* Formerly Chief, International Affairs Division, Office of the Judge Advocate General of the Army; and Legal Adviser, United States European Command, Paris, Prance. The opinions expressed herein are those of the writer and are not necessarily those of The Judge Advocate General or of the Department of the Army.

1 In Briggs, The Law of Nations 1017 (2nd ed., 1952), the literature on the subject is termed “overwhelming.” The present writer succumbed to the fever and wrote a purely historical article entitled “War Crimes” for the Encyclopaedia Britannica.

2 An exception should be made of the very fine lectures on the subject which were given by Professor B. V. A. Röling of The Netherlands at the 1960 Session of the Hague Academy of International Law and which are reproduced at 100 Hague Academy Recueil des Cours 329 (1960, II) under the title “The Law of War and the National Jurisdiction since 1945.”

3 The uniformity of the practice in this early era is attested to by the following statement from Khadduri, War and Peace in the Law of Islam 126 (1955):

“The practice of taking prisoners of war as part of the spoil is very old and goes back to antiquity. The Persians treated their captives with relentless cruelty; they were blinded, tortured, and finally killed or crucified. The Hebraic rule was no less severe than Persian practice. The Muslims, regarding captives also as part of the spoil, often treated them no less cruelly than their predecessors.”

4 Davis, , “The Prisoner of War,” in 7 A.J.I.L. 521, 523 (1913)Google Scholar.

5 Among other actions in this regard, the Third Lateran Council (1179) pronounced itself against the enslavement of Christian prisoners of war. Marin, , “The Evolution and Present Status of the Laws of War,” 92 Hague Academy Recueil des Cours 633, 655 (1957, II)Google Scholar.

6 Davis, loc. cit. 524. An Islamic compilation of the laws of war published in Spain in 1280 did prescribe that it was forbidden to mutilate prisoners of war. Marin, loc. cit. 656–657.

7 Davis, loc. cit. 525, 540; Flory, , Prisoners of War 158–160 (1942)Google Scholar, The Treaty of Westphalia (1648), which ended the Thirty Tears’ War, provided for the release of prisoners of war without the payment of ransom. During the eighteenth and nineteenth centuries the practice of exchanging prisoners of war, both during and after the cessation of hostilities, became firmly established.

8 8 Stat. 84; Treaty Series, No. 292. Substantially the same provision was contained in the new treaty between the same nations which was entered into in 1799 (8 Stat. 162; Treaty Series, No. 293). A very similar provision may be found in the Treaty of Guadalupe-Hidalgo, between the United States and Mexico, which was signed in 1848 (9 Stat. 922; Treaty Series, No. 207). Even the 1805 Treaty of Peace and Amity between the United States and Tripoli (8 Stat. 214; Treaty Series, No. 359), and the 1815 Treaty of Peace between the United States and Algiers (8 Stat. 224; Treaty Series, No. 1%) contained provisions as to prisoners of war.

9 Decree of May 4, 1792, of the French National Assembly, 1 DeClercq, Recueil des Traités de la France 217 (1864). The decree reads in part as follows:

“1. Prisoners of war are under the protection of the French nation.

“2. All cruel acts, all violence, and all insults committed against a prisoner of war shall be punished as if committed against a French citizen.

“3. All prisoners of war shall be transported to special places in the rear of the army for which purpose the commanding generals shall have designated specific areas.”

The skeptic might be inclined to ascribe to this action of the French Revolutionary legislature the same motives which impelled the Chinese Communists to institute their so-called “Lenient Policy” towards United Nations Command prisoners of war during the Korean hostilities. See Treatment of British Prisoners of War in Korea 31 (British Ministry of Defence, 1955).

10 It is, indeed, a paradox that one of the worst war crimes of modern history, prior to World War II, was the killing at Jaffa, in 1799, by Napoleon Bonaparte, then a general serving under the French Directory, of more than 3,500 Arab prisoners of war for whom he was unable to spare a guard from his already under-strength army. It is paralleled by the execution of many thousands of Republican prisoners of war by Maximilian of Mexico, himself later captured and executed in 1867.

11 3 McNair, International Law Opinions 119 (1956). In an article entitled “Les sanctions pénales dans la première Convention de Genève,” in 1952 Revue Internationale de la Croix-Rouge 286, Pilloud mentions that it is possible to find examples of punishment being imposed for violations of the laws and customs of war during the eighteenth and nineteenth centuries, although admittedly the cases are comparatively rare. To the same effect see Pictet, Commentary on the Geneva Convention Relative to the Treatment of Prisoners of War (hereinafter referred to as Commentary) 617 (1960).

12 Lieber, Instructions for the Government of the Armies of the United States in the Field.

13 According to Davis, loc. cit, 530:

“The efforts of Dr. Lieber were so far in advance of the times that the conference at The Hague, held over a generation later, could only approve and adopt his work, without adding materially to its humane requirements.”

And several generations thereafter, all or the major parts of the eighteen of its articles concerned with prisoners of war were included in the Geneva Convention Relative to the Treatment of Prisoners of War of August 12, 1949 (hereinafter referred to as 1949 Convention), 6 U. S. Treaty Series 3316; 75 U.N. Treaty Series 135 (1:972); 47 A.J.I.L. Supp. 119 (1953).

14 Winthrop, , Military Law and Precedents 791–792 (1895 ed., 1920 reprint)Google Scholar. Winthrop states:

“... any individual officer resorting to or taking part in such act [of putting a prisoner of war to death] or [in unlawful, unreasonably harsh, or cruel] treatment is guilty of a grave violation of the laws of war, for which, upon capture, he may be made criminally answerable.” (p. 791.)

15 The 1864 Geneva Convention for the Amelioration of the Condition of the Wounded in Time of War. 22 Stat. 940; Treaty Series, No. 377; 1 A.J.I.L. Supp. 90 (1907).

16 32 Stat. 1803; Treaty Series, No. 403; 1 A.J.I.L. Supp. 129 (1907). The “Oxford Manual” on the laws and customs of war (Annuaire de 1’Institut de Droit International, 1881–1882) had contained a provision in Art. 84 for the punishment of persons who violated the laws of war.

17 36 Stat. 2277; Treaty Series, No. 539; 2 A.J.I.L. Supp. 90 (1908). With respect to this convention, the following statement appears in Pictet, Commentary:

“States were left entirely free to punish or not acts committed by their own troops against the enemy, or again, acts committed by enemy troops, in violation of the laws and customs of war. In other words, repression depended solely on the existence or non-existence of national laws repressing the acts in question.” (p. 617.)

Strangely enough, the 1906 Geneva Bed Cross Convention, 35 Stat. 1885, Treaty Series, No. 464, contained a chapter entitled “Eepression of Abuses and Infractions,” and the abuses and infractions against which the parties were called upon to legislate included “ill treatment of the sick and wounded of the armies.” Nevertheless, this type of provision is not found in the later (1907 and 1929) conventions dealing specifically with prisoners of war.

18 3 International Law Chiefly as Interpreted and Applied by the United States 1845 (2nd rev. ed., 1945).

19 14 A.J.I.L. 95, 112–115 (1920). It is interesting to note that in its Beport the Commission said:

“Every belligerent has, according to international law, the power and authority to try the individuals alleged to be guilty of the crimes of which an enumeration has been given in Chapter II on Violations of the Laws and Customs of War, if such persons have been taken prisoner or have otherwise fallen into its power.... “ (p. 121.)

20 The manner in which the program failed, and the reasons therefor, are discussed in Marin, loc. cit. 684–686; and in the History of the United Nations War Crimes Commission and the Development of the Law of War (hereinafter referred to as War Crimes Commission) 46–52 (1948).

21 47 Stat. 2021; Treaty Series, No. 846; 27 A.J.I.L. Supp. 59 (1933). This convention is hereinafter referred to as the 1929 Convention. When World War II commenced there were more than 40 nations party to this convention.

22 Report of the International Committee of the Bed Cross on its Activities during the Second World War (hereinafter referred to as Eeport), Vol. I, p. 218 (1948).

23 A companion convention, the 1929 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick of Armies in the Field, 47 Stat. 2074, Treaty Series, No. 847, 27 A.J.I.L. Supp. 43 (1933), provided, in Art. 23, for the enactment of national legislation necessary “ to repress in time of war all acts in contravention” of that convention. There was no comparable provision in the 1929 Prisoners of War Convention.

24 Let it not be thought that the writer considers provisions for penal sanctions for maltreatment of prisoners of war to be a panacea which will automatically obliterate all activities of this nature. That is not the history of any penal legislation. However, it does act as a deterrent for some, and it provides a firm base for the punishment of offenders—something which has heretofore been challenged as lacking. At the 1949 Geneva Diplomatic Conference the Netherlands Delegation took the position, which is particularly applicable to a code dealing with the law of war, that “an international convention had no strength without the possibility to enforce it, had no strength without sanctions.” Final Record of the Diplomatic Convention of Geneva of 1949 (hereinafter referred to as Final Record), Vol. II B, p. 31.

25 Dallin, , German Rule in Russia 414 (1957)Google Scholar; Opinion and Judgment of the International Military Tribunal (hereinafter referred to as Judgment), reproduced in Nazi Conspiracy and Aggression: Opinion and Judgment 59–62 (1947), and in 41 A.J.I.L. 172, 226–229 (1947). It is, perhaps, appropriate to quote here the portion of the Tribunal’s opinion (pp. 228–229) dealing with the now historic exchange which took place in 1941 between German Admiral Canaris and German General Keitel:

“... On the 15th September 1941, Admiral Canaris protested against the regulations for the treatment of Soviet prisoners of war, signed by General Reinecke on the 8th September 1941. He then stated:

‘The Geneva Convention for the treatment of prisoners of war is not binding in the relationship between Germany and the USSR. Therefore only the principles of general international law on the treatment of prisoners of war apply. Since the 18th century these have gradually been established along the lines that war captivity is neither revenge nor punishment, but solely protective custody, the only purpose of which is to prevent the prisoners of war from further participation in the war. This principle was developed in accordance with the view held by all armies that it is contrary to military tradition to kill or injure helpless people.... The decrees for the treatment of Soviet prisoners of war enclosed are based on a fundamentally different viewpoint.’

This protest, which correctly stated the legal position, was ignored. The defendant Keitel made a note on this memorandum:

‘The objections arise from the military concept of chivalrous warfare. This is the destruction of an ideology. Therefore I approve and back the measures.’”

In Keitel’s case the Tribunal adjudged the sentence of death, which was executed.

26 10 Dept. of State Bulletin 145 (1944); Judgment of the International Military Tribunal for the Far East (hereinafter referred to as Far East Judgment) 1002 (mimeo., 1948). The latter states:

“Ruthless killing of prisoners by shooting, decapitation, drowning, and other methods; death marches in which prisoners including the sick were forced to march long distances under conditions which not even well-conditioned troops could stand, many of those dropping out being shot or bayonetted by the guards; forced labor in tropical heat without protection from the sun; complete lack of housing and medical supplies in many cases resulting in thousands of deaths from disease; beatings and torture of all kinds to extract information or confessions or for minor offences; killing without trial of recaptured prisoners after escape and for attempt to escape; killing without trial of captured aviators; and even cannibalism: these are some of the atrocities of which proof was made before the Tribunal.”

27 Estimates of prisoner-of-war mortality during World War II are as varied as they are numerous. Thus one estimate places the total number of Soviet soldiers captured by the Germans at 5,000,000 and the total number of survivors at only 1,000,000. Dallin, op. cit. 426. Another estimate is that 2,300,000 Russians died in the prisoner-of-war camps maintained by the Germans, and that in those maintained by the Japanese the United Nations mortality was 16,000 out of 46,000. Rousseau, Droit International Public 563 (1953). (In all fairness, however, it must be pointed out that the same author estimates that in the prisoner-of-war camps maintained by the U.S.S.R., the mortality was 1,321,000 out of 3,700,000 Germans, 63,000 out of 75,000 Italians, and 150,000 out of 615,000 Japanese.) Some of the most authoritative figures are probably those contained in the Ear East Judgment which states:

“... Of United States and United Kingdom forces 235,473 were taken prisoner by the German and Italian Armies; of those 9,348 or 4 per cent died in captivity. In the Pacific Theater 132,134 prisoners were taken by the Japanese from the United States and United Kingdom forces alone of whom 35,756 or 27 per cent died in captivity.” (pp. 1002–1003.)

28 See, for example, the Department of State Bulletin, loc. cit. note 26, where the following is stated with regard to one of the protests:

“... In that protest the Department again called upon the Japanese Government to carry out its agreement to observe the provisions of the convention and warned the Japanese Government in no uncertain terms that the American Government would hold personally and officially responsible for their acts of depravity and barbarity all officers of the Japanese Government who have participated in their commitment and, with the inexorable and inevitable conclusion of the war, will visit upon such Japanese officers the punishment they deserve for their uncivilized and inhuman acts against American prisoners of war.”

The protest referred to also summarized the specific articles of the 1929 Geneva Convention which the Japanese had violated. 10 Dept. of State Bulletin 168–175 (1944). A number of these notes of protest are reproduced in extenso under the caption “Japanese Atrocities” in 13 ibid 343–357 (1945).

29 War Crimes Commission 112 et seq.

30 While exact statistics have never been accumulated, it is probable that something in excess of 2000 separate trials were conducted by a number of the United Nations in Europe and in the Far East. (Of course, many of these involved victims other than prisoners of war, and most of them involved more than one accused.) One table, which does not purport to be complete, lists 1911 trials. Digest of Laws and Cases, 15 Law Reports of Trials of War Criminals xvi. (Hereinafter, in cases reported in this 15–vol. set of records prepared by the U. N. War Crimes Commission between 1947 and 1949, the citation War Crimes Rep. will be used.) An Appendix entitled “Statistics on War Crimes Trials” may be found in War Crimes Commission 515. A collection of statistics may also be found in Gross, “The Punishment of War Criminals: The Nuremberg Trial,” in 2 Netherlands International Law Review 356 (1955).

31 Judgment, 41 A.J.I.L. 225–229 (1947); Ear East Judgment 1024–1136.

32 Peilchenfeld, Prisoners of War 89 (1948). He also stated:

“... it would be an improvement if a new convention on prisoners of war contained in one chapter a whole criminal code dealing with acts to be treated as war crimes. This code should contain clear definitions and be sufficiently specific. Professor Quincy Wright suggests a code defining as concretely as possible the various crimes against prisoners of war.” (p. 91.)

33 Pictet, Commentary 618.

34 Note 13 above.

35 Up to the end of January, 1962, there had been 87 ratifications and accessions to this convention. These include all of the members of the Soviet bloc and all of the more important Powers except Canada and the Republic of China. Comparable provisions may be found in the three other conventions drafted by the same Diplomatic Conference: Arts. 49 and 50 of the 1949 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 6 U. S. Treaty Series 3114, 75 U. N. Treaty Series 31 (1:970); Arts. 50 and 51 of the 1949 Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 6 U. S. Treaty Series 3217, 75 TJ. N. Treaty Series 85 (I:971); and Arts. 146 and 147 of the 1949 Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 6 TJ. S. Treaty Series 3516, 75 U. N. Treaty Series 287 (1:973), 50 A.J.I.L. 724 (1956).

36 As early as July, 1950, the Foreign Minister of the so-called Democratic People’s Republic of Korea sent a message to the TJ. N. Secretary General stating that its forces were “strictly abiding by principles of Geneva Conventions in respect to Prisoners of War.” Le Comité International de la Croix-Rouge et le Conflit de Corée: Recueil de Documents, Vol. I, p. 16 (1952). Nevertheless, a number of the members of the U. N. Command Armistice Delegation at Pan Mun Jom, including the writer, were convinced that not even the North Korean and Chinese Communist negotiators were aware of the actual provisions of the 1949 Convention (or, for that matter, of any earlier prisoner-of-war convention) until many months after July 10, 1951, when the armistice negotiations began, and well over a year after the message was sent to the U. N. Secretary General; and then only when the Russians had pointed to Arts. 7 and 118 of the 1949 Convention as those on which relianee should be placed in the controversy over the problem of the repatriation of prisoners of war.

37 According to the findings contained in Treatment of British Prisoners of “War in Korea (Ministry of Defence, 1955), the Chinese Communists asserted that:

“Prisoners of war were common people who had been duped by their reactionary governments. Those who did not recognize the ‘truth’ of this assertion and argued that they were entitled to the provisions of the convention were sharply told that they were ‘war criminals’ and entitled to nothing—except shooting. For referring to the convention men were struck, threatened and made to stand at attention for long periods.” (p. 31.) And again: “... the Chinese in Korea, by simply maintaining that all soldiers fighting for their ‘bourgeois’ or ‘imperialist’ opponents were, ipso facto ‘war criminals,’ succeeded to their own satisfaction in justifying their complete disregard of the convention. One prisoner was told by a Chinese interrogator that the Prisoners-of-War Convention was fully observed by the Chinese, ‘but only after the prisoner had reached a stage of full repentance for his past crimes.’ Fighting against the Chinese was the most heinous of these crimes.” (p. 32.)

This is almost exactly what had been forecast fifteen years earlier as the treatment of prisoners of war to be expected from the U.S.S.R. (then the only Communist state). Taracouzio, , The Soviet Union and International Law 321 (1935)Google Scholar. Similarly, upon the death of Japanese Prince Fumitaka Konoye in 1956 in the Soviet Union, where he had been held since his capture in 1945 while serving in the Japanese Army, the Japanese Foreign Ofdce announced that it had learned that he had died while serving a sentence adjudged upon his conviction in 1951 of having committed the war crime of “supporting capitalism.” New York Times, Dec. 11, 1956.

38 The statement has been made that, in the United Kingdom, even absent a specific penal statute, a person may be prosecuted “by virtue of the general rules governing civilised society.” Remarks and Proposals submitted by the International Committee of the Bed Cross (hereinafter referred to as Remarks and Proposals) 20 (1949). This is definitely not the rule in the United States, where even a penal statute is strictly construed. Smith v. TJ. S., 360 U. S. 1 (1959); Fasulo v. U. S., 272 U. S. 620 (1926).

39 Final Record, Vol. I, pp. 100, 101–102; ibid., Vol. III , p. 43 (Annex 50).

40 Remarks and Proposals 5.

41 Ibid. 64–65. The new draft articles also contained provisions with respect to the defense of superior orders (note 127 below) and trial safeguards.

42 Final Record, Vol. III , p. 42 (Annex 49).

43 Report on Penal Sanctions, Fourth Report of the Special Committee of the Joint Committee, Final Record, Vol. II B , p. 115.

44 See, for example, the Uniform Code of Military Justice, Art. 118, 10 U.S.C. 918. As a background for the discussion which follows in this portion of this article, reference will be made to the relevant provisions of the Uniform Code of Military Justice (hereinafter referred to as Uniform Code) wherever there is one specifically proscribing one of the offenses designated in Art. 130 of the 1949 Convention as a grave breach of the convention. The substantive penal provisions of the Uniform Code are used because it is probably the penal code which will be applied in most trials conducted by the United States of individuals alleged to have committed such offenses (p. 459 below).

45 The Dreierwalde Case, 1 War Crimes Rep. 81, 86. See also Arts. 56, 59, and 71 of Lieber’s Code, p. 436 above.

46 See, for example, U. S.: The Dostler Case, 1 War Crimes Rep. 22, and The Jaluit Atoll Case, ibid. 71; U.K.: The Essen Lynching Case, ibid. 88, and The Stalag Luft III Case, 11 ibid. 31; Canada: The Abbaye Ardennes Case, 4 ibid. 97; and France: Trial of Robert Wagner, 3 ibid. 23, and Trial of Carl Bauer, 8 ibid. 15. (Some of the European countries based their prosecutions on violations of their national penal codes committed within their territory or against their nationals, rather than on international law.)

47 Pictet, Commentary 626–627.

48 P. 449 below. With respect to the failure of a commander to exercise proper command responsibility, see p. 466 below.

49 The Report of the 1956 Commission of Experts, assembled by the International Committee of the Bed Cross in Geneva in October of that year to study the problem of grave breaches, made this comment:

“The Commission noted that the framers of the Conventions had considered torture and inhuman treatment to be different aspects of one and the same ‘grave breach,’ which also comprised biological experiments. In the Experts’ opinion, all acts or omissions that led to great moral suffering or caused serious deterioration in the victim’s mental condition should also be comprised in that ‘grave breach.’” (p. 5.)

50 Post-World War II cases in which the national courts had no great difficulty in finding punishable maltreatment include: Trial of Baba Masao, 11 War Crimes Rep. 56 (death march) ; Trial of Tanaka Chuichi, ibid. 62 (tying prisoners of war to a post and beating them); Trial of Arno Heering, ibid. 79 (forced march with inadequate supplies) ; Trial of Willi Mackensen, ibid. 81 (forced march with inadequate supplies); The Gozawa Trial (ed. by Sleeman, 1948) (flogging, overworking, and general maltreatment).

51 Note 49 above. In Pictet, Commentary 627, the conclusion of the Commission of Experts was adopted and amplified as follows:

“Inhuman treatment.—The Convention provides, in Article 13, that prisoners of war must always be treated with humanity. The sort of treatment covered here would therefore be whatever is contrary to that general rule. It could not mean, it seems, solely treatment constituting an attack on physical integrity or health; the aim of the Convention is certainly to grant prisoners of war in enemy hands a protection which will preserve their human dignity and prevent their being brought down to the level of animals. Certain measures, for example, which might cut prisoners of war off completely from the outside world and in particular from their families, or which would cause great injury to their human dignity, should be considered as inhuman treatment.’’

This same position had earlier been taken by the Far East Tribunal, which referred to “mental torture,” giving as an example an incident in which a number of actions were taken one evening to make certain prisoners of war (several of Doolittle’s fliers) believe that they were about to be executed by a firing squad, but at the last minute they were told that the Japanese executed only at sunrise and that they would be executed in the morning if they did not talk before then. Far East Judgment 1063.

52 In a claim for pecuniary damages made to the U. S.-German Mixed Claims Commission established after World War I, the claimant, a former prisoner of war of the Germans, contended that the use of paper bandages in a German hospital to bandage his wounds constituted maltreatment. The claim was disallowed. 4 Hackworth, Digest of International Law 278 (1943). Such an act, particularly where caused by force of circumstances, would unquestionably fall above the line of demarcation.

53 Pictet, Commentary 627; Pilloud, “ L a protection pénale des conventions humanitaires internationales,” in 1953 Revue Internationale de la Croix-Eouge 842, 854. Physical and mental torture inflicted in order to obtain information is specifically proscribed by Art. 17 of the 1949 Convention.

54 Ear East Judgment 1029; Trial of Erich Killinger, 3 War Crimes Rep. 67.

55 The following statement clearly demonstrates the use of torture, not as a method of interrogation, but to force a prisoner of war to abandon his loyalty to his own country and to adopt the political views of his captors:

“When all these methods of inducement had failed... the Chinese had recourse to physical coercion and torture, revolting to the humane mind and expressly forbidden by the Prisoners-of-War Convention. Before the middle of 1951 the Chinese adopted the sample attitude that if a prisoner would not co-operate he was punished. If the punishment resulted in his death it was because he was an obstinate ‘war criminal.’ Later the argument was changed, and physical punishment was said to be inflicted for special offences rather than a general refusal to see ‘the light.’ Torture and ill-treatment were carried out quite cold-bloodedly for the purpose of breaking a man’s resistance.” (Treatment of British Prisoners of War in Korea 22.) See also note 37 above.

56 For post-World War II trials which included incidents involving involuntary and illegal medical experiments on prisoners of war (and civilians), see: Judgment, 41 A.J.I.L. 228 (1947); Par East Judgment 1065; Trial of Rudolf Hoess, 7 War Crimes Rep. 11, 14–16, 24–26; The Medical Case (U. S. v. Karl Brandt), 1 Trials of War Criminals before the Nuernberg Military Tribunals under Control Council Law No. 10, pp. 11–14 (hereinafter in citing cases reported in this 14–vol. set of reports prepared by the U. S. Department of the Army between 1949 and 1953, the citation, Trials, will be used); The Milch Case (Trial of Erhard Milch), 2 Trials 355, 361–363. 57 Pinal Record, Vol. IIA, p. 381.

58 Pictet, Commentary 141 and 627–628. The Report of the 1956 Commission of Experts states:

“The Commission discussed, but without reaching a decision, the question whether every biological experiment on a protected person should be considered as a grave breach, as some experts considered. The Commission agreed, nevertheless, that every biological, medical or scientific experiment carried out against a person’s will, or dignity, or likely to cause serious physical or mental injury, was prohibited by the Conventions and should be repressed.” (p. 5.)

Ten excellent principles for use in determining the legality of the performance of medical experiments on a prisoner of war are set forth in the opinion of the U. S. Military Tribunal in The Medical Case, 2 Trials 181–182, note 56 above. These principles are reproduced in Taylor, , “The Nuremberg War Crimes Trials,” International Conciliation 284–286 (April, 1949, No. 450)Google Scholar.

59 Art. 118, Uniform Code, 10 U.S.C. 918.

60 Art. 119, idem, 10 U.S.C. 919.

61 Art. 124, idem, 10 U.S.C. 924.

62 Art. 128, idem, 10 U.S.C. 928.

63 Art. 93, idem, 10 U.S.C. 893.

64 Art. 134, idem, 10 U.S.C. 934. One exception to this generalization is the problem of mental torture and moral suffering discussed above, p. 447.

65 Pictet, Commentary 628; Pilloud, loc. cit. 856.

66 Pictet, op. cit.

67 P. 447 above, and note 51.

68 An incident causing great mental suffering, such as that related by the Far East Tribunal (note 51 above), might possibly be considered to constitute the offense of communicating a threat, a violation of Art. 134, Uniform Code, 10 U.S.C. 934. This would take care of some offenses of this category of grave breaches. But by no stretch of the imagination can an offense presently be found on the statute books which would permit a conviction for many other acts which would undoubtedly cause great mental suffering. The present writer concurs completely with the statement contained in Pietet, Commentary 628: “... it may be wondered if this is not a special offense not dealt with by national legislation.”

69 Art. 23 of the Regulations annexed to the Fourth Hague Convention of 1907, note 17 above, forbade a belligerent “ t o compel the nationals of the hostile party to take part in the operations of war against their own country, even if they were in the belligerent’s service before the commencement of the war.” (This provision did not appear in the Second Hague Convention of 1899, note 16 above.)

70 The 1949 Convention contains no specific provision other than that in Art. 130 with respect to a prisoner of war serving in the hostile armed force. In the 1949 Geneva Convention Relative to the Protection of Civilian Persons in Time of War (note 35 above), Art. 51 affirmatively provides that “ The Occupying Power may not compel protected persons to serve in its armed or auxiliary forces,” while Art. 147 parallels Art. 130 of the 1949 Prisoners of War Convention. Moreover, Art. 51 of the Civilian Convention contains an additional provision not found in the 1949 Prisoners of War Convention prohibiting “pressure or propaganda which aims at securing voluntary enlistment.’’

71 During the course of the hostilities in Korea the Communists announced at various times the capture of from 50,000 to 75,000 prisoners of war. When the discussion of the prisoner-of-war problem began at the armistice negotiations, they claimed that they were holding only a very small fraction of even the lower figure. When challenged as to the fate of the balance, the great majority of whom had been members of the Republic of Korea Army, one of the assertions made by the Communists was that many of the missing prisoners of war had been “re-educated” and had then “volunteered” to serve in the North Korean Army. It does not require much imagination to visualize the nature of the “re-education” or the actual extent of the “volunteering.”

72 Record of Conference, 7th Meeting, p. 6 (mimeo. in French, International Committee of the Bed Cross, 1956). Note that the word “auxiliary” is used in the Civilian Convention, note 70 above.

73 Report of the 1956 Commission of Experts 6.

74 Ibid. This problem is further complicated by the fact that the French version of Art. 130 uses the term “forces armées.”

75 Far East Judgment 1027; Trial of Robert Wagner, 3 War Crimes Rep. 23; Trial of Shigeru Sawada, 5 ibid. 1; Trial of Harukei Isayama, ibid. 60; Trial of Tanaka Hisakasu, ibid. 66. In its recital of the evidence in the Shigeru Sawada Case, the U.N. War Crimes Commission said:

“... The fliers were not told that they were being tried; they were not advised of any charges against them; they were not given any opportunity to plead, either guilty or not guilty; they were not asked (nor did they say anything) about their bombing mission. No witnesses appeared at the proceedings; the fliers themselves did not see any of the statements utilized by the court that they had previously made at Tokyo; they were not represented by counsel; no reporter was present; and to their knowledge no evidence was presented against them.” (pp. 2–3.)

In the Tanaka Hisakasu Case, the Commission summarized the offense as follows:

“The accused were in fact found guilty of the denial of certain basic safeguards which are recognized by all civilized nations as being elements essential to a fair trial, and of the killing or imprisonment of captives without having accorded them such a trial. “ (p. 73.)

76 Matter of Yamashita, 327 U. S. 1, 24, note (1946); 40 A.J.I.L. 432, 444 (1946).

77 Final Record, Vol. II B, p. 117.

78 Ibid. 88. For a listing of all of the guaranteed judicial safeguards and a discussion of their applicability, see below, p. 457.

79 Art. 37, Uniform Code, 10 U.8.C. 837, prohibits any commanding officer from coercing or influencing the actions of any military tribunal convened under the Code, or any member thereof; and Art. 98 of the Code, 10 U.S.C. 898, provides for the punishment of violations of the procedural provisions of the Code. However, as indicated, these provisions apply only to U. S. courts-martial, and not to improper trials by enemy tribunals.

80 In the Judgment, 41 A.J.I.L. 221 (1947), the Tribunal said:

“Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.”

81 Of some help in this regard is the fact that in the French version of the convention, which is equally authentic, the words “une grave infraction” and “les infractions graves” are used in Arts. 13 and 130, respectively.

82 P. 448 above.

83 See, for example, The Essen Lynching Case, 1 War Crimes Rep. 88; Trial of Albert Bury, 3 ibid. 62; Trial of Kurt Maelzer, 11 ibid. 53. In the Judgment, the following statement appears:

“When Allied airmen were forced to land in Germany they were sometimes killed at once by the civilian population. The police were instructed not to interfere with these killings, and the Ministry of Justice was informed that no one should be prosecuted for taking part in them.” (p. 226.)

For the documentary evidence of the foregoing, see The Justice Case (U. S. v. Altstootter), 3 Trials 1095–1099.

84 Art. 13: measures of reprisal; Art. 16: adverse distinction based on race, nationality, religious belief, or political opinions; Art. 17: physical or mental torture, coercion; Art. 19: unnecessary exposure to danger; Art. 22: interning in a penitentiary; Art. 23: use to render areas immune from military operations; Arts. 50 and 51: compelling prisoners of war to perform unauthorized or prohibited work; Art. 87: collective punishment, corporal punishment, torture or cruelty; Art. 99: moral or physical coercion; et cetera.

85 P. 455 below.

86 P. 441 above. Actually, this “code” contemplates the application of national procedures with the proviso that they must guarantee certain minimum judicial standards.

87 Hearing before the Committee on Foreign Relations, U. S. Senate, 84th Cong., 1st Sess., June 3, 1955, on the Geneva Conventions for the Protection of War Victims 24 (hereinafter referred to as Hearing). Note that in any event the quoted assertion was limited to “ acts committed in the United States.” What of acts of maltreatment of prisoners of war which occur before these latter ever reach the United States? And what of acts of maltreatment committed against American prisoners of war in foreign territory by enemy personnel later captured by the United States?

88 Ibid. 58. Note that no mention is made of violations of the convention other than grave breaches,

89 Pp. 449, 451, 452, above, and note 68.

90 Pictet, Commentary 621, note 1, lists only Switzerland, Yugoslavia, and The Netherlands as having enacted the necessary legislation. Czechoslovakia, Ethiopia, Thailand, and Belgium have also done so. On Dee. 25, 1958, the U.S.S.E. promulgated its “Law of Criminal Responsibility for Military Crimes,” of which Art. 32 is entitled “Ill-treatment of Prisoners of War.” However, this law cannot be said to implement more than a very small portion of Art. 130. And the United Kingdom has enacted the “Geneva Convention Act, 1957” (5 & 6 Eliz. 2, C. 2), which makes the grave breach of willfully killing a prisoner of war punishable by life imprisonment, and all other grave breaches of the 1949 Convention punishable by imprisonment for not more than fourteen years.

91 Note 84 above.

92 In Pictet, Commentary 629, the excellent suggestion is made that if a statute with separate provisions for each violation of the convention is not feasible, the minimum requirement would be a statute with separate provisions as to each grave breach and a general provision providing for a moderate punishment for all other violations.

93 It should be observed that this provision relates only to grave breaches and not to other violations of the convention.

94 In Tingling, and Ginnane, , “The Geneva Conventions of 1949,” 46 A.J.I.L. 393 (1952)Google Scholar, the authors, both of whom were members of the U. S. Delegation to the 1949 Geneva Diplomatic Conference, state:

“ In the case of the United States, whose regular courts generally exercise jurisdiction only over crimes committed within their territorial jurisdiction, legislation may be required to provide for the trial, or permissively to allow the extradition, of persons who are accused of having committed grave breaches in a conflict to which the United States was not a party.” (p. 426.)

The United Kingdom’s Geneva Convention Act, 1957 (note 90 above), obviates this problem by endowing British courts with authority to try cases thereunder “as if the offence had been committed” at the place of trial.

95 He is not within one of the categories of persons over whom U. S. courts-martial exercise their limited peacetime authority. See Art. 2, Uniform Code, 10 U.S.C. 802. See also Toth v. Quarles, 350 U. S. 11 (1955), and Reid v. Covert, 354 U. S. 1 (1957).

96 The Uniform Code has no territorial limitations. See Art. 5 thereof, 10 U.S.C. 805.

97 The U. S. Extradition Law (18 U.S.C. 3184) requires a complaint charging a person “with having committed within the jurisdiction of any such foreign government any of the offenses provided for.... “ The hypothetical offense was not committed within the territorial jurisdiction of Graustark. Under the U. S. extradition statute, Graustark cannot obtain extradition; and under the convention, Grand Fenwick is under no compulsion to seek it.

98 All of the Soviet-bloc countries made reservations to Art. 85, under which persons convicted of war crimes and crimes against humanity may be subjected “to the conditions obtaining in the country in question for those who undergo their punishment.” Some fear has been expressed that these reservations make it possible for the Communists to defeat the entire purpose of the convention; and in advising and consenting to the ratification of the convention the U. S. Senate felt it necessary and appropriate to reject the reservation. However, it must be borne in mind that the U.S.S.R. has made it quite clear that its reservation applies only to conditions of punishment after a prisoner of war has been found guilty of, and sentenced for, a pre-capture offense. Pictet, Commentary 424–425. Accordingly, it should be assumed that the discussion and conclusions which follow in the text would be applicable in the case of the trial by the U.S.S.R. of a prisoner of war, whether for a pre-capture violation of the convention or for a post-capture offense.

99 Art. 4 of the 1949 Convention lists the various categories of persons who, when they fall into the hands of the enemy, are prisoners of war.

100 Of course, there is nothing to preclude a state from permitting an accused nonprisoner of war to benefit from the more liberal prisoner-of-war provisions.

101 A neutral state may intern troops belonging to the belligerent armies who enter its territory, but it does not make them prisoners of war. Art. 11, Fifth Hague Convention of 1907, 36 Stat. 2310; Treaty Series, No. 540; 2 A.J.I.L. Supp. 117 (1908).

102 p. 451 above.

103 The subject of trials of prisoners of war is so extensive as to necessitate and to warrant a discussion limited exclusively thereto. A short analysis of the trial safeguards accorded in the various war crimes trials which took place after World War II may be found in the Digest of Laws and Cases, 15 War Crimes Rep. 189–199.

104 Art. 102 of the 1949 Convention is similar to Art. 63 of the 1929 Convention. In Matter of Yamashita, note 76 above, the U. S. Supreme Court held (pp. 21–22) that an individual being tried for a pre-capture offense was not entitled to the benefits of Art. 63. Art. 85 of the 1949 Convention has, in effect, legislated the decision in the Yamashita Case out of existence. As stated by General Dillon, one of the members of the U. S. Delegation at the 1949 Geneva Diplomatic Conference, in “The Genesis of the 1949 Geneva Convention Relative to the Treatment of Prisoners of War,” 5 Miami Law Quarterly 40, 58 (1950):

“The United States delegation made it perfectly clear that it intended to punish all war criminals but that it favored one judicial system for all prisoners of war whether their alleged offense was committed before or after capture.”

The U. S. Army has already provided, in par. 178 6 of its new Field Manual 27–10, The Law of Land Warfare (1956):

“Prisoners of war, including those accused of war crimes against whom judicial proceedings are instituted, are subject to the jurisdiction of United States courts-martial and military commissions. They are entitled to the same procedural safeguards accorded to military personnel of the United States who are tried by courts-martial under the Uniform Code of Military Justice, or by other military tribunals under the laws of war.”

105 It could be argued that any trial governed by Arts. 129 and 130 of the 1949 Convention would be for a violation of a provision of an international convention and that it would, therefore, be for an act forbidden by international law, even if not forbidden by the law of the Detaining Power. Pictet, Commentary 416–417. Perhaps this is so, but the U. S. Senate was assured that those articles did not create an international penal code. Hearing 24; Report of the Committee on Foreign Relations, U. S. Senate, Exec. Rep. No. 9, 84th Cong., 1st Sess., on the Geneva Conventions for the Protection of War Victims 27; 101 Cong. Bee. 8540 (Daily ed., July 6, 1955).

106 It is actually with respect to Arts. 88 and 108 that the Communist reservations to Art. 85 (see note 98 above) are applicable. It will have been observed that, in any event, many of the cited provisions, including those relating to the serving of sentences, contemplate that national treatment by the Detaining Power will be the governing standard.

107 10 U.S.C. 802(9).

108 Ibid. 818.

109 The reasoning of the U. S. Supreme Court in Ex Parte Quirin, 317 U. 8. 1, 38–44 (1942), would seem to indicate that this question should be answered in the affirmative. See also Duncan v. Kahanamoka, 327 U. S. 304, 313–314 (1946), and Johnson v. Eisentrager, 339 U. S. 763, 786 (1950).

110 This subject is discussed by Professor Röling, cited note 2 above, at 336 and 429. in During early 1951 the writer was a member of a general court-martial in Korea which tried, convicted, and sentenced several American soldiers for offenses against prisoners of war and enemy civilians. The U. S. Army Field Manual, The Law of Land Warfare, provides in par. 507 6 that:

“The United States normally punishes war crimes as such only if they are committed by enemy nationals or by persons serving the interests of the enemy State. Violations of the law of war committed by persons subject to the military law of the United States will usually constitute violations of the Uniform Code of Military Justice and, if so, will be prosecuted under that Code.”

Similarly, the British Manual of Military Law (Part III , The Law of War on Land) states (note 3, at 181) that members of the British Armed Forces who commit war crimes are tried under the appropriate Service Act.

112 Final Record, Vol. II A, pp. 319–320. In the Matter of Yamashita, note 76 above, the contention was advanced that a military tribunal was incompetent to try a case alleging a violation of the law of war after the cessation of hostilities. The U. S. Supreme Court held (p. 12) that this power continued until the formal state of war has ended by treaty or proclamation, “ f o r only after their cessation could the greater number of the offenders and the principal ones be apprehended and subjected to trail.”

113 Pictet, Commentary 626.

114 Note 75 above.

115 On the other hand, when trials are delayed until after the cessation of hostilities, the deterrent effect of widespread publicity of prompt punishment is lost. And, certainly, it is neither necessary nor advisable to apply this rule of delay to post-capture offenses as was done in the case of the common criminals at the prisoner-of-war camp at Koje-do, Korea, who rioted, wantonly destroyed property, murdered fellow prisoners of war, et cetera, and went completely unpunished because they were not promptly tried.

116 See, for example, The Essen Lynching Case, 1 War Crimes Rep. 88.

117 Hearing 31.

118 Ibid. 58–59.

119 There does not appear to be any basis whatsoever for the statement appearing in Castrén, The Present Law of War and Neutrality 86 (1954), that only uniformed military personnel can commit war crimes. In Greenspan, The Modern Law of Land Warfare 464 (1959), it is properly stated that war crimes may be committed “both by and against members of the armed forces and civilians.” The summary on this problem appearing in the Digest of Laws and Cases, 15 War Crimes Rep. 59, fully and clearly states the correct law:

“... to itemise the different categories of persons who have been found guilty of war crimes and related offences is important in view of the argument sometimes previously advanced that only military personnel could be held so guilty. Those actually found so guilty have included not only soldiers, but civilians coming within the categories of administrators, political party officials, industrialists, judges, prosecutors, doctors, nurses, prison wardens, and concentration camp inmates. Soldiers held guilty have included not only the rank and file, but high-ranking officers and chiefs of staff. It is clear that the mere fact of being a civilian affords no protection whatever to a charge based upon international criminal law.... “ (Italics added.)

120 This problem has been dealt with so extensively that only a brief résumé” is given here. For a summary of the national laws applied in various war crimes trials, see 2 Lauterpacht’s Oppenheim, International Law 508, note 1 (7th ed., 1952), and the War Crimes Commission Notes on the Case of the Trial of Shigeru Sawada, 5 War Crimes Rep. 13–22 (especially 19–22). For what is presumed to be the official Soviet position, see Trainin, Hitlerite Responsibility under Criminal Law 80 (1945). A succinct statement on this matter may be found in the British Manual of Military Law (Part III, The Law of War on Land) 176, note 2 (Part III of the Manual was largely the work of the late Sir Hersch Lauterpacht).

121 Par. 47(2), German Military Penal Code (quoted in 11 War Crimes Rep. 46). See also Sack, , “Punishment of War Criminals and the Defence of Superior Order,” in 60 Law Quarterly Review 63, 65 (1944)Google Scholar.

122 In The Llandovery Castle Case, 16 A.J.I.L. 708 (1922), Annual Digest of Public International Law Cases, 1923–1924, Case No. 235, the Supreme Court of Leipzig refused to accept superior orders as a defense to the killing of unarmed persons in a lifeboat, an obviously illegal order, but did consider it in mitigation of sentence. On the other hand, the defense of superior order was sustained in The Dover Castle Case, 16 A.J.I.L. 704 (1922), Annual Digest, 1923–1924, Case No. 231, where the accused were found not to have been aware of the illegality of the order.

123 Par. 347, Basic Field Manual 27–10, The Rules of Land Warfare. Par. 443 of the comparable British Army Manual, The Laws and Usages of War on Land, was to the same general effect.

124 Change 1, Nov. 15, 1944, to The Rules of Land Warfare, par. 345.1. The comparable provision of the British Army Manual had been changed in April, 1944, to provide that superior orders do not “in principle, confer upon the perpetrator immunity from punishment.”

125 Charter of the International Military Tribunal, 59 Stat. 1544; 82 U.N. Treaty Series 279; 39 A.J.I.L. Supp. 258 (1945). Art. 6 of the Charter of the Far East Tribunal was to the same effect. Charter of the International Military Tribunal for the Par East, T.I.A.S., No. 1589; Par East Judgment, Annexes, p. 22. The rules promulgated by the various U. S. military commanders for the trials of war criminals followed this principle and not that of the amended Rules of Land Warfare.

126 Judgment, 41 A.J.I.L. 221 (1947). The extent of the “moral choice” referred to by the Tribunal was later the subject of discussion in two of the eases which followed the major Nuremberg trial. In The High Command Trial (U. S. v. von Leeb), 11 Trials 509, the Military Tribunal stated:

“The defendants in this case who received obviously criminal orders were placed in a difficult position but servile compliance with orders clearly criminal for fear of some disadvantage or punishment not immediately threatened cannot be recognized as a defense. To establish the defense of coercion or necessity in the face of danger there must be a showing of circumstances such that a reasonable man would apprehend that he was in such imminent physical peril as to deprive him of freedom to choose the right and refrain from the wrong. No such situation has been shown in this case.”

In The Einsatzgruppen Case (U. S. v. Ohlendorf), 4 Trials 471, the Military Tribunal held:

“ If one claims duress in the execution of an illegal order it must be shown that the harm caused by obeying the illegal order is not disproportionately greater than the harm which would result from not obeying the illegal order. It would not be an adequate excuse, for example, if a subordinate, under orders, killed a person known to be innocent, because by not obeying it he would himself risk a few days of confinement. Nor if one acts under duress, may he without culpability, commit the illegal act once the duress ceases.”

127 Remarks and Proposals 64–65. It reads:

“The fact that the accused acted in obedience to the orders of a superior or in pursuance of a law or regulation shall not constitute a valid defence, if the prosecution can show that in view of the circumstances the accused had reasonable grounds to assume that he was committing a breach of this Convention. In such a case the punishment may nevertheless be mitigated or remitted, if the circumstances justify.”

128 The Draft Code of Offences against the Peace and Security of Mankind, contained in the Report of the International Law Commission, 6th Sess., U.N. General Assembly, 9th Sess., Official Records, Supp. No. 9 (A/2693), 49 A.J.I.L. Supp. 1 (1955), contains the following as its Art. 4:

“The fact that a person charged with an offence defined in this code acted pursuant to an order of his government or of a superior does not relieve him of responsibility in international law if, in the circumstances at the time, it was possible for him not to comply with that order.”

129 The latest edition of the U. S. Army Field Manual 27–10, The Law of Land Warfare, published in 1956, provides in par. 509:

“a. The fact that the law of war has been violated pursuant to an order of a superior authority, whether military or civilian, 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;....

“ (See also the Manual for Courts-Martial, United States, 1951, par. 197 6.) The comparable provision (par. 627) of the British Army Manual, The Law of War on Land, is much less detailed.

130 E.g., The Dostler Trial, 1 War Crimes Rep. 22; The Abbaye Ardennes Case, 4 ibid. 97; Trial of Baba Masao, 11 ibid. 56.

131 The decision of the U. S. Supreme Court in the Matter of Yamashita, note 76 above, at 14–16, which firmly established this principle, was generally followed. See, for example, Far East Judgment 29–32.

132 In the Far East Judgment the Tribunal said:

“... If crimes are committed against prisoners under their control, of the likely occurrence of which they had, or should have had knowledge in advance, they are responsible for those crimes. If, for example, it be shown that within the units under his command conventional war crimes have been committed of which he knew or should have known, a commander who takes no adequate steps to prevent the occurrence of such crimes in the future will be responsible for such future crimes.” (p. 32.)

In his dissenting opinion, Judge Röling said:

“To hold an official criminally responsible for certain acts which he himself did not order or permit, it will be necessary that the following conditions are fulfilled:

1. That he knew or should have known of the acts.

* * * * *

2. That he had the power to prevent the acts.

* * * * *

3. That he had the duty to prevent these acts. “ (p. 59.)

There can be no quarrel with these requirements, especially since he also concedes that power and duty go hand in hand.

133 In par. 501 of the United States Army’s The Law of Land Warfare the following rule is laid down:

“... The commander is also responsible if he has actual knowledge, or should have knowledge, through reports received by him or through other means, that troops or other persons subject to his control are about to commit or have committed a war crime and he fails to take the necessary and reasonable steps to insure compliance with the law of war or to punish violators thereof.”

Par. 631 of the British Army Manual, The Law of War on Land, is practically identical with the foregoing.

134 2 Lauterpacht’s Oppenheim, International Law 572–574 (7th ed., 1952); Digest of Laws and Cases, 15 War Crimes Rep. 200–202. In preparing this latter volume in 1949 the staff editors of the U.N. War Crimes Commission said:

“... It seems that, despite the fact that international law has previously permitted the death sentence to be passed for any war crime, some kind of international practice is growing according to which Allied Courts, apart from avoiding inhumane punishments, have themselves attempted to make the punishment fit the crime; any habitual practice of this kind would tend in time to modify the general rule that any war crime is punishable by death.” (p. 201.)

135 Note 90 above. It will be noted that no provision is made therein for the punishment of other than grave breaches of the convention. Par. 638 of the British Army Manual still provides that “ all war crimes are punishable by death,” but this is obviously no longer a correct statement of British law.

136 Pictet, Commentary 621, note 1.

137 Note 90 above. This law apparently applies only in the trials of Soviet military personnel and not in the trials of enemy nationals.

138 Par. 508.

139 As Röling stated in his 1960 lectures at the Hague Academy of International Law, “The way to international hell seems paved with ‘good’ conventions.” 100 Hague Academy Recueil des Cours 445 (1960, II)