1 See chapter 1 for discussion and authorities. Pressures for nonobservance vary with the intensity of the conflict, adversary violations, and on occasion unrealistic restrictions, as occurred with maritime warfare, discussed paragraph 44. Pressures for nonobservance frequently are irrational momentary self-gratifications heightened by the passions of conflict, or temporary expedients adopted without due regard for long term adverse military and political consequences.

2 On State responsibility in international law, see Bishop, International Law, Cases and Materials 742 (1971); Brownlie, Principles of Public International Law 418 (1973); Friedmann, Lissitzyn and Pugh, International Law 745 (1969); 2 O'Connell, International Law 962 (1970).

3 An example of attempted justification includes the N. Vietnam position on application of the 1949 Geneva Conventions, discussed chapter 13; such justifications are also found in U.S. v. Alstoetter, 3 U.S. Trials Before The Nuremberg Military Tribunals under Control Council Law No. 10 (1949), discussed in Miles, "The Justice Trial," 17 AFLR 16 (Spring 1975); and the infamous "Commando Order" attempting to justify the execution of Allied Commandoes captured behind battle zones even though in uniform. See also the literature, infra note 37.

* Compensation is discussed in paragraph 10-4, this publication. The Hague Regulations are minimal guarantees of customary law. US Army, FM 27-10, Law of Land Warfare 6 (1956) [herein FM 27-10]; US Navy, NWIP 10-2, Law of Naval Warfare 2-9 (footnote 2) (1959) [herein NWIP 10-2].

5 "The High Contracting Parties undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention defined in the following Article.

"Each High Contracting Party shall be under the obligation to search for persons, alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts. It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another High Contracting Party concerned, provided such High Contracting Party has made out a prima facie case.

"Each High Contracting Party shall take measures for the suppression of all acts contrary to the provisions of the present Convention other than the grave breaches defined in the following Article.

"In all circumstances, the accused persons shall benefit by safeguards of proper trial and defense,

which shall not be less favourable than those provided by Article 105 and those following of [the GPW]." Common Article found in Art 49, GWS; Art 50, GWS-SEA; Art 129, GPW; Art 146, GC. The principles of these Articles declare customary law obligations to suppress violations of the law of armed conflict including particularly those committed by one's own armed forces. FM 27-10, at 181; NWIP 10-2, at 3-5; Greenspan, Law of Land Warfare 93 (1959).

6 See authorities note 5 supra.

7 "Each Party to the conflict, acting through its commanders-in-chief, shall ensure the detailed execution of the preceding Articles and provide for unforseen cases, in conformity with the general principles of the present Convention." Art 45, GWS; Art 46, GWS-SEA.

"The High Contracting Parties shall communicate to one another through the Swiss Federal Council and, during hostilities, through the Protecting Powers, the official translations of the present Convention, as well as the laws and regulations which they may adopt to ensure the application thereof." Art 128, GPW; Art 145, GC.

8 "The High Contracting Parties undertake, in time of peace as in time of war, to disseminate the text of the present Convention as widely as possible in their respective countries, and in particular, to include the study thereof in their programmes of military and, if possible, civil instruction, so that the principles thereof may become known to the entire population, in particular to the armed fighting forces, the medical personnel and the chaplains.' Art 47, GWS; Art 48, GWS-SEA; Art 127, GPW; Art 144, GC (emphasis added).

"Any military or other authorities, who in time of war assume responsibilities in respect of prisoners of war, must possess the text of the Convention and be specially instructed as to its provisions." Art 127, GPW. (emphasis added.)

'Any civilian, military, police or other authorities, who in time of war assume responsibilities in respect of protected persons, must possess the text of the Convention and be specially instructed as to its provisions." Art 144, GC. (emphasis added.)

9 See, e.g., DOD Directive 5100.77, and Report of US Delegation, Diplomatic Conference on Humanitarian Law Applicable in Armed Conflict. 1st Sess. (1974) and 2nd Sess (1975).

10 The earlier Hague Conventions and Regulations were formulated in much simpler terms. Succeeding Conventions grew more complicated. Some provisions are addressed to both combatants and states, and others are primarily or exclusively addressed to

states.

11 Discussions of the law are then addressed in the context of competing claims. See, for example, Mc Dougal and Feliciano, Law and Minimum World Public Order (1961); US Navy War College, "Submarines in General and Limited War," 1966 International Law Studies (1968). Am. Soc. Int'l. L., The Vietnam War and International Law, 3 Volumes (Falk ed. 1968-72). However, the scope of claims around treaties and longstanding customary norms is limited.

12 This is not to deny that intention is not involved in some formulations. For example, Art 18, GC, protecting civilian hospitals refers to being "objects of attack", whereas Art 21, GWS, protecting military hospitals, makes no such reference, nor does, for example, Art 20, GWS (hospital ships); Art 12, GWS (wounded and sick); Art 24, (medical personnel); Art 36, GWS (medical aircraft). These examples demonstrate that the law is not principally formulated with any view to individual criminal responsibility but rather to state responsibility. The protection of hospitals, for example, contemplates provisions for marking and avoiding location near military objectives, as well as a prohibition on attacking them. Arts 19, 42, GWS; Art 18 GC. The Geneva Convention articles describing grave breaches connote mens rea through the words "willful" and "wanton" (quoted in text at paragraph 15-2b).

13 "In international law as in municipal law intention to break the law-mens rea or negligence so gross as to be the equivalent of criminal intent is the essence of the offense. A bombing pilot cannot be arraigned for an error of judgment... it must be one which he or his superiors either knew to be wrong or which was, in se, so palpably and unmistakenly a wrongful act that only gross negligence or deliberate blindness could explain their being unaware of its wrongness." Spaight, Air Power and War Rights 57, 58 (1947).

14 See In Re Yamashita, 327 US 1 (1946); Decision of U.S. Military Commission at Manila, Dec 7, 1945, found 2 The Law of War 1596 (Friedman ed. 1972); U.S. v. Leeb, "The High Command Case", 10 Trials of War Criminals (Nuremberg) 1 (1951); U.S. v. List, "The Hostage Case", 11 Trials of War Criminals (Nuremberg) 759 (1950); FM 27-10, at 178. For discussion, see Parks, "Command Responsibility for War Crimes," 62 Mil. L. Rev. 1 (1973); Kelsen, Principles of International Law 153 (Tucker ed., 1970); Kunz, Changing Laws of Nations 914 (1968); Levie "Penal Sanctions for Mistreatment of Prisoners of War," 56 Am. J. Int'l. L. 466 (1962); Glahn, Law Among Nations 699 (1965); Taylor, Nuremberg and Vietnam 92 (1970).

15 In Re Yamashita, 327 US 1, at 15 (1946). 16 On U.S. implementation, see Hearings, Committee on Foreign Relations, U.S. Senate, 84th Cong., 1st Sess., Geneva Conventions For the Protection

of War Victims; DOD Directive 5100.77, 5 Nov 1974; Esgain and Solf, "The 1949 Geneva Convention Relative to the Treatment of Prisoners of War: Its Principles, Innovations and Deficiencies," 41 N. Car. L. Rev. 577 (1963); Paust "My Lai and Vietnam: Norms, Myths and Leader Responsibility," 57 Mil. L. Rev. 99 (1972). Under the US Constitution, Art 1, Section 8, the Congress has power . . .

"To define and punish Piracies and Felonies committed on the high Seas, and Offenses Against the Law of Nations;

"To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

"To make Rules for the Government and Regulation of the land and naval Forces."

17 See O'Connell, "International Law and Contemporary Naval Operations," 1970 Brit. Y. B. Int'l. L. 19, at 22 (1971). See, e.g., Report submitted by the International Committee of the Red Cross, 22nd International Conference of the Red Cross, Teheran, Nov 1973, Implementation and Dissemination of the Geneva Conventions; Report submitted by the International Society for Military Law and the Law of War, The 5th International Congress at Dublin, May 25-30, 1970, Military Obedience in regard to the Internal Criminal Laws and to the Law of War; and International Committee of the Red Cross, Questionnaire Concerning Measures Intended to Reinforce the Implementation of the Geneva Conventions of August 12, 1949, Replies sent by Governments (1972).

18 Brownlie, Principles of Public International Law 534 (1973); 1 O'Connell, International Law 108 (1970).

19 See chapter 1 for discussion of international law as part of US law and the domestic legal effect given to treaties receiving the advice and consent of the Senate.

20 See Charter of the International Military Tribunal, 8 Aug 1945, 59 Stat 1544; EAS 472; 3 Bevans 1238; 82 UNTS 279 (1945), reprinted AFP 110-20, at 11-18.

21 One prominent example is the treatment of spies, saboteurs or other unprivileged combatants discussed in chapter 3 and 9, this publication. Although there may be no violation of international law involving state responsibility, it is clear that criminal enforcement, including that against such unlawful combatants, is not prohibited and frequently taken, most notably to encourage the demarcation between lawful combatants and noncombatants. For discussion, see Baxter "So-Called Unprivileged Belligerency: Spies, Guerrillas, and Saboteurs," 1951 Brit. Y. B. Int'l. L.323 (1952) and Castren, Present Law of War and Neutrality 86 (1954). State responsibility is involved in the prohibition against perfidy, discussed chapter 8, prohibit

ing using civilian clothing in hostilities. The difference between rules of engagement and the law of armed conflict is illustrated by one famous case. When General John D. Lavelle, USAF, allegedly ordered unauthorized raids against N. Vietnam, he may have exceeded his authority to do so. However, no violation of the law of armed conflict was involved since the strikes were solely against military objectives.

22 A reading of the 1949 Geneva Conventions establishes the technical nature of many of the rules (example: possession of a copy of the text of the Conventions, supra note 8) which are formulated and directed at States.

23 No soldier who merely executed government policy should be regarded as criminal, as guilty of the crime against peace. The duty of an army is to be loyal. Soldiers nor sailors, generals nor admirals should be charged with the crime of initiating or waging aggressive war, in case they merely performed their military duty of fighting in a war waged by their government." Prosecution Statement, International Military Tribunal Far East. April 1948. 11 Whiteman, Digest of International Law 993 (1968). "Moreover, a soldier who merely performs his military duty cannot be said to have waged the war ... [O]nly the government, and those authorities who carry out governmental functions and are instrumental in formulating policy, wage the war" Ibid at 993-994. For discussion, see Mc Dougal and Feliciano, Law and Minimum World Public Order 331 (1961) (“[T]he most important target selection principle that emerged from the decisions in post World War II cases is that only individuals who ranked in the top policy formulating levels of the authority and control structures of the violator state should be held liable to these deprivations."); Greenspan, supra note 5, at 449; Castren, supra note 21, at 84.

24 See authorities supra note 14. The concept of lawful combatant is discussed in chapter 3.

25 See footnote 5, supra and accompanying text. Grave breaches are not excusable: "No High Contracting Party shall be allowed to absolve itself or any other High Contracting Party of any liability incurred by itself or by another High Contracting Party in respect of breaches referred to in the preceding Article." Article 51, GWS; Art 52, GWSSEA; Art 131, GPW; Art 148, GC.

26 NWIP 10-2, at 3-4; FM 27-10, at 180. For discussion of treachery or perfidy, including misuse of protective emblems or wearing of civilian clothing, see chapter 8. On air bombardment including misuse of protected buildings, see chapter 5. On the Geneva Conventions in general, see chapters 11-14. 27 See authorities supra footnote 14, and chapters 1 and 3 this publication. Also MCM, 1969, paragraph 1, "The sources of military jurisdiction include the Constitution and International Law.

International Law includes the law of war," and paragraph 147(a) (judicial notice). See also Winthrop, Abridgment of Military Law 316 (1893); Winthrop's Military Law and Precedents 778 (2nd ed. reprint, 1920); Walker, Military Law 520 (1954). 28 See authorities chapter 1 and 5. "The state is represented in active war by its contending army, and the laws of war justify the killing or disabling of members of the one army by those of the other in battle or hostile operations . . . But it is forbidden by the usage of civilized nations, and it is a crime against the modern law of war, to take the lives of, or commit violence against, noncombatants and private individuals not in arms, including women and children and the sick, as also persons taken prisoners or surrendering in good faith." The observance of the rule protecting from violence the unarmed population is especially to be enforced by commanders in occupying or passing through towns or villages of the enemy country. Winthrop, (1920), supra note 27, at 778-779.

29 On U.S. Jurisdiction over enemy nationals, see UCMJ Article 18; MCM, 1969, at pp. 1-1, 4-3, 44, 27-48; FM 27-10, at 180; NWIP 10-2, at 3–5. 30 Winthrop, (1920), supra note 27, at 783; Castren, The Present Law of War and Neutrality 87 (1954); Greenspan, Modern Law of Land Warfare 502-511 (1959); Mc Dougal and Feliciano, Law and Minimum World Public Order 704 (1961). Historically, unlawful combatants were often not afforded the benefit of trials although this is now required by the 1949 Geneva Conventions. Ex Parte Quirin, 317 US 1 (1942), was a trial of unlawful combatants who were German soldiers smuggled into US via submarine who discarded uniforms upon entry but were captured prior to committing acts of sabotage.

On Historical precedents for war crime trials of adversary personnel, particularly unlawful combatants, see Winthrop (1920), supra note 27, at 783. Cowles in Universality of Jurisdiction over War Crimes," 33 Cal. L. Rev. 177, 203 (1945) notes: ... War criminals. are especially found among irregular combatants and former soldiers who have quit their posts to plunder and pillage . . . such as banditti, brigands, buccaneers, bushwackers, filibusters, franctireurs, free-booters, guerrillas, ladrones, marauders, partisans, pirates and robbers . . . Historically, brigandage has been to a large extent international in character . . . Brigandage is a thriving byproduct of war. . . . The object. . . is to bring out the connection between the past and the present. . . It is not meant to be suggested that war crimes committed by members of regularly constituted units are any less amenable to such jurisdiction."

31 Exceptions include limited Russian trials in 1943, Mc Dougal, supra note 23, at 704 and trial of Doolittle raiders in Japan discussed in chapter 13, this publication. This is not to deny atrocities

against PWs etc., but only to suggest that forms of law are not routinely employed against lawful combatants.

32 Art 85, GPW, discussed chapter 13, does not prohibit such trials but does require that PWs retain, even if convicted, the benefits of the GPW Convention.

33 See authorities, supra note 30, and chapters 3, 7, and 9 this publication.

34 See chapters 3 and 13.

35 As to unlawful combatants this was frequently done by punishment without trial, see Cowles and Winthrop, supra note 30, as well as general authorities in chapters 3 and 9. The term "unlawful combatants" is explained in chapter 3; traditionally, the term is "unlawful belligerency."

36 Treaty of Peace Between the Allied and Associated Powers and Germany, Versailles, June 28, 1919 found 1 The Law of War 417 (Friedman ed. 1972); "Commission on the Responsibility of the Authors of the War and On Enforcement of Penalties," 14 Am. J. Int'l. L. 95 (1920); Mullins, The Leipzig Trials (1921); Woetzel, The Nuremberg Trials in International Law 27 (1962); Glueck, War Criminals, Their Prosecution and Punishment 19 (1944); UN Secy. Gen. Memorandum, Historical Survey of the Questions of International Criminal Jurisdiction, A/CN.4/7/Rev 1 (1949).

37 Only a brief representative sample of the literature is given here:

Views on the Trials: Bosch, Judgment on Nuremberg (1970) (survey of views of others); Nuremberg, German Views of the War Trials (Benton and Grimm ed., 1955); Knieriem, The Nuremberg Trials (1959) (German); Vogt, The Burden of Guilt (1964) (German); Maugham, UNO and War Crimes (1951)(English); Morgan, The Great Assize (1948) (English); Klafkowski, The Nuremberg Principles and the Development of International Law (1966) (Polish); Ginsberg, "Laws of War and War Crimes on the Russian Front: The Soviet View," 11 Soviet Studies 253 (1960).

Bibliographies: Garsse, Genocide, Crimes Against Humanity, War Crimes Trials: A Bibliography (1951); US Library of Congress, The Nazi State, War Crimes and War Criminals (1954).

Summaries of cases are found in UN War Crimes Commission, Law Reports of Trials of War Criminals, 15 Volumes (1949); Appleman, Military Tribunals and International Crimes (1954); US Govt., Trials of War Criminals Before The Nuremberg Military Tribunals Under Control Council Law No. 10 (1946-1949) (principal U.S. trials subsequent to International Military Tribunal); 11 Whiteman, Digest of International Law 884 (1968).

Judgments: "International Military Tribunal (Nuremberg), Judgment and Sentence," 41 Am. J. Int'l. L. 172 (1947); also International Military Tribunal,

Nazi Conspiracy and Aggression, Opinion and Judgment (1947); International Military Tribunal for the Far East, Judgment, 3 parts (1948).

General Literature: Taylor, Final Report to the Secretary of the Army on the Nuremberg War Crimes Trials Under Control Council Law No. 10 (1949); Appleman, Military Tribunals and International Crimes(1954); Davidson, The Trial of the Germans: An Account of the Twenty-two Defendants Before the International Military Tribunal at Nuremberg (1966); Jackson, The Case Against the Nazi War Criminals (1946); Jackson, The Nurem berg Case (1947); Keeshan, Justice at Nuremberg (1946); Woetzel, The Nuremberg Trials and International Law (1962).

38 As an example, see "Agreement on the Repatriation of Prisoners of War and Civilian Internees," paragraph 15, signed by Bangladesh, India and Pakistan 9 April 1974, in 13 Int. Leg. Materials 505 (1974).

39 On defenses, see as follows:

Superior Orders: Brand, "War Crimes Trials and the Laws of War," 26 Brit. Y. B. Int'l. L. 416 (1949); Dinstein, The Defense of Obedience to Superior Orders in International Law (1965); Dunbar, "Some Aspects of the Problem of Superior Orders," 63 Jud. Rev. 234 (1951); Green, "Superior Orders and the Reasonable Man," Can. Y. B. Int'l. L. 61 (1970); McDougal and Feliciano, "International Coercion and World Public Order: The General Principles of the Law of War," 67 Yale L.J. 833 (1958); Norene, Obedience to Superior Orders (Army JAG School, 1971); Paston, Superior Orders (1946).

U.S.: UCMJ §92, 10 U.S.C. §892; MCM, 1969, paragraph 171; FM 27-10, at 182; NWIP 10-2, Section 330b(1).

Case Law: Martin v. Mott, 12 Wheat. 19, 30 (1827); Mitchell v. Harmony, 13 How. 115, 136 (1851); Despan v. Oleny, 7 Fed. Case 534 (Case No. 3822, 1852); Winthrop's (1920), supra note 27, at 296.

Act of State: FM 27-10, at 183; Manner, "The Legal Nature and Punishment of Criminal Acts of Violence Contrary to the Laws of War," 37 Am. J. Int'l. L. 407 (1943); Wright "Law of Nuremberg," 41 Am. J. Int'l. L. 38 (1947).

Acts Obligatory or Not Punished Under Domestic Law: FM 27-10, at 183; NWIP 10-2, at paragraph 330.

Military Necessity, see chapter 1 for authorities and discussion.

40 The Hostage Case, United States v. List, 11 Trials of War Criminals Before the Nuremberg Military Tribunals 1253-4 (1950).

41 Paragraph 216d, MCM 1969. Also see United States v. Calley, 22 USCMA 534, 48 CMR 19 (1973).