those who execute or support our Vietnam policies as by those in opposition.

For these purposes, the term "Nuremberg trials"
should not be taken as limited to the precise rulings
of the Nuremberg courts, but in its broad sense, as
standing for all the war crimes trials that followed
in the wake of the Second World War, and the
ideas they have generated. Today, "Nuremberg" is
both what actually happened there and what people
think happened, and the second is more important

14 INTRODUCTION

than the first. To set the record straight is, no doubt,
a useful historical exercise, but sea change is itself a
reality, and it is not the bare record but the ethos of
Nuremberg with which we must reckon today.

Put another way, Nuremberg is not only what
was said and done there, but also what was said
about it, then and subsequently. By no means all
that has been said is favorable. The late Senator
Robert A. Taft is the best remembered of Nurem-
berg's contemporaneous critics, largely because his
statements won him an accolade in the late Presi-
dent Kennedy's widely read book, "Profiles in Cour-
age." But the very fact that Taft was cited for
bravery signifies the overwhelming praise and ap-
probation that the American public bestowed on
the trials at the time.¹ International approval was
equally impressive; 23 nations adhered to the treaty
under which the first Nuremberg trial was held,
and after its conclusion the General Assembly of
the United Nations affirmed "the principles of inter-
national law" embodied in the Nuremberg judg-
ment.

As the principal sponsor, organizer and executant
of the Nuremberg trials, the United States is more
deeply committed to their principles than any other
nation. Some of those in high places who brought
about our military involvement in Vietnam are well
aware of this, and have sought to justify their
course of action on the basis of those very prin-
ciples. When he was Secretary of State, Dean Rusk
described the organization of a durable peace as
"the great central question of our day," and de-

1. This and other footnotes begin on page 209.

L/C)

## INTRODUCTION 15

clared that checking Communist aggression in Southeast Asia was essential to that aim. Walt Rostow, former special assistant to President Johnson, told a group of college student editors that our "intervention had been based legally on obligations under SEATO [Southeast Asia Treaty Organization] to resist aggression." As the editors of Life magazine put it in 1967: "Most Americans consider South Vietnam to be the victim of aggression and North Vietnam the aggressor. That is what the war is about." These justifications are all based on the view, with which the name of Nuremberg is now associated, that waging aggressive war is a crime.

Needless to say, many Americans do not entertain the views Life attributed to them, and fewer today than when the editorial was printed. The claim that American intervention in Vietnam is itself an aggressive war and therefore criminal—the so-called "Nuremberg defense"—has been put forward by draft card burners, draftees facing induction and soldiers about to be shipped to Vietnam. A young Army doctor, Captain Howard Levy, sought to justify his refusal to give medical training to Green Berets on the ground that his pupils would turn their training to criminal purposes. Since publication of eye-witness accounts of the American action at Son My, such contentions and defenses have multiplied. The North Vietnamese, too, have heard of Nuremberg, and recited its precedent as the basis for trying captured American aircraft pilots as war criminals—a project which Hanoi apparently has now abandoned.

If these several invocations of Nuremberg are

16 INTRODUCTION

diverse and contradictory, that is no reason to dis-
miss the trials as meaningless. We do not scrap
the Constitution because learned judges cannot
agree on the interpretation of its provisions. All pro-
found moral doctrine is broad enough so that its
particular application generates controversy, as is
manifest in the old saying about the Devil's ability
to quote Scripture to his own purpose.

Furthermore, beneath these wildly divergent
views of the Nuremberg precedent there is a com-
mon denominator: that there are some universal
standards of human behavior that transcend the
duty of obedience to national laws. "Your country,
the United States, has established that a citizen
must not go along with policies he believes to be
wrong," we are admonished in a current leaflet²:
"That's what the Nuremberg Trials were all about!"

As a legal and historical matter that is grossly
overstated, but it is fairly representative of views
about Nuremberg that are frequently expressed,
especially by young people. Furthermore, although
the statement is an exaggeration, it is not a total
fabrication; the notion of individual accountability
before the bar of international law lies at the heart
of the Nuremberg judgments, and the reluctance of
the Germans to resist oppressive acts of state is
widely held to have greatly aided the Nazi seizure
of power.

I have used the name "Nuremberg" in the title
of this work because that is the label that time and
usage have affixed to the set of principles and prob-
lems with which the book deals. But the usage is
indicative of a prevalent but wholly mistaken no-

INTRODUCTION 17

tion that the Nuremberg trials were the original
source of these principles. It is important to cor-
rect this misconception, for it distorts the entire
matter by concealing the antiquity of these vexing
questions, and the depth to which they permeate
the moral and political history of mankind. Symbol
though it be, Nuremberg is but one of many points
of reference in the course of men's efforts to use law
as a vehicle for mitigating the ravages of war, and
eventually abolishing war itself.

Thus the true sources of today's crisis of con-
science over our intervention in Vietnam, and the
consequences it has entailed, long antedate the
Second World War and the Nuremberg aftermath.
Accordingly, I have devoted the first part of this
book to a brief description and analysis of the major
legal concepts upon which the Nuremberg and
other war crimes trials are based. Thereafter I have
endeavored to show what the Nuremberg experi-
ence contributed to the development of these con-
cepts, and finally to examine their application to the
Vietnam war, and to conscience-stabbing episodes
such as those at Son My.

The reader will soon see that the questions are
difficult, and that many are answered inadequately
or not at all. But it is my hope that he will put down
the book persuaded that, however they may be
answered, these questions must be faced.

19

LC

# 1 War Crimes

**W**HAT IS A "WAR CRIME"? To say that it is a violation of the laws of war is true, but not very meaningful.

War consists largely of acts that would be criminal if performed in time of peace-killing, wounding, kidnapping, destroying or carrying off other peoples' property. Such conduct is not regarded as criminal if it takes place in the course of war, because the state of war lays a blanket of immunity over the warriors.⁹

But the area of immunity is not unlimited, and its boundaries are marked by the laws of war. Unless the conduct in question falls within those boun-

⁹ This concept is very ancient; it is clearly stated by the 12th century compiler of canon law, Gratian: "The soldier who kills a man in obedience to authority is not guilty of murder."

19

20 WAR CRIMES

daries, it does not lose the criminal character it
would have should it occur in peaceful circum-
stances. In a literal sense, therefore, the expression
“war crime” is a misnomer, for it means an act
that remains criminal even though committed in
the course of war, because it lies outside the area
of immunity prescribed by the laws of war.

What, then, are the "laws of war"? They are of
ancient origin, and followed two main streams of
development. The first flowed from medieval no-
tions of knightly chivalry. Over the course of the
centuries the stream has thinned to a trickle; it had
a brief spurt during the days of single-handed aerial
combat, and survives today in rules (often violated)
prohibiting various deceptions such as the use of
the enemy's uniforms or battle insignia, or the
launching of a war without fair warning by formal
declaration.

The second and far more important concept is
that the ravages of war should be mitigated as far
as possible by prohibiting needless cruelties, and
other acts that spread death and destruction and
are not reasonably related to the conduct of hostili-
ties. The seeds of such a principle must be nearly as
old as human society, and ancient literature abounds
with condemnation of pillage and massacre. In more
recent times, both religious humanitarianism and
the opposition of merchants to unnecessary disrup-
tions of commerce have furnished the motivation
for restricting customs and understandings. In the
17th century these ideas began to find expression in
learned writings, especially those of the Dutch jurist-
philosopher Hugo Grotius.

WAR CRIMES 21

The formalization of military organization in the 18th-century brought the establishment of military courts, empowered to try violations of the laws of war as well as other offenses by soldiers. During the American Revolution, both Captain Nathan Hale and the British Major John André were convicted as spies and ordered to be hanged, the former by a British military court and the latter by a "Board of General Officers" appointed by George Washington. During the Mexican War, General Winfield Scott created "military commissions," with jurisdiction over violations of the laws of war committed either by American troops against Mexican civilians, or vice versa.¹

Up to that time the laws of war had remained largely a matter of unwritten tradition, and it was the United States, during the Civil War, that took the lead in reducing them to systematic, written form. In 1863 President Lincoln approved the pro-mulgation by the War Department of "Instructions for the Government of Armies of the United States in the Field," prepared by Francis Lieber, a German veteran of the Napoleonic wars, who emigrated to the United States and became professor of law and political science at Columbia University. These com-prised 159 articles, covering such subjects as "mili-tary necessity," "punishment of crimes against the inhabitants of hostile countries," "prisoners of war," and "spies." It was by a military commission ap-pointed in accordance with these instructions that Mary Surratt and the others accused of conspiring to assassinate Lincoln were tried.

In the wake of the Crimean War, the Civil War

22 WAR CRIMES

and the Franco-Prussian War of 1870 there arose, in Europe and America, a tide of sentiment for codification of the laws of war and their embodiment in international agreements. The principal fruits of that movement were the series of treaties known to-day as the Hague and Geneva Conventions. For present purposes, the most important of these are the Fourth Hague Convention of 1907, and the Geneva Prisoner of War, Red Cross, and Protection of Civilians Conventions of 1929 and 1949.

"The right of belligerents to adopt means of injuring the enemy is not unlimited," declared Article 22 of the Fourth Hague Convention, and ensuing articles specify a number of limitations: Enemy soldiers who surrender must not be killed, and are to be taken prisoner; captured cities and towns must not be pillaged, nor "undefended" places bombarded; poisoned weapons and other arms "calculated to cause unnecessary suffering" are forbidden. Other provisions make it clear that war is not a free-for-all between the populations of the countries at war; only members of the armed forces can claim protection of the laws of war, and if a non-combatant civilian takes hostile action against the enemy he is guilty of a war crime. When an army occupies enemy territory, it must endeavor to restore public order, and respect "family honor and rights, the lives of persons, and private property, as well as religious convictions and practices."

Rules requiring humane treatment of prisoners, and for protection of the sick and wounded, are prescribed in the Geneva Conventions. While there is no general treaty on naval warfare, the Ninth

(LC)

WAR CRIMES 23

Hague Convention prohibited the bombardment of undefended "ports," and the London Naval Treaty of 1930 condemned submarine sinkings of merchant vessels, unless passengers and crews were first placed in "safety."

In all of these treaties, the laws of war are stated as general principles of conduct, and neither the means of enforcement nor the penalties for violations are specified. The substance of their provisions, however, has been taken into the military law of many countries, and is often set forth in general orders, manuals of instruction, or other official documents. In the United States, for example, the Lieber rules of 1863 were replaced in 1914 by an army field manual which, up-dated, is still in force under the title "The Law of Land Warfare."² It is set forth therein that the laws of war are part of the law of the United States, and that they may be enforced against both soldiers and civilians, including enemy personnel, by general courts-martial, military commissions, or other military or international tribunals.

Comparable though not identical publications have been issued by the military authorities of Britain, France, Germany and many other countries. These documents, and the treaties on which they are largely based, are regarded as a comprehensive but not necessarily complete exposition of what is really a body of international common law—the laws of war.

Since the mid-19th century, with increasing frequency, the major powers have utilized military courts for the trial of persons accused of war crimes. An early and now famous trial, depicted in a suc-

24 WAR CRIMES

cessful Broadway play, was the post-Civil War pro-
ceeding against the Confederate Major Henry Wirz
on charges of responsibility for the death of thou-
sands of Union prisoners in the Andersonville prison
camp, of which he had been commandant. War
crimes tribunals were convened by the United
States after the Spanish-American War, and by the
British after the Boer War.

Following the defeat of Germany in the First World War, the Allies demanded that nearly 900 Germans accused of war crimes, including military and political leaders, be handed over for trial on war crimes charges. The Germans resisted the demand, and in the upshot they were allowed to try their own "war criminals." The trials in 1921 and 1922 were not conducted by military courts, but by the Supreme Court of Germany, sitting in Leipzig. From the Allied standpoint they were a fiasco, as only a handful of accused were tried, and of these nearly all were acquitted or allowed to escape their very short prison sentences. The German court did, however, affirm that violations of the laws of war are punishable offenses, and in the *Llandovery Castle* case sentenced two German U-boat officers to four-year prison terms (from which both soon escaped) for complicity in the torpedoing of a British hospital ship and the shelling and sinking of her life-boats.

Such was the state of development of the laws of
war, as the First World War faded into the pages
of history. Twenty years later, as the legions of the
Wehrmacht swarmed over Europe, putting the
monarchs and ministers of the German-occupied

WAR CRIMES 25

nations to flight, London became the capital city of the governments-in-exile. King Haakon of Norway, Queen Wilhelmina of the Netherlands, Grand Duchess Charlotte of Luxembourg, President Benes of Czechoslovakia, the emigré ministers of Belgium and Poland, and General Charles de Gaulle of the Free French found British sanctuary in 1940, and the next year were joined by King Peter of Yugoslavia and King Constantine of Greece.

London was not only the lodestone of the forces bent on the liberation of Europe, but their listening-post as well. By myriad means—clandestine radio messages, reports of spies and couriers, dispatches of neutral diplomats and churchmen—the British and their refugee guests were informed of happenings behind the coastal walls of Adolf Hitler's "Fortress Europe," and the picture thus painted darkened month by month.

Before the end of 1939, the press and radio of the Vatican, on the high authority of August Cardinal Hlond, the Primate of Poland, told their readers and listeners that hundreds of Polish priests had been executed by Heinrich Himmler's SS units. Early in 1940, the United States Embassy in Berlin transmitted news of the wholesale deportation of German Jews to Poland. In the wake of the Nazi conquest of the western European countries in 1940, and of Yugoslavia and Greece in 1941, came a flood of reports describing the round-up of millions of men and women for forced labor in German mines and factories, and occupational regimes of unexampled severity, relying on the taking and frequent execution of hostages to maintain civil order. Soon after

26 WAR CRIMES

the invasion of Russia, the Soviet authorities publi-
cized captured German military orders declaring
that the "supply of food to local inhabitants and
prisoners of war is unnecessary humanitarianism,"
and calling for the most far-reaching confiscation of
all things of value, down to children's boots. Rus-
sian prisoners of war in German hands froze and
starved to death by the millions. And in 1942 came
the first stories, at first incredible but soon con-
firmed, of the mass exterminations of Jews from all
the occupied countries at Auschwitz and other con-
centration camps in Poland—the holocaust de-
scribed by the Nazis as the "final solution of the
Jewish problem."

Thus horror was heaped on outrage, but what
was to be done about it? On Oct. 25, 1941, in
separate but simultaneous declarations, Winston
Churchill and Franklin D. Roosevelt denounced the
executions of hostages in France and other German-
occupied countries. Soon other voices spoke more
explicitly—those of the governments-in-exile in Lon-
don. Representatives of these nine governments
established an "Inter Allied Conference on the Pun-
ishment of War Crimes" which, on Jan. 13, 1942,
promulgated what became known as the "Declara-
tion of St. James." After making reference to the
"regime of terror" instituted by Germany in their
several countries, the signatories expressly repudi-
ated the idea that the perpetrators of these atroci-
ties could adequately be dealt with "by acts of ven-
geance on the part of the general public." On the
contrary, it was declared that "the sense of justice
of the civilized world" required that the signatory
powers "place among their principal war aims the

WAR CRIMES 27

punishment through channels of organized justice,
of those guilty of or responsible for these crimes.”

The following year, with the announced support
of the United States, Britain, and 15 other Allied
governments, the "United Nations War Crimes
Commission" was established in London. The Com-
mission's main functions were to serve as a reposi-
tory for evidence concerning war crimes, compile
lists of individuals accused of their commission, and
make plans for the apprehension and trial of those
accused.

In the United States, as the defeat of Germany
appeared more probable and imminent, the Judge
Advocate General of the Army took the lead in
preparations for war crimes trials at the conclusion
of the war. Late in 1944 his activities were over-
shadowed by decisions at a higher level, which ulti-
mately led to the establishment of the Nuremberg
tribunals. As we will see in a later chapter, most
of the prominent Germans and Japanese accused of
war crimes were tried at Nuremberg and Tokyo be-
fore courts established under international author-
ity, and quite outside the usual channels of military
justice.

But those channels remained open and, numeri-
cally, the Nuremberg and Tokyo trials were a small
part of a very large picture. In Europe, the United
States Army judge advocate was made responsible
for the prosecution of crimes committed against
American troops, or in Nazi concentration camps
that had been overrun and "liberated" by American
forces. Under this authority, some 1,600 German war
crimes defendants (as compared with 200 at Nurem-
berg) were tried before Army military commissions

28 WAR CRIMES

and military government courts, and over 250 death sentences (as compared with 21 at Nuremberg) were carried out. About an equal number were tried by British, French and other military courts established by the countries that had been occupied by Germany.

Precise figures are lacking, but by the spring of 1948 some 3,500 individuals had been tried on war crimes charges in Europe and 2,800 in the Far East, taking no account of trials held by the Soviet Union or China. It would be a conservative estimate that some 10,000 persons were tried on such charges from 1945 to 1950, and during the past 10 years hundreds more have been, and still are being, tried before West German courts. With a few exceptions, these trials were exclusively concerned with violations of the laws of war, and for the most part the charges related to mistreatment either of prisoners of war, or of the civilian populations of occupied countries.

We have looked back at a period of more than a hundred years since the laws of war began to emerge from their ancient form as unwritten rules of conduct, and to take shape in treaties, military manuals and the decisions of military courts established for their enforcement. Despite this century of development, as will be seen, the laws of war remain vague and uncertain in many respects. But a number of basic characteristics are by now manifest, and we should take note of them before examining the application of these laws to the fighting in Vietnam.

The first of these is that the laws of war remain

WAR CRIMES 29

a body of what lawyers call "customary" laws—that is to say, laws that are not created by statutes enacted by legislatures, but develop from societal custom and practice. The reason is very simple: There is no international legislature, and thus no way to give the laws of war statutory form. The laws of war, like much other international law, have grown in somewhat the same manner that the common law of England grew in pre-Parliamentary times, and during the several centuries when very little of the basic civil and criminal law of England was to be found in Parliamentary statutes, but rather in the decisions of the English common-law courts—judge-made law based on custom and precedent.

Treaties such as The Hague and Geneva conventions, and military directives such as the Army field manual are not, therefore, the sources of the laws of war. Official directives may be binding as a matter of national law on the armed forces of the issuing country, and treaties may be binding on the signatory nations. But treaties and manuals alike are only partial embodiments of the laws of war on which they are based. This was clearly recognized in the preamble to the Fourth Hague Convention of 1907, by the statement that questions not covered by the Convention should be resolved by "the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity, and from the dictates of the public conscience." Similar language is to be found in Article 158 of the Geneva Convention of 1949, "For the Protection of Civilian Persons in Time of War," where it is provided that a signatory nation

30 WAR CRIMES

may denounce the treaty, but will nevertheless re-
main bound to abide by the "principles of the law
of nations," which are then described in the same
words used in the Hague Convention.

For present purposes, the highly important con-
sequence of all this is that nations are regarded as
bound by the laws of war whether or not they are
parties to the Hague and Geneva Conventions. In
fact, not all countries have signed those treaties,
and nonsigning countries have sometimes declared
that they would nevertheless agree to observe them,
and sometimes have said the opposite, or nothing
at all. Nonsignatory nations are, to be sure, not
bound by the precise wording and detailed pre-
scriptions of the treaties, but, as the 1949 Geneva
Convention expressly provides, they are bound by
the customary laws of war from which the treaties
are derived.

Of course, the reference in the Hague Conven-
tion preamble to "civilized" nations suggests what
is obvious: that savage tribes may not be held to
standards of conduct wholly unfamiliar to them.
But the days of Custer and Kipling are over, and in
the true tales of those years the colonial soldier
comes off little better than the savage. Whether to-
day we are all civilized or all barbarians, the dis-
tinction is no longer of much importance so far as
concerns the applicability of the laws of war.

A second and very basic characteristic of the
laws of war and war crimes is that, as these names
indicate, they concern only conduct which is di-
rectly related to war—to hostilities in progress be-
tween organized belligerent forces. When the Nazis
killed or assaulted German Jews in Germany, that

WAR CRIMES 31

may have been a crime, but it was not a war crime. At Nuremberg, an effort was made to give such domestic atrocities international significance under the expression "crimes against humanity," and today they would no doubt be covered by the international treaty defining and condemning "genocide," which most nations (not including the United States) have signed. "Genocide" and "crimes against humanity" will be pertinent to the discussion at a later point, but clarity requires that they be distinguished from the "war crimes" with which we are presently concerned.

This does not mean that a war that brings the laws of war into effect must be an international war. It may be a civil war; as we have seen, it was during our own War Between the States that the first effort to codify the laws of war was made. But traditional war crimes involve the belligerent relation —between the armed forces of the hostile parties, or between armed forces and the civilian population of the enemy country.* The coverage of the Geneva

* It is interesting to note that while most violations of the laws of war consist of homicidal or other acts involving moral obloquy, this is not universally true, even with respect to conduct capitally punishable. A good example is spying. Of course, if one spies against one's own country, then traitorous or even treasonable elements are present. But spying for one's country, though punishable by death under the laws of war (explicitly recognized in Article 68 of the 1949 Geneva Convention on the protection of civilians), is not regarded as ignoble. We think of Major André as a blameless, luckless victim of Benedict Arnold's perfidy, and Nathan Hale is honored with a statue on the Old Campus at Yale and a plaque on the outside wall of the Yale Club in New York City, near where he was hanged by the British in 1776. That spying is not intrinsically criminal is interestingly recognized in Article 31 of the 1907 Hague Convention, which provides that a spy "who, after rejoining the army to which he belongs, is subsequently captured by the enemy, is treated as a prisoner of war and incurs no responsibility for his previous acts of espionage." Thus deterrence of others, not retribution or condemnation, is the object of capital punishment for spies caught in the act.

32 WAR CRIMES

Conventions as amended in 1949 is considerably broader, and extends to all persons "in the hands of" a belligerent or occupying nation of which the persons are not nationals. In Vietnam, where the American forces are operating primarily on the territory of a presumptive ally (South Vietnam), the question whether or not the laws of war are applicable to a given situation may present considerable difficulties.

By now, the reader will surely understand that the laws of war, although a long-established reality with a substantial core of recognized practice, are very fuzzy around the edges. They are also, as we will now see, unstable in the sense that their enforcement is and has always been spasmodic and uneven, and changeable in that the extent to which they are observed may be rapidly altered by the circumstances and techniques of warfare.

In part this is due to the customary nature of the laws of war, and the lack of any authoritative source or means of systematic enforcement. For want of an international legislature, there is no single, authoritative text of the rules, and there are no prescribed penalties for their violation. In the rare instances, such as the Second World War, where hostilities end in total victory for one side, there may be extensive enforcement by the victorious powers against the vanquished. Otherwise, enforcement is limited to proceedings against prisoner of war, or against the enforcing power's own troops. In such an embryonic legislative and judicial context, it is hardly surprising that the effective content of the laws of war should fluctuate.

WAR CRIMES 33

Even more, however, this amorphous, shifting quality of the laws of war is due to the nature of war itself. Otherwise law-abiding individuals will commit crimes in order to save their own lives; national governments will likewise break treaties and international rules, if necessary, for their own preservation. Intrinsically a desperate and violent business, war is not readily limitable in terms of the means to be used in its prosecution. Especially in modern times, war is a rapid breeder of new techniques, the successful use of or defense against which may be incompatible with the continued observance of rules previously respected.

These characteristics of warfare are epitomized in the expression "military necessity." The men who first undertook to give written form to the laws of war were acutely conscious of the bearing of this principle on the task they undertook. In the Lieber rules of 1863, military necessity was defined as "those measures which are indispensable for securing the ends of war, and which are lawful according to the modern law and usages of war."

This definition, neatly if unintentionally, reveals the great dilemma, as yet unresolved, that permeates the very concept of "laws of war." Is there any measure that by assumption is "indispensable for securing the ends of war" that the laws of war can effectively condemn? Or must we not accept Lowes Dickinson's flat verdict that "no rules to restrain the conduct of war will ever be observed if victory seems to depend upon the breach of them"?³

It is interesting to compare what was said about this problem in the Army's field manuals of 1917 and 1956. The earlier version declared that the laws

34 WAR CRIMES

of war were "determined by those principles," as
follows:

First, that a belligerent is justified in apply-
ing any amount and any kind of force which is
necessary for the purpose of the war; that is,
the complete submission of the enemy at the
earliest possible moment with the least expen-
diture of men and money. Second, the principle
of humanity, which says that all such kinds and
degrees of violence as are not necessary for the
purpose of war are not permitted to a belliger-
ent. Third, the principle of chivalry, which de-
mands a certain amount of fairness in offense
and defense and a certain mutual respect be-
tween opposing forces.⁴

Except for the surpassingly vague "principle of chivalry," this is a plain statement of the rule of military necessity; if the use of force is necessary, it is lawful, and if unnecessary, it is unlawful. The 1940 manual was not significantly different, but in the most recent (1956) edition the matter is not at all so clear:

> The law of war places limits on the exercise of a belligerent's power . . . and requires that belligerents refrain from employing any kind or degree of violence which is not actually necessary for military purposes and that they conduct hostilities with regard for the principles of humanity and chivalry.

The prohibitory effect of the law of war is
not minimized by "military necessity" which
has been defined as that principle which justi-

WAR CRIMES 35

fies those measures not forbidden by interna-
tional law which are indispensable for securing
the complete submission of the enemy as soon
as possible. Military necessity has been gener-
ally rejected as a defense for acts forbidden by
the customary and conventional laws of war
inasmuch as the latter have been developed
and framed with consideration for the concept
of military necessity.⁵

The later statement surely rings less harshly in
the ear, but careful reading only heightens its am-
biguity. In any event, no form of words can resolve
the essential difficulty, which is that "necessity" is
a matter of infinite circumstantial variation. To
illustrate the problem in the pragmatic dimension,
two examples may be helpful.

Perhaps the most important of all the laws of war
is the rule that an enemy soldier who surrenders is
to be spared further attack and, upon being taken
prisoner, is to be conducted, as soon as possible, to
safety in the rear of the capturing force. It is "espe-
cially forbidden" under the 1907 Hague Convention
"to kill or wound an enemy who, having laid down
his arms, or having no longer means of self-defence,
has surrendered at discretion." It is equally forbid-
den "to declare that no quarter will be given." And
under the 1949 Geneva Convention on prisoners of
war, they "shall be evacuated, as soon as possible
after their capture, to camps situated far enough
from the combat zone for them to be out of dan-
ger."

Now, these requirements are followed more often

36 WAR CRIMES

than not, and for that reason millions are alive to-
day who would otherwise be dead. But they are
not infrequently violated; the rules read like ab-
solute requirements, but circumstances arise where
military necessity, or even something less, causes
them to be disregarded. In the heat of combat, sol-
diers who are frightened, angered, shocked at the
death of comrades, and fearful of treacherous at-
tacks by enemies feigning death or surrender, are
often prone to kill rather than capture. Under quite
different circumstances, the killing may be done in
cold blood, by order of humane commanders. Small
detachments on special missions, or accidentally cut
off from their main force, may take prisoners under
such circumstances that men cannot be spared to
guard them or take them to the rear, and that to
take them along would greatly endanger the suc-
cess of the mission or the safety of the unit. The
prisoners will be killed, by operation of the prin-
ciple of military necessity,* and no military or other
court has been called upon, so far as I am aware, to
declare such killing a war crime.

An equally striking illustration of the "necessity"
principle may be drawn from the development of
submarine warfare. During the First World War,
the havoc worked by German U-boats in sinking
merchant and passenger vessels (notably the Lusi-
tania) led to strong pressure, especially from neu-
tral nations, to limit their depredations. A conse-

* The Lieber rules of 1863 recognized this necessity by providing that "a commander is permitted to direct his troops to give no quarter, in great straits, when his own salvation makes it impossible to cumber himself with prisoners." The Hague and Geneva Rules and the recent Army Manuals contain no comparable provision.

WAR CRIMES 37

quence of these widely held sentiments was the
provision of the London Naval Treaty of 1930, sub-
sequently agreed to by the United States, France,
Italy, Japan, Great Britain and Germany, forbid-
ding warships "whether surface or submarine"
from sinking merchant vessels "without having first
placed passengers, crew, and ship's papers in a
place of safety."

Soon after the outbreak of the Second World
War, it became apparent that submarine operations
could no longer be effectively conducted (if in-
deed they ever could have been) in accordance
with these rescue requirements. Radar, sonar, con-
voys and long-range aircraft rapidly advanced the
techniques of antisubmarine warfare to such a
point that it was virtual suicide for a submarine to
surface anywhere near its target, let alone to re-
main in the vicinity for rescue operations. During
the war the German, British and American sub-
marine forces all disregarded the rescue provisions
of the London treaty.

Nevertheless, at Nuremberg Admirals Erich Raeder and Karl Doenitz, successively Commanders-in-Chief of the German Navy, were charged with war crimes in that they were responsible for U-boat operations in violation of the London treaty. But the evidence at the trial, which included testimony by the American naval commander in the Pacific, Admiral Chester W. Nimitz, established that in this regard the Germans had done nothing that the British and Americans had not also done. The Nuremberg tribunal therefore ruled that, while Raeder and Doenitz had indeed violated the London rescue

38 WAR CRIMES

stipulations, they should not be subjected to any
criminal penalties on that account. The plain ra-
tionale of this decision was that the London rescue
requirements were no longer an effective part of the
laws of naval warfare, because they had been abro-
gated by the practice of the belligerents on both
sides under the stress of military necessity.

Other examples of the impact of military neces-
sity on the laws of war come readily to mind. A
signal and terrible example during the Second
World War was the growing acceptance of aerial
bombardment of population centers—from the pre-
war Japanese and German attacks on Canton and
Barcelona, through London, Coventry, Belgrade,
Hamburg and Berlin, to Dresden, Tokyo, Hiro-
shima and Nagasaki in 1945. On this matter there
will be more to say in relation to Vietnam. I men-
tion it here to underline the lesson of all these ex-
amples, which is that the laws of war do not have
a fixed content, but are constantly reshaped by the
exigencies of warfare.

To be sure, there is abundant room for the view
that the laws of war should be closer to fixed prin-
ciples of conduct, less at the mercy of military pres-
sures. If there were an international criminal tri-
bunal, with jurisdiction over all nations, it might
then be possible to ban specific weapons or prac-
tices as inhumane and unlawful, regardless of their
military value. Perhaps one day there will be such
a court, but its creation would hardly be possible
except in a climate of world opinion in which war
itself could be eliminated.

But as long as enforcement of the laws of war

WAR CRIMES 39

is left to the belligerents themselves, whether dur-
ing the course of hostilities or by the victors at
their conclusion, the scope of their application must
be limited by the extent to which they have been
observed by the enforcing party. To punish the foe
—especially the vanquished foe—for conduct in
which the enforcing nation has engaged, would be
so grossly inequitable as to discredit the laws
themselves.

If, then, the laws of war are so erratically if not
capriciously enforced, and subject to change under
the pressure of military practice, are they worth
having at all? Might it not be better to junk the
whole concept of war crimes, and acknowledge that
war is war and anything goes? Indeed, if warring
nations were totally uninhibited, might not the very
enormity of the consequences revolt the conscience
of the world and lend additional strength to the
movement for abolition of war?

Support for affirmative answers to these ques-
tions has not been lacking, and is perhaps more ex-
tensive than the literature on the subject suggests.
But such views are, I believe, counsels of despera-
tion with little in logic or experience to commend
them. All in all this has been a pretty bloody cen-
tury and people do not seem to shock very easily,
as much of the popular reaction to the reports of
Son My made depressingly plain. The kind of world
in which all efforts to mitigate the horrors of war
are abandoned would hardly be a world sensitive
to the consequences.

There are at least two reasons—or perhaps one

40 WAR CRIMES

basic reason with two formulations—for the preservation and continued enforcement, as even-handedly as possible, of the laws of war. The first is strictly pragmatic: They work. Violated or ignored as they often are, enough of the rules are observed enough of the time so that mankind is very much better off with them than without them. The rules for the treatment of civilian populations in occupied countries are not as susceptible to technological change as rules regarding the use of weapons in combat. If it were not regarded as wrong to bomb military hospitals, they would be bombed all of the time instead of some of the time.

It is only necessary to consider the rules on taking prisoners in the setting of the Second World War to realize the enormous saving of life for which they have been responsible. Millions of French, British, German and Italian soldiers captured in Western Europe and Africa were treated in general compliance with The Hague and Geneva requirements, and returned home at the end of the war. German and Russian prisoners taken in the eastern front did not fare nearly so well and died in captivity by the millions, but many survived. Today there is surely much to criticize about the handling of prisoners on both sides of the Vietnam war, but at least many of them are alive, and that is because the belligerents are reluctant to flout the laws of war too openly.

Another and, to my mind, even more important basis of the laws of war is that they are necessary to diminish the corrosive effect of mortal combat on the participants. War does not confer a license to

WAR CRIMES 41

kill for personal reasons—to gratify perverse impulses, or to put out of the way anyone who appears obnoxious, or to whose welfare the soldier is indifferent. War is not a license at all, but an obligation to kill for reasons of state; it does not countenance the infliction of suffering for its own sake or for revenge.

Unless troops are trained and required to draw the distinction between military and nonmilitary killings, and to retain such respect for the value of life that unnecessary death and destruction will continue to repel them, they may lose the sense for that distinction for the rest of their lives. The consequence would be that many returning soldiers would be potential murderers.

As Francis Lieber put the matter in his 1863 Army regulations: "Men who take up arms against one another in public war do not cease on this account to be moral beings, responsible to one another and to God."

## 2 Superior Orders and Reprisals

MORAL RESPONSIBILITY is all very well, the reader may be thinking, but what about military orders? Is it not the soldier's first duty to give instant obedience to orders given by his military superiors? And apart from duty, will not the soldier suffer severe punishment, even death, if he refuses to do what he is ordered to do? If, then, a soldier is told by his sergeant or lieutenant to burn this house or shoot that prisoner, how can he be held criminally accountable on the ground that the burning or shooting was a violation of the laws of war?

These are some of the questions that are raised by the concept commonly called "superior orders," and its use as a defense in war crimes trials. It is an issue that must be as old as the laws of war themselves, and it emerged in legal guise over three

SUPERIOR ORDERS AND REPRISALS 43

centuries ago when, after the Stuart restoration in 1660, the commander of the guards at the trial and execution of Charles I was put on trial for treason and murder. The officer defended himself on the ground "that all he did was as a soldier, by the command of his superior officer whom he must obey or die," but the court gave him short shrift, saying that "when the command is traitorous, then the obedience to that command is also traitorous."¹

Though not precisely articulated, the rule that is necessarily implied by this decision is that it is the soldier's duty to obey lawful orders, but that he may disobey—and indeed must, under some circumstances—unlawful orders. Such has been the law of the United States since the birth of the nation. In 1804, Chief Justice John Marshall declared that superior orders will justify a subordinate's conduct only "if not to perform a prohibited act," and there are many other early decisions to the same effect.²

A strikingly illustrative case occurred in the wake of that conflict of which most Englishmen have never heard (although their troops burned the White House) and which we call the War of 1812. Our country was badly split by that war too and, at a time when the United States Navy was not especially popular in New England, the ship-of-the-line *Independence* was lying in Boston Harbor. A passenger-by directed abusive language at a marine standing guard on the ship, and the marine, Bevans by name, ran his bayonet through the man. Charged with murder, Bevans produced evidence that the marines on the *Independence* had been ordered to bayonet anyone showing them disrespect. The case

44 SUPERIOR ORDERS AND REPRISALS

was tried before Justice Joseph Story, next to Marshall the leading judicial figure of those years, who charged the jury that any such order as Bevans had invoked "would be illegal and void," and if given and put into practice, both superior and subordinate would be guilty of murder. In consequence, Bevans was convicted.³

The order allegedly given to Bevans was pretty drastic, and Boston Harbor was not a battlefield; perhaps it was not too much to expect the marine to realize that literal compliance might lead to bad trouble. But it is only too easy to conceive of circumstances where the matter might not be at all clear. Does the subordinate obey at peril that the order may later be ruled illegal, or is he protected unless he had good reason to doubt its validity?

The early cases did not answer this question uniformly or precisely. There are rigid, absolute formulations, such as the statement of Chief Justice Taney in 1851 that: "It can never be maintained that a military officer can justify himself for doing an unlawful act, by producing the order of his superior."⁴ More realistic judicial assessments, however, recognized that often the subordinate is in no position to determine the legality or illegality of the order, and that the very nature of military service requires prompt obedience. "While subordinate officers are pausing to consider whether they ought to obey, or are scrupulously weighing the evidence of the facts upon which the commander-in-chief exercises the right to demand their services," Justice Story observed in 1827, "the hostile enterprise may

SUPERIOR ORDERS AND REPRISALS 45

be accomplished.” Twenty-five years later Justice Curtis made much the same point in a case where the soldier was sued for false arrest: “I do not think the defendant was bound to go behind the order, apparently lawful, and satisfy himself by inquiry that his commanding officer proceeded upon sufficient grounds. To require this would be destructive of military discipline and of the necessary promptness and efficiency of the service.”⁵

Much the most dramatic case in American military history which turned on this problem was the trial, already mentioned, of Major Henry Wirz, the commandant of the Confederate prison camp at Andersonville, Ga. Abundant and virtually uncontested evidence showed that the Union prisoners were herded into a camp altogether lacking shelter, so that they froze in winter and burned in summer; that the stream constituting the sole source of water was constantly fouled by corpses and human waste; that the food was totally inadequate, despite abundant harvests in the country around the camp; that neighboring farmers, hearing of the starvation rambant at the camp, came with wagonloads of food for their relief, but were turned away by Wirz; that the camp was a nightmare of hunger, exposure and disease and that the inmates died at the rate of several hundred a week, mounting to a total of some 14,000 by the end of the war.⁶

Wirz was tried before a military commission of six Union generals and two colonels, presided over by Major General Lew Wallace, a minor but protean historical figure who, apart from his military exploits, was a politician, diplomat, law-

46 SUPERIOR ORDERS AND REPRISALS

yer, and author of the fabulously successful novel "Ben-Hur." A rigid-minded German Swiss, Wirz defended himself on the ground that his administration of the camp was governed by orders from General John H. Winder, the officer in charge of all Confederate prison camps. The evidence bore out his claim, but the prosecution took the position that Wirz had followed orders willingly rather than under duress, and that Wirz and Winder were co-conspirators. The military commission found Wirz guilty of both conspiring to destroy the lives of Union soldiers and of murder "in violation of the laws and customs of war," and sentenced him to be hanged. Presumably, therefore, it must have accepted the prosecution's contention, though (in accordance with the practice of military courts) there was no written opinion.*

Awareness that a problem is an old one is not, of course, the key to its solution. But these cases of many years past are important, I believe, in showing that the idea that under some circumstances military orders ought to be disobeyed is not a novel doctrine first conceived at Nuremberg. Furthermore, while the earliest decisions on the point were rendered by civilian judges, the modern development of the doctrine during the 75 years following

* In the play based on the trial, Wirz's last line is, "I did not have that feeling of strength to do that. I could not disobey." There is an interesting likeness between this language and the statement of the German Supreme Court in the *Llandovery Castle* case (convicting two naval lieutenants who had acted under superior orders) that: "A refusal to obey the commander of a submarine would have been something so unusual, that it is humanly possible to understand that the accused could not bring themselves to disobey."

SUPERIOR ORDERS AND REPRISALS 47

the Civil War was largely the work of military men.

The Lieber regulations and the Hague and Geneva Conventions are silent on this subject, and the earliest statement of a general, governing rule appeared in the German Military Penal Code of 1872, Article 47 of which provided:

> If execution of an order given in line of duty violates a statute of the penal code, the superior giving the order is alone responsible. However, the subordinate obeying the order is liable to punishment as an accomplice if ... he knew that the order involved an act the commission of which constituted a civil or military crime or offense.

The imposition of responsibility on those giving illegal orders, but not the secondary responsibility of subordinates who carry out orders known to be illegal, was provided for in the British and American Army manuals published in 1914.⁷ Both explicitly exempted from liability those whose violations of the laws of war were committed under orders of their “government” or “commanders,” while declaring that the commanders who ordered or authorized the offenses might be punished. These provisions raised questions whether anyone at all could be held liable if the “commanders” were themselves acting under orders from still farther up the military chain of command.

At the outbreak of the Second World War, accordingly, military law on the question of superior orders was in a state of considerable confusion. The British and American manuals appeared to treat

48 SUPERIOR ORDERS AND REPRISALS

them as an absolute defense to charges against an
accused subordinate, but was this really intended,
no matter how atrocious the order? Perhaps not,
for elsewhere the British manual called for "prompt,
immediate, and unhesitating obedience" only when
the "orders of the superior are not obviously and
decidedly in opposition to the law of the land or to
the well-known and established customs of the
army." The German law of 1872 embodied a more
rational approach and, despite all the horrors of the
Nazi conquests and exterminations, it remained in
effect throughout the war, and was reaffirmed in
principle by no less a person than Dr. Joseph Goeb-
bels, the Minister of Propaganda, who in May,
1944, published an article condemning Allied bomb-
ing operations, in which he declared:

> No international law of warfare is in existence which provides that a soldier who has committed a mean crime can escape punishment by pleading as his defence that he followed the commands of his superiors. This holds particularly true if those commands are contrary to all human ethics and opposed to the well-established usage of warfare.⁸

During the same year (1944) the British and
American military establishments revised the "su-
perior orders" provisions of their field manuals.⁹
The new British language adopted the essential
principle of the German law of 1872, cast in dis-
cursive rather than statutory terms. Members of
the armed forces "are bound to obey lawful orders
only"; to be sure, in conditions of "war discipline"

SUPERIOR ORDERS AND REPRISALS 49

they could not "be expected to weigh scrupulously the legal merits of the order received," but they could not "escape liability if, in obedience to a command, they commit acts which both violate unchallenged rules of warfare and outrage the general sentiment of humanity."

The 1944 American provision was quite different, for it stated no guiding principle whatever. Individuals who violate the laws of war "may be punished therefor," it declared, adding: "However, the fact that the acts complained of were done pursuant to order of a superior or government sanction may be taken into consideration in determining culpability, either by way of defence or in mitigation of punishment." But *when* should such orders "be taken into consideration," and what should determine whether the orders ought to be considered as a defense or merely in mitigation? It was a most unsatisfactory formulation.

Scrutiny of these efforts of military men to graphy with the effect of superior orders, as a defense to war crimes charges, discloses that the problem involves two quite different factors, one of which is appropriate by way of defense, and the other only in mitigation. The first is essentially a question of *knowledge*, and the second a question of *fear*.

Some orders are so atrocious, or plainly unlawful, that the subordinate must know, or can reasonably be held to know, that they should not be obeyed. But, especially in combat situations, there are bound to be many orders the legitimacy of which depends on the prevailing circumstances, the existence and

50 SUPERIOR ORDERS AND REPRISALS

sufficiency of which will be beyond the reach of
the subordinate's observation or judgment. The
military service is based on obedience to orders
passed down through the chain of command, and
the success of military operations often depends on
the speed and precision with which orders are exe-
cuted. Especially in the lower ranks, virtually un-
questioning obedience to orders, other than those
that are palpably vicious, is a necessary feature of
military life. If the subordinate is expected to give
such obedience, he should also be entitled to rely
on the order as a full and complete defense to any
charge that his act was unlawful. The German law
of 1872 was therefore rightly conceived insofar as
it made the subordinate's liability turn on his aware-
ness of the order's unlawful quality.

But knowledge is not the end of the problem. Suppose the soldier is indeed aware that the order is beyond the pale, but is confronted by a superior who is backing his command with threat of stern punishment, perhaps immediate death. It is one thing to require men at war to risk their lives against the enemy, but quite another to expect them to face severe or even capital penalties on the basis of their own determination that their superior's command is unlawful. Such a course calls for a high degree of moral as well as physical courage; men are not to be judged too severely for falling short, and mitigation of the punishment is appropriate.

Substantially these rules—that lack of knowledge
of an order's unlawfulness is a defense, and fear of
punishment for disobedience a mitigating circum-
stance—are embodied in the Army's current field
manual, issued in 1956:

SUPERIOR ORDERS AND REPRISALS 51

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

b. In considering the question whether a superior order constitutes a valid defense, the court shall take into consideration the fact that obedience to lawful military orders is the duty of every member of the armed forces; that the latter cannot be expected, in conditions of war discipline, to weigh scrupulously the legal merits of the orders received; that certain rules of warfare may be controversial; or that an act otherwise amounting to a war crime may be done in obedience to orders conceived as a measure of reprisal. At the same time it must be borne in mind that members of the armed forces are bound to obey only lawful orders.¹⁰

These principles are sound, and the language is well chosen to convey the quality of the factors, imponderable as they are, that must be assessed in a given case. As with so many good rules, the difficulty lies in its application—in weighing evidence that is likely to be ambiguous or conflicting. Was

52 SUPERIOR ORDERS AND REPRISALS

there a superior order? Especially at the lower
levels, many orders are given orally. Was a particu-
lar remark or look intended as an order, and if so
what was its scope? If the existence and meaning
of the order are reasonably clear, there may still be
much doubt about the attendant circumstances—
how far the obeying soldier was aware of them, and
how well equipped to judge them. If the order was
plainly illegal, to what degree of duress was the
subordinate subjected? Especially in confused
ground fighting of the type prevalent in Vietnam,
evidentiary questions such as these may be ex-
tremely difficult to resolve.

The doctrine of "superior orders" as a defense for
the subordinate is, of course, the converse of what
lawyers call *respondeat superior*—the liability of the
order-giver. And in conclusion, it should be empha-
sized that the consequence of allowing superior
orders as a defense is not to eliminate criminal re-
sponsibility for what happened, but to shift its
locus upwards. It would stultify the whole system
to exculpate the underlings who follow orders and
ignore the superiors who give them. Indeed, the
greater the indulgence shown to the soldier on the
theory that his first duty is to give unquestioning
obedience, the greater the responsibility of the of-
ficer to see to it that obedience entails no criminal
consequences.

The superior's responsibility, moreover, is not lim-
ited to the situation where he has given affirmative
orders. A commander is responsible for the conduct
of his troops, and is expected to take all necessary
action to see that they do not, on their own initia-

SUPERIOR ORDERS AND REPRISALS 53

tive, commit war crimes. Gen. George B. McClellan, as commander of the Army of the Potomac in 1861, warned all of his officers that they would "be held responsible for punishing aggression by those under their command," and directed that military commissions be established to punish any persons connected with his Army who might engage in conduct "in contravention of the established rules of law." The 1956 Army Manual provides explicitly that a military commander is responsible not only for criminal acts committed in pursuance of his orders, but "is also responsible if he has actual knowledge, or should have knowledge . . . that troops or other persons subject to his control are about to commit or have committed a war crime and he fails to take the necessary and reasonable steps to insure compliance with the law of war or to punish violations thereof."¹¹

This language embodied no novel conception of a commander's responsibility. Ten years earlier, a military commission of American generals condemned General Tomayuki Yamashita to death by hanging, for failure properly to control the conduct of Japanese troops under his command in the Philippines. The *Yamashita* case, and the principles that it exemplifies, are of great importance in establishing the reach of criminal responsibility for episodes such as those said to have occurred at Son My.

Another doctrine, which may be invoked to justify conduct that otherwise would be a war crime, is that of *reprisals*. Today the open resort to reprisals

54 SUPERIOR ORDERS AND REPRISALS

is not as frequent as in earlier times, but the concept is nonetheless of great importance in relation to the conduct of the war in Vietnam.

In origin, a reprisal (or "retaliation," as Lieber called it) was an action taken by a nation against an enemy that would normally be a violation of the laws of war, but that was justified as necessary to prevent the enemy from continuing to violate the laws of war. Thus if one side makes a practice of shooting medical corpsmen or bombing hospitals, the other side may take action by way of reprisal in order to dissuade the enemy from continuing his unlawful course of conduct. The justification for reprisals was the lack of any apparent alternative; the enemy miscreants were beyond the reach of the offended belligerent, and protests had proved fruitless. As Lieber put it, their purpose was not "mere revenge," but rather "protective retribution."

Resort to reprisals in order to bring an enemy government back to the paths of military virtue is still recognized by the laws of war, subject to various restrictions written into the Geneva Conventions and the recent army field manuals. But reprisals of this type are not much used today, partly because they are generally ineffective, and partly because the resort to crime in order to reform the criminal is an unappetizing method. Generally, a nation that deliberately embarks on a course of conduct violative of the laws of war will have taken into account the possibility and effect of reprisals, and will not be easily checked. Then crime and reprisal both continue, and the standards of warfare are debased.

SUPERIOR ORDERS AND REPRISALS 55

But reprisals of another type, directed not against an enemy government but against the civilian population of territory under military occupation, are of great significance in relation to both Nuremberg and the Vietnam war. They were inflicted on a number of occasions during the Civil War,* and used extensively by the Germans during the Franco-Prussian War of 1871 and the First World War. One example from many is General Karl von Bülow's proclamation of Aug. 22, 1914, issued in the course of the German advance into Belgium:

> The inhabitants of the town of Andenne, after having protested their peaceful intentions, made a treacherous surprise attack on our troops.

> It was with my consent that the General had the whole place burned down, and about one hundred people shot.

> I bring this fact to the attention of the town of Liège, so that its inhabitants may know the fate with which they are threatened, if they take a similar attitude.

Closely related to the matter of reprisals is the practice of taking hostages. In past centuries, two countries that had made a treaty often exchanged

* In 1864, the Union general David Hunter burned many Virginia homes during his advance in the Shenandoah Valley. The Confederate General Jubal Early drove Hunter's forces back across the Potomac and, when Confederate troops reached Chambersburg, Pa., Early ordered the town burned by way of reprisal. The regimental commander in Chambersburg, Colonel William E. Peters, refused to obey Early's order, and was relieved of his command and placed under arrest, while others did the burning. There is a vivid account of all this in the Confederate General John B. Gordon's "Reminiscences of the Civil War" (1903), in which the author pays high tribute to Peters's courage and chivalry, and states that "prudently and wisely, he was never brought to trial" for his disobedience.

56 SUPERIOR ORDERS AND REPRISALS

hostages, as mutual security for compliance. In
modern warfare, civilian hostages have been taken
by armies occupying enemy territory, as a measure
of ensuring the good behavior of the local popula-
tion.

Before the Second World War, the state of the
laws of war with respect to the use of reprisals and
the taking and treatment of hostages in occupied
territory was one of considerable confusion and
conflict. The American field manuals of 1914 and
1940, perhaps influenced by the Army's experience
in the "pacification" of the Philippines after the
Spanish-American War, gave the occupying power
great latitude for positive action. The 1940 manual
included the following:

Hostages taken and held for the declared
purpose of insuring against unlawful acts by
the enemy forces or people may be punished
or put to death if the unlawful acts are never-
theless committed. . . . Villages or houses, etc.,
may be burned for acts of hostility commit-
ted from them, where the guilty individuals
cannot be identified, tried and punished. Col-
lective punishments may be inflicted either in
the form of fines or otherwise.¹²

To what extent such language reflected interna-
tional opinion on the point is hard to say. Draconic
as it is, the American provision would have fallen
far short of authorizing the extensive and ruthless
use of hostages and reprisals that characterized
the German military regimes in the occupied coun-

SUPERIOR ORDERS AND REPRISALS 57

tries of Europe, especially in the Balkans and Rus-
sia. In consequence, these problems were an
important part of the subject matter of the Nurem-
berg trials, as will shortly appear.

After Nuremberg, hostages and reprisal questions
were considered in framing the 1949 Geneva Con-
vention Relative to the Protection of Civilian Per-
sons in Time of War, and important reforms were
adopted, which were carried into the 1956 Army
manual. Under these new provisions, the taking of
hostages is entirely forbidden, and the permissible
scope of reprisals is much more restricted than it
was under the 1940 manual.

The trend of the laws of war since the Second
World War is in line with Francis Lieber's judg-
ment, expressed in the 1863 rules, that: "Unjust
or inconsiderate retaliation removes the belligerents
farther and farther from the mitigating rules of
regular warfare, and by rapid steps leads them
nearer to the internecine wars of savages."

3 Just and
Unjust Wars

OVER THE CENTURIES of recorded history, warfare has shown a remarkable and, to most of us, a distressing vitality as a staple ingredient of intercourse among families and tribes at first, and then peoples, religions and nations. No doubt a continuing pessimism about the likelihood that war can be abolished has lent force to men's efforts to confine wars and limit their methods and effects, as described in the previous chapters.

Throughout these same centuries, however, war
has been practiced against a counterpoint of belief
that as a destroyer of man and men's works, war is
evil—an insult to human dignity, and a peril to hu-
manity's capacity to develop or, indeed, to survive.
Since the early civilizations men have speculated

JUST AND UNJUST WARS 59

about ways of eliminating war, and since the middle ages one of those ways has been the enunciation of rules of conduct, which gradually assumed the characteristics of law.

The laws of war have been developed largely by men who fought in them—military men. The principles concerning the moral or legal legitimacy of war itself, on the other hand, have been the work of theologians, jurists, and in more recent years, of diplomats. It was St. Augustine of Hippo (A.D. 354–430) who first enunciated the doctrine of “just and unjust wars,” and two ministers for foreign affairs, Frank B. Kellogg of the United States and Aristide Briand of France, whose names are attached to the 1928 Pact of Paris, which condemned “recourse to war for the solution of international controversies.”

The Master, as far as we know, had little to say about war or international relations; He was not a nationalist (“My Kingdom is not of this world”) nor a political revolutionary (“Render to Caesar the things that are Caesar’s”). But in the Gospels there is much emphasis on nonresistance and forgiveness of enemies, and during the first three centuries after Christ there grew up among His followers a strong school of religious pacifism. Furthermore, the early Christians were a religious minority in a pagan state, and the higher ranks of the Roman military service were required to offer sacrifice to the Emperor—an act of idolatry which was anathema to Christians. For these reasons Tertullian, Origen and other fathers of the Church condemned all military service as incompatible with the Christian life.

But there were those who thought otherwise, and

60 JUST AND UNJUST WARS

in fact there were many Christians in the Roman soldiery. The Emperor Constantine's official toleration of Christianity (A.D. 312) and death-bed conversion (A.D. 337) foreshadowed a great change in the Christian attitude toward war: "A Christian empire and a Christian army defending the nucleus of the civilized world against heretics and vandals created an atmosphere more favorable to the conception of a holy war waged by a Chosen People than did a pagan empire persecuting a Christian minority." In this state of doctrinal flux, St. Augustine emerged as "the great co-ordinator of Christian doctrine upon peace and war."¹

He accomplished this by drawing a distinction between "just and unjust wars," a vocabulary that was not new, but that the Saint applied by reference to general ethical standards rather than the ambitions of rulers. The Roman wars of conquest he did not hesitate to condemn: "To make war on your neighbors, and thence to proceed to others, and through mere lust of dominion to crush and subdue people who do you no harm, what else is this to be called than robbery on a grand scale?" He praised as "elegant and excellent" the pirate's reply to Alexander the Great, who had asked how he dared molest the seas: "Because I do it with a little ship only, I am called a thief; thou, doing it with a great navy, art called an emperor." On the other hand, it was wholly possible "to please God while engaged in military service." Just wars, according to Augustine, "are usually defined as those which avenge injuries, when the nation or city against which warlike action is to be directed has neglected to punish wrongs committed by its own

JUST AND UNJUST WARS 61

citizens, or to restore what has been unjustly taken
by it." Indeed, the true aim of a just war is peace, so
that "after the resisting nations have been con-
quered, provision may more easily be made for en-
joying in peace the mutual bond of piety and jus-
tice."

Augustine's tenets were approved and elaborated
by the medieval theologians, most notably by St.
Thomas Aquinas (1225-1274) in his *Summa Theo-
logiae*. "In order that a war may be just," he wrote,
"three things are necessary":

> In the first place, the authority of the prince,
> by whose order the war is undertaken; for it
> does not belong to a private individual to make
> war, because, in order to obtain justice he
> can have recourse to the judgment of his su-
> perior. . . . But, since the care of the State
> is confided to princes . . . it is to them that it
> belongs to bear the sword in combats for the
> defence of the State against external ene-
> mies . . .

> In the second place, there must be a just
> cause; that is to say, those attacked must, by
> a fault, deserve to be attacked . . .

> In the third place, it is necessary that the
> intention of those who fight should be right;
> that is to say, that they propose to themselves
> a good to be effected or an evil to be avoided
> . . . those who wage wars justly have peace as
> the object of their intention . . .

The Augustinian and Thomist teachings have re-
mained the core of Catholic doctrine on the right-
fulness of war. It is really a matter of necessity; if

(LC)

62 JUST AND UNJUST WARS

there were a higher mundane power to order disputes among nations, as there is for individuals, there would be no basis for war. Lacking any other arbitrament, resort may be had to war if the cause is just. On what constitutes a just war, Aquinas added little to Augustine, but stressed the importance of a pure motive; one who has been injured may not exploit his just grievance as an opportunity to gratify a lust for revenge.

How the "justness" of a war should be determined was examined more closely in the 16th and 17th centuries by the great Spanish theologians Francisco de Vitoria (1480-1546), a Dominican, and Francisco Suarez (1548-1617), a Jesuit. Vitoria became concerned about the application of the "just war" principles to the Spanish conquests in the New World. Very much an "establishment" figure, Vitoria vindicated the Spanish Government's policies, but the strength of the Indians' right of self-defense must have impressed him, for his works lay great emphasis on the care that rulers should exercise before judging a prospective war to be "just." A mistake "would bring great evil and ruin to multitudes"; therefore "the reasons of those who on grounds of equity oppose the war ought to be listened to," and the final decision made only on the judgment "of many, and they wise and upright men."

Suarez's approach to these questions is much more legal and remarkably modern. The right of Christian rulers to make war, he declares, must have "at least some relation to the natural law"; that being so, it is not solely a Christian prerogative, and

JUST AND UNJUST WARS 63

must also "suffice in some manner for non-Christian
rulers." Defensive war is always legitimate, and
may be a duty; this is as true between nations as
between private individuals, for "the right of self-
defence is a natural and necessary one." This sort
of analogy he used as the basis for a triad of situ-
ations that would justify war: defense of life, de-
fense of property and aid to a third party who is
unjustly attacked. Thus the parallel between do-
mestic and international criminal principles was
articulated by a Spanish cleric three centuries be-
fore the efforts of recent years to define "aggressive
war."

But the long reign of theological jurisprudence
was at an end, and the next great name in the his-
tory of international law is that of a Dutch lay
scholar and diplomat. Hugo Grotius (1583-1645)
hardly deserves the soubriquet "father of interna-
tional law" commonly bestowed on him, for his
criteria of "just and unjust wars" are largely derived
from the writings of his Catholic predecessors. Per-
haps because he was a Protestant invoking the indi-
vidual conscience rather than churchly authority,
and wrote as a jurist (his work is entitled "Con-
cerning the Law of War and Peace") rather than
a churchman, it is to Grotius that most lawyers re-
fer today when describing the foundations of inter-
national law.

So far as concerns "just and unjust wars" as a
legal concept, however, Grotius is not the beginning
but nearly the end of the story. He had a few fol-
lowers—the Germans Pufendorf and Wolff and the
Swiss Emmerich de Vattel—who treated the doc-

64 JUST AND UNJUST WARS

trine seriously, but by the end of the 18th century it was generally disregarded or discredited by governments and writers alike. The principle causes of its decline and virtual disappearance were the Reformation and the growth of nationalism, bringing changes in the structure of European civilization which the concept was ill-equipped to survive.

Until the end of the 16th century, the Pope and other princes of the Church often settled disputes among the temporal rulers, either by their own force or upon request as arbitrators. St. Thomas and his successors were not engaging in mere academic disputation when they pondered the justness of wars, for the Church was deeply and powerfully involved in wars and their consequences. But with the Reformation and the ensuing decline in the Pope's temporal power, the Church's arbitraments were less frequent or significant. The stream of theological jurisprudence soon ran dry, and the 17th century Spaniards had no notable successors.

At the same time the western nation-state, with a nationalist-minded population and nationally organized armed forces, was coming into full flower. Wars played a large part in this process, and a nation's record of victories and defeats began to be regarded as the major theme of its history. In these wars, who was to say on which side justice lay? On such matters the Pope's voice, should he raise it, would no longer be heeded, and since there was no other source of supranational judgment it was left to each nation to make its own decision. The only way that international injustice could be rectified was by war or its threat. Furthermore, with the growth of international trade the concept of neu-

JUST AND UNJUST WARS 65

trality was increasingly important, and the develop-
ment and observance of "neutral rights" was impos-
sible unless the neutral nations forbore to pass judg-
ment as between the belligerents.

In the course of the 19th century, as Germany
and Italy coalesced into nation-states born of wars
and new nations sprouted in the wake of the
Turkish retreat from Europe, the temper of inter-
national law grew increasingly pragmatic. The
"just and unjust war" concept was scorned as senti-
mental rubbish, hopelessly vague in content and
impossible to enforce for lack of a tribunal compe-
tent to pass judgment. War, in short, was a fact of
life that the law must accept.

To be sure, governments would still give reasons
for resorting to war that stressed the justice of their
cause, and individuals might legitimately entertain
beliefs about the morality of a particular war. But
none of this was of any legal significance. All bel-
ligerents started out in identical legal positions
and possessed of equal rights. Lieber, progressive and
humane as he was with regard to the manners and
methods of warfare, had no doubts about its intrinsic
validity. "Ever since the foundation of modern
nations, and ever since wars have become great
national wars," he wrote, "war has come to be
acknowledged not to be its own end, but the means
to obtain great ends of state . . ." Consequently:
"The law of nations allows every sovereign govern-
ment to make war upon another sovereign state."

And so when in 1914 the lights went out in Eu-
rope, although there were lamentations for the

66 JUST AND UNJUST WARS

death and destruction that loomed and accusations
and counter-accusations of blame for bringing on
the War, no one said that those responsible (who-
ever they might be) had committed a crime under
international law. After the war had ended, despite
the hatreds aroused by four years of carnage, the
view still prevailed that launching the war had been
a moral outrage but not a crime.³

This conclusion was reached and recommended
to the Paris Peace Conference by a 15-member
“Commission on Responsibilities,” charged with
investigating the “responsibility of the authors of
the war” as well as violations of the laws of war,
and proposing appropriate machinery for the trial
of those accused. On the matter of responsibility
for the war itself, the Commission had no difficulty
in finding that the Central Powers (the German
and Austro-Hungarian Empires) had “premedi-
tated” the war, acted deliberately “in order to make
it unavoidable,” and violated the neutrality of Bel-
gium and Luxembourg despite treaty guarantees
to which they were parties. These findings certainly
met the Augustinian criteria of an “unjust war,” and
the Commission found the Central Powers guilty of
“conduct which the public conscience reproves and
history will condemn.” But as a legal matter, the
Commission declared that “a war of aggression may
not be considered as an act directly contrary to
positive law, or one which can be successfully
brought before a tribunal.” Except for confused and
bungling efforts to try the ex-Kaiser “for a supreme
offence against international morality and the sanc-

JUST AND UNJUST WARS 67

tity of treaties,"* the views of the Commission pre-
vailed at the Peace Conference, and the criminal
provisions of the Versailles Treaty were confined to
violations of the laws of war.

These events sufficiently demonstrate an inter-
national consensus in 1919 that to initiate a war—
even an aggressive war—was not a crime under
international law. But that year may also be taken
to mark the beginning of the trend that led to
Nuremberg, for the Commission on Responsibilities
viewed its own conclusion as revealing a grave
shortcoming in the scope of international law, and
recommended "that for the future penal sanctions
should be provided for such gross outrages." This
proposal was not implemented in the Versailles
Treaty, and not until the end of the Second World
War were any "penal sanctions" authorized. The
Commission's recommendation, nonetheless, was the
signal of a new international view of the legality of
war, the first fruits of which appeared at once in
the Covenant of the League of Nations.

The new approach was, unquestionably, the prod-
uct of the unprecedented scope and destructive-
ness of the First World War, and especially the
greatly increased risks to civilian life stemming from
the advent of military air power. The only possible
justification for the highly organized slaughter was

* This language was part of Article 227 of the Treaty of Versailles, which provided that a "special tribunal" would be established to try "William II of Hohenzollern, formerly German Emperor." The Government of the Netherlands, where the ex-Kaiser had sought refuge, refused to turn him over to the Allies, on the ground that the offense charged was unknown in Dutch law and appeared to be of a political rather than a criminal character.

68 JUST AND UNJUST WARS

that it had been a "war to end war," and that aim
was the League's chief purpose.

No explicit statement that aggressive war is crimi-
nal was made in the Covenant. Its most significant
contribution was the establishment of a procedure
for international resolution of disputes among its
members, and the application of international force
against any who, in defiance of the decision, re-
sorted to war. It was a necessary inference from
such a determination that the offending govern-
ment was guilty of a crime, though the Covenant
left untouched any question of the criminal liability
of the individuals, few or many, responsible for
their government's unlawful act. Furthermore, the
Covenant procedure met what had been the fatal
flaw of the "unjust war" concept, by providing for
international rather than unilateral determinations
of "justness." This precisely fitted the Thomist test,
for now there was a higher power to order disputes
among nations. That being so, resort to war by in-
dividual nations would henceforth be as "unjust" as
it had always been for a private person; under the
Covenant the only just war would be the use of
international force in order to subdue the recalcii-
trant nation.*

The First World War, unlike the Second, was
followed by a dozen years of general peace and,
toward the end of the twenties, of prosperity and

* There was, however, a significant gap in the procedure, in that the decision of the superior body (the Council of the League of Nations) had to be unanimous, except for the parties to the dispute themselves. If unanimity was unattainable, then all members were free "to take such action as they shall consider necessary for the maintenance of right and justice." The action might be war, thus legitimized by the League's inaction.

JUST AND UNJUST WARS 69

contentment in the western world. On a number of occasions the League peace-keeping machinery was successfully used to forestall or terminate small wars —between Yugoslavia and Albania in 1921, Italy and Greece in 1923, Greece and Bulgaria in 1925, Bolivia and Paraguay in 1928, and Colombia and Peru in 1933. The Locarno and other regional or bilateral nonaggression treaties testified to the pacific temper of western statesmen and peoples.

Outstanding among these between-war efforts to abolish war was the treaty officially entitled "International Treaty for the Renunciation of War as an Instrument of National Policy." On April 6, 1927, the tenth anniversary of the United States' entry into the First World War, the French Foreign Minister, Aristide Briand, suggested that the occasion be celebrated by a Franco-American agreement to outlaw war between the two countries. The Secretary of State, Frank B. Kellogg, proposed that the pact be multilateral, and impetus was given the project by a resolution of the League Assembly unanimously adopted in September, 1927, which described "a war of aggression" as "an international crime" and declared that "all wars of aggression are and shall always be prohibited." The treaty itself —commonly known as the "Pact of Paris" or "Kellogg-Briand Pact," and eventually accepted by the United States, France, and 42 other nations—was signed in August, 1928. Its two substantive articles were:

> Article 1. The High Contracting Parties solemnly declare . . . that they condemn re-

70 JUST AND UNJUST WARS

course to war for the solution of international
controversies, and renounce it as an instru-
ment of national policy in their relations with
one another.

Article 2. The High Contracting Parties agree
that the settlement or solution of all disputes
or conflicts, of whatever nature or whatever
origin they may be, which may arise among
them, shall never be sought except by pacific
means.

The Kellogg-Briand treaty was the highwater
mark of the peaceful tide.⁴ With the 1930's came
economic depression. Adolf Hitler and a surge of
militant nationalism in the nations—Germany, Italy
and Japan—that later comprised the “Axis powers.”
The League's peace-keeping procedures were de-
pendent for their effectiveness on the will of its
members, especially the major European powers,
and the will proved insufficient to check Japan's
invasion of China or Italy's conquest of Ethiopia.
After 1936 the League's prestige dwindled rapidly,
and European crises in Spain, Austria, Czechoslo-
vakia, Lithuania and Albania were resolved, one
after another, by unilateral military action on the
part of Nazi Germany and Fascist Italy. By 1939,
when war came, the League was little more than a
relic of better times.

The Second World War raised anew the question
pondered by the Commission on Responsibilities
and answered in the negative at the end of the First
World War. Had the Kellogg-Briand treaty or any
other event between the wars sufficiently altered
the controlling considerations so that individuals

JUST AND UNJUST WARS 71

could now be charged with crime under interna-
tional law on grounds of responsibility for aggres-
sive war?

The problem re-emerged in March, 1944, at meetings of the Legal Committee of the United Nations War Crimes Commission in London.⁵ The Czechoslovak member of the Committee, Dr. Bohuslav Ećer, submitted a report on the permissible scope of “retributive action” the thrust of which was that the war was of such terrible and unprecedented dimensions that its initiators should be held criminally responsible. The committee was persuaded, and in May it recommended to the commission that the “war crimes” with which it was concerned should be deemed to include: “The crimes committed for the purpose of preparing or launching the war, irrespective of the territory where these crimes have been committed.”

But the commission members were cautious,
and doubted that their governments would move
so far into unfamiliar legal and political territory.
The matter was referred back to the Legal Com-
mittee, and in turn to a four-member subcommittee.
The American and Dutch members approved the
recommendations of the British member, Sir Arnold
McNair, and the majority report of the subcommit-
tee concluded that the Kellogg-Briand treaty had
not significantly altered the circumstances that had
been thought decisive in 1919. Just as in 1919, the
majority proposed to recommend that the “out-
rages” of the Axis leaders be “the subject of formal
condemnation,” and that penal sanctions should be
provided “for the future.”

The fourth member of the subcommittee was Dr.

72 JUST AND UNJUST WARS

Écer, who submitted a minority report reiterating his earlier views, and suggesting that the Commission need not take a position on the legality of aggressive war in general, but should declare that the aims and methods of the Axis leaders, and the “total” character of the war they had launched, made them criminally liable.

When the two reports came before the commission in October, 1944, the Australian representative (and future Chairman of the commission), Lord Wright of Durley, was the principal spokesman for the Czech view. As a common law lawyer, Lord Wright was accustomed to find law in developing customs and practices, and for him the Kellogg-Briand pact and other agreements and pronouncements since the First World War were sufficient evidence of a “general consensus of authoritative opinion.”*

Opinion in the commission was sharply divided, with the representatives of Britain, France, Greece, the Netherlands and the United States supporting the majority report, and Australia, China, Czechoslovakia, New Zealand, Poland and Yugoslavia on the other side. The division was too even to warrant action either way, and the members decided to consult their respective governments. In the upshot, the commission never came to a decision on the

* Lord Wright's views on the nature of international law, it is interesting to note, were in line with those of the Roman Catholic theologians. Suarez had written: "The Precepts of the Law of Nations differ in this from those of civil law, that they are not in writing, but in customs . . . of all or almost all nations . . . if it is introduced by the customs of all nations and binds all, we believe this to be the Law of Nations properly speaking."

JUST AND UNJUST WARS 73

issue, and after 1944 it ceased to be the principal
forum for its determination.

Between the theologians and Grotians of past
centuries, and the diplomats of the between-war
years of the present one, there is a difference in the
concept of justifiable war that is of great signifi-
cance today. From St. Augustine to Vattel the test
was stated in terms of "just" and "unjust wars,"
whereas after the First World War the issue was
drawn between "aggressive wars" and "defensive
wars."

Despite the imprecision and generality of both
"just" and "aggressive," there is a substantive and
describable difference between the meanings in-
tended by their users. It is true that warfare under-
taken to repel an attack was generally regarded by
theologians as "just," but this was not necessarily
so, and self-defense did not exhaust the entire
content of "just," for if one country had a "just"
claim or grievance against another, it could "justly"
resort to war to enforce its rights. Thus if Prince
A had been wronged by Prince B, Prince A's attack
would be aggressive yet just, and Prince B's defen-
sive fighting would be unjust, for he should have
yielded voluntarily to a righteous claim.

The difficulty with all this, which especially
troubled the later scholiasts like Vitoria and Suarez,
was that "just" was too open-ended a test, and uni-
lateral determinations of what was "just" were too
subjective to constitute anything resembling law.
Granted that there is plenty of room for argument
about the meaning and application of "aggression,"

74 JUST AND UNJUST WARS

its ambiguities are of narrower range. Furthermore,
its specificity was measurably sharpened by the
Kellogg-Briand pact's condemnation of war "as an
instrument of national policy" or "for the solution
of international controversies," for that said pretty
plainly that Nation A could *not* use war to enforce
a claim, no matter how just, against Nation B.
Under the "aggression" test, self-defense is practi-
cally the only basis on which it is legitimate to en-
gage in warfare.* On its face at least, this is a much
more objective test, more readily satisfied by evi-
dentiary proof, and analogous to legal standards
long established in domestic criminal law. And un-
questionably it was this circumstance, coupled with
the nature of the Hitler wars, that enabled the vic-
torious governments, led by the United States, to
take the leap in 1945 that they had shied from in
1918. Presumably according to his own standards,
Hitler believed his own wars to be "just." But what-
ever the historians might ultimately say about the
root causes of the Second World War, it was indis-
putable that neither Poland, Denmark, Norway,
Holland, Belgium, Yugoslavia, Greece nor the
Soviet Union had attacked Germany. If aggression
was the test of criminality, it seemed clear where
the blame lay.

The reason that the United Nations War Crimes
Commission was crowded off the stage, and that the

* This appears now to approximate the position of the Roman Catholic Church as stated in the "Pastoral Constitution on the Church in the Modern World, Dec. 7, 1965," adopted at the Second Vatican Council; 6 "As long as the danger of war remains and there is no competent and sufficiently powerful authority at the international level, governments cannot be denied the right to legitimate defense once every means of peaceful settlement has been exhausted."

JUST AND UNJUST WARS 75

Nuremberg trials took place, was that legally trained men in the seats of power in Washington concluded that German aggression could be judicially proved, that the future peace of the world would be promoted by an international determination that aggressive warfare is a crime under international law, and that those responsible may be punished. Chief among the architects of Nuremberg was Henry L. Stimson, who had been Secretary of War under President William Howard Taft, Secretary of State under Herbert Hoover, and was again Secretary of War under Franklin D. Roosevelt; others closely involved included Attorney General Francis Biddle, Judge Samuel Rosenman of the White House staff and, after Roosevelt's death, Justice Robert H. Jackson, who took leave from the Supreme Court of the United States to take charge of American interests in the war crimes field and serve as chief prosecutor.

The purpose of charging the Axis leaders with criminal responsibility for launching wars of aggression, and trying them before an internationally constituted tribunal, was part of the "Nuremberg project"* from its inception in the late fall of 1944. It was a design more readily accomplished by a high-level political decision than by committees of international lawyers for, as has been seen, in professional circles there still was sharp disagreement. The laws of war had been considered, compiled and codified in the Hague and Geneva Conventions,

* At the outset, of course, it was not known where the trials would be held. It was not until August, 1945, that Nuremberg was definitely selected as the site.

76 JUST AND UNJUST WARS

and enforced by courts-martial and military commissions for many years past; there was no substantial disagreement about their judicial enforceability. But the crime of engaging in aggressive warfare—the “crime against peace” as it was called at Nuremberg—had never before been the basis of a charge or proceeding of any description.

Unprecedented as it was, the inclusion of the aggressive war charge was bound to enmesh the Nuremberg proceedings in lasting controversy, although in the upshot no man suffered death and few any lesser penalty on that basis. Opinions still differ on whether Stimson, Jackson and their colleagues were well-advised to press the proposition as they did. We need not wrestle here with might-have-beens. Indisputably it was a cardinal part of the postwar policy of the United States Government to establish the criminality under international law of aggressive warfare, and the Nuremberg and Tokyo trials were the vehicles by which that purpose was accomplished. And if one seeks the reasons for that policy, they are nowhere better stated than in Jackson's progress report to President Truman in June, 1945, a few months before the trials began:

> . . . In untroubled times, progress toward an effective rule of law in the international community is slow indeed. Inertia rests more heavily upon the society of nations than upon any other society. Now we stand at one of those rare moments when the thought and institutions and habits of the world have been shaken by the impact of world war on the lives of count-

4 Nuremberg

THE UNITED NATIONS and the Nuremberg trials were virtually twin offspring of the Allied negotiations and agreements with respect to the peace that would follow victory. It was at the Moscow Conference in October, 1943, that Churchill, Roosevelt and Stalin issued joint declarations pledging their countries to the establishment of an international organization to maintain peace and security, and to the post-war trial and punishment of German war criminals. It was at the San Francisco Conference in the spring of 1945 that the United Nations was organized, and that the first discussions looking to the establishment of an international war crimes tribunal were conducted among the four principal Allies—Britain, France, the Soviet Union and the United States. The Charter of the

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United Nations was signed at San Francisco on June 26, 1945, and the Agreement embodying the Charter of the International Military Tribunal was signed on Aug. 8, 1945, at London.

Different as the twins were, they shared the same two basic purposes: promoting peaceful rather than warlike settlement of international disputes, and humanitarian governmental policies. Thus the Charter of the United Nations declared the organization's purposes to be "the prevention and removal of threats to the peace . . . and the suppression of acts of aggression or other breaches of the peace," while the London Charter specified as "crimes against peace" the "planning, preparation, initiation, or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances." The United Nations was dedicated to "encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion," and the London Charter condemned not only "war crimes" but also "crimes against humanity," including "persecutions on political, racial, or religious grounds." Essentially, the Nuremberg trials were intended to bring the weight of law and criminal sanctions to bear in support of the peaceful and humanitarian principles that the United Nations was to promote by consultation and collective action.

The subsequent history of the United Nations has shown a disturbing similarity to that of the League of Nations, insofar as an early period of substantial contribution to the peace of the world has given way to one of declining influence. One need only

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mention Greece, the Berlin airlift confrontation, and the soon-ended Kashmiri war between India and Pakistan, to appreciate the value of the United Nations' past services to the cause of peace. But the Cuban crisis was settled directly between Washington and Moscow, and in recent years the major international issues have appeared to lie beyond the United Nations' effective reach. This has been notably true of the Vietnam war, and is a factor of considerable importance in assessing America's responsibility for its continuation and intensification.

The Nuremberg trials, of course, were not conceived as a continuing enterprise, but as an episode that would leave an enduring juridical monument, to mark a giant step in the growth of international law. In the preceding chapters we have traced the course of events and the developing doctrines that led to Nuremberg, Tokyo and the other major war crimes trials of the Second World War. What did Nuremberg add to what was there before?

In terms of international law, the most important single feature of the Nuremberg trials was that the tribunals were established by international authority, and exercised a jurisdiction internationally conferred. Previously, as we have seen, the laws of war had been enforced by military courts established by the armed forces of the aggrieved nation and, while those laws were international, the power to enforce them was given by their own government alone. But the International Military Tribunal that conducted the first Nuremberg trial was established under the four-power London Charter, to

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which¹⁰ other nations adhered; the ensuing Nuremberg trials were held under a comparable authorization* from the same four powers that signed the London Charter; the Tokyo trial was conducted by the 11-member International Military Tribunal for the Far East, under the authority of the 10-nation Far Eastern Commission.¹

The international constitution of these war crimes tribunals was almost but not wholly unprecedented. Scholarship has disclosed² an interesting forerunner of Nuremberg in the trial of Peter von Hagenbach at the German city of Breisach in 1474. The accused had served Duke Charles ("the Bold") of Burgundy as Governor of Breisach and adjacent territory on the Upper Rhine, and had inaugurated a reign of terror for which, after Charles's defeat and death, Hagenbach was charged with conduct that "trampled under foot the laws of God and man" and constituted crimes under natural law. The prosecutor was Henry Iselin of Basle, and since Swiss merchants traveling to and from the Frankfurt Fair had been among his victims, Hagenbach was tried before a bench that included Swiss as well as Alsatian and German judges. In language amazingly anticipatory of Henry Wirz's plea to the Andersonville court four centuries later, the defendant invoked the doctrine of superior orders: "Is it not known that soldiers owe absolute obedience to their superiors? Had not the Duke by his presence sub-

* Control Council Law No. 10, promulgated on Dec. 20, 1945, by the representatives of the four powers (Britain, France, the Soviet Union, and the United States) occupying Germany and embodying provisions comparable but not identical to those of the London Charter.

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sequently confirmed and ratified all that had been
done in his name?" The judges, however, were un-
impressed, and Hagenbach was convicted and be-
headed in the marketplace of Breisach.

The episode shows that the roots of international
penal law run deep, but there appear to be no other
notable precedents for its enforcement by an inter-
national tribunal.* The significance of the interna-
tional character of the Nuremberg and Tokyo tri-
bunals was a recognition of the inadequacy of sin-
gle-nation courts for authoritative interpretations of
international law, and the necessity of establishing
an international jurisdiction and working out ac-
ceptable international procedures if international
penal law was to develop at all satisfactorily. The
shortcoming of the tribunals was that, although in-
ternational, they were unilateral; they were consti-
tuted by the victor nations and had jurisdiction only
over the vanquished, and this circumstance has re-
mained a negative factor in subsequent evaluation
of the trials.

A second remarkable feature of the trials was that
they brought about a great expansion of the prin-
ciple that individuals may be held criminally liable
under international law, even though their conduct
was valid under, or even required by, domestic law.
Intrinsically, this was not a new concept, for the
laws of war had always been regarded as binding
on both governments and individuals, and beyond
the reach of abrogation by local law. Henry Wirz's

* Neither the Permanent Court of International Justice established in 1920, nor its successor the International Court of Justice which is the judicial organ of the United Nations, was given any criminal jurisdiction over individuals.

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defense would have been no more successful had he been able to show that atrocious treatment of Union prisoners was required by a Confederate statute as well as by General Winder's order.

But prior to Nuremberg the individuals against whom the laws of war had been enforced were, for the most part, ordinary soldiers or officers of middling or low rank. At Nuremberg and Tokyo, on the other hand, nearly all the defendants stood at or near the top of the military or civilian hierarchy. Their punishment gave real meaning to the injunction, long written in the military codes and manuals, that the primary responsibility for war crimes committed pursuant to order rests on those in authority who gave the orders.

The Nuremberg extensions of criminal liability were not only vertical but also horizontal. Generals and admirals were by no means the only defendants. Cabinet ministers and other civilian officials were a majority of those put to trial, and there were also a number of individuals who were "private" in the sense that their criminal liability was not primarily charged on the basis of whatever government connections they may have had, but by reason of their responsibilities as directors of large industrial concerns where foreign "slave" labor was extensively utilized under inhumane conditions.

This expansion of individual liability did not, of course, embrace the supposed "Nuremberg principle" quoted in the introduction that "a citizen must not go along with policies he believes to be wrong."³ But it did reaffirm and enforce in new spheres the principle that the laws of war, and some

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other rules of international law, are superior to domestic law, and that individuals may be held accountable to them. As the International Tribunal at Nuremberg put the matter in its judgment:

> ... individuals have international duties which transcend the national obligations of obedience imposed by the individual state. He who violates the laws of war cannot obtain immunity while acting in pursuance of the authority of the state if the state in authorizing action moves outside its competence under international law.⁴

In terms of substantive international law, and in the mind of the general public, the salient feature of the Nuremberg trials was the decision that individuals could be held guilty for participation in the planning and waging of "a war of aggression."

Strictly speaking, the establishing of aggressive war as an international crime was accomplished not by the Tribunal but by the London Charter, which specified "crimes against peace" as one of the three types of crimes that might be charged. The Tribunal in its judgment acknowledged the Charter as "binding upon the Tribunal," and deduced that "it is therefore not strictly necessary to consider whether and to what extent aggressive war was a crime before the execution of the London Agreement." Not content to rest on the Charter alone, however, the Tribunal included a long passage in support of the conclusion that the Kellogg-Briand and other recent treaties and international resolutions had made aggressive war "not merely illegal,

NUREMBERG 85

but criminal." The Tokyo and later Nuremberg tribunals reached the same result. •

Having thus confirmed the legitimacy of the charge, the Nuremberg courts had little difficulty in deciding that Germany's wars against Poland, Denmark, Norway, Belgium, the Netherlands, Luxembourg, Yugoslavia, Greece, the Soviet Union and the United States were aggressive wars. The Tokyo tribunal came to the same conclusion with respect to Japan's wars against China, the British Commonwealth, France, the Netherlands, the Soviet Union and the United States. At Nuremberg the courts' task was greatly aided by the circumstances that voluminous German military and diplomatic records had fallen into Allied hands at the end of the war, that Germans are meticulous record-makers and that Hitler and some of his subordinates had revealed their aggressive intentions very explicitly in the documents that thus became available as evidence at the trials.

There remained, however, the far more difficult question of which, if any, of the individual defendants could be held guilty of the "crime against peace." By what standards should this sort of criminal liability be determined? It takes a number to plan and many to wage war, but knowledge of its aggressive or defensive character may be confined to a small group, and even among the members of the inner circle there may be disagreement. In Nazi Germany those close to Hitler and present at the

• The Tokyo court, however, was not unanimous on this point; the Indian judge, R. M. Pal, dissented, and the Dutch judge, Bernard V. A. Roling, concurred on what were tantamount to political rather than juridical grounds.

(LC)

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meetings where he revealed his plans might legiti-
mately be held to share his guilt, and at the first
Nuremberg trial most of the 12 (out of 22) de-
fendants convicted on the aggressive war charges
were of that description.

But one of them, Karl Doenitz, was only a com-
modore and commander of the small U-boat arm
when the war began; the Tribunal found that he
had neither been present at Hitler's conferences nor
informed about his plans, and based the conviction
on the fact that Doenitz "waged" aggressive war
because his submarines "were fully prepared to
wage war." On that basis every commander of
combat troops or ships would have been equally
guilty, but the Tribunal's opinion showed no aware-
ness of these far-reaching implications. Inferen-
tially though not explicitly the judgment on Doenitz
was repudiated by a later Nuremberg court that
acquitted on the same charge commanders of much
higher rank than Doenitz on the ground that they
were not at the "policy level."⁵

Except for Doenitz, the first Nuremberg tribunal took a restricted view of the scope of individual liability on the aggressive war charge. The later Nuremberg tribunals were even more conservative in this respect, acquitting 49 of the 52 defendants so charged, including all of the military leaders and industrialists. One of the tribunals did, however, convict three high-ranking civilian officials, and also ruled that Germany's destruction of Austrian and Czechoslovak independence in 1938 and 1939 had been military invasions and therefore aggressive wars, although there had been no resistance.

NUREMBERG 87

The Tokyo tribunal was confronted with quite a different problem of responsibility, since there was no Japanese leader who at all corresponded to Hitler, and government policies were the product of pressures and counterpressures of powerful military (17 of the defendants were military men) and political cliques. Furthermore, the relevant time period was much longer for Japan than for Germany, as the aggressive war against China was determined to have begun in Manchuria in 1931. On the whole the Tokyo judges were readier than those at Nuremberg to find criminal liability in this accusation. They convicted all but one of the 25 defendants on the charge, in every case on the basis that the accused had participated in the formulation of Japan's aggressive policies.

In all, accordingly, 15 Germans and 24 Japanese were convicted of planning or waging aggressive war. Of the Japanese, 15 were convicted on no other charge, and all but one (who was given a 20-year term) were sentenced to life imprisonment. Of the 15 Germans, all but one were also found guilty of violations of the laws of war; the single exception was the half-mad Rudolf Hess, who was given

* Another German (Artur Greiser, the Nazi leader in Danzig) was convicted in July, 1946 by the Supreme National Tribunal of Poland of various crimes including waging aggressive war, and to him goes the dubious honor of being the first person ever convicted on such a charge. Another Japanese, General Takeshi Sakai, was convicted in August, 1946, on comparable charges, in connection with Japan's aggressive war against China, by a Chinese war crimes tribunal in Nanking. Both Greiser and Sakai were condemned to death.

Probably because of Italy's capitulation in 1943 and the lynching of Benito Mussolini at the end of the war, no Italian was accused of crimes against peace. In fact, there were no noteworthy war crimes trials of Italians, despite the fact that the jurisdiction of the International Military Tribunal covered "the European Axis countries."

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a life sentence and, by a cruel irony, is the only
Nuremberg defendant still in custody. Thus none
of the 16 persons convicted only on aggressive war
charges received the death penalty, a restraint on
the part of the courts that no doubt reflected the
unprecedented nature of the charge.

At Nuremberg there were 59 acquittals on the
aggressive war charge, so that the ratio of acquittals
to convictions was nearly four to one. This result
is another demonstration of the narrow range of
liability that the tribunals found appropriate to
the nature of the offense. On ordinary principles of
criminal liability, conviction would follow if it were
proved that a war was in fact aggressive, that the
accused believed it to be aggressive, and nonethe-
less participated in waging it. Except in the case of
Doenitz, however, the tribunals applied more strin-
gent standards. In the cases against the directors
of the Krupp and I. G. Farben industries, the test
of knowledge was strictly applied; even if the de-
fendants had reason to believe that aggressive wars
were in contemplation, they were not guilty be-
cause they were not privy to Hitler's personal plans
and aims. In the case against high-ranking military
leaders, even such privity did not suffice, because
the accused did not have "actual power to shape
and influence the policy of their nation, prepare for,
or lead their country into or in an aggressive war."⁶

If, on the assumption that American operations
in Vietnam constitute waging aggressive war, ques-
tions were to be raised today concerning the crimi-
nal liability of individual Americans under the
Nuremberg and Tokyo principles, the answer would

NUREMBERG 89

have to be found within the limits that are marked
by these decisions.

For reasons that have already been suggested,⁷
the Nuremberg and Tokyo trials shed little new
light on the laws of war relating to the use of weap-
ons. The charges based on submarine warfare
were totally discounted at Nuremberg, and no such
accusations were made in Tokyo. Aerial bombard-
ment had been used so extensively and ruthlessly
on the Allied as well as the Axis side that neither
at Nuremberg nor Tokyo was the issue made a part
of the trials.

It was, accordingly, the laws of war with respect
to prisoners and the treatment of civilians by mili-
tary occupation forces that were primarily involved
in these cases. On the whole there was no serious
question about the criminality of the conduct
charged or difficulty in proving that it had in fact
occurred, and the only issues were whether those
accused were responsible and, if so, whether or not
there were mitigating circumstances.

The conduct disclosed at Nuremberg did not dis-
close new types of crime; murder, maiming, en-
slavement, ravage, and plunder are a familiar litany.
What was unique about the Nazi conquests, espe-
cially in eastern Europe, was the enormous scope
of the atrocities, and the systematic planning and
meticulous execution of these hideous enterprises.
In 1941, for example, the German Army invaded
Russia under orders from the high command that
stripped the military courts of jurisdiction over of-
fenses committed by enemy civilians, who were re-

90 NUREMBERG

mitted to summary treatment by troop commanders on the spot, and that directed that German soldiers were not to be prosecuted for offenses against Russian civilians unless it was necessary for the discipline or security of the German forces.⁸ Numerous other orders issued at the highest level instructed the troops that “considerations of international law are out of place” in dealing with Bolsheviks, ordered the execution of commandos even if captured in uniform and in conditions of safety, encouraged the execution of “50 to 100” hostages for every German soldier killed by partisans and established special police units to accompany the army and kill all the Jews discovered in the occupied areas.

The picture that emerged in the Tokyo and other trials in the Far East was significantly different in that there were no comparable general orders. The Japanese did not, as did the Germans, carefully organize a program of atrocities. Their conduct during the war appears to have been much more spontaneous, and governed by the life-style of the field commanders on the spot. Of the 25 Tokyo defendants, only five were found guilty of ordering or otherwise approving violations of the laws of war, and in only two of these cases (both relating to the unlawful employment of prisoners of war in Burma) do the crimes appear to have been ordered by the Japanese Government. The three other defendants convicted of war crimes were found guilty only on the basis that they did not fulfill their duty to insure lawful conduct on the part of subordinates.

The imposition of liability for the criminal acts of others was carried a long way in several cases, of

NUREMBERG 91

which perhaps the most striking is that of Koki Hirota, who served briefly as Prime Minister and for several years as Foreign Minister between 1933 and May, 1938, after which he held no office whatever. The so-called "rape of Nanking" by Japanese forces occurred during the winter of 1937-38, when Hirota was Foreign Minister. Upon receiving early reports of the atrocities, he demanded and received assurances from the War Ministry that they would be stopped. But they continued, and the Tokyo tribunal found Hirota guilty because he "was derelict in his duty in not insisting before the Cabinet that immediate action be taken to put an end to the atrocities," and "was content to rely on assurances which he knew were not being implemented." On this basis, coupled with his conviction on the aggressive war charge, Hirota was sentenced to be hanged.

The most noteworthy case of capital punishment for a commander's failure to discharge his responsibilities was not tried before the Nuremberg or Tokyo tribunals, but by a United States military commission in Manila. The defendant was General Tomayuki Yamashita, the Japanese Army commander in the Philippine Islands during the closing months of the war. During that time, as the undisputed evidence showed, the conduct of the Japanese occupation forces degenerated rapidly, and there were numerous massacres of prisoners of war and slaughter of civilians, as well as burning and looting. There was no charge that General Yamashita had approved, much less ordered these barbarities, and no evidence that he knew of them other than

92 NUREMBERG

the inference that he must have because of their extent. The defense showed that by the time he took command the Japanese military position in Luzon was precarious because of the American victory at Leyte, the tightening naval blockade and heavy allied bombardments, so that Yamashita's communications and control of his forces rapidly disintegrated. Nevertheless, the tribunal found Yamashita guilty on the ground that he had "failed to provide effective control of his troops as required by the circumstances," and sentenced him to death by hanging. The sentence was confirmed by General MacArthur, and the validity of the proceedings was sustained by the United States Supreme Court.⁹

To summarize, the Nuremberg, Tokyo and other post-World War II war crimes trials brought to the development of the international penal law of war an international jurisdiction, a strong affirmation of the individual's obligation to comply with internationally recognized standards of conduct, a first enforcement within narrow limits of the concept of "crimes against peace," and a considerable expansion of the area of criminal liability for violations of the laws of war.

Outside the legal dimension, however, the Nuremberg trials had perhaps an even more significant impact on the governments and peoples of the world, in spreading a sense of the moral and political importance of the issues with which the trials were concerned. Before Nuremberg, the laws of war were embodied in professional military tradition, field manuals, international law treatises and

NUREMBERG 93

occasionally in little-noticed court-martial proceed-
ings. Nuremberg made them the preoccupation of
great statesmen and generals, and the stuff of news-
paper headlines.

The setting at Nuremberg was prestigious and highly dramatic. The defendants were colorful and infamous or notorious, and the spectacle of their confrontation with the documents, films, and other records of their doings was now disgusting, now poignant, and always gripping. Lawyers of great renown appeared at the bar of the courts, and Robert Jackson's extraordinary gift for the written word projected the terrible events and searching issues in unforgettable language.

Military courts and commissions have customar-
ily rendered their judgments stark and unsupported
by opinions giving the reasons for their decisions.
The Nuremberg and Tokyo judgments, in contrast,
were all based on extensive opinions detailing the
evidence and analyzing the factual and legal issues,
in the fashion of appellate tribunals generally.
Needless to say they were not of uniform quality,
and often reflected the logical shortcomings of com-
promise, the marks of which commonly mar the
opinions of multi-member tribunals. But the process
was *professional* in a way seldom achieved in mili-
tary courts, and the records and judgments in these
trials provided a much-needed foundation for a
corpus of judge-made international penal law. The
results of the trials commended themselves to the
newly formed United Nations, and on Dec. 11, 1946,
the General Assembly adopted a resolution affirm-
ing "the principles of international law recognized

94 NUREMBERG

by the Charter of the Nuremberg Tribunal and the
judgment of the Tribunal."

However history may ultimately assess the wisdom or unwisdom of the war crimes trials, one thing is indisputable: At their conclusion, the United States Government stood legally, politically and morally committed to the principles enunciated in the charters and judgments of the tribunals. The President of the United States, on the recommendation of the Departments of State, War and Justice, approved the war crimes programs. Thirty or more American judges, drawn from the appellate benches of the states from Massachusetts to Oregon, and Minnesota to Georgia, conducted the later Nuremberg trials and wrote the opinions. General Douglas MacArthur, under authority of the Far Eastern Commission, established the Tokyo tribunal and confirmed the sentences it imposed, and it was under his authority as the highest American military officer in the Far East that the Yamashita and other such proceedings were held. The United States delegation to the United Nations presented the resolution by which the General Assembly endorsed the Nuremberg principles.

Thus the integrity of the nation is staked on
those principles, and today the question is how
they apply to our conduct of the war in Vietnam,
and whether the United States Government is pre-
pared to face the consequences of their application.