WAR CRIMES TRIALS: PROCEDURAL DUE PROCESS

A Thesis
Presented To
The Judge Advocate General's School, U. S. Anny

The opinions and conclusions expressed herein are those of the

individual student author and do not necessarily represent the views
of either The Judge Advocate General's School, U. S o Army, or any
other governmental agency. Rsferences to this study should include
the foregoing statement.

bs

Major Charles J e Baldree, 097 360, United S t a t e s Amy

April 1967

LAW LIBRARY 1
A study of the four standards of procedural due process/fair t r i a l
required by the 1949 Geneva Conventions and the applicabion o f these
standards by the United States to the t r i a l of war crimes.
 TABU OF CONTENTS

PAGE

CHAPTER

II. STANDARDS OF PROCEDURAL DUE PROCESS UNDER

INTERNATIONAL LAW ........................................
A . C i v i l Crjminal Law ..................................
B . The Law of 'War......................................

111. JURISDICTION TO TRY WAR CRIMINALS........................

A . Basic P r i n c i p l e s .....................................
B . The 1949 Geneva Conventions..........................

I V . CONSIDERATIONS AFFECTING PROSECUTORIAL DISCRETION ........

A . S t a f f Judge Advocate Duties and

R e s p o n s i b i l i t i e s ....................................
8. Custody of the Accused ..............................
. Determination of S t a t u s .............................
B . Other Considerations ................................
C

V. WAR CRIMES TRIBUNALS ..................................... 58

A . H i s t o r i c a l Background ............................... 58
B. Types of Tribunals .................................. 60
C . United S t a t e s War Crimes Tribunals .................. 72

V I . TRIAL OF THE PRISONER OF WAR ............................. 87

A . Procedural Rights Before and During T r i a l ........... 87
B . Sentencing Power .................................... 91
C . Post-Trial Procedural Matters ....................... 95

VII. TRIAL OF THE lJNLAWFUL BELLIGERENT........................ 98

A . Procedural Rights Before and During Trial ........... 98
B . Sentencing Power .................................... 114
C . Post-Trial Procedural Matters ....................... 115

VIII . TRIAL OF THE UNLAWFUL BELLIGERENT I N

OCCUPIEX)' TERFXTORY ....................................... 131

A . Procedural Rights Before and During Trial ........... 131

 TABLE OF CONTENTS (continued)

PAGE

CHAPTER

B
C .. Sentencing Power ....................................
Post-Trial Procedural Matters ..........*..........
136
134

IX . ..................................138

GRAVE BREACH PROSECUTIONS

A . Procedural Rights Before and During Trial .......,... 138

B . Sentencing Power ....................,............... 141

6. Post-Trial procedural Matters ....................... 142

X. CONCLUSIONS AND RECOMMENDATIONS.......................... 145

APPENDIXES ..........................0..........................150

A . Diagram . J u d i c i a l Proceedings before United

States Army War Crimes Tribunals Under the

194.9 Geneva Conventions ................O.O..........

................. 150
Be
C . Factors i n Determining "Fair T r i a l "
.
Definition of Prisoner of War. A r t 4. GPW .......... 151-

152

TABU OF CASES AND STATUTES .............O......................

154
 INTRODUCTION

The newly arrived Army Judge Advocate o f f i c e r i n Viet-Nam

read through the two war crimes f i l e s assigned to him t o prosecute

a s c a p i t a l offenses before US m i l i t a r y tribunals. The offenses had

taken place i n South Viet-Namese t e r r i t o r y during the time of US

m i l i t a r y assistance t o defend against the a n e d a

vie t-N~III.'
4
ession from North

The f i r s t f i l e concerned the murder of a v i l l a g e chief,

h i s wife and three children, and two teachers by two members of the

North Viet-Nan ~ r m y . The second f i l e reflected t h a t a US Army

b a t a l l i o n commander had been f a t a l l y shot i n h i s sleep by three

g u e r a l l a s who had posed as indigenous mess h a l l employees, thereby

gaining admission t o the compound e a r l y one morning and t h e r e a f t e r

1. The explanation of the Administration's policy of assistance

and the recognition i n international law of self-defense i n the face
of armed aggression i s outlined by the Legal Advisor to the S t a t e
Department, Mr. Meeker, i n The Legality of United S t a t e s Participation
i n the Defense of Viet-Nam, 4 State Dept B u l l -.-. ' 474 28 Ma P C 1 ~ 966;
see an2
-sal International Law of ~ l l f - ~ e f e n s e56
,
S t a t e Dept Bull. 56 (1967) ; Rusk, ViebFJam: Four Ste s to Peace, 53
S t a t e Dept B u l l . 50 (1 2 July 1 9 6 5 ) ~ S e g a l
Aspects of the V i e L N a m Situation, 60 Am. J. Int'l. L. J 750 (1966)
and f o r c r i t i c i s m of the U.S. position, see Falk, International Law
and the United S t a t e s Role i n the Viet N a m War, 75 Yale L. J. 1122
(1966).
2. A brief summary of the violence i n f l i c t e d upon helpless
c i v i l i a n s i n South Viet Nam, including mining of roads, kidnapping
v i l l a g e r s , burning homes, and t o r t u r e and murder of governmental
o f f i c i a l s and t h e i r families, see Nallin, T$,rlROR,,I,N, - V T &&Q$ (1966).

-
President Johnson reports t h a t i n 1965, the Viet Gong k i l l e d o r kid-
napped 12,000 South Vietnamese c i v i l i a n s , 55 State Dept B u l l 144,117
(1966)e
entering the victim's t e n t where he s l e p t O 3 The f i l e s contained

both sworn and unsworn statements from witnesses, mostly regarding

hearsay matters; depositions from s e v e r a l v i l l a g e r s and from some

US m i l i t a r y personnel who had been reassigned to e i t h e r the US o r

Europe o r had been discharged; and sworn statements f r o m the f o u r

accused i n custody which the CID, i n cooperation with the Viet-

Namese a u t h o s i t i e s , had obtained. The f i f t h accused, one of the

g u e r r k l lPs' , had f l e d to a neighboring s t a t e . The t r i a l s had been

authorized by higher headquarters and q u a l i f i e d US Amy counsel had

been assigned to represent t h e f i v e defendants and i n t e r p r e t e r s

provided to each accused o r h i s counsel.

The Army prosecutor leaned back i n h i s c h a i r , gazed a t the

overhead fan s t i r r i n g the humid a i r , and considered the procedural

aspects of these t r i a l s : What duty, i f any, does the United S t a t e s

have regarding a f a i r t r i a l under i n t e r n a t i o n a l law7 If such a

duty e x i s t s , what a r e the components of a " f a i r t r i a l w ? To what

&
e x t e n t does the 1949 Geneva Conventions +ffec t the conduct of a w a s

crimes t r i a l ? Upon what p r i n c i p l e s of j u r i s d i c t i o n can the t r i a l s

be conducted? Can the accused have a choice of defense counsel and,

if so, what q u a l i f i c a t i o n s must he possess? What about the r i g h t of

the accused to c a l l witnesses and present evidence, and can the

statements and depositions be introduced? Does i n t e r n a t i o n a l l a w

3 Kelly, Assassination i n War Time, 30 M i l L Rev 101 ( 1 966) ;

Baxter, So-Called tunprivileged Belligerency: Spies, Guerrillas,
- - - 342-3 (1951 1.
and Saboteurs, 28 B r i t . Yb. I n t ' l . L. 323. See a l s o
COMMENTARY 111, :%&~a note 37 a t 61.
- permit t r i a l & absentia? What punishment i s imposable i n the event
of conviction? And, f i n a l l y , what j u d i c i a l and non-judicial remedies
a r e available t o a s s e r t a claim of d e n i a l of j u s t i c e ?

The p r e s e n t i n q u i r y d e a l s with the procedural aspects of

the general topic of s t a t e r e s p o n s i b i l i t y arising from the prosecution
of v i o l a t i o n s of the law of war during h o s t i l i t i e s a s well a s
L

occupation and w i l l be considered under the following headings:

standards of due process of l a w under i n t e r n a t i o n a l l a w , p r i n c i p l e s
of j u r i s d i c t i o n , types of war crimes tribunals, procedural r i g h t s
P

accorded a prisoner of war and the unlawful b e l l i g e r e n t ( g u e r r d l l a )

f o r offenses committed during h o s t i l i t i e s and during occupation,
procedural r i g h t s granted i n the trial of a grave breach, and post-
t r i a l a c t i o n s regarding such proceedings.
The paper is r e s t r i c t e d , so f a r as possible, t o the problem
of the t r i a l of the enemy a l i e n conducted outside the US and the

impact of customary i n t e r n a t i o n a l law and the lg* Geneva Conventions

upon war crimes trials. Emphasis is upon the prosecution of con-
ventional war crimes and grave breaches4 a g a i n s t prisoners of war

4. War crimes a r e generally divided i n t o three categories:

..
a ) crimes a g a i n s t peace
-
the planning, preparation, i n i t i a t i o n o r
waging of a war of aggression; b) crimes a g a i n s t humanity deporta-
t i o n , enslavement and o t h e r inhuman a c t s committed a g a i n s t l a r g e
-
populations; and c ) war crimes v i o l a t i o n s a g a i n s t the laws of war
murder, i l l - t r e a t m e n t o r deportation of slave labor of c i v i l i a n
-
populations, k i l l i n g of hostages, plunder, and wanton destruction
of v i l l a g e s , towns and c i t i e s . Stone, LEGAL CONTROLS OF INTERNATIONAL
CONFLICT 358 (1 954). The term 'grave breaches' combines the aore
serious crimes from the categories of conventional war crimes and
crimes a g a i n s t humanity. L i t t l e has been a s s e r t e d a s to the war
and unlawful b e l l i g e r e n t s before US Amy tribunals. The paper does
n o t deal, except q u i t e incidentally, with what constituted a war
crime o r with o t h e r substantive o r evidentiary matters.
It i s n o t the purpose of t h i s paper to advocate i n any way
t h a t war crimes t r i a l s be conducted by the US, b u t merely to review
c r i t i c a l l y t h e WW II war crimes t r i a l s conducted by the US and to
analyze the provisions of the Geneva Conventions i n o l d e r to determine
what a c t i o n the United S t a t e s Army must o r should follow i n the
event it i s assigned t h e task of conducting such t r i a l s .

a g a i n s t peace as being a v a l i d substantive war crime. See I1

Oppenheim, INTERNATIONAL LAW 566-7, ( 7th ed, 1952) f o r the inclusion
of a l l ma$rauding a c t s a s war crimes. Para 504, U. S. Deptt of Army,
Field Manual 27-1 0, Law of Land Warfare (1 956) (Hereinafter c i t e d
a s F'M 27-1 0) l i s t s non-grave breach war crimes, including : use of
forbidden arms o r ammunition, abuse of o r f i r i n g on the f l a g of
truce, use of c i v i l i a n clothing by troops to conceal t h e i r m i l i t a r y
c h a r a c t e r during h o s t i l i t i e s , maltreatment of dead bodies, v i o l a t i o n
of surrender terms, and k i l l i n g without t r i a l of s p i e s o r o t h e r
persons who have committed h o s t i l e acts.
 STANDARDS OF PROCEDURAL DUE PROCESS UNDER INTERNATIONAL LAW

A. C i v i l Criminal Laws

Although custornary i n t e r n a t i o n a l law has recognized the

proposition f o r some years t h a t an a l i e n , prosecuted before regular

criminal courts, should not be denied j u s t i c e 5, there had been

minuscule concentrated e f f o r t p r i o r to 1945 t o bring t o f r u i t i o n

the enumeration of the d e f i n i t i v e elements of t h i s concept, save

the statement t h a t the a l i e n was e n t i t l e d to e s s e n t i a l l y the same

treatment as the n a t i o n a l s of the prosecuting s t a t e . The moving

forces to bring about an e x p l i c i t meaning of the t e r n s " f a i r t r i a l t t /

d e n i a l of j u s t i c e were the United Nations Human Rights Commission, 6

5 Wise, Bote on I n t e r n a t i o n a l Standards of Criminal Law,

appearing i n Mueller and Wise, INTERNATIONAL CRIMINAL LAW 135 (1965).
An e a r l y e f f o r t by the United S t a t e s t o obtain damages f o r d e n i a l of
j u s t i c e - t o one o f - i t s c i t i z e n s is the s u b j e c t of a comment i n 22 Am.
J. I n t t l . I. J. 667 (1928) and concerns t6e t r i a l of B E Chattin by
Mexican a u t h o r i t i e s . The A r b i t r a t i o n Commission i n t h a t case dis-
tinguished between i n d i r e c t and d i r e c t r e s p o n s i b i l i t y of s t a t e s a s
giving r i s e to d e n i a l of j u s t i c e and held t h a t l i a b i l i t y a t t a c h e s
only when there is noutrage, bad f a i t h , w i l l f u l neglect of duty o r
manifestly i n s u f f i c i e n t governmental actionn a t p 674. See a l s o Roy,
Is the Law of Responsibility of States f o r I n j u r i e s t o Aliens a p a r t
of I n t e r n a t i o n a l Law?, 55 Am J Int'l L J 863 (1961 ), f o r a discussion
of the meaning of t h e term n j u s t i c e n , which he considers to be the
" c l o s e s t possible approximation of that ' i d e a l of absolute jus tice,Itp 865.

6, Malik, Human Rights in the United Nations, 6 I n t l l J 275 (1951).

There have even been considerations of an I n t e r n a t i o n a l Court of
Human Rights, together with regional and specialized c o u r t s on t h i s
subject, Note, 60 Am. J. Int'l. L. J. 68 (1966) The Declaration of
Human Rights (1 9 S t a t e Dept Bull. 751 ) is regarded by US Supreme
Court a s a pledge - by --
- t h i s country to the i n t e r n a t i o n a l communits.
Oyama v ~ a l i f o r n i a , 332 U.S. 632"(1948); see Hudson, Charter
Provisions on Human Rights i n American Law, 44 Am. J a m L. J. 543 (1950).
i n the f i e l d of c i v i l criminal laws, and the I n t e r n a t i o n a l Committee
of the Red ~ r o s s i, n~ the law of war sphere where concern i s

d i r e c t e d toward war crimes and enforcement of occupation laws.

The procedural due p r o c e s s / f a i r t r i a l concept i n t h e c i v i l

criminal law f i e l d concerns the b e n e f i t s accorded the a l i e n by the

municipal law of t h e prosecuting s t a t e and seeks to ensure equal

treatment with the nationals of t h a t s t a t e s 8 so long as the i n t e r -

n a t i o n a l standard of minimum r i g h t s i s n o t transgressed through the

d e n i a l o r withholding of c e r t a i n rights. This minimum standard,

according t o the Declaration of Human Rights adopted by the United

Nations General Assembly i n 1948, includes the following r i g h t s :

everyone has the r i g h t to l i f e , l i b e r t y , and s e c u r i t y ; freedom from

a r b i t r a r y a r r e s t ; f a i r and public t r i a l by an independent and

i m p a r t i a l t r i b u n a l ; and t h a t the presumption of innocence applies

u n t i l proven guilty.9 This declaration is regarded by Professor

Gardner a s a "yardstick f o r measuring the progress of governments

and peoples i n the long struggle f o r freedom and dignity. A

7. The work of t h e I n t e r n a t i o n a l Committee of the Red Cross

( h e r e i n a f t e r r e f e r r e d to as ICRC) i s traced from i t s o r i g i n i n 1864
to the Geneva Conventions of 12 August 1949 i n a book e n t i t l e d .*THE .-,9

'i-rr.rulr ,. .. --. .*
GENEV-A CONVENTIONS OF 12 AUGUST
~r.-Lllr6.-r.Clsr~ -... 199
,,.rlYI,u - (1 949).
,a (N
A d e t a i l examination
of the task i n preparing these Conventions.appears i n The New
Geneva Conventions f o r the Protection of War Victims, by P i c t e t ,
b5 AM. J. I n t l l . L. J. 462 (1951 ).
8, Orfield, What Constitutes F a i r Criminal Prosecution under
Municipal and I n t e r n a t i o n a l Law, 12 U. P i t t . E. Rev. 351 ( 1 g m

9. See 19 S t a t e Dept. B u l l . 751 (1948)

10. I N PURSUIT OF WORLD ORDER 241 (1964)
 former Chairman of the UN Commission on Human Rights, Mr,Charles

Malik of Lebanan, regards t h e Declaration on Human Rights as a

milestone i n human r i g h t s on a p a r with the Magna Carta, the B i l l of

Rights, and observed t h a t : "...we must devise adequate i n t e r n a t i o n a l
machinery which w i l l see to i t t h a t the r i g h t s defined i n t h e

Declaration a r e i n f a c t observed and t h a t whenever and wherever

they a r e violated, something must be done about it."' of course,

t h i s d e c l a r a t i o n concerns many o t h e r individual r i g h t s , such a s

power, respect, well-being, s k i l l , and s e c u r i t y to mention but

a few. L i t t l e mention i s made today of j u d i c i a l m a t t e r s , however. 12

The United Nations Declaration inspired the establishment

i n 1950 of the European Convention of Human Rights which, i n

addition t o other matters, provides f o r f i v e basic r i g h t s a s being

'
a minimum to a f a i r t r i a l : inform the accused of the nature of the

charges a g a i n s t him; provide adequate time to prepare h i s defense;

allow t h e accused to defend himself o r have the services of a

11. Malik, supra note 6 . So also, Comment, I n t e r n a t i o n a l

Recognition and Protection of Fundamental Human Rights, 1 9 a Duke L Rev
b66, which t r a c e s the h i s t o r i c a l development of t h e protection of .
human r i g h t s , s t a r t i n g with the t r e a t y of Berlin i n 1878 which
required recognition of r e l i g i o u s freedom. For a review of
problems i n Asia and e f f o r t s to conform to the UN Declaration, see
Note, I n t e r n a t i o n a l Protection of Human Rights i n the Criminal Law:
An Asian Experience, 3 Ham. I n t ' l . L. Club Bull. 80 (1961)

12. McDougal and Bebr, Human Rights -

S t a t u s Today, 58 Am J I n t j l
L 3 603 (1964), review the concern of human 'bights i n such areas
a s power, wealth, well-being, s k i l l , and s e c u r i t y ; only mentions f a i r
trial r i g h t i n passing. For US position on such t r e a t i e s , see
Harris, UN Adopts I n t e r n a t i o n a l ~ o n v etni o n s on Human Rights, 56
S t a t e Dept B u l l . 104 (1966); c r i t i c a l comments contained i n a r t i c l e
by Mr. Korey e n t i t l e d Human Rights Treaties: Why i s the U. S.
S t a U i n q ? 45 Foreign Affairs 414 (1 967).
q u a l i f i e d attorney to a s s i s t him; allow examination of witnesses;
and the use of an i n t e r p r e t e r e t 3 The Convention a l s o provides t h a t

a public t r i a l be conducted within a reasonable period of time a f t e r

the commission of the offense.

Under s t a t u s of forces agreements entered into by the United

-

D4 ro
S t a t e s with i t s l#&~ a l l i e s , l 4 Japan and Korea, these countries

have agreed t o accord the following procedural r i g h t s to an accused

in a criminal trial: prompt and speedy t r i a l ; t o be informed, in

advance of t r i a l , of the s p e c i f i c charge o r charges made a g a i n s t

him; to be confronted with witnesses a g a i n s t him; t o have compulsory

process f o r obtaining witnesses i n h i s favor, i f they a r e within

the j u r i s d i c t i o n of the receiving s t a t e s ; t o have l e g a l representa-

t i o n under the conditions prevailing f o r the time being in the
receiving sk.kes; i f he considers it necessaly, to have the services

of a compei$ent i n t e r p r e t e r ; and to communicate with a representative

of the Government of the sending S t a t e and, when the c o u r t s permit,

to have such a representative present a t h i s t r i a l . I n addition to

these s i g h t s , the Protocal Minutes with Japan in 1953 included the

a d d i t i o n a l provisions: n o t to be a r r e s t e d o r detained without being

a t once informed of the charge a g a i n s t him; to have counsel present;

n o t t o be detained without adequate cause and the r i g h t t o appear i n

13.
205 (Apr, & Ihy, 1966) .
Harris, E u r o ~ e a nConvention on Human Rights, Grim. L, Rev.
See also, under same t i t l e , Note in The
Cambridge L. J. (Apr. 1966) concerning the acceptance by the United
Kingdom of the r i g h t of individuals to p e t i t i o n to the European
Commission of Human Rights f o r a three y e a r period, p. 4-7.
open court with counsel t o contest h i s detention; public trial by an
impartial tribunal; not compelled t o t e s t i f y against himself; f u l l

opportunity to examine a l l witnesses; and no c r u e l punishments to

be imposed. 15
Assessing the p r a c t i c a l e f f e c t of the NATO Status of Forces
Agreement, LTC E l l e r t f e e l s t h a t t h i s agreement is working so well
i n providing a f a i r t r i a l guide t h a t its provisions should be added
to the l i s t of r i g h t s f o r a l i e n s under f u t u r e international agree-
ments negotiated by the United States, in order that US Nationals
would receive such benefits if t r i e d i n foreign c i v i l i a n courts. 16
Trial before a United S t a t e s c i v i l court e n t i t l e s the accused,
irrespective of h i s nationality, t o the benefits of the Constitutional
safeguards, such as r i g h t to counsel, trial by jury, prohibition
against e x p o s t f a c t o laws, r i g h t against unreasonable searches and
seizures, privilege a g a i n s t s e l f -incrimination, to a speedy trial,
to be informed of the accusation, to have compulsory process and
t o confront witnesses, but a l s o the interpretations of the Constitu-

15. 4 U.S.To & 0.I.A. 1846 (1953)

16. E l l e r t , NATO n F a i r T r i a l w Safeguards, a s reviewed by
professor Levie, 58 &.J.Lntzs.L,J. 823 (1964). Re, The NATO SOFA
A~reementand International Law, 50 NW. L. Rev. 349 (1955), discussed
the practice of stationing troops in foreign lands and the principle
of supremacy of the territorial soverign to t r y all crimes. In the
only case t~ reach the Supreme Court under the posLWos3.d War I1
agreements of this nature, it adhered to the principle t h a t the
territorial soverign had exclusive jurisdiction t o punish offenses
against i t s laws committed within i t s borders, unless expressly o r
impliedly waived and refused to grant r e l i e f where the United States
had allowed Japan t o t r y t h e petitioner. Wilson v Girard, 354 U.S.
5 a (1957).
 '5
tion by the US Supreme Court which provide additional safe
to the individual accused of crimes, 17

B. Law of War

1, Customary International Law

The law of war i s designed to limit the exercise of destruc-

t i v e power i n f l i c t e d by one b e l l i g e r e n t upon another, to reduce to

a m i n i m u m the suffering of war, and to f a c i l i t a t e a prompt return
to peacee18 The f i r s t codification of the rules governing
h o s t i l i t i e s was undertaken by Dr. Francis Leiber a t the behest of
President Lincoln during the War Bebeen the States and appeased
as General Order Number 100, dated 24 April 1863.19 The r u l e s
contained therein have been carried forward through the various
international e f f o r t s to ensure t h a t wars were carried along the
l i n e s which produced the l e a s t suffering by participants and non-
p a r t i c i p a n t s alike. Violations of these rules of war resulted in
the imposition of criminal sanctions a s evidenced a t the end of

17. For example, Abel v United States, 362 U. S. 217 (1960). hold-
ing that the Fourth and Fifth Amendment protections against .
unreasonable searches and privilege against self-incrimination
extended to the a l i e n accused of conspiracy t o commit espionage in
the United States.

18, Lauterpacht, The Problem of the Revision of $he<-La%fs.of ,War,

29 B r i t . Yb, Inttl. L. 360, 364 (1952): Lauterpacht, The L i m i t s of
the Operations of the Law of War, 30 B r i t . Yb. I n t t l , L. 206 (1953)
Q. Wright considers t h a t international l a w has fallen s h o r t ia i t s .
e f f o r t s t o maintain world peace because it has f a i l e d t o l i n k i t s
substantive r u l e s with enforcement and correcting procedures, A
STUDY OF WAR 203 ( 1964).
19. For an account of the Lieber Gods, see Garner, General Order
100 Revisited, 27 Mil. L, Rev. 1 (1965).
World War I i n the Leipeig Trials and again a t the end of the
Second World War. P o l i t i c a l considerations militated against war -

crimes trials a r i s i n g from the Korean War. 20

International law requires t h a t the accused not be denied
justice when placed on t r i a l f o r violating the laws of war." In
order to determine what is meant by t h i s requirement, it i s
necessary to look f i r s t a t the painstaking work by the United
Nations War Crimes ~ o m t n i s s i o nwhich
~ ~ was established i n 1942 *,

c o l l e c t a l l cases involving the prosecution of war crimes by the

Allied forces, This commission n o t only studied the r i g h t s accorded

by the A l l i e s t o the accused in g e n e r a but a l s o analysed those

t r i a l s by the A l l i e s against enemy soldiers, j u r i s t s , and others
charged with denying justice to nationals of the Allied countries,
m i l i t a r y and c i v i l i a n s , in order to determine what was considered
to c o n s t i t u t e d e n i a l of a f a i r trial f o r which c r i n i n a l sanctions

20. Stone, LEGAL CONTROLS OF DJTERNA'GIONAL CONFLICTS 357-363

(1954). The United Nations Conrmand prepared a report e n t i t l e d
-
Interim H i s t o r i c a l Report Korean War Crirnss Division (1953) i n
which thirty-four r e f e r e a b l e cases a r e discussed a s being ready
f o r t r i a l , p. 26.

21. Q. Wright, Due Process and International Law, 44) Am. J.

I n t f b , L. 399, M2-3 (1946). quotes with approval from the 1922
Draft Conve~tionon Responsibility of S t a t e s i n defining d e n i a l of
justice :*Denial of justice e x i s t s when there is a denial, un-
warranted delay o r obstruction of access to courts, gross
deficiency i n the adniinistration of j u s i c i a l o r remedial process,
f a i l u r e to provide those guarantees which a r e generally considered
indispensible to the proper administration of justice, o r a
manifestly unjust judgement."
. .
22. Schwelb, The Works of the War Crimes Commission, 23 B r i t ,
Yb. Intfl. L. 363 (1946).
were applicable. It concluded t h a t the following elements consisted
of a f a i r t r i a l : 23
a ) f a i r and impartial tribunal,
, b ) accused to know of the charges a g a i n s t him and the
evidence against him,
c ) s e r v i c e s of a defense counsel and interpreter;
d ) f u l l opportunity to present h$s defense, including the
'

r i g h t t o c a l l witnesses and produce evidence before the

t r i b u n a l ; and
e ) i n the event of conviction, imposition of a sentence
which does n o t outrage the sentiments of humanity.

2, The,lB@ Geneva Conventions

The 1949 Geneva ~ o o v e n t i o n smade

~ ~ two important contri-
butions ;in the area of war crimes, namely:
a ) established f o u r d i s t i ~ c standards
t regarcling w h a t
r i g h t s should c o n s t i t u t e a f a i r t r i a l , the application of the

23. These elements are based on review of the twelve cases

reported i n 5 and 6 LAW EZPORTS OF TRIALS OF WAR CRXMINALS (1949)
( h e r e i n a f t e r c i t e d as LBW REPORTS),involving prosecutions by the
US, B r i t i s h , Australian,and Norwegian courts a g a i n s t accusers,
prosecutors, appointing a u t h o r i t i e s , reviewing a u t h o r i t i e s , and
executioners f o r denying these r i g h t s to the 8 a e c u ~ di a i M q - ' a n d
c i v i l i a n persons. However, the r u l e of p r e j u d i c i a l ess9.r appears
14 LAW REPORTS 84 (1949). to the e f f e c t t h a t the c o u r t n u s t
take i n t o consideration n o t only the e r r o r b u t its consequences.
24. Geneva Convention f o r the Amelioration of the Conditi.on of
the Wounded and Sick in Amed Forces in the Field, (1955) 6 U.S.T.
& O.I.A. 3115, T.I.A,S. No. 3362 (hereinafter referred to as G N ) ~
Geneva Convention f o r the Amelioration of the Condition of Wounded
Sick and Shipwrecked Members of Amed Forces a t Sea (1955), 6 U.S.9.
& 0,I.A. 3217, T.I.A.S. No 3363 (Hereinafter referred to as GWS a t
Sea); Geneva Convention Rslative to the Treatment of Prisoners of
War (1955), 6 U.S.T, & O.I.A.S. 3316, T.I.A.S. l o 3364 (hereinafter
referred t o a s e i t h e r the Prisoner Convention o r GPW); and the
Geneva Convention Relative t o the Protection of Civilian Persons in
Time o f w a r , 6 U.S.T. &O.I.A. 3516, T.I.A.S. No. 3365 (1955)
( h e r e i n a f t e r referred to a s the Civilian Convention o r GC) ( a l l
four conventions came i n t o forces as t o the United S t a t e s c o n 2 Feb. 1956).
various standards depending on the s t a t u s of the accused, the nature
of the t e r r i t o r y when the offense was committed, and Ule nature of
the armed c o n f l i c t (national o r international), and
b ) created as a grave breach the w i l f u l l y deprivating
of the r i g h t s of a f a i r and regular t r i a l t o prisoners of war,
protected persons, and c e r t a i n other victims of war, as prescribed
by the Conventions. 25

These f o u r standards and the type of tribunals involved i n

war crimes trials a r e reflected on the Diagram a t Appendix A and
summarized a s follows:
a ) A r t i c l e 99 - 108, GPW - enumerated r i g h t s f o r the
protection of the prisoner of war who is assimilated into the penal
code applicable to the armed forces of the Detaining Power,
b ) A r t i c l e 3, GC - all the judicial safeguards which a r e
recognized a s indispensable to c i v i l i z e d peoples is the standard
applicable to the unlawful b e l l i g e r e n t f a l l i n g into the hands of the
Detahing Power on non-occupied t e r r i t o r y during h o s t i l i t i e s ,
c ) Article 64 - 76, - enumerated procedural r i g h t s t o
GC

be accorded the unlawful b e l l i g e r e n t f o r trial of war crimes

committed during occupation, and
d ) A r t i c l e 146, GC - prosecution of a grave breach
e n t i t l e s the accused to procedural r i g h t s which are to be not l e s s
favorable than some ~ i g h t senjoyed by PWts, plus what other safe-
guards he enjoyed under "bn o r H c t b b o v e .

25 0 A r t , 50, GWS; A r t 51, GSW a t Sea; A r t 130, GgW; and A r t ,

14?* GC.
 Because the prisoner of war is subject to the provisions of
the Uniform Code of Military ~ u s t i c e , ' ~there is but s l i g h t concern
in determining the standard of procedural r i g h t s he w i l l enjoy in
the event of trial by the United States. However, a t the other end
of the spectrum of c e r t a i n t y a s to what elements must be accorded
the a l i e n enemy t o c o n s t i t u t e a f a i r t r i a l i s the standasd s e t f o r t h
under A r t i c l e 3 of the Civilian Convention. (See Appendix B) To
resolve the norass question of exactly what w i l l be
accorded a t a l l under the 1949 Geneva Conventions, we a r e confronted
with much the same s i t u a t i o n a s faced PIT, Justice Holmes who lamented
because of the lack of procedural rules: tlLegal obligations t h a t
e x i s t but cannot be enforced a r e ghosts t h a t a r e seen in the law
b u t a r e elusive to the grasp. 11 27
PJ
The task of t h i s paper is two-fold: to surnarize the rules
a
of customary international law regarding a f a i r trial (the Article
3 standard) and then t o examine the e f f e c t that the 1949 Geneva
Conventions have had upon the customary law. In order t o render a
proper i n t e r p r e t a t i o n of the printed words of these four international
agreements, the purposes in causing t h e i r creation must be kept
always in mind: to b e n e f i t the victims of war, not the states. In
s e t t i n g f o r t h a standard of interpretation f o r the Genocide

26. A r t . 2 ( 9 ) , Uniform Code of Military Justice, 10 USC 8802

(hereinafter c i t e d a s e i t h e r the Code o r UCMJ).
27 The Western Maid, 257 U.S. 419, 433 (1922). Wright, Supra
note 21 a t 496 a l s o points o u t t h a t the ifstandards of international
law defining denial of justice a r e unfortunately vaguei8.
 Convention, the I n t e r n a t i o n a l Court of J u s t i c e stated: nThe high
i d e a l s which inspired the Convention provide, by v i r t u e of the
-
common w i l l of the p a r t i e s , the foundation and measure of a l l i t s
provisions. "28 !bus, our concern is yhen do the Conventions apply,

-
to whom a r e they applicable, and what b e n e f i t s can be claimed under
the j u d i c i a l provisions.

3. Application of the Conventions

Common to the f o u r Conventions is A r t i c l e 2 which provides
t h a t the provisions of the Conventions w i l l apply to a l l cases of
declared war, any o t h e r armed c o n f l i c t of an i n t e r n a t i o n a l character,
and in a l l cases of t o t a l o r p a r t i a l occupation.29 A r t i c l e 3 of

28. Advisory Opinion on Reservations to the Convention on the

Prevention and Punishment of the Crime of Genocide, (1951 ) 1.C. J.
15, 23. P i c t e t states t h a t most i n t e r n a t i o n a l conventions a r e f o r
the b e n e f i t of and primarily concerned with a f f a i r s of government;
however, these f o u r Conventions a r e concerned with the p r i n c i p l e of
respect f o r human personality. THE GENEVA CONVENTIONS OF 12 AUGUST
1949, COMMENTARY 3 3 , GENEVA COWENTION RELATIVE TO THE PROTECTION
OF CIVILIAN PEBONS I N TIHE OF WAR 26 ( p i c t e t ed, 1958) (hereinafter
c i t e d as COMMENTARY N).

29 On 11 June 1965, the ICRC took the position t h a t the United

I
States, South Viet-Ham and i t s a l l i e s , and the Democratic Republic
of V i e t Nam ( ~ o r t hV i e t am) and the National. Liberation Front ( t h e
Viet Cong) were bound by the terms of the 194.9 Geneva Conventions,
The United S t a t e s replied t h a t we would abide by the terms of the
Conventions. 60 Amo J. I n t ' l . L. J. 92-3 (1966) The North Vietnamese
government has taken the position however, tha* the Convention does
n o t apply to t r i a l of prisoners of war because of a reservation it
made (27 U,N. T.S. 311.0 (1957) denying benefits of the GPW t o prisoners
of war who are t r i e d and convicted of war crimes. The f a l l a c y of
thAs .reservation is examined i n Comment, The Geneva Convention and
the Treatment of Prisoners of War i n Vietnam, 80 Ham. L. R. 851
(1967). The h i s t o r i c development of the org'anizations operating i n
South V i e t N a m and controlled by Hanoi is covered i n Carver, 2
Faceless V i e t Conq, 4-4 Foreign Affairs 347 (1966).
 each Convention i s directed s o l e l y to armed c o n f l i c t s not of an
international character and brings into application c e r t a i n minimum
benefits to the victims of war which has been described a s a
Mminitureff onv vent ion.^^ In Vie t-Nam today, the assistance
rendered by the United States and f i v e other nations3' brings i n t o
application the j u d i c i a l provisions of the Prisoner Convention because
the c o n f l i c t i s of an international character. However, because
the United S t a t e s and the other nations a l l i e d with South Viet-Nam
do not occupy any t e r r i t o r y , the judicial provisions contained in
A r t i c l e s 64-67 of the Civilian Convention do not apply t o the trial
of those who, not being e n t i t l e d to prisoner of war s t a t u s , never-
theless engage i n the h o s t i l i t i e s and are made ameni(ab1e t o trial
when they v i o l a t e the law of war. Only A r t i c l e 3 of the Geneva
Civilian Convention i s applicable t o judicial proceedings by the
U. S. a g a i n s t the unlawful b e l l i g e r e n t i n t h a t situation. 32

In dealing with the non-PW - the unlawful b e l l i g e r e n t -,an

30 Esgain & Solf, The 1949 Geneva Conventions Relative to the

Treatment of Prisoners of War: Its Principles, Innovations and
Deficiencies, 41 N. C. L, Rev. 537, (1963). Commentary IV 34.

310 Korea, Australia, New Zealand, the Philipines, knd Thailand.

55 State Dept. Bull. 455 (1966)-
32. P i c t e t , supra note 7 a t 473 points o u t t h a t the Civilian
Convention waslJan imperative necess ityff because of the b i t t e r
experiences of World War I1 and was really a b e d a t b e l l i g e r e n t
occupation. However, Article 3 was included as a I1fall back" since
the s t a t e s would not agree on any more strong language as o r i g i n a l l y
suggested which would have made the e n t i r e Civilikian Convention
applicable in the event of c i v i l war, colonial c o n f l i c t o r religious
wars. COMMENTARY IV 30.
important question e x i s t s as to whether he is e n t i t l e d , i n the
event of t r i a l f o r violating the law of war, t o the Article 3 o r
the Article 64-76 standard of due process. The answer t u n s on :
whether the t e r r i t o r y is occupied and h i s status. In discussing the
application of the Civilian Convention to Occupied Territory, the
American Delegate Plenipotiary and a member of the American
delegation, M r o Yingling and Mr. Gunnane, respectively,stated:
While the Civilian Convention contains no d e f i n i t i o n of toccupatibpt,
probably nothing more could be added to the principle i n Hague
A r t i c l e 42 t h a t "Territory is considered occupied when it is a c t u a l l y
placed under the authority of the h o s t i l e army." The Convention
w i l l not apply i n l i b e r a t e d t e r r i t o r y of an a l l i e d country such a s
France in 1944 i n r e l a t i o n t o the United S t a t e s and the United
~ i n g d o m . " ~Thus,
~ in VietNam, the provisions of due process

contained i n A r t i c l e s 64-76 do not apply to the t r i a l of an

u n l a w f a b e l l i g e r e n t because the t e r r i t o r y is not oecupied t e r r i t o r y
a s intended by the d r a f t e r s of the Civilian Convention,
Mr. P i c t e t speaks of the accusedf s trial in both s i t u a t i o n s
a s follows :34
The r i g h t of detained persons to a f a i r and regular trial
wiU. be ensured in occupied t e r r i t o r y , applying the provisions

33 The Geneva Conventions of 1949, 46 Am. J. lntf loLo J. 393,

417 (1952).
34. COMMENTARY N 58. Article 3, GC was designed to apply to
armed c o n f l i c t which had a l l the markings of an international conflict,
except t h a t the fighting took place within the t e r r i t o r y of a single
s t a t e , COMMENTARY Ill 36,
 of a r t i c l e s 64-76; there is no special provisions
applying t o the t e r r i t o r y of the P a r t i e s to the c o n f l i c t ,
but the r u l e contained b, Article 3 w i l l be applicable:
i.e., the Court must afford I t a l l the judicial guarantees
recognized as indispensable by c i v i l i z e d peoples,
The open-end approach t o the Article 3 s t a n d a d i s
ameliorated to some extent where the accused i s a "protected
personH and is charged with committing a grave breach, i n which case
he is e n t i t l e d to some of the procedural benefits granted to the
PW, which i h turn, is dependent on the procedural r i g h t s accorded
members of the armed forces qf the Detaining Power.

4. Persons Entitled to the Geneva Conventions

Thus f a r we have discussed generally when and what
standards$%re provided by the Geneva Conventions so far as pro-
cedural due process i s concerned, But & is e n t i t l e d to claim the
provisions of the Conventions incident t o a war crimes t r i a l ?
The Prisoner Convention extends to a l l prisoners of war,
these being t h e members of the armed forces, militia members, and,
I
a m o n g ~ b t h e r s ~ , r l s i a k n cmovements
e conplying with the f o u r - t i e r
requirement to be discussed below. (See ~ ~ ~ e nC df oi r i definition

The Civilian Convention r e f e r s to a group of victims of

war a s "protected persons" who a r e defined in Article 4 a s being:
Persons protected by the Convention are those who, a t a
given moment and in any manner whatsoever, f i n d themselves,
i n case of e o n f l i c t o r occupation, i n the hands of a Party
to the c o n f l i c t o r Occupying Power of which they a r e not
nationals,
Nationals of a S t a t e which i s not bound by the Conven-
tion a r e not protected by it. Nationals of a neutral
State who f i n d themselves in the t e r r i t o r ~ rof a b e l l i g e r e n t
 State, and nationals of a co-belligerent State, s h a l l n o t
be regarded a s protected persons while the S t a t e of which
they a r e n a t i o n a l s has normal diplomatic representation
in the State in who hands they are,

In general, the Civilian Convention includes within i t s

ambit two main groups: any one who is n o t a national of (1 ) the
Party to the c o n f l i c t o r ( 2 ) Occupying Power into whose hands he
.
f a l l s 35
For example, the Civilian Convention would n o t apply i n
t h e event of a n a t i o n a l of the U. S. were to f a l l i n t o the hands of
the U. S. i n Viet- Nam. Similarily, a n a t i o n a l of a n e u t r a l State,
o r one n o t bound by t h e Conventions, would n o t be e n t i t l e d t o the

p r o t e c t a d ~ p e r s o ns t a t u s should he f a l l i n t o the hands of any of

the f i v e co-belligerents in Viet-Nam.

5,, Grave Breaches

I n addition to the question of whether t h e Conventions
apply and, if so, what portions, is the matter of grave breaches, a
type of i n t e r n a t i o n a l war crime, Common to t h e f o u r Conventions
a r e the following criminal a c t s included within the grave breach
d e f i n i t i o n : w i l l f u l l k i l l i n g , t o r t u r e o r inhumane tseatnent,
including b i o l o g i c a l experiments and w i l f u l l y causing g r e a t
s u f f e r i n g o r serious i n j u r y to body o r health, w i l l f u l l y depriving
a person e n t i t l e d t o the Convention in question of the s i g h t s of
f a i r and regular trial prescribed in the p a r t i c u l a r Convention, and
extensive destruction and appropriation of property not j u s t i f i e d
by m i l i t a r y necessity and carried o u t unlawfully and wantonly, 36
The GEW adds to t h i s l i s t the crimes of compellbg a prisoner of
war t o serve i n the armed forces of the h o s t i l e Parer, The unlaw-
f u l deportation o r t r a n s f e r o r unlawful confinement of a protected
person is added by the GC, which a l s o includes wikhin the grave
breach d e f i n i t i o n compelling a protected person 'to serve in the
a d forces of a h o s t i l e power, the taking of hostages. Grave
breaches defined in the GSW and GSW a t Sea add additional crimes
a c t s not here relevent.
The four Conventions place upon the Contracting P a r t i e s these
three obligations regarding grave breaches: 37
a ) to enact any national l e g i s l a t i o n necessary t o provide
e f f e c t i v e penal sanctions f o r those having complicity a s to a
grave breach;
b) to search f o r such persons charged with complicity a s

to a grave breach;,and
o ) to t r y such persons before its own courts, o r to hand
over f o r trial to another High Contracting Party where a prima
f a c i e case is established.

36 .
147, GC,
A r t . 50, GSW; A r t , 51, GSW a t Sea; A r t 130, GFW; and A r t .

37 0 Art. 49, GSW; Art.50, GSW a t Sea; A r t , 129, GPW; and A r t ,

146, GC. These a r t i c l e s have been described a s the ncornerstone of
the system used f o r the repression of breaches of the Convention."
COMMENTARY IV 590. Before the US Senate Committee conducting ,

hearings on the Geneva Conventions, the Assistant Attorney General

stated:
 The f o u r Conventions a l s o places upon the P a r t i e s t h e duty

t o repress a l l okher v i o l a t i o n s of the provisions of t h e Conventions

a s w e l l as o t h e r crimes and s t a t e s t h a t those enti.tled t o b e n e f i t

from the Conventions s h a l l be e n t i t l e d t o t h e 9 a f e g u a r d s of a

proper t r i a l and defense.

lfWe have l a w s t h a t cover "

those subjects. (emphasis
added) Hearings Before t h e Committee on Foreign Relations, US
Senate, 84th Congress, 1st. Sess., 3 June 1955, on the Gegeva
Conventions f o r the Protection of War Victims 28. A s l a t e r discussion
w i l l reveal, the United S t a t e s has very few laws to e f f e c t the purpose
of these t r e a t y obligations. The d r a f t e r s of the Conventions
considered it would be necessary to e n a c t some a d d i t i o n a l l e g i s l a t i o n ,
THE GEMEVA CONVENTION OF 1 2 AUGUST 1949, COMMENTARY 111, GENEVA
CONVENTION FELATIVE TO THE TREATMENT OF PKLSONERS OF WAR 629
( P i c t e t ed. 1 9 6 0 ) ( h e r e i n a f t e r c i t e d as COMPlENTARY 1110. For a
review of the need f o r f e d e r a l criminal l e g i s l a t i o n s i n c e there is
no f e d e r a l common l a w on crimes, see ~ i l d e r ,Control of Criminal
A c t i v i t y i n Antartica, 52 Va. L. Rev. 231 , 246-7, 269-279 (1 966)
f o r an e x m l e t h a t ' t h e need f o r US l a a i s l a t i o n i n overseas a r e a s
i s n o t l i m i t e d t o t h e t o p i c of l a w of war, b u t a l s o a f f e c t s v i t a l l y
t r e a t y commitments i n o t h e r a r e a s of o u r foreign r e l a t i o n s .
 JUUSDIGTION TO TRY WAR CRIMINALS

A. Baska P r i n c i p l e s

A t t h e threshold of any discussion of criminal law l i e s

the topic of j u r i s d i c t i o n - the a u t h o r i t y o r power of the S t a t e
to a c t in regard to the trial and punishment of a person charged
with v i o l a t i n g the law, i n t h i s case the law of war. Customary
i n t e r n a t i o n a l law recognizes f i v e basic p r i n c i p l e s of jurisdiction,
a l l of which a r e applicable t o the general topic of war crimes:
t e r r i t o r i a l , n a t i o n a l i t y , passive n a t i o n a l i t y , protective,
and universality. 38
The territorial p r i n c i p l e is perhaps the most widely
appUed and accepted one, It provides t h a t the S t a t e may exercise
i t s j u r i s d i c t i o n a s t o prescribing laws regarding a l l crimes
committed within i t s borders and to enforce such laws, with c e r t a i n
exceptions n o t here pertinent. This power to a c t a s to all matters
within i t s t e r r i t o r y 9s one of the most important a t t r i b u t e s of
s o ~ e r e i ~ n i t The
~ . ~second
~ and t h i r d category l i s t e d above a r e
concerned with n a t i o n a l i t y : i f t h e offender is n a t i ~ n a lof S t a t e X,
the acCive pbksonality ( o r n a t i o n a l i t y ) p r i n c i p l e a p p l i e s to give
' '-

380 Carnig i e , J u r i s d i c t i o n Over Violat ions of the Laws and

Customs of War, 39 Brit, Yb. Intel. L, 402 (1963).

39. Beckett, The Exercise of Criminal J u r i s d i c t i o n over

Foreigners, 6 B r i t , Yb. I n t l l , L, 4 4 (1925) o u t l i n e s the development
of the modern s t a t e on a terriwrial basis.
 t h a t S t a t e jurisdiction over h i s conduct; where the victim of the
criminal conduct is a national of State X, t h a t S t a t e can make
atneniable to i t s criminal powers the offender when and i f he comes
i n t o the custody of S t a t e X, under the passive n a t i o n a l i t y principle.
Speaking of the passive personality principle, Judge Moore of the
Permanent Court of International Justice stated: LC0
It appears to be now universally admitted t h a t when a
crime i s committed in the t e r r i t o r i a l jurisdiction of one
s t a t e a s the d i r e c t result of the a c t of a person a t the
time corporeally present i n another s t a t e , international
law, by reason of the principle of constructive presence of
the offender a t the place wheze h i s a c t took e f f e c t , does
not forbid the prosecution of the offender by the former
s t a t e , should he come within i t s territorial jurisdiction,
The fourth category, protective principle of jurisdiction,
' allows a S t a t e to exercise i t s criminal laws where the offense
involved is harmful to the v i t a l i n t e r e s t s of the state, a s i n the
instance of mass deportation of populations, 41

The f i f t h principle, universality, allows any s t a t e t o

punish any offender f o r a criminal a c t , irrespective of the nation-
a l i t y of the victims o r where the crime was committed. '' Tradition-
a l l y , i t s application was evidenced i n the case of p i r a t e s seized

4.0, The case of the S. S. ttLotusfl, (France v ~ u r k e y ) , Berma-

Hudson~WeildCou~t.:Repoats!20 .(t935) , :.
nent Court of International Justice, Ser. A, No. 9 . (1927); 2

-\.
41 . Note, Protective Principle of Jurisdiction Amlied to Uphold
S t a t u t e Intended to have E x t r a - t e r r i t o r i a l Effect, 62 Colum, L. Rev,
71 (1962). discusses United S t a t e s v Luteak, 344 U, S. 604 (1953)

the War Brides Case.

Carnigie, Supra note 38 a t 405.

on the high seas where there was technically a l e g a l vacuum. This
p r i n c i p l e holds t h a t there must be some law f o r the repression of
unlawful conduct and thus serves a s a gap-filler. The t r i a l s of
war criminals a f t e r World War I1 u t i l i z e d t h i s p r i n c i p l e f o r the
exercise of j u r i s d i c t i o n by the m i l i t a r y and c i v i l i a n c o u r t s where,
f o r example, an Australian military commission t r i e d a Japanese
charged with commit ti:^ offenses in Java a g a i n s t Chinese and
Indians, and a l s o a United S t a t e s t r i a l i n Germany of a Genan
accused of crimes a g a i n s t Czechoslavztk and Russian nationals which
were committed a t a time before the United S t a t e s even entered the
war a g a i n s t the Axis. 43
Professor Cowles, in h i s a r t i c l e e n t i t l e d "Universality
of J u r i s d i c t i o n over War C r h i n a l s f f , sets f o r t h the r u l e which
was followed by most a l l of the Allied war crimes tribunals: 44

Actual p r a c t i c e shows t h a t the j u r i s d i c t i o n assumed by

m i l i t a r y courts, t r y i n g offenses a g a i n s t the l a w of war,
hds.'.besn p r s O n + l j :sr lmive'rsal, n o t : . t e r r i t o r l a l , , ~ .The, ,,
jurisdiction, exercised over war criminals, has o f t e n been
of the same nature a s t h a t exercised i n the case of p i r a t e s ,
and thus broad j u r i s d i c t i o n has been assumed f o r the same
fundamental reasons, *** But, while the S t a t e whose n a t i o n a l s
were d i r e c t l y a f f e c t e d has a primary i n t e r e s t , a l l a i v i l -
ized S t a t e s have a very real interest i n the punishment
of war crimes.
A s e a r l y a s 1919, the i n t e r n a t i o n a l community generally
recognized t h a t individuals as well a s S t a t e s could be k l d crimi-

4.3 o United S t a t e s v Remele, 15 LAW RGPOBTS 1)4 (1 9@)(discussed

b u t n o t reported), This f i f t e e n volume represents the work of the
UN War Crimes Gomission and w i l l be referred to herein a f t e r a s
LAW REPORTS.

M. 33 ~ a l .L. Rev. 176, 217 (1945).

 a l l y l i a b l e f o r the commission of war crimes.45 However, it remained
f o r the events of World War I1 t o bring f o r t h the exercise of any
f u l l scale criminal jurisdiction i n the f i e l d of international
criminal responsibility.46 Unfortunately, the Restatement of Inter-
national Law prepared by the American Law I n s t i t u t e f a i l e d to recog-
nize the application of t h e universality principle to war criminals, 47
and was content to adopt the outmoded approach which was valid
u n t i l 1919 t h a t t h i s principle applied only t o p i r a t e s , thus
disregarding the approval of the UN General Assembly in 1948 of the

45- Customary international law was once an obstacle t o the

advancement of human r i h h t s because t h i s doctrine provided f o r only
states as subjects of international law, but it is now being eroded.
E. Lauterpacht, Some Concepts of Human Rights, 11 How, L. JI 264
(1965). The establishment of universality of jurisdiction f o r the
trial of war criminals i s regarded a s an expansion of customary
international law i n the direction of the greater protection of hwnan
'
rights, Brand, The War Crimes Trials and the Law of War, 26 B r i t ,
Yb. I n t t l . L. 414 (1 949). See a l s o Q. Wright, War Criminals, 39 h,
J. Unttl. L. J. 257, 262 (1945). The Council of the Conference of
Paris of 1919 recognized the r i g h t of the A l l i e s to punish indi-
viduals f o r violations of the laws of war; see 14 Am, J, I n t t l , L,
117 (1920) f o r discussion of t h i s Conference.
46. In the context of law of war, Q. Wright, sypra note 45
a t 2845, refers to the f o u r systems of law and t h e i r advantages t
-
national law precise r , ~ l e s and procedure, but apply in the United
-
States, and a r e not destlgned to vindicate international law; l a w
of war a l s o has established r u l e s and procedure, but is n e t suited
f o r the development of the law of peace; l a w of peace -
establish-
-
ment of an i n t e r n a t i o n a l tribunal to discourage future l a w breakers;
and universal law i d e a l system,

470 Section 35, Universality; f o r c r i t i c a l evaluation of the

Restatement's provision dealing wLth jurisdia tion, see Me tager,
The Restatement of the ~ o r e i g n - R e l a t i o n sLaw of the United States:
Bases and Conflicts of Jurisdiction, 41 N.Y.U. L. Rev. 7 ( 1 9 m
Nuremberg Judgment.
The principle of universality of criminal jurisdiction was
used by the United S t a t e s military commissions and military govern-
ment courts a f t e r the Second World War throughout the world. 48
Often times, the consent of the injured State was obtained p r i o r t o

the United S t a t e s commencement of a proceeding fop crimes committed

. ~ ~judgment of the International
outside the US %one of ~ e r m a n ~The
Military Tribunal which t r i e d major w a r criminals in Nuremberg
s t a t e d t h a t i t s jurisdiction came from the Charter promulgated by
the Allied Powers and on the basis of a t e r r i t o r i a l i t y claim i n the
sense t h a t the four Allied natioqs stood in the shoes of the defeated

48, LAW REPORTS 23-48 (1949) reviews the j u r i s d i c t i o n a l basis

of the Allied t r i a l s of war crimes, See a l s o See tion V, C, infra.
I n 1960, Eichmann was kidnapped i n Buenss Aires and taken to I s r a e l
where he was t r i e d the following year on f i f t e e n counts s f crimes
against the Jewish people under a 1950 s t a t u t e of t h e Isruli govern-
ment L%e Nazi and Nazi Collaborators (Punishment) ~aw,'571&7 , war
crimes, and membership in h o s t i l e organizations. .He was sentenced
t o death and the sentence was executed in 1962 a f t e r the Supreme
Court of I s r e e l rejected h i s appeal and the President of I s r a e l
denied clemency. The Court exe ised jurisdiction under the univers-
3
a l i t y principle because the accuq..'~ conduct must be regarded a s
international criminal a c t s and uAI?:.sis t h a t every nation has a
duty to prosecute those accused ozAnuch crimes. The appellate court
based its decisiofi'the 1907 Hague Hsgulations, the Lotus case,
and the dudgment o$ the International Military Tribunal a t Nuremberg
which was adopted by the United Nations General Assembly. I n
reviewing t h i s case, Mr. Fawcett approves of the exercise of
jurisdiction and observed: "There is evidence then t h a t the majority
of stabs have accepted the principle, t h a t there a r e c e r t a i n crimes
j u r e gentitam f o r which any state may a s s e r t jurisdiction t o t r y and
punish the offender. On this principle there would be concurrent
jurisdiction between S t a t e s and the exercise of t h a t jurisdiction
would f a l l to the forum conceniens.fi, The E i c W m case, 38 B r i t .
Yb, Inttl. L, 181,207('- .

4.9 For example, the united States obtained pemission from

Belgium to t r y offenses committed against ~ e l g i G nationals i n Belgium,
-
see the Malmedy case, (united S t a t e s v Bersin e t al) discussed in Koessler,
American War Crimes T r i a l s i n bAmpe, 39 Geo. I,. J. 18, 38 (1950).
sovereign r e s u l t i n g from the d e b a l l a t i o of Germany. The trial of
the major war criminals i n Tokyo, however, based i t s j u r i s d i c t i o n
on the formal instrument of surrender in which Japan consented, by
the express terms of the document, to such trials, 50

B. The 1949 Geneva Conventions

The Prisoner and Civilian Conventions both expressly

recognize the r i g h t of the Detaining o r Occupying Power to s u b j e c t

pr$soners of war, protected persons, and o t h e r s to the laws of t h a t
Power and i n t e r n a t i o n a l law i n force a t the time of the commission
of the conduct in question.51 Specifically, A r t i c l e 82 of the GPW
provides t h a t the p r i s o n e r of war is s u b j e c t t o the laws, regu-
l a t i o n s , and order in f o r c e in the armed forces of the Detaining
Power. A r t i c l e 64 of the GG allows the Occupying Power to s u b j e c t
the population to those measures which w i l l maintain an o k i e r l y
government and i n s u r e the s e c u r i t y of the Occupying Power, and
A r t i c l e 5 envisions trials by t h e Detaining Power of those charged
w i t h espionage, sabotage and o t h e r h o s t i l e a c t s , committed during

the c o n f l i c t o r occupation.

Carnigie, supra note 38 a t 413-6,

51 Carnigie, supra note 38 a t 406, p o i n t s o u t t h a t conventional

war crimes are p a r t l y covered by customary i n t e r n a t i o n a l law and
p a r t l y by the 1949 Geneva Conventions. The Conventions w i l l govern
those ~ t a t e sp a r t i e s there'lo and to strangers who agree to i t s
p r i n c i p l e s , with the g r e a t e s t impact being on the grave breaches
provision regarding jurisdiction. When .two o r more s t a b s a l l y to
repel an aggressor o r to wage was, each can exercise j u r i s d i c t i o n as
to those captives i n its custody without regard to territorial r i g h t s
of one s t a t e ; in o t h e r words, there is no requirement f o r waiver of
j u r i s d i c t i o n t o be obtained from the t e r r i t o r i a l s o v e W g n in order
to t r y a person accused of war crimes. e:
 CONSIDERATIONS AFFECTING PROSECUTORIAL BISClGTION

A, Staff Judge Advocate Duties and Responsibilities

The S t a f f Judge Advocate of each command has the responst-
b i l i t p to supervise the conduct of a war crimes and to

assure t h a t proper action is taken a t h i s l e v e l of command.53 In

the discharge of these duties, the SJA is available to the commander
and the s t a f f t o give advice regarding the investigation of a war
crimes incident, the s t a t u s of an accused, conditions of detention,
a s well as the sufficiency of evidence f o r the purpose of e i t h e r
prosecution o r a request f o r extradition o r t r a n s f e r of custody
of an enemy a l i e n to US control, !%
I n d r a f t h g the charges, the relevent f a c t s must be averred
so a s t o place the accused on notkce of the conduct in question,

52. Paragraph 3.47gt U. S. De p t . of A m y , Field Manual 101-5,

Staff Officers' Field Manual (19647

53 Paragraph 40, U. S, Deptt. of Army, Pamphlet 27-5, Staff

Judge Advocate Handbook (1965). Although the US Army Reserve pro-
vide:; f o r War Grimes Teams (TO&E27-500g) which a r e under the control
of T.re Judge Advocats General of the Army, there are no such u n i t s
now i n the active Army, Letter of 9 December 1966 from the Chief,
h t e r n a t i o n a l Affairs Division, O f f i c e of $he Judge Advocate General
to the Assistant General Counsel, Department of Defense,
54.0 Acting under US Military Assistance Command, Vietnam (here-
inaf t e r referred to as MAC-v), Directive No, 20-4, dated 25 March
1966, the Staff Judge Advocate is required to conduct a thorough
review of a l l war crimes incidents which a r e investigated by lower
echelons.
Charges against a prisoner of war should be placed upon the same
I -
forms used i n the t r i a l of members of the US armed forces. 55 mere
is no p a r t i c u l a r format i n the drafting of the specification and,
a s the Supreme Court s t a t e d in rejecting a s assignment of e r r o r
on the basis of defective charges and specifications: llObviously,
charges of violations of the law of war t r i a b l e before a military
tribunal need not be s t a t e d with the precision of a common law
~ i c - & n e n t . f j Also,
~~ them is no s e t of rules (such a s in the case
of court-martial t r i a l s ) as t o the elements of the offense of the
various war crimes, b u t an excellent treatment of grave breach
violations of We Prisoner Convention i s given by Professor
Howard S. Levies5? and the UN War Crimes Comtnission has d e a l t w i t h
the elements of other war crimes.58 I n addition t o the e r i a i n a l
conduct involved, the specification should allege the n a t i o n a l i t y
of the accused and the victim, the position held by the accused,
and t h a t the conduct "was i n violation of the law and custom of
wareM Admitting t h a t there is no single source i n deciding whether

55 Paragraph 12, Appendix 6c, k n u a l f o r Courts-Martial, 1951,

471 (hereinafter c i t e d a s MCM,1951.)

56 In re Yamashita, 327 U. S. 1, 17 (19116).

57 Penal Sanctions f o r Maltreatment of Prisoners of War, 56 a

Am. J. Int'l. L. 433, 444-454 (1962); Professor Levie of Saint Louis

University School of Law was formerly chief, International Affairs
Division, Office of the Judge Advocate General.

580 15 LAW REPORTS 89-1 3(c (1949). Also see Greenspan, THE
MODERN LAW OF LAND WABFABE 463-502 (1959).
a given offense constituted a war crime, Chief Judge Winn of the
US Court of Military Appeals Stated: 59
The t e s t bringing these offenses within the common law of
war has been t h e i r almost universal acceptance as crirnes
by the nations of the world. This test is consistent
w i t h the rule, already noted, t h a t the common law of war
has i t s source i n the principle, customs, and usages of
c i v i l i z e d nations.

Be Custody of the Accused

Of primary concern t o the Staff Judge Advocate, once
authorization f o r the conduct of war crimes t r i a l s i s granted, is
not only the sufficiency of the evidence to support the conclusion
t h a t there i s a referrable case but a l s o whether the command has
custody of the persons responsible f o r the violation of the law of
war, I f the US has custody, there is l i t t l e concern regarding h i s
presence in court. However, the absent accused r a i s e s many

colbateral problems once h i s whereabouts is known: can he be

extradited from the country of asylum t o the country where the US is
providing m i l i t a r y assistance, can he be nerely returned to US control
once he i s found in a foreign country, and what is the s i t u a t i o n
where he f l e e s to the United States to avoid prosecution f o r crimes
committed i n the zone of operations. 60
Extradition to o r from the United S t a t e s territorial

United S t a t e s v Schultz, 4 0 CmNeRe 104, 114 (1952).

60. Lauterpacht, Law of Nations and Punishment of War Grimes,
21 B r i t . Yb. Int'l. Lo 58, 86 (1944).
jurisdiction i s governed by over eighty b i - l a t e r a l breaties, the
1933 Montevideo s on vent ion,^' and by Section 3181 of T i t l e 18 of
the United S t a t e s Code which provides t h a t extradition w i l l take
place only during the existence of a t r e a t y of extradition with a
foreign government involved, However, since the s t a t e of war has
been r e g a d e d a s suspending the application of extradition
the argument t h a t the United Statas, o r other nations,
can merely request surrender of f u g i t i v e s in time of war from
Rae
countries where the f u g i t i v e s 333 found to be located has merit.

This argument has added merit when the country of asylum is a High
Contracting Power to the Geneva Conventions and the offense is a
grave breach.63 Even when the United S t a t e s has an extradition
treaty, such a t r e a t y might n o t apply to crimes committed outside
the US jurisdiction i n any event because most t r e a t i e s allow f o r the
extradition only when the crime took place within the territorial
jurisdiction of the United States, such jurisdiction being defined
t o include t e r r i t o r y under the control of o r belonging to one of

61. Note, The New 16xtradition Treaties of the United States, 59

Am, L, J. 351 (1965) considers the three t r e a t i e s entered
J. I n t l l .
i n t o since World w a r 11 involving Brazil, Sweden and I s r a e l .

62, Mr, J u s t i c e Stewart, when a member of the 6th Circuit,

considered the e f f e c t of war on an extradition t r e a t y between the
United S t a t e s and Italy and held t h a t the 1945 peace t r e a t y pro-
vided f o r the revival of all former b i - l a t e r a l t r e a t i e s between the
.
countries which had been suspended when the U, S. declared war on
I t a l y i n 1941 A r ~ e n t ov Horn, 241 F. 26 258 (6th C i r . 1957 )

63oCOMNTGRY IV 52-58.
the contracting s t a t e s .64 Perhaps the b e s t approach would be f o r
the government of South Viet-Nam t o request the extradition and
then release custody to the United S t a t e s upon the return of the
f u g i t i v e to South Viet-Nam. This course of action would be feasible
where the surrendering s t a t e did not require the requesting s t a t e
(South Viet- am) to prosecute, otherwise, the US could t r a n s f e r the
f i l e to South Viet-Nam f o r prosecution.
Where the f u g i t i v e f l e e s to a country o.ther than the US, he
might be returned t o US control f o r purposes of t r i a l in South
Viet-Nam without the formality of an extradition process o Such
was the case a f t e r World War I1 when the Allies agreed t o surrender
requested persons held i n custody to another Allied Power. 65
In the event the fugitive see% asylum in the United S t a t e s
o r its t e r r i t o r i e s , he might be subject to extradition under a

64. ~ o t e ,supra note 61 a t 354,

65 o The Moscow Declaration of 1943 requested the A l l i e s to
surrender war criminals to the demanding s t a t e , Mor enstern, Asylum
f o r War Criminals, 30 B r i t . Yb. Int'l. 1. 382 (19577. h e
establishment and opera tion of c i v i l i a n interrueelrtt&eniklosures and
prisoner of war camps i n Germany following the WW I1 i s discussed
by General Telford Taylor, Chief of Counsel f o r the Subsequent
Proceedings held a t Nuremberg, in FINAL REPORT M THE SECRETARY
OF THE ARMY 50-58 (1949)(hereinafter referred to as Final Report),
who observed t h a t expedi$ious handling of cases was of prime
concern in view of the i n s t a b i l i t y of the country and the large
number of persons sought f o r trials a s accused and often times a s
witnesses in other trials by d i f f e r e n t countries. The f i l l i e s i n
WW II recognized t h e i r f a i l u r e to include i n the Treaty of Versailles
i n 1919 a provision f o r the surrender of war criminals, thus the
provision in the Moscow declaration, 39 Am. J, Int'l. L. J. 565
(1945) The Austrian Government has requested t h a t Brazil e x t r a d i t e
recently arrested Franz Stangl t o stand t r i a l f o r war crimes a r i s i n g
from h i s a c t i v i t i e s while commandant of Nazi concentration camps
a t Treblinka and Sobibir i n Poland during WW 11, New York ~ i m e s ,
4 March 1967, p. 3, col, 7.
t r e a t y but he i s not subject to extradition under Section 3185 of
the above US Code T i t l e , because t h i s s t a t u t e , enacted in .$he 1900
i n order t o return to Cuba from New York a US c i t i z e n wanted by
the US m i l i t a r y Governor of Cuba f o r postal crimes,66 is applicable
only where the US has complete o r exclusive control df the foreign
country, such a s in the case of occupation.67 P o l i t i c a l offenses
a r e excluded fm extradition t r e a t i e s a s a general rule.68 Efforts

66, E tq Neely v Henkel, 180 U. S. 109 (1900). the Supreme Court

held t h a t there was no constitutional ~ r o h i b i t i o nt o enactment of
extradition law (18 USC 23185) f o r r e t k a c t i v e e f f e c t since the law r o t r e i y
changed procedure and did not create a new criminal offense, thus
not offending the principle of ex post facto, Also, the Court held
t h a t the petitioner, seeking to bar h i s extradition to Cuba which
was then under the control of the US Army, had no c o n s t i t u t i o n a l
r i g h t s to a c e r t a i n kind of t r i a l by the demanding s t a t e o r kerritory.
H Report No. 1625, 56th Congress, 1 s t Sess. 2(1900). Such a s t a t u t e
a s proposed i n 1954 o r an extradition t r e a t y with South Viet Nam
would be necessary t o fill t o present vacuum existing due to the
lack of such a t r e a t y and legislation. ( ~ r e a t i e sin Forces as of 1
January 1966 f a i l d s t o l i s t such a t r e a t y between the United States
and Viet Nam, p 210-51 1, (State Dep*t, Publication No. 8 ~ 4 2 ) ~ . -I 2.-

67 o In re Krausman, 130 F. Supp. 926 (DC Corn, 1950). held

t h a t the United S t a t e s must have exclusive jurisdiction over the
t e r r i t o r y in order t o seek return of p e t i t i o n e r (former employee
of American Express Co. in ~ e r l i n )and t h a t the relinquishment of 4
jurisdiction t o Germany during proceedings mooted the extradition
proceeding under 18 US6 5 318fio

68. Garcia=Mora, Grimes Against Humanity and the Principles of

Non-Extradition of t h e m ~ c a Offenders,
l 62 a c h . Lo Rev, 927
11964); see Artukovic v Boyle, 140 I?. Supp. 245 (SD Cal, 1956) where
extradition reauest under Treaty w i t h Serbia i n 1902 was denied by
the US court wiere the murders charged by ~ u ~ s l o v i(regarded
a as -
the proper successor t o the ~ r e a t y )were regarded a s p o l i t i c a l acts,
i n the House of Representatives in 1 9 9 to l i b e r a l i z e t h i s s t a t u t e
failed. It was proposed then ( a ) to allow f o r extradition from
the United S t a t e s t o a foreign country occupied exclusively o r
jointly by the US and (b) to increase the l i s t of crimes f o r which
extradition was possible to include many occupation types offenses. 69
No f u r t h e r action has been taken by the Executive to suggest the enactment
'of,::'l e g i s l a t i o n providing f o r extradition to countries from the
United S t a t e s where the US is engaged i n c o l l e c t i v e security
measures 70

69. For review of the House action, see Note by Fairman in 48

Am. J. I n t ' l . L. J. 616 (1954).

70 o The US courts have stead-fastly held by the wordsl~ofChief

Justice Marshall: 'lour Constitution declares a t r e a t y t o be the law
of the land. It is, consequently, to be regarded in Courts of
J u s t i c e as equivalent tn an a c t of the l e g i s l a t u r e , whenever it
operates of i t s e l f without the a i d of any l e g i s l a t i v e provisions.
But when the terms of the s t i p u l a t i o n s imports a contract, when
e i t h e r of the p a r t i e s engages t o perform a p a r t i c u l a r a c t , the
t r e a t y addresses i t s e l f to the p o l i t i c a l , not the judicial department;
and the l e g i s l a t u r e must execute -the contract before it can become
a rule f o r the Court,I1 i n Foster v Baker, 2 Peters 253, 314 (1829)
(noted i n 44 Am. J. I n t l l . L. 545) a s being the foundation f o r the
principle of self-executing and non-self-executing t r e a t i e s . The
precise terms of the Conventions require l e g i s l a t i v e action by the
Congress, but the Assistant Attorney General's position i s repeaed:
We have laws t h a t cover all those subjectsn when referring to the
Geneva Convention requirements t o enact l e g i s l a t i o n , see Hearings,
supra note 37.
Addition coments on extradition: (1 ) Neutrals a r e extrenels
r e l u c t a n t t o allow f o r the extradition of war-criminals and have the-
r i g h t under international law to grant o r refuse asylum as it sees
fit, unless bound to a c t otherwise. Neumann, Neutral S t a t e s and
Extradition of War Criminals, 45 Am. J. Intth. 'Lo 495 (1 951 ). The
US Supreme Court considers t h i s principle of international law i n
Factor v Laubenheher, 290 U. S. 276 (1 933). giving l i b e r a l con-
s t r u c t i o n to an extradition t r e a t y with Britain.
(2) I r r e g u l a r extradition methods, such as kidnapping, ha&^
never been the grounds f o r the court t o state there had been a denial
of justice. Evans, Acquisition of Custody over the International
 C. Determination of S t a t u s

1. The Prisoner of War

The t r a d i t i o n a l d i v i s i o n between the armed forces and the
peaceful population, and between lawful and unlawfiil b e l l i g e r e n t
has been preserved by the Geneva Conventions, These Conventions
divide the persons f a l l i n g i n t o the hands of a Party to t h e c o n f l i c t
infa two groups primarily: Prisoner of war, and nProtected personsfg.
Under A r t i c l e 4 of the GPW, (see Appendix c), e i g h t categories of
prisoners of war a r e l i s t e d and include members of the armed forces
of a Party t o the c o n f l i c t , m i l i t i a making up p a r t of the armed
forces, and members of o t h e r m i l i t i a o r volunteer corps ( r e s i s t e n c e
movements) who comply with the following f o u r t i e r formula:
a ) c a r r y arms openly
b) Eave a f i x e d d i s t i n c t i v e sign,
c ) be commanded by a person responsible f o r t h a t u n i t , and
d ) conduct operations i n accordance with the l a w of war.
IrW . s t a t u s i s a l s o accorded those who suddenly take up
arms upon the approach of t h e enemy (levee en mass), persons who

Fugitive Offender, 40 B r i t . Yb. I n t l l . L. 77 (1964), considers the

claims of d e n i a l of j u s t i c e raised by Soblen (199 F. Supp. 1I (1961 ),
Eichmann, Argoud (kidnapped i n ~ u n i c hin 1963 and t r i e d - &i F rance a s
l e a d e r of military r e v o l t a g a i n s t President BeGaulle), and Ahlers
( e d i t o r of Der Spiegel) who f l e d to Spain, deported $0 Germany f o r
treason t r i a l , but conviction s e t aside by Federal Supreme Court of
Germany on o t h e r grounds in 1965. See a l s o o l ~ i g g i n s ,Unlawful
Seizure and I r r e g u l a r Extradition, 36 B r i t . Yb, I n t r l . L T ( 1 9 6 0 ),
f o r review of B r i t i s h cases. The US Su~remeCourt has a l s o ruled
t h a t kidnapping of accused in o d e r to i e c u r e h i s presente i n Court
does n o t impair the power of the court. Kerr v I l l i n o i s , 119 W. S.
accompany the armed forces ( c i v i l i a n members of a i r c r a f t crews, war

correspondents, supply contractors and the l i k e ) , merchant marhe

crews, and those members of the armed forces in a neutral country

who a r e 5nterned there.

The main concern here is t o determine whether there has

been compliance with the four t i e r formula i n the case of m i l i t i a

o r volunteer corps, Because s o many times, the enemy combatant i n

Viet-Nan f a i l s to comply with t h i s formula which has existed since

the Hague Regulations of 1907, there is a considerable task in

determining the s t a t u s of captives f a l l h g into the hands of the US

armed forces i n Viet-Nam. The key to entitlement to PW s t a t u s

has boiled down t o the wearing of a d i s t i n c t uniform, one t h a t

readily s e t s the wearer a p a r t from the c i v i l i a n population. 7 1

2. US Practice i n Viet-Nan

The United S t a t e s has established tribunals under Article

436 (!886)(seiaed in Lima, Peru and brought t o Chicago f o r larceny

t r i a l ) and Frisbie v Collins, 342 U. S. 519 (1952) (Michigan o f f i c i a l s
seized wanted murderer in Chicago held not t o v i o l a t e due process;
*,,,sound basis of due process of law i s s a t i s f i e d when one present
i n court i s convicted of a crime a f t e r having been f a i r l y apprised
of the charges a g a i n s t him and a f t e r a f a i r t r i a l in accordance with
c o n s t i t u t i o n a l procedural safeguards1#, in opinion of J u s t i c e Black,
a t p. 524,)
71 Baxter, So-Called 'Unprivileged Belligerencyt :
Guerrallas, and Saboteurs, 28 B r i t , Yb. I n t l l . L. 323,
Paragraph 74, FM 27-1 0, provides t h a t persons otherwise e n t i t l e d
to PW s t a t u s (members armed forces e k . ) l o s e t h e i r r i g h t to PW
treatment whenever e l i b e r a t e l y conceal t h e i r s t a t u s f o r military
advantage, An h i s t o r i c a l development of treatment accorded
prisoners of war is contained i n Kooks, PRISONERS OF WAR (1924).
especially p. 7, 34, and 370.
5 of the GPW f o r the purpose of determining the s t a t u s of those
captives about whom there i s doubt a s to status.72 Ihe applicable
regulation. 73 provides f o r a 3 member tribunal to be convened by
the general court&-martial authority and t h a t a t l e a s t one member
of the tribunal be a judge advocate officer. The proceeding before
the tribunal i s informal and a summarized record is prepared, The
detainee i s e n t i t l e d t o the following rights: counsel ( e i t h e r a
d
judge advocate offi c e r appointed by the general ~ o u r t ~ ~ - . ! m r t i a l
convening authority o r a fellow detainee; an interpreter; to
present h i s case and c a l l witnesses; and be present with counsel i n
open sessions of the tribunal. Evidence of a relevant nature i s
admissible, the technical rules of evidence being dispensed with
i n order t o e s t a b l i s h the t r u t h of the issues involved, The
tribunal is granted the power .to c a l l d t n e s s e s , obtain documentary
evidence and real evidence, a s uell as the power to determine the
mental and physical capacity of the detainee. Decisions a r e reached
by a majority vote on a l l issues; i n the event of a t i e vote on the
ultimate issue of whether he is e n t i t l e d to gW s t a t u s , the decision
is ira favor of granting FW status.

7 2, A r t i c l e 5, GPW provides: "Should any doubt a r i s e as t o

whether persons, having committed a b e l l i g e r e n t a c t and having f a l l e n
into the hands of the enemy, belong to any of the categories
enumerated i n A r t i c l e 4, such persons s h a l l en joy the protection of
t h e present Convention u n t i l such t i n e a s t h e i r s t a t u s has been
determined by a competent tribunal.*

73. MAC-V Directive No. 20-4, dated 25 March 1966.

 When PW s t a t u s is granted, a b r i e f resume is prepared by
the tribunal. In the event PW s t a t u s i s not granted, a summary of
the evidence and p e r t i n e n t documents a r e forwarnled to the convening
authority and then to the SJA, MAC-V f o r review. The MAG-V SJA
has the authority to order a rehearing o r may grant PiJ s t a t u s with-
out f u r t h e r action, Detainees who a r e d e t ermined to be c i v i l
defendants by the US ( t h i s group includes t e r r o r i s t s , spies,
saboteurs, o r criminals) a r e turned over to the proper South Viet-
namese a u t h o r i t i e s f o r possible trial and punishment under the laws
of t h a t country, 74
The present policy of the United S t a t e s is not t o exercise
i t s r i g h t to t r y any prisoners of war against whom there might be
s u f f i c i e n t evidence t o establish a violation of the law of war and
t o t r a n s f e r a l l PtJ*s to the control of the South Viet-Nam Army as
provided i n Article 12, GPW. The c i v i l defendants a r e a l s o turned
over to the local. a u t h o r i t i e s , even though the United S t a t e s m y
have been the victim of a violation o f the law of war.75 The US is

740 In an a r t i c l e e n t i t l e d "The United S t a t e s Achievements i n

Viet Nam", General Wheeler, Chairman of the J o i n t Chiefs of S t a f f ,
reported t h a t the US had captured 6,000 enemy on the b a t t l e f i e l d s
i n 1965 and 9,000 during 1966, 56 State Dept. Bull. 186, 191(1967).
A news release by the MAC-V Headquarters i n Saigon (reported by the
New York Times, 25 January 1967, p 1, col. 1 ) indicates t h a t the US
has 2,500 PWfs,about ha38 considered to be members of the North
Vietnamese Army and the rest Viet Cong. See Westerman, International
Law Protects PW1s, Army Digest 32-q9 ( ~ e b r u a q1967).

75. I n such cases, the accused are subject t o t r i a l by a

m i l i t a r y court where a majority vote controls all issues, evidence
of probative value i s admitted, and the accused is represented by
counsel who is e n t i t l e d t o know the nature of the charges and to
present evidence on behalf of the accused. Westerman, M i l i t a q
hopeful of r e p a t r i a t i o n of PW1s and has released several Viet Cong
prisoners (with approval of the South Viet-Nam government) in
expectation of reciprocal action on t h e i r part. 76

3. The Unlawful Belligerent

The Prisoner Oonvention was designed to provide a d e f i n i t i o n
of prisoner of war broad enough to include all lawful combatants i n
land warfare within the protection afforded by international law.
It is a matter of ~ e c o r dt h a t there are individuals taking p a r t in
the conduct of h o s t i l i t i e s i n VieLNam who do not qualify a s
prisoners of war. The Civilian Convention, being an innovation and
a supplement to Hague Regulations Nwnber IV of 1907, t r i e d to
p r o t e c t in specified ways the inhabitants of occupied t e r r i t o r y and
in a general way others who f e l l into the hands of a Party to the

conflict, A s was mentioned e a r l i e r , the four standards of procedural

due process s e t f o r t h by the two Conventions depend to a g r e a t
extent upon the s t a t u s of the accused and the nature of the

Justice in the Republic of Viet Nam, 31 Mil. Lo Rev, 137 (1966). I n

one such trial, the self-confessed Viet Cong agent who k i l l e d a
member of the South Vietnamese Constitutient Assenbly was sentenced
to death by a m i l i t a r y court in January 1967. New York Times,
11 January 1967, p 3, col. 5.

76 A r t i c l e appearing i n Washington, D. O. Post, 29 January

1967, po 1, c o l 3 . The Detaining' Power nay, i f it desires, grant
asylum to PW' s who do not wish to be repatriated. Baxtes, Asylum
to Prisoners of War, 30 B r i t . Yb. ~ n t t l .L. 481 (1953). Para-
graph 197, FN 27-10, s t a t e s t h a t belligerents mag exchange
prisoners of war, but a r e under no duty to do so.
t e r r i t o r y . '17
The f a u u r e to specif5y c e r t a i n procedural safegua- for
the g u e r r i l l a f i g h t e r conducting operations in the home t e r r i t o r y to
one of the P a r t i e s to an armed c o n f l i c t of an international character
has an impact upon detention problems ' , judicial proceedings ",and
other areas because the Conventions were designed to apply prdmarily
to a fixed area of land being occupied by a h o s t i l e armed force, 78
However, the modern g u e r r i l l a f i g h t e r : the unlawful belligerent: was
not forgotten by the d r a f t e r s of the Civilian Convention, as indicated

77. COMMENTARY I11 52-61, outlines the inclusion of partisans

in the definition of prisoner of war in order to give to these proper
belligerents, whether acting i n t h e i r o m country o r eL$ewhere,
would be given proper treatment in the event they f e l l i n t o the hands
of the enemy, But, t o b e n e f i t from the Prisoner Convention, such
personnel g u s t qualify under the four-tier formula, otherwise they
are regarded a s unlawful belligerents, The US Deplt. of Amy Field
~anua1-31-21, Special Forces Operations ( ~ u n e1965) paragraph 12d,
dealing with resistence movements. overt and covert,. points o u t
t h a t PW treatment is accorded t o only those nearing-the uniform
(as to regular army personnel) o r complying w i t h the four-tier formula
(as to indiginous personnel operating against the enemy,)

78- P i c t e t , The New Geneva Conventions f o r the Protection of

War Victims, 45 Am. J. I n t ' l . L. 462, 473-5 (1951) reparts t h a t
%he Civilian Convention was r e a l l y aimed a t the conduct of the
b e l l i k e r e n t occupant, The type of warefare now i n Viet Nam i s
a l e g a l novelty of s o r t s because there has not been such international
armed action of extended duration of t h i s nature. Tilman, The Non-
Lessons of %he Malayan Emergencx, Military Review 62 ( ~ e c e m m ) .
Background material f o r the interested reader regarding resistance
warefare in France, Yugoslavia, Malaya, Algeria, ~ r e e c e , the
Philippines, and Palestine, i s covered in UNDERGROUNDS I N IHSURGENT,
EEVOLUTIONARY AND RESISTANCE WARFARE (1963). .a publication of the
Special Operations Research Office, Americqn University,
i n the following remark: 79
It may, nevertheless, seem r a t h e r surprising t h a t a
humanitarian Convention should tend to p r o t e c t spies,
saboteurs, o r i r r e g u l a r combatants. Those who take p a r t
i n the s t r u g g l e while n o t belonging to the armed forces
a r e a c t i n g d e l i b e r a t e l y outside the laws of warfare. Surely,
they know t h e dangers to which they a r e exposing themselves.
It might have been s i m p u e r to exclude them from the
b e n e f i t s of t h e Convention, if such a course had been
possible, b u t the terms espionage, terrorism, banditrg
and i n t e l l i g e n c e with t h e enemy, have so o f t e n been used
l i g h t l y , and applied to such t r i v i a l cases, t h a t it is n o t
advisable t o leave the accused a t t h e mercy of those
detaining them.
Mr. P i c t e t was speaking of A r t i c l e 5 of t h e GC which allows
f o r the p a r t i a l derogation of the Convention where the s e c u r i t y

of t h e Detaining Power is threatened by h o s t i l e a c t s during occupation

o r otherwise. The Protecting Power w i l l continue to function, how-
ever, i n such an eventem The i r r e g u l a r o r unlawful b e l l i g e r e n t
is therefore covered by the GC a s a "protected persont1 and e n t i t l e d
to trial under the standard of due process, dependent upon where
he was captured during occupation o r f e l l into the hands of t h e
Detaining Power as a result of the conflict.81 The unlawful

79 COMMENTARY I V 53. See a l s o Nurick and Barrett, Le a l i t

of G u e r r i l l a Forces Under the Laus of Way, 40 Am. J. Intr-3 (1946),
80. Common , to the f o u r Conventions is the A r t i c l e (Art 8, GSW,
GSW a t Sea, and GC and A r t 9, GBW) providing f o r the appobitment by
the b e l l i g e r e n t s of a Protecting Power to ensure compliance with
-
the Conventions a most onerous t a s k , says N. Mictet i n h i s
Commentary on the GPW a t p 88. The b e l l i g e r e n t s a r e under a duty
t o appoint such agents. Should the Detaining Power be unable to
secure a s u i t a b l e Protecting Power, it is then under a duty to obtain
the a s s i s t a n c e of a n e u t r a l nation, o r the ICRC to perform the duties.
(Art 10 of GSW, GSW a t Sea and GC, and Art 11, GW). For an account
of the need f o r supervision, see TIBATMENT OF BRITISH PRISONERS OF
WAR I N KOREA 31-32(1955), a s reviewed i n 49 Am. J, I n t r l . L, 431
(1955).
Supra note 34.
b e l l i g e r e n t is not punished per s e f o r being an unlawful belligerent,
but r a t h e r because of h i s violation of the law of war on the basis
of h i s conduct, such a s murder, sabotage, espionage. 82
Professor Cowles traces the origin of todayrs unlawful
b e l l i g e r e n t to the ancient practice of brindage, under which bands
of f u g i t i v e s from the l a w would follow along behind the armies,
looting an$illaging i n the wake of the h ~ s t i l i t i e s . ~In~ 1863,
Dr. Leiber described t h i s a c t i v i t y a s involving armed prowlers and
placed them i n the same category a s pirates. The p i r a t e and the
brigand both hope to obtain impunity f o r t h e i r crimes where there
i s no well organized police o r judicial system a t the place where

t h e i r operations a r e conducted .
A body of international and national l a w grew up around the
a c t i v i t i e s of the brigand. I n the United States, Congress authorized
in 1864 the punishment of those g u e r r i l l a rnaurauders because of

t h e i r f a i l u r e t o operate i n accordance with the l a w of war.% In

1926, Romania presented the problem of controlling the brigand
to the Committee of Experts of the League of Nations which concluded
t h a t brindage and piracy were t o be placed i n the same category i n

82. Baxter, supra note 71 a t 342.

83 Universality of Jurisdiction Over War Criminals, 33 Califo

L. Rev. 176. He defines the ten 'brigandt a s coming from the word
rbriguert, meaning to beg, and c l a s s i f i e s Sparticus a s a prime
example of a freebooter and one of m n y of "$his klnd who headed
independent s t a t e s i n view of t h e i r control of the land, a t p 183.
84. 13 Stat. 356.
regards to jurisdiction and punishment. In 1924, the Geneva
Convention placed prohibitions on the robbing and ill-treatment of

the wounded and dead by both c i v i l i a n s and members of the armed

dest;cable
forces who f e l l i n t o t h i s practice, a most unfortunate

by-product of war, Upon capture, of course, they then, a s now,

claimed t o be legitimate combatants, e n t i t l e d t o gW status.

Today, an unlawful belligerent is punished in view of the

danger he presents to the opponent.85 This d i f f e r e n t i a l of treatment

is based upon the principle of 'legitimacy of combatahcy* because

international law does not permit every person to engage i n the

hostilities; otherwise, the horrors of war would be indeed

aggravated. Dean Hingurani of the University of Gorakhpur, India,

86
i n h i s d o c t o r i a l t h e s i s f o r Yale Law School, noted:

85. I n reply to the ICRCts request t h a t the United States abide

by the Geneva Gonventions, the US Secretary of State indicated t h a t
the US woad do so b u t a l s o pointed out: "As you a r e aware, those
involved in aggression against the &public of Viet Nam r e l y heavily
on disguise and disregard generally accepted principles of ~ a r f a s e . ~ '
60 Am, J, 1ntfl.L. J, 92 (1966) The ICRC recognizes t h i s problem by
asking t h a t the l i f e of any combatabt taken prisoner be spared if
he is wearing a,uniform o r bearing an emblem c l e a r l y indicating
h i s membership bf3 the amed forces,

86, PRISONER OF WAR 18 (1963). The l o s s ?? US citizenship has

been the subject of several cases wherein the government claimed the
US national had l o s t citizenship by serving in a fomign armed forces
within the meaning of 8 USC B 1481 (a) (3). The principal question
facing the courts-was whether such service was voluntary (united
S t a t e s ex r e 1 Marks v Esperdy, 203 F. Supp 389 (SD NY, 196-'d 8
service a s an o f f i c e r of La Cabana prison being i n charge of the
execution of death sentences imposed by m i l i t a r y tribunals, wear-
ing of uniform, and instructing a t m i l i t a r y school, constituted
service in armed forces of Rebcsl Gastro my). C i r c u i t Court reversed
issuance of w r i t of habeas corpus on o t h e r grounds, 315 F. 2nd 673
(2d C i r , 1963) and an equally divided Supreme Court a f f i m e d the
deportation order, 377 U. S. 214 (1963). In 1958, the Supreme Court
reversed decision expatriating a native hm US c i t i z e n because h i s
service i n the Eapanese Army was not sh&n to be a voluntary a c t ,
Nishikawa v Dulles, 356 U.S. 129.
 The r i g h t of committing l e g i t i m a t e h o s t i l i t i e s is thus
r e s t r i c t e d to a few categories of b e l l i g e r e n t personnel
who a r e so muthorized - on the b a s i s of r e c i p r o c i t y
n a t i o n a l and i n t e r n a t i o n a l prescriptions. Such personnel
- by
-
normally armed forces - a r e given p r e f e r e n t i a l s t a t u s of
The r e s t of the combatants *** a r e considered t o
PW's.
be v i o l a t o r s of i n t e r n a t i o n a l law...
I n an e x c e l l e n t a r t i c l e regarding t h e s t a t u s of b e l l i g e r e n t s ,
Professor Baxter states :87

Once i t has been discovered t h a t the accused is n o t

e n t i t l e d to treatment a s a prisoner of war, t h e m appears
in most circumstances to be no reason in law to inquire
whether the individual i s a c i v i l i a n o r a disguised s o l d i e r
f o r it would appear in the l a t t e r case t h a t the s o l d i e r ,
even in occupied t e r r i t o r y , is t o be regarded a s having
thrown in h i s l o t with t h e c i v i l i a n population and to be
s u b j e c t t o the same r i g h t s and d i s a b i l i t i e s . I t

F
* . Although denied PW s t a t u s and branded a s unlawful b e l l i g e r e n t s ,
t h i s group i s s u b j e c t t o criminal sanctions only i n the event they

a r e charged with v i o l a t i o n s of the law of war, n o t because of t h e i r

s t a t u s alone. To those who f e e l t h a t patriotism i s s u f f i c i e n t

j u s t i f i c a t i o n to e n t i t l e the unlawful b e l l i g e r e n t to PW s t a t u s , one

nus t remember t h a t patriotism and humanitadsm work both ways

ian
-
where one o r more p a t r i o t i c individuals wish to engage in h o s t i l i t i e s

i n order to make f o r a b e t t e r tomorrow i n t h e i r homeland, l e t them

comply with the f o u r t i e r formula established by the i n t e r n a t i o n a l

community so t h a t they would qualify a s a PW by l e t t i n g t h e i r s t a t u s

be known, 88

Baxter, supra note 71 a t 340.

88. General Westmoreland, Commander in Chief, WC-V, estimates

t h a t there were 280,000 enemy in South V i e t Nam a s of the summer of
1966, consisting of t h e following groups: main-force North Viet Nam
Army -
110,000; guerr.ills o r m i l i t i a
40,000; and support u n i t s - -
112,000; p o l i t i c a l cadre
20,000, 55 State Dept Bull, 335, 337
-
 D. Other Considerations
1. Duty to Prosecute
Common to a l l f o u r of the 1949 Conventions is the duty to

search o u t those responsible f o r b, I : L ox+committing grave

breaches and e i t h e r t r y them before n a t i o n a l courts o r turn them

over to a S t a t e requesting t o t r y them and upon a showing of a prima

f a c i e case.89 P a r t i e s to the Conventions a r e a l s o under a duty t o

s u pP p s s a l l o t h e r crimes which v i o l a t e the Conventions, such a s

pillaging,90 taking hostages, and f a i l i n g to p r o t e c t a PW from

i n s u l t s and public curiosity. 91

2. Former Jeopardy

The Prisoner Convention s p e c i f i c a l l y p r o h i b i t s punishment

twice f o r the same act o r charge ( A r t i c l e 86) b u t the Civilian

(1966). The faact t h a t the enemy flsometimes lack uniformsN is pointed

o u t i n U.S. Bkpf t. of Anny, Pamphlet 360-521, dated 10 June 1966,
Bahdbook.for US Forces in Vietnam. I n the Hostages case, i n f r a note
97, the judgment held t h a t the g u e r k l l a is a hero i n the eyes of
h i s country b u t a war criminal a s t o the enemy which can s o t r e a t
him upon capture and t h a t there i s no o t h e r way f o r the Army t o
p r o t e c t i t s e l f agaia-st such g l a d f l y t a c t i c s by those who a r e n o t
b e U i g e r e n t s qtid thus n o t W t s , a t p 1243.

89. A r t 49, GSW; A r t 50, GSW a t Sea; A r t 129, GPW; and A r t 147, GC.
90. A r t 33, GC (Pillaging) and A r t 34, GC (Taking hostages).
91 A r t 13, GPW. US f l i e r s have been paraded through the s t r e e t s
of Hanoi, Los Angeles Times, 1 July 1966, p 1 , c o l 3. The Jewish Doc-
umentation Center i n Vienna, Austria, headed by Simon Wiesenthal,
accused the Austrian Government of l a x i t y in the f a i l u r e t o prosecute
about 1,000 Austrians f o r war crimes committed during World War 11,
Mew York Times, 3 November 1966, p 5, c o l 4. Thus, individuals can
createpublic opinion reganling the enforcement of the rules of war.
 Convention i s s i l e n t on t h i s point. The United State rule against
being placed twice i n jeopardy is incorporated into the treatment
of war criminals in the case of the FW who i s a beneficiary of
such a rule contained in the Uniform Code of Military Justice. 92
The international community i s more concerned with the imposition
of punishment, rather than the matter of Thus, the
a c q u i t t a l , on grounds of duress, of the Mauer brothers by a Salzburg,
Austrian court in February 1966 f o r t h e i r p a r t in the mass executions
of Jews in Poland was s e t aside and they were duly convicted i n a
Vienna court in November of t h a t year and sentenced to e i g h t and
f i f t e e n years imprisonment, The jury decision in Salzburg was s e t
aside by the trial judge on the basis t h a t the jury's conclusion as
t o duress was an tobvious error' and ordered the r e t r i a l , 94
Depending on the circumstances, there would be no bar t o
the trial of an unlawful b e l l i g e r e n t & second time where no punish-
ment had been imposed resulting from the first trial conducted by
e i t h e r the United S t a t e s o r by an Allied Power who transferred
custody of the accused t o the US where the first trial is s e t aside

f o r s u f f i c i e n t reasons and t h a t the second t r i a l w i l l not r e s u l t

i n punishment g r e a t e r than imposed f o r the f i r s t t r i a l ,

92, A r t i c l e 44, UCMJo The declaration of a mistrial because

of military eHgencies regarded as n o t barring a second trial in
Wade v Hunter, 336 U.S. 684 (1949).
I

93 Snee & Pye, Due Process in C r i m i n a l Procedure: A Comparison

of Two Systems, 21 Ohio State Lo J. 467, 499-501 (1960)*

94, New York Times, 9 November 1966, p 1, c o l 2.

 3. Nullurn Crimen Sine L e ~ e& Drafting Charges
Perhaps the g r e a t e s t single attack mounted against the war
crimes trials following the end of the Second World War was t h a t the
tribunals were enforcing laws which did not e x i s t a t the time of the
commission of the alleged criminal. act.95 Examination of t h i s
c r i t i c i s m discloses it was directed primarily a t the crimes against
peace category f o r which only the major war criminals before the
two 1.N.T.ts were charged with thus leaving unscathed
the many thousand of other proceedings involving crimes against
humanity and conventional war crimes. This i s not t o say t h a t those
accused of conventional war crimes and crimes against humanity d i d
not a s s e r t t h a t t h e i r prosecutions violated the m a x L ~ u . ~Some
~

950 See Notes, Symposium: War Crimes Trials, 24 U. of P i t t . L.

Rev. 73 (1962) which deplores the unjust nature of the tribunals
and regard these t r i a l s a s being Har i t U of revengelt(p 137); and
-
snyder; I t f s Not Law The W a r ~ u i l tTkials, 38 KY.-L. J.81 (1949) n
which fa'irly shouts the -position taken by t h i s i n s t r u c t o r a t
Brooklyn Law School.

96. For example, see Schwartzenberger, The Judgment a t Nuremberg,

21 Tul. L. Rev. 329, w - 3 5 1 (1 947) and the dissenting opinion of
J u s t i c e Pal i n the I.M.T. f o r the Far East

97. In the Hostages Case (united S t a t e s v L i s t e t a l ) , i n f r a

note 148, one of the twelve Subsequent Proceedings, the tribunal's
judgment pointed o u t t h a t Control Council Law defining the offenses
of war crimes, crimes against humanity, and conspiracy, was not
defective a s being ex
p o s t f a c t o in nature because the court found
t h a t there was pre-existing international law which had d e c l a r ed
such conduct t o be unlawful. The judgment a l s o pointed out t h a t
customary international law did provide a d e f i n i t e standard of proof.
X I , Nuremberg Military Tribunal 1240 ( 1 951 ).
credence was i n i t i a l l y found i n t h e i r claim of Mtroactive e f f e c t
because the c i v i l law countries' penchant f o r l e g i s l a t i o n brought
about the enactment of laws during h d a f t e r the war which had the
e f f e c t of declaring i l l e g a l conduct committed p r i o r to i t s enactment.
Those countries following the common l a w had l i t t l e , iB; any, trouble
i n t h i s area because r e s o r t f o r prosecution was based on customary
international l a w and. c e r t a i n t r e a t i e s , such a s the Hague Regula-
tions of 1907 and the 1929 Geneva Prisoner Convention, in order to
create substantive offenses and maximum punishments.
The courts of the c i v i l law countries found l i t t l e
d i f f i c u l t y i n upholding the convictions on the basis of the tardy
l e g i s l a t i o n , however. I n reviewing t h i s matter, Professor L. 6.
Green f i n d s no prohibition in international law f o r the enactment of
criminal laws having a retroactive e f f e c t and s t a t e s emphatically:
"It i s not even possible to a s s e r t t h a t such l e g i s l a t i o n is con-
t r a r y to general principles of law recogniaed by c i v i l i z e d nationset!
Judge Musmanno in the E i n s a t a ~ r u ~ u ecase
n states: "No one can claim
with the s l i g h t e s t pretence of reasoning t h a t there is any t a i n t
of p o s t f a c t o i s r in the law of

The point i s t h a t there i s no requirement under international.

l a w t h a t there be a law against the conduct charged a s v i o l a t i v e of
the rules of war in order t o make out an offense before a United
S t a t e s war crimes tribunal.99 Turning again to Professor Green who,

98. The Maxim Nullen Crimen Sine Lege and the Eichmann Trial,
38 B r i t . Yb. I n t f l . L. 457, 464 (1962).
990 Snee & Pye, supra note 93 a t .47b-478.
i n referring to those s i t u a t i o n s where there was a law with retro-
active effect,had t h i s to say: I1Moreover, proper analysis of the
s i t u a t i o n leads t o the conclusion not t h a t the law contravenes the
maxim nullen crimen sine lege, nulla poena n i s i crimen, b u t that, in
providing the machinery f o r punishing obnoxious crimes, it is an
application of the principle ubi crimen i b i poena." 100
The Prisoner and Civilian Conventions grant the Detaining
o r Occupying Power the r i g h t to exercise jurisdiction f o r violations
of i t s laws o r international l a w in force a t the time the s a i d a c t
was committed. Thus, the Geneva Convention d r a f t e r s ado@,tedboth
the common law and the c i v i l law approach t o the problem regarding
what l a w s can serve a s the basis f o r prosecution of war crimes.
On t h i s p o i n t i n the Quirin case, the Supreme Court found

t h a t Congress had the power to define and punish offenses against

the law of nations under the Constitution and had exercised its
authority by sanctioning the jurisdiction of the m i l i t a r y comissions
to t r y v i o l a t o r s thereof, and t h a t the President had invoked t h a t
law by h i s proclamation establishing the military commission t o
t r y the German saboteurs. Mr. Chief Justice Stone went on to say: 102

100, Supra note 98 a t 471.

101. A r t 99, GPW and A r t 67,
offenses which existed a t the t h
GC contain the principle of charging
e of t h e i r commission, allowing
the Detaining o r Occupying Power t o use its own laws o r international
law. See discussion, COMMENTARY I11 470-1 and COMMENTARY IV 341-2.
102, Ex Parte Puirin e t al, 3n 1, 29-30 ( 1 942 1.
 It is no objection t h a t Congress i n providing f o r the
t r i a l of such offenses has not i t s e l f undertaken to c ~ d i f y
t h a t branch of international l a w o r to mark i t s precise
boundaries, o r to enumerate o r define by s t a t u t e all the
a c t s which t h a t l a w condemns. **+Congress had the choice of
c r y s t a l l i z i n g in permanent f o m and i n minute d e t a i l every
offense against the law of war, o r of adopting the system
of common l a w applied by military tribunals so f a r a s it
should be recognized and deemed applicable by the courts,
It chose the l a t e r course.
Approval of t h i s course of action by Congress in adopting
the common l a w of war by reference was continually recognized through-
out the j u d i c i a l review phase of the World War I1 war crimes involv-
. .
ing the Supreme Court and.i:this rule of law is no l e s s valid today
whether the tribunal be a general court-martial o r a m i l i t a r y
commission, It is of i n t e r e s t to note t h a t the Congress has
sanctioned a l s o the m i l i t a r y commission i n the Uniform Code of
Military Justice, although none of i t s provisions apply to the
m i l i t a r y comissions. 103
An example of the problem facing the civil. l a w countries
regarding the setroac t i v e e f f e c t of t h e i r war crimes laws and an
explanation of the method of ex$&ation fro111the application of the
maxim nullum crimen s i n e lege is found in the l 9 a decision by the
Supreme Court of Norway in the case of the Director of Public
Prosecutions who was charged with tobturing and i l l - t r e a t i n g c i v i l i a n s
during 1944-45. The trial was conducted under the Provisions1
Decree of 4 May 1945,which the accused claimed was invalid because
it had retroactive effect. Article 97 of the Constitution of
Norway provided that: 1' Mo l a w may be given retroactive effect,"

A r t 21 UCMJ, U.S. Dep' t, of Army, Pamphlet 27-174

103.
-
Military J u s t i c e Jurisdiction of Courts-Martial 13-1 5 (1 965).
Although the Civil Criminal Code provided f o r the crime charged,
the punishment had been increased from imprisonment t o death, The
Court, i n upholding the death Sentence, did a s the common law
countries do: r e l i e d upon international l a w which allowed f o r the
imposition of the death sentence f o r most a l l war crimes in general
and t h i s crime in particular. Although this case concerned punishment,
it serves a s an excellent example t o demonstrate t h a t international
law does not require a written law a s t o e i t h e r .the substantive
offense o r the punishment t o be in e f f e c t a t the time of the
commission o r omission giving r i s e to a war crime charge, 104
In d r a f t i n g charges, the Staff Judge Advocate can r e l y on
the common law:?of war fountain from which t o draw f o r non-grave
breach offenses, b u t the absence of necessary l e g i s l a t i o n by Congress
renders the fountain v i r t u a l l y bone-dry in the case of grave breach
offenses. As pointed o u t by Professor Levie, other countries,

notably the United Kingdom, have enacted laws to execute the grave
breach portion of the 1949 Geneva Conventions and suggests t h a t
"the United S t a t e s would be well advised to follow t h e i r example. 105
I n the case of the prisoner of war, the UCMJ provides
e

only limited e n u r a t e d offenses, such a s murder, kidnapping, mal-

treatment, aggravated assaults, and the general Article (Article 134)
allows f o r the punishment of persons subject to the Code f o r crimes

104. Decision of each of the t h i r t e e n Su reme Court justices

and a summary of t h e i r views reperted in 3 $W REPORTS 3-1 1 (1948) .
105. Penal Sanctions f o r Maltreatment of Prisoners of War, $
Am. J m Lm 433, 455 (1962).
h t ' l o
and offenses n o t c a p i t a l . No such l i m i t a t i o n s attend the d r a f t i n g

of charges i n the case of the unlawful belligerent because the

d r a f t e r i s permitted not only t o draw on the common law of war,

a s is the d r a f t e r in the case of the prisoner OF war, but, as

w i l l be discussed l a t e r , can charge the same conduct a s c a p i t a l o

In summary, the Staff Judge Advocate i s f r e e t o charge a s

violations of the law of war those offenses derived from the customary

international law 02 the applicable t r e a t i e s , there being no

requirement t h a t the crime charged be s e t f o r t h in writing p r i o r
to the commi&sion of the criminal act.

4. S t a t u t e of Limitatiow
The Uniform Code of Military Justice (Article 43(a) and (d) )

provides that a person charged with murder may be prosecu*d without

regard to limitations of time and t h a t the s t a t u t e does not .vpun

when the accused is outside the jurisdiction of the United States.

Where the US Forces a r e s i t u a t e d i n another country t o render

military assistance, as i n Viet-Nam and do n o t thereby gain any

t e r r i t o r i a l control over the area of operations, the s t a t u t e of

l i m i t a t i o n s would n o t run. It would run, however, where the US had

exclusive control over the t e r r i t o r y , as in the case of belligerent
occupation. 106

106. But see A r t i c l e 43(f), UCMJ, which provides f o r the sus-

pension of the s t a t u t e of limitations a s to limited crimes: fraud
against US, acquisition o r disposition of real e s t a t e of personal
property of the US, o r procurement matters.
 An a d d i t i o n a l grant of holding in abeyance the s t a t u t e of
l b i t a t i o n s i s found i n A r t i c l e 43(e) which provides :
In the case of an offense the t r i a l of which i n time of war
is c e r t i f i e d to the President by the Seuretasg o r t h e
Deparhent to be detrimental to the prosecution of t h e war
o r inimical t o the n a t i o n a l security, the period of limita-
t i o n s provided i n t h i s a r t i c l e s h a l l be extended to six
months a f t e r the termination of h o s t i l i t i e s a s proclaimed
by the President o r by a j o i n t resolution of Congress.

A s to the unlawful b e l l i g e r e n t who f a l l s into the hands of

a Party to the c o n f l i c t during the c o n f l i c t o r occupation, there
i s no mention i n the Civilian Convention a s to a l i m i t a t i o n s period,

although a prompt t r i a l i s required once he is in custody of the

Detaining o r Occupying Power. The i n t e r n a t i o n a l law likewise

f a i l s t o provide a requirement t h a t an offense be prosecuted with-

in a c e r t a i n period of time. So, under A r t i c l e 3 of the Civilian

Convention, t h e unlawful b e l l i g e r e n t could be prosecuted before a

m i l i t a r y commission of the US a t any time, b u t of course trial

should be conducted a s soon as possible. A t the present time,

Germany and Austria continue to conduct war crime t r i a l s f o r
offenses committed over 20 years ago and there i s no objection f r o m

107, A r t 103, GPW requires t h a t j u d i c i a l proceedings be con-

ducted a s quickly a s possible, b u t P i c t e t i n d i c a t e s t h a t the d r a f t -
e r s d i d n o t s e r i o u s l y consider t h a t P W f s would be t r i e d during
h o s t i l i t i e s because of i n a b i l i t y to secure relevant evidence,
COMMEN.TARY 111 626. A r t 71, GC requires s i m i l a r dispatch a s to
the t r i a l proceedings; see a l s o COMMENTARY N 354.-5. There uas
no a s s e r t i o n of d e n i a l of due process when Hirota was t r i e d
before the IM.T. - Far E a s t f o r crimes a g a i n s t peace committed
during h i s term a s Minister of War of Japan from 1933-1938, i n f r a
note 133 a t 1158-1 161.
the international l a w standpoint, even in those cases where the
accused (who of ten took another name) resided within the prosecuting
country. 108
A s a p r a c t i c a l matter, the trial of war criminals would
take place a f t e r the termination of h o s t i l i t i e s and before the
conclusion of a peace treaty. Additional trials beyond t h i s period
would probably be l e f t t o the t e r r i t o r i a l sovereign o r another
nation under the protective o r universality principles of juris-
diction f o r prosecution and i n accordance with the terms of the
peace treaty,

5. Eiecord of Trial
Despite the f a c t t h a t the Code does not require a verbatim
copy of a record of trial, the Manual f o r Courts-Martial, 1951, does
impose such a requirement on trials by general courts-martial. 109
The prisoner of war t r i e d by a general court would be e n t i t l e d to
a verbatim copy, even though the Prisoner Convention is s i l e n t
on the need f o r a record of trial of any description t o be
maintained except t h a t the prisoner of war is e n t i t l e d to the same
procedural benefits as members of the armed forces of the Debining

108, It i s expected t h a t the United Nations Human Rights Commis-

sion w i l l accedbto a request from West Germany t h a t a proposed con-
vention on the non-applicability of the s t a t u t e of liroitations t o war
c r i m e g t h a t the convention d e l e t e application of the convention to
crimes f o r which the s t a t u t e of limitations has already run. In
Germany, which has abolished the death punishment, it extended the
l i m i t a t i o n s i n 1965 u n t i l 1969 f o r the prosecution of World War I1
war crimes. New York Times, 7 March 1967, p 2, c o l 3 .
109. Paragraph 8%.
Fowe r.
The unlawful belligerent, under e i t h e r the Article 3 o r
the Articles 64-76 standard of due process, is n o t e n t i t l e d a s a
matter of r i g h t to a record of trial, nor i s there a requirement
t h a t the detaining power maintain one. However, the US should
follow the practice of keeping a record of trial in aU. war crimes
t r i a l s , and t h a t a verbatim copy be maintained i n a l L cases
referred a s capital.
The practice followed by the A l l i e s during the World War
61 trials was to maintain verbqtim records of only the I.W.T. Is cases
and the Subsequent Proceedings a t Nuremberg, a l l other trials were
summarized, No copy was furnished the accused but he and h i s
110
counsel were permitted t o examine it in the prosecutorys office.

6. I n t e r p r e t e r s and Translators
The trial of war crimes cases will involve the services of
both i n t e r p r e t e r s and translators, both f o r the b e n e f i t of the
accused and the An i n t e r p r e t e r assigned to assist

110. The o r i g i n a l record of the proceedings before the I.M. T. a t

Nuremberg i s now in custody of the International Court of Justice
a t the Bague, together with the evidence gathered by the c~mmissioners
appointed by the Tribunal. to gather evidence. There were over 200,000
a f f i d a v i t s f i l e d on behalf of the s i x organizations accused a s being
criminal. Harris, TYRANNY ON TRIAL ix (1954). Because of s e c u r i t y
considerations, the r e c o d of t r i a l i n the Qqirin case was n o t made
avai3able to the public b u t counsel had access on behalf of t h e i r
c l i e n t s . Note, 56 Ham. L. Rev. 631, 642 f n 94. (1943). The record
of trial in the I.M.T. - Far East consisted of 48,412 pages, note
133, i n f r a a t 133.
111. Art 105, GPW requires t h a t an interpreter be made available
to the accused; COMMENTARY 111 487. The Civilian Convention contains
 the accused should be regarded a s p a r t of the defense counsells
staff and any information he receives must be regarded as
privileged information.

7. Transfer of the Accused to an Ally f o r T r i a l

Both the Prisoner and Civilian conventions112 authorized
the Detaining o r Occupying Power to t r a n s f e r captives to another
High Contracting Party to the 1949 Geneva Conventions where the
receiving Power agrees to follow the provisions of the Conventions
- P
,and the transfer@g Power agrees t o oversee the treatment, together
with the Protecting Power. It i s therefore proper tQ t r a n s f e r a
prisoner of war o r an unlawful belligerent to another state f o r
t r i a l of a war crime. In the case of grave breaches, the detaining
power is under a duty to e i t h e r t r y the accused o r release him to
*
the requesting power upon the establishment of a prima facke case.

A s to non-grave breaches, the P a r t i e s t o the Conventions a r e under

a duty t o su&ess a l l violations of the Conventions, and t h u ~they
A

would be authorized to t r a n s f e r a captive f o r purposes of trial,

even though the procedural safeguards accorded by the prosecuting

the same r i g h t of an accused. A r t 72 f o r non-grave breaches and

A r t 146 requires the accused be given the r i g h t to an interpreter.
Practice of dual t r a n s l a t i o n into English and German during conduct
of Dachau t r i a l s , see Koessler, American War Crimes T r i a l s i n
Europe, 39 Geo, L. J. 18(1950).
A r t 12, GPW allows t r a n s f e r and A r t 49, GC, forbids only
f192* k
o r c i b transfers o r deportation of protected persons from occupied
t e r r i t o r i e s , There i s no prohibition, under Article 3, GC, against
the t r a n s f e r of a captive to another s t a t e f o r t r i a l .
Power a r e considered to be l e s s effective than those of the trans-
f e r r i n g country.ll3 I n case a prisoner of war is transfered by the
US f o r trial before the tribunal of another country, the US might
be subject t o pay the expenses of counsel incident t o t h a t t r i a l
under the provisions of Section 1037 of T i t l e 18, United S t a t e s
Code, which was enacted f o r the primary purpose of providing funds
f o r the payment of counsel of US personnel before foreign tribunals,
b u t i t s wording i s broad enough to give r i s e to such a construction, 114
In the event of t r a n s f e r of a prisoner of war, the receiving s t a t e
should unders.tand t h a t the US w i l l not pay the expenses of counsel
a t h i s trial and a release obtained where possible, i n order to avoid
any doubt a s t o the a p p l i c a b i l i t y of t h i s s t a t u t o r y provision,

113* The US Supreme Court i n Neely v Henkel, 180 U. S. 109 (1 900).

rejected the claim by the US c i t i z e n Neely had a r i g h t in a foreign
land to a trial s i m i l a r to one he would receive in US, saying IiBut
such c i t i z e n s h i p does not give him an impunity to commit crime in
other countries, nor e n t i t l e him to deman& of right, a t r i a l i n other
mode than t h a t allowed to i t s own people by the country whose laws
he has violated and from whose justice he has fled.Ii a t p 123. The
same rationale applies to persons e n t i t l e d to benefits under the
Conventions, The doctrine of forum conveniens should apply, a21dwing
the country b e s t suited and h a k a substantial i n t e r e s t to prosecute
the case. wI"$

114. Although the l e g i s l a t i v e h i s t o r y r e f l e c t s the i n t e n t of

Congress was t o pay such eipenses f o r a l l personnel serving with,
employed by, o r accompanying the Armed Forces, the wording of the
s t a t u t e and implementing departmental regulation (Section 11,
Army Regulation 27-50. 27 May 1966) i s broad enough t o include the
exoenses incurred incident t o the t r a n s f e r of a IW to another
country f o r trial, even h i s own country, See U.S. Gong. & Admin.
-
News p 1731 (1958).
 v
MAR CR.IMES TRIBUNALS

A. H i s t o r i c a l Background
The subject of criminal responsibility fop unlawful acts
committed during and i n furtherance of h o s t i l i t i e s r e f l e c t s a most
checkered history. Until the 17001s, the v i c t o r was f r e e to exercise
summary action over the vanquished, usually in the form of death
o r enslavement, irrespective of wrongdoing on h i s part.1 During

the eighteenth century, however, the prevailing practice held t h a t

c a p t i v i t y was the b e s t method of handling prisoners, and t h a t death
could be meted o u t only t o those captives who had committed serious
offenses. 116
I n recent American history is found the t r i a l of Captain
Wirz in 1865 f o r c r u e l treatment and the k i l l i n g of Union soldiers
held by him a t the Confederate Prison a t Andersonville, Georgia
where he was Commandant. This trial heralded the advent in modern
h i s t o r y of the imposition of criminal sanctions upon an individual.
f o r conduct i n Violation of the laws and customs of war. This
Confederate o f f i c e r was t r i e d before a military tribunal and sentenced
to death,'17

115. 2 Oppenheim, INTERNATIONAL LAW 367-9 (7th ed, 1952).

116. 2 Oppenheim, INTERNATIONAL LAW 368 (7th ed, 1952).

117. h v i e , supra note 105 a t 436.

 The application of the princ i p l e of criminal r e s ~ a n s i b i l i t y

suffered a major s e t back following the F i r s t World ha@ because of

the lack of effective plans o r programs t o insure t h a t those accused
of war crimes could be brought before the bar of justice, and because
national courts during a period of p o l i t i c a l i n s t a b i l i t y i n Germany
were allowed to handle the t r i a l s . 118
This abyss was gapped during the Second World War which
experienced a g r e a t d e a l of a t t e n t i o n being given t o t h i s area,
I n i t i a l l y , a United Nations War Crimes Commission was established by
the A l l i e s i n 1942 to assemble f i l e s a s to a l l known violations of
the l a w of war, The Saint James Declaration of 1942, the Moscow
and Po tsdam Declarations of 1943, and the London Agreement of 1945

reflected the resolute position of the Allied Powers concerning the

determination to punish those individuals responsible f o r crimes of
unparalled magnitude in the h i s t o r y of mankind. 119
This section deals with the framework of the development of
the tribunals handling war @rimes cases and the impact of the 1949
Geneva Conventions r e l a t i n g to judicial proceedings,

118, Shirer, TtiE RISE AND FALL OF THE THIRD RF;IGH 58 (1960);
Davidson, THE TRUSL OF IHE GERMANS 2-3 (1966).
119. Taylor, The Nuremberg Trials, 55 Colun. L. Rev, 488 (1955)
traces the position taken by the United States, s t a r t i n g in 1945, to
formulate plans f o r the prosecution of those who waged aggression
and committed o t h e r war crimes. The only inclination of a s i m i l a r
position i n regards to the c o n f l i c t in Viet Nam is found in a speach
by President Johnson who stated t h a t the second of foup e s s e n t i a l s
f o r peace in Asia is: HTo prove t o aggressive nations t h a t the
use of force t o conquer others i s a losing game." 55 S t a t e Dep't.
B u l l . 158, 159 (1966).
 B. Types of Tribunals
It is generally accepted t h a t there k i s t s f i v e types of
tribunals available f o r the exercise of criminal jurisdiction over
war criminals, These a r e l i s t e d by Professor Glueck a s being: 120
a. the ordinary domestic courts of the injured state
be m i l i t a r y o r ordinary courts of the accusedls state
c, m i l i t a r y commission (common law war court) o r other mil-
i t a r y court
d. a j o i n t o r mixed international m i l i t a r y tribunal, and

e, an international criminal court established f o r the

s p e c i f i c purpose of trying war criminals.
The use of the domestic courts of the injured s t a t e f o r
offenses committed within the state is usually an example of the
exercise of territorial jurisdiction f o r the t r i a l of war criminals.
The conduct giving r i s e to the charge of a war c r h e is most always
a violation of the domestic penal law, then the -hnjured s t a t e can
properly exercise its own jurisdiction in t h i s case, a s i n South
Vieizam a t present, Thus, where a recognized government is in
existence, the r u l e s of international law dealing with universality
of jurisdiction a r e subordinate t o the jurisdiction of the injured
state, &less t h a t s t a t e i s subject t o an obligation to do otherwise. 121

120. Glueck. WAR CRIMINALS, THEIR PROSECUTION AND PUNISHMENT 79

(1944) ; see as6 h i s a r t i c l e , & What Tribunal Shall War Offenders
Be Tried?, 56 Ham. L. Rev. 1059 (1942).

121 . Q. Wright, War Criminals, 39 Am. J. I n t f l , L. 257, 270 (194.5).

By v i r t u e of the 1 949 Geneva Conventions, the g i g n a t o r i e s a r e
required e i t h e r t o t r y the v i o l a t o r of a grave breach offense o r to
turn him over to t h e demanding s t a t e . In discharging t h i s obligation,
the P a r t i e s to the Conventions a r e bound t o use only t h e i r own
courts, thus d i s c r e t i o n is granted by the Conventions a s to the f o r m
used, except,where t h e prosecuting s t a t e is an Occupying Power,
the Civilian Convention r e s t r i c t s the choice of forums to " i t s
properly constituted , non-political m i l i t a r y courts" f o r the trial.
of protected persons. The withholding f r o m the regular c i v i l i a n
c o u r t s of the exercise of j u r i s d i c t i o n i n the event of occupation was
based on the ground t h a t such would be regarded a s an improper and
unwanted extension of the domestic l e g i s l a t i o n of the occupier, in
derogation of the sonrereign* of the occupied nations whose laws
should be retained i n force by the Occupying Power to the f u l l e s t
1 23
e x t e n t possible, c o n s i s t e n t with its security.
Following the Second World War, many s t a t e s used t h e i r own
domestic courts t o t r y war crime cases, a s in the case of Norway, 124
Dennark, 25 Poland, 26 and Holland. 12' Few, i f any, s t a t e s conducted

122. A r t i c l e 66, GC.

1 23e IIA FINAL EZECORB OF THE DIPLOMATIC CONFEREN2E OF GENEVA OF
1949 833 (1949) ( h e r e i n a f t e r c i t e d a s I1 A Final Record).
124. 3 LAW REPORTS, 81 (1947).
1250 15 L A W REPORTS, 31 (194910
126, 15 LAW REPORTS , 35 (1 949 1.
127. -
i bid.
t r i a l s of war crimes during the war.
The second category above d e a l s with the use of the courts
of the accused's state to prosecute v i o l a t i o n s of war law a g a i n s t
another country. The first , t h e . Ohis type c o u r t was used proved so
unsuitable t h a t s e r i o u s doubt existed a s to r e s o r t to such courts
in the future. A f t e r WW I, the A l l i e s made demand upon the Axis

a t the P a r i s Peace Conference f o r over 800 Germans t o be extradited,

a demand which was refused because of the unstable p o l i t i c a l s i t u a t i o n
conrronting the German government. A s a compromise, the A l l i e s agreed

to permit the Germans to s e l e c t 45 charged by the A l l i e s with war

crimes to be brought t o t r i a l . Only twelve were a c t u a l l y t r i e d
and of t h a t number h a l f were acquitted and the o t h e r six soon escaped
from the j a i l s to which they were committed to serve r e l a t i v e l y l i g h t
Prcison terms f o r e i t h e r maltreatment of PWs or, f i r i n g on shipwrecked
victims.128 The t r i a l took place before the Criminal Senate of the
Imperial Gourt of J u s t i c e in Leipzig i n 1921. On the b a s i s of t h i s
sad experience the A l l i e s adopted the position e a r l y in hW I1 t h a t
the c o u r t s of the accused's state shoxdd not t r y any w a r criminals. Lawever,

when the Allied Powers restored c o n t r o l t o Germany, t h a t country

followed the admirable policy of continuing t o prosecute war criminals. 129

128. Glueckl s a r t i c l e , supra note 1 20 a t 1061.

129, A s of 31 March 1961, it is reported t h a t West Gemany has
t r i e d over 12,700 WW I1 war criminals i n i t s courts, with 86
receiving the c u r r e n t maximum sentence of l i f e and 5,178 sentenced
t o a term of years, n o t t o exceed 15 years in prison, Woetsel, THE
NUREMBERG TRIALS I N INTERNATIONAL LAW 245 (1962) These t r i a l s
continue today.
 The t h i r d category of war tribunals consists of the military
courts which were by f a r t h e most frequently used forum f o r the t r i a l
of World War I1 war crimes t r i a l s . by the Allied ~ o w e r s . ~ ~
Acting
O
under the Royal Charter, dated 14 June 1945, the British, Canadian
and Australian armed forces established m i l i t a r y courts, a s did
France and Belgium, Luxembourg, by the law of 2 August 1947, estab-
lished a Mar Crimes Court composed of both m i l i t a r y and c i v i l i a n
personnel. Greece established a Special Court Martial in Athens
of mixed c i v i l i a n and m i l i t a r y composition and a l s o provided f o r
the trial of war criminals before a Court Martial of e n t i r e l y
m i l i t a r y composition. 131
Treatment of the United S t a t e s program of war crime
prosecutions by m i l i t a r y commission is below.
International tribunals, established by agreement of two
o r more nations, comprise the fourth category of tribunals. Such
were the tribunals which t r i e d the major war criminals i n Germany132
and ~ a ~ a 33
n ! as w e 4 a s l e s s e r individuals a t the Subsequent

Proceedings a t ~uremberg'34 and a t yokahamal 35, and a t Dachau under

130. 15 LAW REPORTS, 23-48 (1949)

131 15 LAW REPORTS, 28-36 (1949). See Dnnn, T r i a l of War Criminals,
-- - -
19 Australian L, J. -359(1946),
- . f o r review of the trials conducted under
the Royal Charter.
132. The judgment and sentence of the Tribunal i s contained in
41 Am.J.IntBl.L. 172(1949). For views of the Chief Prosecutor of the US,
see Jackson, The T r i a l s of War Criminals, 32 ABAJ 319 (1946).

JUDGMENT '- INTERNATIONAL MILITARY TRIBUNAL FOR THE: FAR EAST

133.
(1948)(hereinafter c i t e d a s I.M.T. -
Far East).
134. Taylor, FINAL REPORT (1949 ).
135. Spurlock, The Yokahama War Trials, 36 ARAJ 381 (1950) and
Miller, War Crimes ? h i a s a t Yokahama, l 5 Brooklyn Lo Rev. 191 (1949).
authority of Control Council Law No. 10. 136
hen?.+oP-LeQ
,*d
The International Military Tribunal (hereinafter, ref erred
to a s the I.M. T. ) a t Nuremberg was created by the Allied Powers i n
the London Agreement of 8 August 1945 f o r the trial of 24 major

Nazis on charges of crimes against peace, war crimes and crimes

against humanities, together with a fourth charge of conspiring
t o commit these substantive offenses. Three individuals were
acquitted of a l l charges and one- was t r i e d i n absentia (Bormann).
Twelve were executed within sixteen days of thi-sentence being
handed down, three sentenced to l i f e imprisonment, and the rest to
imprisonment f o r a t e r m of years, The USSR, France, Great Britain
and the United S t a t e s equally participated in the prosecution of the
I,M,T, a t Nuremberg. 137
The I.M.T. f o r the Far East was established by terms of the
Potsdam Declaration and its exercise of jurisdic tion was expressly
agreed upon by the Japanese government in the Instrument of Surrender
of 2 September 1945. All twenty-five accused were convicted on
charges s i m i l a r to the I.W. '6. - Nuremberg proceedings and the
sentence included seven death penalties, sixteen l i f e imprisonments,
138
and two t o a term of years. Judges from eleven nations on t h i s

136. Koessler, supra note 111 a t 39.

137. Taylor, supra note 119.

138. Supra note 133 a t 1216-7e The I.M.T. - Far East was
established on 19 May 1946 with eleven judges; 35 counts were brought
against twenty-eight qefendants, two of whom died and one w a s found
u n f i t t o stand t r i a l / ( p 12); the prosecution pmsented evidence
from June 1946 u n t i l January 1947 and the defense from February u n t i l
January 1948, with the judgment rendered i n November 1948.
tribunal.
The Allies exercised jurisdiction i n Germany as the occupiers
of a conquored nation. A Control Council was established to exercise

supreme authority over Germany. On 20 December 1945, the Council

promulgated Law Number 10 which provided f o r the t r i a l of those
charged with crimes against peace, war crimes, crimes against
humanities, conspiracy to commit these offenses, and membership in
c e r t a i n organizations. These trials were .to be conducted by tribunals
established w i t h i n the zone of the respective parties. 139 m e
concept of a second trial under the London Charter was contemplated
b u t rejected by the A l l i e s in favor of t r i a l s under the Council Law
No. 10 and within the respective occupation zones of ~ e r m a n ~ . ' ~ d
Upon completion of the I.M.T. - Nuremberg in October 1946, the
United S t a t e s promulgated Ordinance No. 7 f o r the t r i a l of those
charged with the offenses noted above and the twelve cases have been
known a s the Subsequent Proceedings, conducted from December 1946
u n t i l April 1949 ( a l l but two trials had been completed by the
Spring of 19481, &fore these international tribunals (as
l a t e r characterized by the US f e d e r a l courts) came persons f m all

139. Taylor, FINAL REPORT 6-1 0.

140. Taylor, supra note 139 a t 22-27. Executive Order 9858,
dated 21 May 1947, 12 Fed. Reg. 3555; 15 S t a t e Dept. B u l l . 862 (
(1946). pertain to Control Council Law No, 10.
Taylor, supra note 139 a t 118-9.
walks of l i f e : diplomats (The Ministers caselb2 and US v ~ i l c h ' ~ ~ ) ,
i n d u s t r i a l i s t s ( U S v F l i c k , 14'4 t h e I G F a r b e n ~ a s e " ~ , a n d U S v

~ r ~ p p ' professional
~ ) , military men (me High Command case14? and
the Hostages Case IM), doctors (The Medical Case14'), judges,
prosecutors, and o t h e r judicial o f f i c i a l s (The Justice Case1
and the individuals involved with c o n b n t r a tion camps, extermination#
u n i t s and biological experiments (US v n 152
l?ohltS1, E i n s a t z p r u ~ ~ eCase,
and the RuSHA case1 53 respectively). Thirty-five of the 148 accused
i n these twelve cases were acquitted, twenty-four were sentenced to

142. United S t a t e s v Weiaacker, case 11, reported in vols, V I I ,

V I I I , and IX TRULLS OF WAR ClEM3NALS BEFORE THE NUREMBERCr MILITARY
TEIBUNAU (1 950-51 ) (hereinafter c i t e d a s TRIALS ).

143. United S t a t e s v Milch, Case No 2, I1 TRIALS.

144. United S t a t e s v Flick, Case NO, 5, I11 TFUALS.
1450 United S t a t e s v Krauch, Case No. 6, V I I and V I I I TRIALS.
146. Case No. 10, IX TRIALS; a l s o reported i n 10 LAW REPORTS (1948).
147. United States v von Leeb, Case No. 12, X and X I TRIALS.
148. United S t a t e s v L i s t , Case No. 7, X I TRIALS.

149. United S t a t e s v Karl Brandt, Case No. 1, I and I1 TRIALS.

150. United S t a t e s v Joseph A l t s t o t t e r e t a l , Case Noo 3 111 TRIAICIS.
151 Case No. 4, V TRIALS.
152. United S t a t e s v Ohlendorf, Case No. 9, N TFUALS.
1530 United S t a t e s v Greifelt, Case No. 8, I V and V TRIALS.
 death and the r e s t t o l i f e o r period of years confinement.
Simultaneous with the conduct of the I.M. T. - Nuremberg
and Tok$o,individual countries proceeded with the prosecutions,
no-hbly the B r i t i s h trial i n the f a l l of 1945.of fourty-five
persons f o r t h e i r crhninal conduct a t the Belsen and Auschwitz
concentration camps. 54. The United S t a t e s conducted a t o t a l of
around 900 trials involving over three thousand accused persons. 155
The f i f t h category of forums available f o r t r i a l of war
criminals is the international criminal court idea which was i n
vogue f o r awhile and now has been, i n effect, Mndered an academic
question. Also, aside from the Geneva Conventions, it appears as
*yp" op

zhough participation in thish& court by the United S t a t e s is

barred by the Constitution.
Mr. Kuhn, i n h i s a r t i c l e ltIntemational criminai RRsponsi-
b i l i t y * , 56 t r a c e s the h i s t o r y of of the creation of such

154.e The Belsen Trial ( T r i a l of Josef Kramer and 44 others, a s

reported i n 2 LAW REPORTS (1947); also, the U.S. conducted several
trials in 1945, f o r ex~mplethe Trial of Josef Hangobl, Case No. 87,
reported in 14 LAW- REPORTS, On charges of k i l l i n g unarmed American
f l i e r s , and the trial of f o r t y members of the Dachau Concentration
Cdmp s t a f f on charges of c r u e l t i e s and mistreatment, including
killings of many thousands, reported a s Case No. 60, 11 LAW REPORTS
5 (1949).
155.
and the Subsequent I+ -
roceedings
.
Koessler, s u r a note 111 a t 25 Aside from the two I.M.T.'s
a t Muremberg, the United S t a t e s Army
conducted the following war crimes t r i a l s :
1
Germany -
491 cases 1,682 accused
Italy
Yokahama
China+and
9
297 - 14
814
Philippines 108 - 290
31 addition the US Navy conducted twenty trials involving 290
. accused a t Guam. Interim Report t o the US Senate by Senator Homer
Ferguson, Foreign Relations C~mmittee, 81 s t Cong, 1 s t Sess. 3-4
a court which briginatcid ' after WW.I The idea was referred to
the Commission of J u r i s t s (which body drafted i n 1920 the s t a t u t e
f o r the Permanent Court of International J u s t i c e ) which recommended
i t s establishment but the League of Nations considered the proposal.
premature and took no action, despite requests of the International

Law Association and the International Association f o r Penal Law.

After the Second World War, the United Nations a l s o called
f o r a study of the p o s s i b i l i t y of establishfig such a court. At

t h i s time (December 19%) the United Nations took action to affirm

the principles of the Nuremberg Judgment and called f o r 'a codification
of those principles. The International J u r i s t s reported back t h a t
it was possible t o create a criminal chamber &o the International
Court of Justice, but recommended against the establishment a t the
time, and made no f u r t h e r e f f o r t t o codify the laws of war ( j u s t as
the d r a f t e r s of the Geneva Conventions avoided any semblence of
creating a criminal code. ) 1 57
Much of the reluctance i n the formation of an international

(1949) Apparently, there a r e no t r u l y accurate figures, f o r one of

US prosecutors a t the Yokahama trials reports t h a t there were 952
accused, Spurlock, The Yokahama War Trials, 36 ABAJ 387, 389 (1950) a

1570 Pella, Toward an International Criminal Court, 44 Am. J.

I h t t l , L. 37(1950), f e e l s t h a t there is a need f o r such a court;
former President, International Association Penal Law, Q. Wright,
Proposal f o r an International Criminal Court, 46 Am. J. Int'l. L.
60 (1952). -- - Report of the International Law Committee. 44 Am. J.
l n t i l . L. & DO;. Supp. 134 (1950).
criminal c o u r t is t h a t the s t a t e s have t r a d i t i o n a l l y been regarded
a s the s o l e s u b j e c t of i n t e r n a t i o n a l law, and a s Profe'ssor E.
Lauterpacht observed: "... we f i n d t h a t the s t r a n g l y assorted
t r i o , insurgents, p i r a t e s and the Holy See,has been t r e a t e d as
providing the f a c t u a l b a s i s f o r denying the absoluteness of the
concept of the S t a t e a s the s o l e s u b j e c t of i n t e r n a t i o n a l law.ff158
But t h i s d o c t r W i s being eroded and now individuals may be bound
d i r e c t l y to i n t e r n a t i o n a l t r e a t i e s where the p a r t i e s ( t h e s t a t e s
making the t r e a t i e s ) s o intendedo 59 This is the p r a c t i c a l e f f e c t
of the Geneva Conventions pegarding criminal r e s p o n s i b i l i t y f o r grave

breaches and o t h e r v i o l a t i o n s of the t r e a t i e s , although the c o u r t s

of the states were regarded as the proper instrument to c a r r y o u t
the policy, r a t h e r than an i n t e r n a t i o n a l tribunal. But there i s
no r u l e in i n t e r n a t i o n a l l a w precluding the c r e a t i o n of an i n t e r n a t i o n a l
t r i b u n a l by the Convention.
Regarding the question of United S t a t e s p a r t i c i p a t i o n i n
an i n t e r n a t i o n a l c o u r t from the c o n s t i t u t i o n a l standpoint, Mr. Finch
p o i n t s o u t t h a t the 1950 d r a f t s t a t u t e prepared by the I n t e r n a t i o n a l
l ~ ~ grant to e i t h e r
Law Comission f o r the United ~ a t i o n s would
n a t i o n a l c o u r t s o r the i n t e r n a t i o n a l c o u r t such j u r i s d i c t i o n a s a
t r e a t y might confer@ upon the c o u r t s f o r the prosecution of war

158. Some Concepts of Human Rights, 11 How. L. J. 364, (1965).

159. ' Q. Wright, War Criminals, 39 Am, J. Intgl. Lo 257, 262 (1965).
1 60. The d r a f t s t a t u t e provides f o r : a ) application of both
n a t i o n a l and i n t e r n a t i o n a l l a w ; nine judge^, no jury; access gained
t h r u vote of General Assembly of the UN, any organization so author-
ized b y - t h e UM, o r a s t a t e which has conferred j u r i s d i c t i o n on the
oyrt*
P -
lctment to be reclse; reasonable time t o prepare defense;
G l a f a c e t s n g h ? t o be present m court, conduct o m
 161 However, the US C o n s t i t u t i ~ n
crimes under i n t e r n a t i o n a l l a w ,
provides t h a t t h e Congress has the power to define and punish
crimes a g a i n s t the law of nations162 and t h a t persons e n t i t l e d
to the protections of the Constitution ( c i t i z e n s , r e s i d e n t a l i e n s ,
and o t h e r a l i e n s temporarily within t h e United s t a t e s ) a r e
guaranteed inter a l i a a trial by jury and t h a t such t r i a l must be
held in the s t a t e whereih the trial was committed o r a t such place
designated by Congress when the crime is committed outside any s t a t e , 163
The following c o n s t i t u t i o n a l issue is t h b framed: does the Congress
o r the President possess the a u t h o r i t y under the Constitution to
e n t e r into a t r e a t y o r o t h e r agreement by which a person e n t i t l e d t o
the b e n e f i t s of the protections of the Constitution is s u b j e c t to
t r i a l before a t r i b u n a l of an i n t e r n a t i o n a l nature, enjoying a l l of
the safeguards, enumerated in t h e Constitution b u t without review

defense, q u a l i f i e d counsel, expenses paid, t r a n s l a t i o n of documents,

i n t e r p r e t e r , compulsory service t o obtian witnesses, and speak on
own behalf; public hearing; majority vote controls a l l issues;
no appeal; and no subsequent proceedings a g a i n s t same accused on
same charge. 4.4. h. J. Int'l. Lo Supp. 1 (1952).
161, Finch, An I n t e r n a t i o n a l Criminal Court: A Case Against
Adoption, 38 AEAJ 644 (1952), C f The London Agreement e s t a b l i s h i n g
the I.M.T. i n Nuremberg and t h e Genocide Convention of 9 December
1948 which provides f o r t r i a l of offenders before e i t h e r n a t i o n a l
o r i n t e r n a t i o n a l tribunals. The US has n o t y e t - c . ~ a t i f i e dt h i s
Convention, o r several others i n the field of buman relations.
162. U.S. CONST. a r t . I, 8 8, c l 10.
163. U.S. CONST. art. 111, 3 2, c l 3,
 164
of the judgment by a f e d e r a l court.
A p a r t i a l answer i n the negative is found i n a c l o s e l y
a l l i e d matter which confronted the Nation in 1907 regarding a
t r e a t y which would e s t a b l i s h an I n t e r n a t i o n a l Prize Court. Because
of the c o n s t i t u t i o n a l considerations, the Congress entered the
t r e a t y s u b j e c t t o a reservation t h a t the United S t a t e s would
be s u b j e c t t o the j u r i s d i c t i o n of t h i s c o u r t only i n matters of
damages f o r captives declared by the c o u r t to be i l l e g a l under
i n t e r n a t i o n a l l a w . 65 Ultimately, the I n t e r n a t i o n a l Prize Court
b e f e l l the same f a t e a s d i d the proposal f o r an I n t e r n a t i o n a l
Court of C r i m i n a l J u s t i c e : inaction.
The House of Delegates of the American Bar Association
voted a g a i n s t the US entering into a t r e a t y e s t a b l i s h i n g an
166
i n t e r n a t i o n a l criminal c o u r t i n 1950 and there the matter now rests.

, In surveying the d i s t r i b u t i o n of a u t h o r i t y i n the world since

164. Columbia Law Professor Sager considers t h a t a t r e a t y which

would v i o l a t e the B i l l of Rights would be n u l l and void, Charter vs
Constitution: An I n t e r n a t i o n a l Criminal Tribunal in American Law,
3 1 How. L. J. 607 (1965). The e f f e c t on the surrender of US n a t i o n ~ l ~
f o r prosecution bf .ga;e breaches by a foreign state ( e i t h e r under
an e x t r a d i t i o n t r e a t y o r informally) is probably barred where the
United S t a t e s i s otherwise i n a position to prosecute the accused i n
one of i t s courts, except where the US n a t i o n a l becomes a p a r t of
the enemy force in which case the offender is s u b j e c t t o t r i a l by
m i l i t a r y commission o r even an i n t e r n a t i o n a l tribunal.
165. Finch, supra note 161 a t 647.
166. 38 ABAJ 436 (1950). Q. Wright considers such a c o u r t would
n o t be e f f e c t i v e in supression of i n t e r n a t i o n a l crimes, supra
note 157 a t 64-65.
the emergence of the Western s t a t e system a f t e r the Treaty of
Wes tphalia, M r . Buehrig notes t h a t the i n t e r n a t i o n a l p a t t e r n of
'

a u t h o r i t y l a c k s a capstone and instead of a v e r t i c l e s t r u c t u r i n g of

a u t h o r i t y above the state, we have a l a t e r a l expansion of the
i n t e r n a t i o n a l community, a s manifested by the regional organizations, 167
and the Geneva Conventions which permit the n a t i o n a l machinery to
handle crimes of an i n t e r n a t i o n a l character.

C, United S t a t e s War Crimes Tribunals

1. The General Court-Martial

The United S t a t e s has two t r i b u n a l s f o r the trial of war
criminals, to-wit : the general court-martial and the m i l f tary
commission. Under the provisions of the Prisoner Convention, a u t h o r i t y
t o prosecute prisoners of war is granted i n A r t i c l e 102 which provides:
A p f i s o n e r of war can be v a l i d l y sentenced only i f the
sentence has been pronounced by the same courts according
to the same procedure a s in the case of members of the amed
forces of the Detaining Power, and if, furthermore, the
provisions of the present Convention have been observed.
Prisoners of war a r e made s u b j e c t t o the provisions of
the Uniform Code of M i l i t a r y J u s t i c e (Article2(:9))and a r e t r i a b l e

167. I n t e r n a t i o n a l P a t t e r n of Authoritx, 17 World P o l i t i c s 369

(1965). Apparently t h e United Nations l a c k s adequate support to
s t e p into the V i e t M a m s i t u a t i o n and remains content to handle
smaller c o n f l i c t s , such a s the one i n Cyprus, see 56 S t a t e Dept.
Bull. 179 (1966) f o r vote on six month extension of the UN PEace
Keeping Force there by the Security Council. The UN considers t h a t
the present machinery f o r i n t e r n a t i o n a l criminal sanctions is b u t
an intermediate stage on the way t o the t r u e i n t e r n a t i o n a l penal
jurisdiction. UN Doc, A/CN. 4/7/ Rev. 1 (1949).
only by general court-martial by Article 18 which reads: "General
courts-martial shall. a l s o have jurisdiction to t r y any person who by
the law of war is subject to t r i a l by a military tribunal and may
ad judge any punishment permitted by the laws of war." Although the
Code and implementing Manual f o r Courts-Martial, 1951, came into
existence several years before the US Senate r a t i f i e d the Conventions,
the Conventions were regarded as applicable to the armed forces of
the United htmever the provisions in the Convention a s to
weYe
sentences apparently disregarded in A r t i c l e 18 of the Code, when
applied to e n l i ~ t e dprisoners because they would be placed on a par
with e n l i s t e d personnel of the US and thus subject to the Table
of Maximum Punishments, not the l a w of war. The Table serves a s a
guide in the case of officers, warrant o f f i c e r s , and others, 169
Heretofore, all persons charged with "war crimestf by the
United S t a t e s had been t r i e d by a military commission (the common
law court which has been properly sanctioned by the Congress and
extensively used by the president), irrespective of the s t a t u s of
the accused (except t h a t members of the US armed forces were t r i e d
only by courts-martial). Under the terns of the Prisoner Convention
and the UCMU the United S t a t e s must t r y priisoners of war by way
3
of the geperal court-martial, attended by the sane procedure to
which US militaly personnel a r e e n t i t l e d , 170

168. UGAL AND LEGISLATIVE BASIS, MANUAL FOR COURTS=IMARTIAL, 1951 -2-4.

169, Paragraph 127a, NCM. 1951.

170/ For a summary of US prosecutions of W I1 PW1s f o r offenses
committed during capture and thus t r i e d in general courts-martial.
see Manes, ~ a r b e dw i r e Command: The Legal ~ a t u r eof the Command Rbspon-
s i b i l i t i e s of the Senion Prisoner in a Prisoner of War Camp, 10 M i l .
L o Bv,1, 38-40 (1960).
 Article 2 of the l i s t s those persons subject to the

provisions of the Code. Included are prisoners of war i n the

custody of the United States and excluded a r e other persons captured
during a c o n f l i c t o r occupation, General Yamashita urged t h a t he was
e n t i t l e d to prisoner of war s t a t u s and therefore should be t r i e d by
a court&-martial f o r h i s pre-capture offenses. But the Supreme
Court held t h a t he was not subject to the 1920 Articles of War which
were then applicable to trials of US m i l i t a r y personnel and t h a t it
was proper f o r him to be t r i e d before a m i l i t a r y commission in
Manila in 1945 and f o r depositions and evidence of a h e a c s a y nature
to be introduced against him, despite the prohibition of admitting
such evidence i n the t r i a l of a person before a m i l i t a r y conmission

where t h a t person w a s otherwise subject to the g r t i c l e s of Ur.

The Court reasoned t h a t since the accused was not subject t o the
Articles of War, he could claim none of the benefits provided by
the Congress o r the President to such persons, 171
To avoid doubt in the future, the Prisoner Convention now
provides :
Prisoners of war prosecuted under the laws of the De-
taining Power f o r a c t s committed p r i o r to capture shall
r e t a i n , even i f convicted, the benefits of the present
Convention. (Art. 85, GPCJ)

171. In r e Yamashita, 327 U.S. 1 (1946).

172. !this provision i s nothing more than the concept followed
by most nations i n permitting persons convicted under national laws
to benefit from such l a w s . I1 A FINAL RECORD 570 (1 949). In
r a t i f y i n g the GPW, the USSR and other communist bloc nations refused
t o accept Article 85. Reservations, (1955) 6 U.S.T. & O.I.A. 3467,
3508; Thus, the North Vietnamese government takes a position
s i m i l a r to t h a t taken by the US i n the 194Ots, but which was to
have been cured by Article 85. COMMENTARY I11 41 3-41 8. For discussion
of Hanoi's position, see Comment, The Geneva Convention and the Treatment
of Prisoner's of War i n ~ i e t n a m , ' $ 8Hem.
0 L. Rev. 851, 860 (19671, which
concludes t h a t t h i s position is not compatible w i t h the GPW.
 The United ~tatxf~s'
position i n the Yamashita case was
t h a t prisoner of war s t a t u s did not enure t o the benefit of one
otherwise so qualifying f o r PW s t a t u s where he was charged with pre-
captive offenses, but t h i s is contrary to the US statements
demanding PW s t a t u s be accorded our personnel charged by the enemy
with war crimes. 17' However it must be recalled t h a t the type trials

conducted against our personnel we* pure sham proceedings of the

.
rankest nature 174 By way of Article 130, GPW, it i s a grave breach
t o deny "a prisoner of war of the kights of f a i r and regular trial
prescribed i n the Convention. 11175
A s noted e a r l i e r , war crimes t r i a l s conducted by international
tribunals have been rendered useless f o r the trial of PWs because
the United S t a t e s wpuld not permit i t s armed forces to be t r i e d by
such a tribunal. 76 Also of p r a c t i c a l conqern is the i n a b i l i t y of

173- For example, Case No. 25 in the UM War Crimes reports concern

the US t r i a l of Lieutenant General Shigeru Sawada and three others

charged with the muder of e i $ h t Americans following a summary t r i a l ,

in derogation of the 1929 Geneva Prisoner Convention. 5 Law Reports

1-24 (1948). An account of the Japanese t r i a l and US reaction i s

found in an a r t i c l e by Hyde, ~ a p a n e s eExecution of American Aviators,

37 Am. J. Intll.L. 480 (1943). - . (the

- p i l o t s of the Doolittle Raid on

Tokyo in April 1942).

174. See cases reported i n 5 & 6 Law Reports (1948) and the J u s t i c e
Trial, supra note 150.
175. A s noted by Esgain i$ Solf, even while some of the Allied
courts were conducting t r i a l s which did n o t follow the provisions of
Articles85 and 102, these same countries were willing to agree t h a t
future such t r i a l s would' c o n s t i t u t e a grave k a c h of international
law, The 1949 Geneva Convention Relative to the Treatment of Prisoners
of War: Its Principles, Innovations and Deficiencies, 41 N.C.L. Rev. 537,
573 (19631). P i c t e t reports *at German and Japanese troops which f e l l
- i n t o Allied hands a f t e r capitulation of these two countries i n WW 11
w ~ r enot accorded PW status, COMbENT!kRY 111 74,
176. Article 17, UCMJ.
 a multi-organization, such a s NATO o r SEATO, t o exercise any criminal
jurisdiction over captives f o r the same reason, even where the coun-
h i e s involved (excluding the United S t a t e s ) permitted t h e i r m i l i t a r y
personnel to be t r i e d by an international tribunal. This r e s u l t
is reached on the b a s i s t h a t the Geneva Convention sought to engraph

the prisoner of war onto the penal Sbgislation of the Detaining

Power and i n view of the i n t e r e s t i n g comments by the ICRC t h a t
national law s m n o t be substituted f o r international l a w , the
s t r e s s being placed on the country capturing the prisoner to try
him o r e l s e turn him over to a demanding s t a t e a s provided in -Article
14'7, Thus, the ad hoc tribunals, such a s the I.M. To s and
those convened under mu1ti-na tion agreement f o r the Subsequent
Proceedings, a r e rendered inappropriate, tribunals f o r the t r i a l of
prisoners of war since these tribunals a r e not within the preview of
Articles85 and 102, GPW, so f a r A s the U.S. is concerned, 178

2. The Military Commission

a, H i s t o r i c a l Development
Kaplan traces t h i s tribunal back to the twelfth century
in England when the Court of the Constable and MarsQal. was established

177 The ICRC has opposed the idea t h a t two o r more countries
can agree to fix responsibility f o r the care of captives on one
country, although the US is doing t h i s properly under the provisions
of A r t 12, GPW, The ICRC 'also opposes modification of the GPW to
allow an international criminal code t o be substituted f o r national
penal laws. Esgain & Solf, supra note 175 a t 566-9.
178. Esgain & Solf, supra note 175 a t 576.
1
 to determine the r i g h t s of prisoners, a s well a s maintain control
over the Army. Gradually, it took over jurisdiction a s t o all persons
and was f i n a l l y abolished by the Magna Carta in 1215, a f t e r which
c i v i l i a n s were t r i a b l e by c i v i l courts. By the time of the American

Revolution the B r i t i s h m i l i t a r y law had been codified into A r t i c l e s

of War applicable only t o members of the military, a practice t h a t
the Confederation and Constitution was t o follow. 179
Although the military commission was not l e g i s l a t i v e l y
recognized u n t i l 1862, m i l i t a r y practice recognized such tribunals
f o r the trial of c e r t a i n persons and offenses incident to h o s t i l i t i e s . 180

The t r i a l by the Americans of Major Andre, the British Adjutant

General i n the US f o r spying i n 1780; of Arbuthnot and Ambrister
in Florida i n 1818 f o r i n c i t i n g the Indians to war against the
United S t a t e s ; and of the c i v i l i a n population during the occupation

179.' Kaplan, Constitutional Limitations on Trials by Military

Commissions. 92 U of Penna. Lo Rev. 119 (1943). The f i r s t recorded
war crimes trials took place in 1305 when a B r i t i s h court convicted
S i r W i l l i a m Wallace of violating the laws of war by exterminating
non-combatants (11sparing n e i t h e r age nor sex, monk o r manf1). The
forerunner of the I.M.T. a t Nuremberg i s traced by professor
Schwamenberger t o 1474 when the A l l i e s i n the war against Burgundy
established a tribunal composed of judges designated by them f o r
the t r i a l of S i r Peter of ~agenbach;The Judgment a t Nuremberg,
21 Tul. L. Rev. 329, 330-1, 1947)0
180. Quite s i m i l a r i n background, purpose, and l e g a l basis, a r e
the prize courts which a r e a l s o municipal courts of the United
S t a t e s with authority based in international law. Rowson, Prize
Law Durin the Second World War. 24 B r i t . Yb. 160, 162 ( 1 9 4 r
*msecutor hi the Belsen Trial, argued before the
m i l i t a r y commission t h a t it (the tribunal) was Ifexactly s i m i l a r to
a Prize CourtIt and founded on the Law of Nations. 2 Law Reporb 70-71
(1948). The m i l i t a r y commission was described by Major General
Crowder, <he Judge Advocate General in 1916 as our common law
, war court.I1 S. Rep. No. 130, 64th Cong., 1s t Sess, 40.
of Mexico by General S c o t t i n 1847 f o r s p e c i f i c offenses was being

181

accepted a s the proper manner f o r the ~ a i n t e n a n c eof law and order,

These war time t r i b u n a l s were manifestly needed to f i l l the l e g a l rp

vacuum created by the normal consequences of h o s t i l i t i e s . 182

The a u t h o r i t y f o r the m i l i t a r y commission i s found in the
common law of war1 83 and the Constitution. 184 Under i t s powers to
"define and punish offenses a g a i n s t the laws of NationsI1, the
Congress sanctioned Itthe c r e a t i o n of such t r i b u n a l s f o r the t r i a l
of offenses a g i a n s t the laws of by enacting A r t i c l e of
War 15. 186 This s t a t u t o r y a u t h o r i t y was regarded by the Supreme
Court a s d i s p o s i t i v e of sanctioning the commission. This a r t i c l e
provided t h a t "...the provisions of these A r t i c l e s conferring
181. For an account of the more i n t e r e s t i n g t r i a l s before m i l i t a r y

commissions, including the accused i n the Lincoln a s s a s s i n a t i o n p l o t ,

Lambdin P. Milligan, and the German Saboteur case, see Kaplan, supra

note 179 a t 121-2; a l s o the g u i r i n case, 317 U.S. 1, 31 (1942), f o r

other t r i a l s .

182. Colby, War Crimes, 23 Wich. L. Rev. 482, 487(1925), The

commissions have a l s o been described a s ttsi.tnply criminal war courts,

resorted t o f o r the reason t h a t the j u r i s d i c t i o n of the courts-martial,

c r e a t u r e s a s they are of s t a t u t e , is r e s t r i c t e d by law, and can n o t

be extended t o include c e r t a i n c l a s s e s of offenses which i n war

would go unpunished In the absence of provisional forum f o r the t r i a l

of the offenders, l1 Howard, DIGEST OF OPINIONS OF THE JUDGE ADVOCATE

GENERALS OF THE A M (191 2)1066-7, But the m i l i t a r y commission is

more than a provisional forum, a s w i l l be developed,

183. A.W.Green, The Military Gommission, 42 Am.J.Inttl.L. 832 (1948).

Dr. Lieber, i n h i s work which became General Order No. 100, 24 April
1863 f o r the guidance of US trbops & the f i e l d , pointed o u t in para-
graph 13 t h a t military j u r i s d i c t i o n was exercised in two ways: courts-
m a r t i a l ( s t a t u t o r y ) and m i l i t a r y commissions (common law of war).
184. u.S. con$t0, a r t I, 8 8, c l 10,

'186. AW 15 of t h e 1920 A r t i c l e s i s the forerunner of todayrs A r t i c l e

21 of the UCMJ, both a r t i c l e s having i d e n t i c a l wording. The 1920 A r t i c l e s
of War, which were i n e f f e c t during WW 11, were contained in 10 USC

3 1471-1593 (1920)o

 , j u r i s d i c t i o n upon court-martial s h a l l n o t be construed a s depriving

the m i l i t a r y commission of concurrent j u r i s d i c t i o n i n respect of
offenders t h a t by s t a t u t e o r by the law of war may be t r i a b l e by such
m i l i t a r y commissions...or other m i l i t a r y tribunals."
The Constitution has entrusted to the President a s Commander-
in-Chief, 18' the power to wage and to c a r r y into e f f e c t the laws
passed by Congress f o r the conduct of war. 188 The Congress i s
granted the power to Nraise And support ~ r m i e s . " ~ ~ ~make
* t orules
i 1kc)
f o r the government and regulations of the land A d naval forces, m
and "to make r u l e s concerning captives on land and water.^'^' ~ndar
its powers to pass laws necessary and proper t o e f f e c t these
enumerated powers, 92 the Congress authorized the President t o
prescribe such nil8 of procedure a s he deemed proper f o r courts-
m a r t i a l and m i l i t a r y commissions. 193
I n the 1940's the President, i n the exercise of these
powers and by v i r t u e of h i s r o l e a s s o l e spokesman f o r the Nation in

187. U.S. CONST., a r t . 11, 8 2, c l 1.

188. U.S. CONST., a r t . 11, 2, clauses 1 and 3 .
189. U.S. CON ST., a r t . I, 8, e l . 12.

I
190. U.S.CONST., art. I, 5 8, c l . 14.
191. U.S. CONST., a r t . I, 8 8, c l . 11.
192. U,S. CONST., a r t . I, 6 8, c l , 18.
193. For an exhaustive review of the power of the President to
issue rules. f o r the conduct of trials by courts-martial, see United
S t a t e s v Smith, 13 U.S.C.M.A. 105, 32 C.M.R. 105 (1962). The
congressional g r a n t of such a u t h o r i t y f o r WW I1 appeared in A r t i c l e
of War 38 and e x i s t s today i n i d e n t i c a l language -% A r t i c l e 36,
UCMJ, (10 US6 8 836).
7

 regards to foreign relation^,'^' authorized the creation of the

international tribunals as well a s national military tribunals f o r
' t h e prosecution of war criminals, The federal courts were called
upon to review h i s actions and upheld these steps taken in the
following particulars: (1 ) the I.M.T. f o r the Far ~ a s t (2)
' ~ the
~
Subsequent Proceedings a t ~ u r e m b e r ~ 'and
~ ~ ;(3) the t r i a l by
m i l i t a r y commission i n the United i n US t e r r i t o r i e s , 198
and &I a foreign &un&!99 of foreign nationals and US Citizens
alike.
After cessation of h o s t i l i t i e s , the United States t r i e d

cases in Germany by tribunals referred to a s Military Government

~ o u r t s but
, ~ they
~ ~ were basically a combination of (a) m i l i t a r y
commissions in the t r i a l of war crimes a1-d ( b ) occupied courts ia
I

/ . I
the t r i a l of such matters a s curfew violations and carrying fireii8 +

194. Concurring opinion by Justice Douglas in Hirota v MacArthur,

338 U.S. 197 (1949) and majority opinion in United S t a t e s v Curtiss-
Wright Export Carp,, 299 U.S. 304 (1936).

195. The Hirota case, supra note 194.

196. United S t a t e s v Flick, 174 F. 2d 983 (DC C i r , 1949), c e r t o
denied,- 3

1 (1942); Note, 56 Ham. L. Rev.

OF THE UNITED STATES 450-2(&d ed 1963).
198. In re Yarnashita, 327 U.S. 1 ( 1 9 g ) (the Philippines were then
t e r r i t o r i e s of the United s t a t e s ) .
.

199. Johson v Eisentraper, 339 U.S. 763 (1950) ( t r i a l conduct6d

i n China and l a t e r imprisoned i n US f a c i l i t y in Germany when w r i t
of habeas corpus sought.
200. An extensive review appears i n Koessler, American War Crimes
Trials i n Europe, 39 Geo. L. Rev. 18 (1 950) 7nd F f i a n :
Problems or t n e Constitution Following the Flag, 87(1949).
ebvy5
arms.201 It is unfortunate t h a t the term " m i l i t a r y commissionu was
n o t limited only to those cases involving the v i o l a t i o n s of the law
and custom of war.

The o i t b e n s h i p of the accused before the m i l i t a r y commission

is immaterial, the courts holding t h a t it is the nature of the
offense which gives r i s e to the j u r i s d i c t i o n of the commission with-
o u t regard t o n a t i o n a l i t y , ''' However, the time, place, and circum-
stances of the conduct in question is paramount t o the determination
o f . t h e nature of the substantive offense. It is s a f e t o say t h a t it
is a general r u l e t h a t an accused, even a c i t i z e n of the United States,

has no c o n s t i t u t i o n a l r i g h t t o choose the offense or the t r i b u n a l

i n which he w i l l be t r i e d . It.. ,It does n o t derogate from the supremacy
of the c i v i l law o r the c i v i l courts to accord to the militaky
t r i b u n a l the f u l l sweep of the j u r i s d i c t i o n vested in it under the
Constitution and the laws thereunder.. .lt203 A t issue in t h i s case
was the objection to the j u r i s d i c t i o n of a m i l i t a r y commission to t r y

201 . An invaluable treatment i s given t h i s subj e c t by Nobleman,

American Ni1itaI-y Government Courts i n Gernang, Special Text 41-10-52,
US Anny C i v i l A f f a i r s School (19531, a s h i s doctorgal thesis.

202;&p, I n the g u i r i n case, supra note 181, one of the saboteurs

cla to be an American was dismissed by the Court a s being of no
importance since the accused had joined forces with the enemies of
h i s country. The same r e s u l t in Coplepaugh v Looney, 235 Fo 2d 429
-
(10th C i r . 1956), c e r t . denied 352 U.S. 1014(1956). Thus, a US
c i t i z e n could conceivably join forces with the enemy i n V i e t Nam
and become s u b j e c t to t r i a l before a US m i l i t a r y commission should
he be charged with v i o l a t i o n s of the law of war,
203. Coplepaugh v Looney, s u r a note 202 a t 433. Colonel
-I%
Winthrop mints o u t t h a t the ml i IT commissionEs .iuri$diction
embraces it enemies i n arms .It MILITARY" LAW AND PRECEDENTS 838 (2nd ed,
1920) ( h e r e i n a f t e r r e f erred t o a s "Winthrop" ) .
a US c i t i z e n f o r espionage in November I 9 N and a l s o t h a t he

should have been t r i e d in the c i v i l i a n courts under the charge of

treason. Both grounds were dismissed.

b. Its Status Today

Despite the extensive u t i l i z a t i o n of the m i l i t a r y

commission twenty years ago in the prosecution of war criminals,

it had l i t t l e congressional recognition a t t h a t time and has f a i l e d

to receive much since then. The t r a d i t i o n a l war court jurisdiction

has been preserved in Article 21 of the Code (as such jurisdiction

was preserved by A r t i c l e 15 of the 1920 Articles of War). The 1951

Manual gives a t t e n t i o n to the commission on page 1 by s t a t i n g t h a t

i t and the p r o v e t courts are proper tribunals f o r the exercise of

jurisdiction under the law of war. The Manual f u r t h e r provides

t h a t the m i l i t a r y commission w i l l bellguided by the applicable

principles of law and rules of procedure and evidence prescribed

f o r courts-martial.18204 I n promulgating the Nanual, the R e s i d e n t

thus reserved the authority to himself t o change t h i s rule and to

prescribe such r u l e s a s he deemed appropriate. When President

Roosevelt promulgated an Executive Order on 2 July 1942 f o r the

t r i a l of the German saboteurs, he exercised h i s authority by

s e t t i n g f o r t h the conditions under which the accused would be

t r i e d , departing from the rules of evidence prescribed f o r courts-

martial by allowing into evidence matters deemed by the commission

to have probative value. 205 This procedure was followed i n the

I

204. Paragraph 2 , MCM, 1951 . The MCM, 1928 used the same wording.
205. 7 Fed. Reg. 5103 (1942).
creation of o t h e r US m i l i t a r y commissions, a l l which were authorized
by the President who i n turn delegated t o the J o i n t Chiefs of Staff

o r o t h e r major commands the power to appoint.206 The same course

of a c t i o n i s (jpen today f o r the establishment of m d i t a r y commissions.
The m i l i t a r y commission i s described as: 207
A c o u r t convened by m i l i t a r y a u t h o r i t y f o r the t r i a l
of persons n e t usually s u b j e c t to m i l i t a r y l a w who a r e
chargrd with v i o l a t i o n s of the laws of war; and i n places
s u b j e c t to m i l i t a r y government o r m a r t i a l law, f o r the
t r i a l of such persons when charged with v i o l a t i o n s of
proclamations, ordinances, and walid domestic c i v i l and
criminal law of the t e r r i t o r y concerned.
Field Manual 27-10, The Law of Land Warfare, r e f e r s t o
the m i l i t a r y commission a s the proper t r i b u n a l f o r the t r i a l of war
crime cases. 208
The m i l i t a r y commission i s c a l l e d i n t o operation only

during tjiliies of war and t h e r e a f t e r r e v e r t s t o a most i n a c t i v e status.

Despite such paucity of Congressional legislation,2'9 it remains an
e f f e c t i v e means a v a i l a b l e to the commander t o discharge h i s

206. For example, see the Coplepaugh case, supra note 202, f o r
r e c i t a t i o n of s t e p s taken to c r e a t e the tribunal.
207e U.S. Deptt. of Army REGULATION 320-5, Dictionary of United .
S t a t e s Army terms, changed 2, dated April 1965, a t p 247,
208. Paragraphs 11 and 180, FM 27-1 0.
209 , Congress has designated The Judge Advocate General of the
Army to receive, revise, _and record these proceedings (10 USC B 3037,
and repeated i n departmental regulations a t paragraph l c , ARmy
Regulation 1-140); also, the conmission is exempted from the j u d i c i a l
review provision of the Administrative Procedure Act ( 5 USC 3 701 (b)
(1)(F)(1966). Congress has applied the c o n f l i c t s of i n t e r e s t
enactments to m i l i t a r y commissions. 18 US6 B 203.
r e s p o n s i b i l i t i e s i n time of war which, s u r p r i s i n g l y enough a r e
well described by Chief J u s t i c e Stone a s followsr 210
An important incident to the conduct of war is the
adoption of measures by the m i l i t a r y commander, n o t only
to r e p e l and d e f e a t the enemy, but t o s e i z e and s u b j e c t t o
d i s c i p l i n a r y measures those enemies who, i n t h e i r attempt
to thwart o r impede our m i l i t a r y e f f o r t , have v i o l a t e d the
law of war, The tri 71 and punishment of enemy combat2.nts
who have committed \C'iolations of the law of war i s thus
n o t the only p a r t of the conduct of war operating a s a
p r o t e c t i v e measure a g a i n s t such violations, b u t is an
exercise of the a u t h o r i t y sanctioned by Congress t o
administer the system of m i l i t a r y j u s t i c e recognized by the
law of war.

The m i l i t a r y commission stands on the same quantum of

l e g i s l a t i v e enactments today a s it d i d during the 1 9 4 0 ~ sand
remains the d u l y sanbtioned tribun'al f o r the prosecution of war
crimes under the Geneva C i v i l i a n Convention which a l s o recognizes
the r i g h t of the Occupying Power to punish protected persons who
v i o l a t e the l a w s of the Detaining Power before a non-political
m i l i t a r y court.

D. the 1949 Geneva Conventions

What e f f e c t , i f any, has resulted from the Geneva
Conventions a s t o the types of t r i b u n a l s before which war crimes can .
be prosecuted? Within each of the f o u r standards of due process
l i e s the answer,
The p r i s o n e r of war must be t r i e d according t o the same
c o u r t s and accs'rding to the same procedures as the members of the
armed f o r c e s of the Detaining Power. The United S t a t e s has f u r t h e r
provided t h a t the PW is to be t r j e d only b
3 the general court-martial.
 The o t h e r three standards of due process, concerning the

unlawful b e l l i g e r e n t , provide a common requirement: regularly

c o n s t i t u t e d courts. A r t i c l e 3, GC, provides t h a t the passing of
sentences and carrying o u t of executions must come from a judgment
pronounced by a r e g u l a r l y c o n s t i t u t e d court. A r t i c l e 66, speaking
of t r i a l s i n occupied lands, requires t h a t the t r i b u n a l s be
Itproperly constituted, non-political m i l i t a r y courts .", when the l o c a l
c o u r t s are n o t u t i l i z e d because the offense charged is a v i o l a t i o n
of the laws promulgated by the Occupyin~Power o r a breach of f ke
law of war. The l a s t standard of due process of law concerns grave
breaches. A r t i c l e 146 mentions a proper t r i a l and defense, with
no reference t o a tribunal.
Under these f o u r standards, t h e general court-martial is
the proper t r i b u n a l f o r the PW and the m i l i t a r y commission, in
view of i t s h i s t o r i c a l background and Congressional sanction, is,
the proper t r i b u n a l under the three standards specified in the
C i v i l i a n Convention, The US m i l i t a r y government c o u r t would be
the proper t r i b u n a l f o r non-war crimes committed during occupation.
In regard t o i n t e r n a t i o n a l tribunals, a l l accused, except
the PW, would be ameniable to trial before such courts under the
Civilian Convention which does n o t p r o h i b i t t r i a l by i n t e r n a t i o n a l
courts.
An i n t e r n a t i o n a l t r i b u n a l can be established by the
appointment of the commander having c~mmandover the armed f o r c e s
of two o r more nations, such a s the United Nations Command during
the Korean War, O r , a@ i n t e r n a t i o n a l t r i b u n a l could be created by
following the pattern of the Control Council in Germany, whereby
a c e n t r a l governing agency was established by international agreement

and each of the s t a t e s represented was f r e e to conduct t r i a Y under

t h e i r own regulations but based on the authority granted by the

c e n t r a l agency. The s i t u a t i o n i n Viet-Nam today closely approaches

(if not already surpasses) an international command on the m i l i t a r y

l e v e l , but f o r other considerations has not taken on the Korean

War UN Command structure.

 VI .
TRIAL OF THE PRISONER OF WAR

A. Procedural Rights Before and During T r i a l

Many of t h e procedural r i g h t s t o be accorded a prisoner
of war on t r i a l f o r v i o l a t i o n s of the law of war a r e w e l l known t o

the m i l i t a r y p r a c t i t i o n e r because the prisoner of war en joys the same

r i g h t s a s members of the US armed forces. These r i g h t s before trial

may be quickly summarized as consisting of: appointment of counsel
a t the A r t i c l e 32 investigation; opportunity t o review the charges

preferred a g a i n s t him and to examine the evidence contained i n the

prbsecution's f i l e ; kight t o c a l l witnesses during the A r t i c l e 32

investigation; and t h e services of an i n t e r p r e t e r during t h e e n t i r e

j u d i c i a l proceeding.

The Prisoner Convention s e t s f o r t h these same r i g h t s i n

Articles99 through 108, Care must be given to these provisions

because the v a l i d i t y of the sentence imposed is made contingent

upon three eiementsj (1 ) t h a t it i s pvonounced by the same c o u r t and

(2) according to the same procedure i n the t r i a l of the armed forces

of the Detaining Power, and (3) t h a t a l l the provisions of the

Chapter e n t i t l e d Penal and Disiplinary Sanctions (Articles 82-1 08)

have been observed.

The first procedural requirement contained in the Prisoner

Convention is to n o t i f y as soon a s possible both the prisoners of

war i n your custody and t h e Protecting Power of those offenses

punishable by the death sentence. P r e - t r i a l confinement of the

211. A r t . 87, GPW.

FW is n o t permitted p e r s e unless a member of the Detaining Power's
armed f o r c e s would be confined under l i k e circumstances, o r i n case

of s e c u r i t y , b u t such confinement must n o t exceed three months. 21 2

Of course, t h e r e is l i t t l e problem regarding the s t a t u s of PW and
the power t o continue custody*213 the t h r u s t of t h i s requirement

goes t o the r i g h t t o a speedy trial (although the conduct of

h o s t i l i t i e s a s well a s policy considerations may require a

d i f f e r e n t r e s u l t ) .214 Time spent i n p r e - t r i a l confinement

awaiting t r i a l i s to be deducted from any sentence of imprisonment

and the p r i s o n e r is n o t to l o s e any of the b e n e f i t s of

the GW, whether convicted o r acquitted. 216 There is no prohibition

a g a i n s t placing the accused PW i n a segregated compound f o r PWts. 21 7
A r t i c l e 12 of the UCMJ forbids placing a member of the US armed

forces n i n immediate association" with enemy prisoners o r o t h e r

21 2. A r t . 403, GPW.
213. The b a s i s f o r the r u l e regarding prompt investigation and
t r i a l was the experience of WW 11. COMPIIEN?1C1RY 111 477. A r t . 21, GgW
allows a b e l l i g e r e n t t o intern W1s.
&3
214. The 1GR;P considered the f e a s i b i l i t y of allowing f o r trials
during periods of h o s t i l i t i e s because of the disadvantage it may
place upon the PW. COMIENTARY I11 626.

21 5. A r t . 103, GP'VS.
216. A r t . 108, GW.
217. See U.S. Depi t. of Amy, Field Manual 19-20, Enemy prisoners
of War and C i v i l i a n Internees (August 19641, f o r the administrative
handling procedures.
 21 8
foreign nationals n o t members of the U3 amed forces.
Also required by the GFW i s a prompt p r e - t r i a l investigation.

The Convention d k a f t e r s intended f o r the accused t o have a prompt

t r i a l and desired t o guarantee t h i s by requiring a prompt '1 judicial

i n v e s t i g a t i o n u , thus r e f e r r i n g to the c i v i l law system

f o r p r e - t r i a l investigations. The United States w i l l follow the

provisions of the UGMJ, namely A r t i c l e 32, i n the conduct of the

p r e - t r i a l investigation. During the A r t i c l e 32 investigation, the

accused i s e n t i t l e d to the appointment of a qualified counsel t o

represent him, as well a s the services of an i n t e r p r e t e r , The PW

must be given a copy of the charge s h e e t and a l l a l l i e d papers in

a language which he understands, 219 Counsel f o r the accused should

a l s o receive a copy of the charges and a l l i e d papers. The GPW requires

t h a t before t r i a l the Detaining Power advise the PW of t h e r i g h t to

the a s s i s t a n c e of a fellow prisoner, t o the assistance of a

q u a l i f i e d a k b r n e y of h i s choice, t o c a l l wi-besses on h i s o m ,.

behalf, and to the services of a competent i n t e r p r e t e r . This

advice should be reflected by a paper signed by the accused r e f l e c t i n g

the above,

The s e l e c t i o n of counsel o r advocdgis i n i t i a l l y l e f t

e n t i r e l y with the prisoner. Should he f a i l to make a selection,

the Protecting is a l l o t e d one week to secure an a t t o r n e y

21 8. However, paragraph 18b(2) and paragraph 125, of the MCM, 1951

permits use of the same f a c i l i t i e s f o r both US personnel and PWts.

219. A r t , 105, GPW.

220. Su r a note 80. .Neither the North ~ietnafnesenor the V i e t
Cong h a v e T k i o r i z e d v i s i t s t o prisoners they are holding by the I C E
which has requested such authorization. New York Times, 11 October
f o r the accused from a l i s t furnished by the Detaining Power. The
Detaining Power is authorized to appoint counsel where n e i t h e r the

accused PW nor the Protecting Power make a decision.221 No mention

is made i n e i t h e r the Convention @: the Gommentary by P i c t e t a s to

a veto power by the Detaining Power, b u t s e c u r i t y grounds would

c o n s t i t u t e the s o l e b a s i s f o r n o t allowing counsel to p a r t i c i p a t e

where otherwise a v a i l a b l e t o a s s i s t the W. The defense counsel is

granted two weeks t o prepare f o r t r i a l and is to enjoy necessary

f a c i l i t i e s t o prepare f o r the t r i a l ; also, he has the r i g h t to speak

f r e e l y with h i s c l i e n t , o t h e r prisoners of war, and o t h e r witnesses,

and t o the services of an i n t e r p r e t e r during the preliminary phase

of t r i a l preparation.222 The i n t e r p r e t e r should be assigned a s

soon a s possible, remain throughout the case, and be regarded a s
a member of the accused's defense f o r a l l purposes.

A t l e a s t three weeks before the t r i a l , the Protecting

Power is to be n o t i f i e d of the following data: 224

a ) name of the prisoner of war, h i s rank, army, regimental,

personal, o r s e r i a l number, h i s d a t e of b i r t h , and h i s pro-
f e s s i o n o r trade,

1966, p 33, col, 1, The ICRC i s allowed by A r t . 9 Gghl (and by A r t .

10 of the o t h e r Conventions) t o a c t a s a huraanatarian organization
f o r the f u l f i l l m e n t of the f o u r Conventions.

221, A r t . 35, GPW.

222. A r t . 105, GPW.
224. A r t . 104, Gm. A copy of the S t a f f Judge Advocate p r e - t r i a l
advice, required by A r t . 64 of the UCMJ, would s a t i s f y the f i r s t
t h r e e portions of A r t . 104, GPW.
 b ) place oS interment o r confinement,

c ) s p e c i f i c a t i o n of the charge ( s ) and applicable l e g a l provisions, and

d ) designation of the c o u r t which is t o t r y the case, a s well a s

the time and place thereof.

A s i m i l a r n o t i f i c a t i o n i s made to the prisoner*s representative, 225

This n o t i f i c a t i o n t o the Protecting Power and prisoners' representative
can b e s t be discharged by forwarding a copy of the p r e - t r i a l advice,

A t the opening of t r i a l there must be a c l e a r showing t h a t the

Detaining Power made timely n o t i f i c a t i o n ' t o the accused, the Protecting
Power, and the prisoners' representative. The Protecting Power is

e n t i t l e d t o send t r i a l observers where s e c u r i t y In the

event t h a t the i n t e r e s t s of another state are involved, i n v i t a t i o n s

t o a t t e n d the proceedings should be extended. 227

B. Sentencing Powers \

The use of the general court-martial f o r the t r i a l of war

crimes offenses charged agairist a prisoner of war by the United

S t a t e s brings i n t o operation n o t only the provisions of the Uniform

Code of Criminal J u s t i c e and Manual f o r Courts-Martial, b u t a l s o the

Prisoner Convention, a l l of which place r e s t r i c t i o n s and prescribe

the procedure of the sentencing of these persons found g u i l t y , In

general, the applicable1 p e n a l t i e s are: death, confinement, and for-

feitures. Reduction in grade i s n o t permitted, nor is a punitive

225. A r t . 104, GPW. A r t . 79 defines the d u t i e s of the PW represen-

t a t i v e ; see a l s o Manes, supra note 170. X

226. A r t . 105, GPW.

227. Such a p r a c t i c e was followed by the Allied countries. Taylor,
.
FINAL REPORT 46 (1949); and The Belsen t r i a l , a s ~ e p o r t e di n 2 LAW
REPORTS (1 947 )
discharge, because these matters a r e between the PW and h i s s t a t e .

Turning f i r s t t o the Prisoner Convention it is noted t h a t

there is express language allowing the imposition of the death

penalty f o r war crimes and o t h e r offenses, but the main t h r u s t

of the Convention is toward the procedural aspects, r a t h e r than the

merits of the penalty o r o t h e r considerations, 228

A s t o punishments in general, A r t i c l e 87, GPW, provides

that prisoners of war a r e n o t to be sentenced ",..to any p e n a l t i e s

except those provided f o r in respect of members of the armed forces.. .It

of the Detaining Power. In furtherance of t h i s assimilation i n t o

the m i l i t a r y j u s t i c e system of law, the prisoners of war who a r e

e n l i s t e d a r e a l s o e n t i t l e d to the l i m i t a t i o n s prescribed i n the

Table of Maximum Punishments, d e s p i t e the f a i l u r e of the Manual to

so provide. 229

The court-martial i s t o be instructed t h a t it must consider

"to the widest e x t e n t possible, the f a c t t h a t the accused, n o t ,

being a n a t i o n a l of t h e Detaining Power, is n o t bound by any duty of

allegiance, ... 11230 This requirement thus requires t h a t the c o u r t

give utmost consideration of the accusedts -motives in the hopes

228. A r t . 101 and A r t . 107, GPWo

229. Paragraph 127a, MCM, 1951.

230 e A r t . 87, GPW, This is designed t o allow the t r i b u n a l t o

p a r t i c u l a r i z e the punishment t o the g u i l t $ of the accused and to
ensure t h a t the t r i b u n a l i s aware of the PW1s lack of allegience
to the prosecuting s t a t e . P i c t e t , COMMENTARY I11 429-420. A
sample i n s t r u c t i o n t o be given by the Law Officer in the trial by
a US general court-martial appears a s Appendix XXXN, U.S. Deprt.
of Army Pamphlet 27-9.
OFFICER (1 958).
Military J u s t i c e Handbook -
THE LAW
t h a t the court o r reviewing authority w i l l find extenuating circlirn-
stances, especially where the accused believed t h a t he should a c t a s

Article 87 provides t h a t the above statement be brought to

the a t t e n t i o n of the court in order t o have a valid sentence imposing

the death penalty,232 although juch instruction should be given i n

a l l cases. There must be a six month wait from the time the
Protecting Party i s notified of the imposition

of the death penalty u n t i l its, execution.233 Although there was

some discussion directed toward the abolition of the death penalty

altogether, the d r a f t e r s decided to l e t it stand a s an imposable

penalty and prescribe adequate safeguards against executions based

231. The w r i t e r regards t h i s a s a subtle attempt to 'side-step

the s e n s i t i v e issue involving the affirmative defense of superior
orders which the A l l i e s rejected a s being relevant on the merits
and admitted such evidence in mitigation and extenuation of the
sentence. See Duke, War Crimes.- Obedience to Orders, IIS Naval
I n s t i t u t e Proceedings, p 82 (July 1966).

232. Thus f a r , the North Vietnamege and Viet Cong have executed
three US Army members, a l l summary i n nature and i n total derogation
of the GPW. Sergeant Harold G. Bennet was murdered by the Viet Cong
i n 1965 a s revenge f o r the execution (foll6wing a proper t r i a l ) of
a Viet Cong t e r r o r i s t . New York Times, p 3, col. 5. Without
benefit of a trial, cap&in Versace and Sergeant Roraback were
murdered by North Viet Nam government in r e p r i s a l of the execution
of three communists t e r r o r i s t s . 53 S t a t e Dept. B u l l . 635(1965).
Hanoi l a t e r acknowledged i t s responsibility f o r the execution of
Sgt. Bennet a s well a s the deaths of forty-four persons (including
Swiss, US, United Nations, French, and Philippine nationals) a t
the Saigon restaurant bombing. 53 State Dept. Bull. 55 (1965).

233. A r t . 101, GPW.

on considerations of the moment. 234 R e death sentence nust be

considered by a Board of Review and the Court of Military Appeals

before the President can approve and order i t executed. 235 1n

view of the processing time of around 12-18 months from the date

sentence is ad judged by the court&-inartial u n t i l action by the

Court of Military Appeals, there i s no doubt but *hat the six-

month waiting period required by Article 1Q9, GPW, w i l l never be

violated by the United States. 236.
A s to other penalties, the Prisoner Convention requires
equal treatment of P W ~ S t, h~a t~there
~ i s no deprivation of rank, 238

234. COPIMENTARY 111 473-5. In enacting the Geneva Convention

Act of 1957, the United Kingdom abolished the death penalty f o r
grave breaches and provided f o r l i f e imprisonment i n the event of
w i l f u l k i l l i n g of a PW and 14 years maximum sentence f o r a l l other
grave breaches. Levie, Penal Sanctions f o r Maltreatment of Prisoners
of War, 56 Am. J. 1nt'l.L. 433, 455 (fn 90)(1962). From 1930-1965,
the US A m y carried out 160 executions, of which. 148 took place
during 1942-50, 3 each i n 1954, 1955, and 1957, and one each in 1958,
1959, and 1961. Basis f o r the executions were murder i n one-hundred
and six cases (also involving rape) and fifty-three rape cases. The
US Navy has not carried out an execution since l81C9. NATIONAL PRISONER
STATISTICS BULUTIN No. 39, US Bureau of Prisons, p 5(June 1966).

235 A r t . 66, 67b(l), and 71(a), UCMJ,

236. An average of 13 months (394 days) processing time was
reported f o r the periods January thru June 1966 and f o r the month
of December 1966 as to contested t r i a l s by general courts-martial.
Unofficial reports prepared by Records and Analysis Branch, Office
of f h e Judge Advocate General, US Army.

237 A r t , 88, GHW.

238. A r t . 87;- see also COMMENTARY 111 432 and 467.
t h a t the prisoner of war remains e n t i t l e d t o the benefits of the
Convention a t all times,239 t h a t double jeopardy is a valid defense
to a subsequent t r i a l , 240 and t h a t any period of confinement
awaiting t r i a l be deducted from the sentence and t h a t the court

and reviewing a u t h o r i t i e s consider such confinement. 241

The adjudging of f o r f e i t u r e s i s authorized under the Prisoner

convention, 242 though r e s o r t to such form of punishnent seems of

dubious effect. In voting on a sentence, the 2/3 r u l e applies, a s

in the case of findings,243 and the method would be by s e c r e t written b$bb~f,
Where the death sentence i s impos,able, a l l members of the court

must concur i n the punishment. 244

C. Pos t-Trial Procedural Matters

1

Immediately upon the sentence being adjMged by the court,

the Protect h g Power, prisoners ' representative, and the accused

a r e to be n o t i f i e d i n writing (in an understandable language) of

the sentence. 245 The Protecting Power w i l l a l s o be advised whether

239 A r t . 85, GgW.

24.0. A r t . 86, GPW. This prohibition is applicable not only t o the

same countryt s e f f o r t s to t r y the accused a second time, but i n th+vent

.
t h a t the PW is transported to another High Contracting Party under Article
12, GgW, I1 A, - Final Record 501

241 . A r t . 103, GPW.

242. A r t , 87, GPW; paragraph 126h, PICM, 1951.
243. A r t . 51 (a), UCMJ.
244. -
A r t . 52(a) ( I ), UCMJ.
245. A r t . J:OF, ..GI%.
the accused has waived h i s r i g h t t o appeal. Where the sentence

adjudged i s death o r where the sentence ( i n any case) is approved and

ordered executed, the United States is to n o t i f y the Protecting

Power a s follows: 246

a. forward a copy of the promulgating order;

be forward a summarized record of the p r e - t r i a l investigation

and the t r i a l proceeding ( a copy of the p o s t - t r i a l review);

c. indicate where the confinement o r execution w i l l take plqce,

Because the prisoner of war has the same r i g h t of review

a s a member of the US amed forces, h i s case w i l l be reviewed by
the Staff Judge ~ d v 0 c a t . ep ~
r i~
o r~ t o action by the convening authority
on the findings and sentence. 248 .

A copy of the record of t r i a l , in a language he understands,

w i l l be furnished the PW. The defense counsel has benefit of necessary

f a c i l i t i e s u n t i l the term f o r appeal has expired.249 The sentence I

to death cannot be ordered executed u n t i l approved by the President

a f t e r review by a hard of Review and the Court of Military Appeals,

Upon completion of the appellate review s e t f o r t h i n the

UCMJ, it i s not unlikely t h a t a convicted prisoner of war would

seek a w r i t of habeas corpus from a US federal court. In the leading
case regarding the a v a i l a b i l i t y of the w r i t t o members of the armed

forces to test the Conviction by a court-martial, the Supreme Court

dismissed without hearing any evidence a p e t i t i o n from two members

of the US A i r Force convicted of rape and murder a t Guam and who

246 . - i bid.

247. A r t . 61, UCMJ.

248. A r t , 64, UCMJ.
249 ,.
Art, 105, GPW.
96
alleged d e n i a l of due process of law by the military. 250 me
Court re-affirmed i t s long-standing p o s i t i ~ nt h a t the c i v i l courts

w i l l follow a more narrow.qasmw scope of review in m i l i t a r y habeas

corpus matters because the c i v i l courts a r e n o t the proper agencies

t o exercise supervision over the m i l i t a r y l e g a l system which the

Constitution l e f t t o Congress. 251 Upon exanination of the record of
trial, the Court found t h a t the p e t i t i o n e r s had been accorded a
f a i r t r i a l by the m i l i t a r y system which likewise with the state

courts of the US has a r e s p o n s i b i l i t y to ensure a g a i n s t v i o l a t i o n s

of c e r t a i n c o n s t i t u t i o n a l r i g h t s .'
I n addition to the UCMJ and the w r i t of habeas corpus, the
Pbb is a l s o e n t i t l e d t o protection from the Protecting Power which
has a r o l e to p l a y outside the j u d i c i a l review procedures to ensure

compliance with the GPW. A r t i c l e 12 provides t h a t in the event of

a dispute a s to the i n t e r p r e t a t i o n of t h e Convention, the good

o f f i c e s of the Protecting Power w i l l be offered in order to resolve

the issue. This i s an important procedure f o r it can serve a s the

vehicle f o r the resolution, a t any stage of t h e j u d i c i a l process,
of whether a f a i r t r i a l i s being accorded the

250. Burns v Wilson, 346 U.S. 137 (1953) (claimed confessions had
been coerced and counsel of t h e i r choice had been denied). For o u t l i n e on
interrogation O f PWts, see Coments, Interrogation under the Prisoner of
War Convention, 21 M i l . L. Rev. 145 (1963).

251 , Fowler v Wilkinson, 353 U.S. 583 (1957), wherein the p e t i t i o n e r s

claimed the sentence was a r b i t r a r i l y severe; Court rejected the contention
declaring t h a t it exercised "no supervisory power of the c o u r t s which
enforce m i l i t a r y lawfi. See a1s0,U.S. Dept t. of Army Pamphlet 27-174,
Military Justice -
J u r i s d i c t i o n of Courts-Martial ( ~ u n e1965) f o r d i s -
cussion of habeas corpus cases by members of the armed forces, p 20-36.
252. -
See section VII C-4 f o r a d d i t i o n a l discussion on point.
 TIUAL OF THE UNLAWFUL BELLIGEFBNT

A. Procedural Rights Before and During T r i a l

Unlike the general court-martial trial of the prisoner of
war, there is no existing s e t of rules a s such t o govern the c ~ n d u c t
of the t r i a l by a m i l i t a r y commission of the unlawful belligerent.
However, the Iknual. f o r Courts-Martial, 1951 does provide:253
Subject t o any applicable rule of international law o r to
any Itegula$ion prescribed by the P r e s i d e d o r by other
competent authority, these tribunals (military commissions
and provost courts) w i l l be guided by the applicable
principles of law and r u l e s of procedure and evidence
prescribed by courts-martial,
I d e n t i c a l provisions a r e f o b d in both the 1921 and 1928
Manual f o r Courts-Martial (the l a t t e r was applicable u n t i l 1949).
but the issuance by the President of Executive Orders creating
Military Commissions during ahd a f t e r WW I1 allowed these tribunals
to apply rules d i f f e r e n t than those applicable in courts-martials.
General Yamashita, when t r i e d before a US A r m y m i l i t a r y commission
i n Manila f o r pre-capture offenses agianst the law of war, claimed
t h a t a s , a prisoner of war, he was e n t i t l e d to the benefits of the
A r t i c l e s of War and should therefore have been t r i e d before a courta-
martial and t h a t evidence of a probative value should not have been
1
admissible i n h i s t r i a l which resulted in conviction and imposition

253. p 1 , paragraph 2.
of the death sentence .2511 Although4 today t h a t case would have
been t r i e d before a general court-martial, the r u l e of t h a t case
is l e g a l l y applicable to the trial of an w l a w f u l b e l l i g e r e n t

before a m i l i t a r y commission. The US Supreme Court was thus

squarely faced wi'th the proper standard of due process applicable.

Two J u s t i c e s f e l t t h a t the due process clause of the F i f t h Amend-

ment of the Constitution extended t o everybne accused of a crime

by the United S t a t e s Government and to make an exception in the case

of enemy b e l l i g e r e n t s was "contrary t o the whole philosophy of

human rights.11Z55 But, the majority of the Court reganled m t e r -

national law was ( a ) d i s p o s i t i v e of the issue and (b) provided

the proper standard of due process of law. The distinguished

professor of I n t e r n a t i o n a l Law, Quincy Wright, reviewed t h i s holding

q u i t e extensively and found it to be in accord with the p r i n c i p l e

of a f a i r t r i a l a s required by i n t e r n a t i o n a l law, He points o u t

t h a t the accused was n o t denied j u s t i c e in the sense t h a t there was

a d e n i a l of those r i g h t s regarded a s indispensible to the proper

administration of j u s t i c e , although he considers t h a t t h e accused

should have been given additional time to prepare f o r the defense

of h i s case. 256 Thus, due process, it must be remembered, does

254. I n r e Yamashita, 327 U.S. 1, 18-20. I n t h a t case, the

Supreme Court f ~ u n dt h a t Congress, by adding concurrent j u r i s d i c t i o n
"

i n AW 1 5, sanctioned the commission and permitted to t h e President

"any use of the m i l i t a m commission contemplated by the common law
of war, It and a l s o found not r e s t r i c t i o n on its procedures. p 20.
An i n t e r e s t i n g account of the t r i a l and appeal is presented by the
US Amy defense counsel in Reel, THE CASE OF GENERAL YAMASKITA (1949)

255, supra note 254 a t 79,

256. Due Process and I n t e r n a t i o n a l Law, 40 Am. J. I n t f l . L. 398,
406 (1946).
n o t require any p a r t i c u l a r type of treatment so long a s the proceed-
ings afford the accused an impartial hearing and adequate safeguards
f o r the protection of individual rights. 257
The Supreme Court found in the Yamashita case t h a t the
proceedings by the m i l i t a r y commission conformed with the i n t e r n a tLY*
pal
law standard of due process and.a f a i r t r i a l . The balance of thierj
section deals with the specific elements of the WW I1 proceedings '

before such tribunals and outline any changes which may have evolved
in international law since t h a t time, and which would be applicable
under A r t i c l e 3 of the Civilian Convention.
Before delving i n t o a detailed analysis of the provisions
of the Conventions and other references t o determine the componepts
of procedural safeguards f o r a f a i r t r i a l of the unlawful belligerent
under A r t 3, GC, the following quotation should be kept i n mind: 258

He t h a t would make h i s own l i b e r t y .r,ecure must guard even

h i s enemy from oppression, f o r i F n e v i o l a t e s t h i s duty he
establishes a precedent t h a t w i l l reach even himself.

2570 In 1931, the Chief Justice, speaking f o r the majority,

held t h a t the Gongress, in exercising its authority to a l t e r o r
revise the maritime law of the US, had provided a'procedure before
an administrative o f f i c i a l f o r the determjna tion of compensable
i n j u r i e s which d i d not viola-k the due process clause of the F i f t h
Amendment, in Crowell v Benson, 285 U.S. 22. Also, J u s t i c e Holmes,
speakin f o r the majority, rejected a- claim by one imprisoned f o r
2 and 172 months by order of the Adjutant General of a state
national guard during an insurrection in Colorado and declared:
"But it i s familiar t h a t what is due process of law depends on the
circumstances, It varies with the subject matter and the necessities
of the situation. Moyer v Peabody, 212 U.S. 78, 84 (1909). See a l s o
Forencz, Nuremberg T r i a l Procedure and the Rights of the,Accused, 39
J. Crim. L. Rev. 145 (1948).

258. Tom Paine, quoted by Brooks, THE WORLD OF WASHINGTON

IRVING 73. . . . . .
 1. WW I1 Proceed.ings - Brief Review
The f i r s t proceedings conducted by a United States military
Commission during World War I1 wok place in Washington, DC in the

summer of 1942 and concerned e i $ h t G e m s o l d i e r s (one of whom

claimed to be a US c i t i z e n ) who landed a t two locations along the

Eastern seab the united S t a t e s in m i l i t a r y uniform f o r the

purpose of conducting sabotage a c t i v i t i e s against defense i n s t a l l a t i o n s

f o r which they had been trained i n Berlin, They burned t h e i r

uniforms a f t e r l a d i n g ashore and were taken i n t o custody while

proceeding to the t a r g e t i n s t a l l a t i o n s . Acting under Article 38 of

the A r t i c l e s of War (forerunner of todayrs' Article 36 of the UCMJ),

the President prescribed in an Executive Order the establishment of

a m i l i t a r y commission f o r the t r i a l of these unlawful combatants,

The commission consisted of seven general o f f i c e r s and the trial was

prosecuted byoThe Judge Advocate General of the Army. Rules of

procedure and evidence were to be prescribed by the commission and

the Executive Order authorized the r e c e i p t ink evidence of all

evidence of a probative value. A f u l l and f a i r hearing was to be

<accorded the accused and a 2/3 vote was required a s t o a l l issues,

including findings and sentence.

On application f o r a w r i t of habeas corpus t o the US Supreme

Court, it was held t h a t the action of the President i n establishing

the m i l i t a r y commission and granting it the above guidance shouldP

"not be s e t aside by the courts without the c l e a r conviction t h a t

259. Inf-ra, note 205.

h i s action was in c o n f l i c t with the Constitution o r laws of Congress
c o n s t i t u t i o n a l l y enacted." In dismissing the assertion of entitlement
to t r i a l by jury and other guarantees of the Constitution, the Oourt
found no such c o n f l i c t here. 260
I n t h i s manner, the stage was s e t f o r a lengthy procession
of cases t r i e d before military comissions, e i t h e r of an inter-
national o r national character, i n which judicial review was re jected
on the ground t h a t the . e n t i r e proceeding i n each case was a proper .
exercise of jurisdiction which did not exceed i t s authorized bounds.
The next major j u d i c i a l proceeding against w a r criminals
took place in Nuremberg, Germany before the International Military
Tribunal which s a t i n judgment of twenty-four of the leading Nazis
and six Nazi organizations from October I945 u n t i l October of the
following year. The tribunal had been established by the Charter
created by the Allied Powers and s e t f o r t h the principle t h a t the
accused were t o receive a f a i r t r i a l and i n particular: to receive
a dopy of the indictanent and a l l documents pertaining t o t h e i r case;
to be present during any preliminary investigation; t o be furnished
copies of documents which were to be translated into a language
understood by the accused; t o have a choice of defense counsel o r
the accused could defend himself; and to present qvidence and c a l l
witnesses. 261 Although t h i s case f a i l e d to receive j u d i c i a l review
by any national court, few prominent international l a w publi6is ts,

260. Ex parte Quirin, 317 U.S. 1 (1943)

261. For t e x t of the London Agreement and the Charter, see 13
State Dept. BulL. 222 (19451.
aside from other misgivings f a l l i n g i n to the policy considerations
of conducting such a t r i a l , asserted t h a t the procedural aspects

of the case resulted in a denial of justice. 262 Tne same procedure

was followed before the I.M.T. f o r the Far East s i t t i n g in Tokyo,

the Subsequent Praceedings a t Nuremberg, the Military Government

Courts a t Dachau, the m i l i t a r y commissions a t Yokohama and

elsewhere involving the United States.

2. Appointing Authority

The initial t r i a l s of war criminals by the United States

..
involved the appointment of military commission5a t the personal

di,mction of the President. After the termination of h o s t i l i B e s

i n 1945, the President delegated the appointing authority t o the

major f i e l d commanders and a t one time appointing authority extended
. -

262. Schwartzenberger, The T r i a l a t Nuremberg, 21 Tul. L. Rev.,

329 (1947); Biddle, The Nuremberg Trial, 33 Va. L. Rev. 479 (1947)
(Mr, Biddle was the Attorney General and a s s i s t e d jn the prosecution
of the Quirin case and was a judge from the United S t a t e s on the
1,M. T. a t Nuremberg ); Q. Wright, The Law of the Nuremberg T r i a l ,
41 Am, J. I n t t l . L. 38, 51 (1947); where there was denial of justice
o r an appearance thereof, prompt action w a s taken to remedy the
s i t u a t i o n , as in the case of the Malmedy Nassacre,United States v
~ e r s i n ) wherein the Germans conducted mass murder of US PWt s
I

incident to the Battle of the Bulge ; upon capture, the responsible

p a r t i e s were subject t o mock t r i a l s i n an e f f o r t by the US to secure
confessions from appointed "defense counsels"; The US Supreme Court
rejected w r i t of habeas corpus, several investigations were conducted
including one by the Senate, and General Clay f i n a l l y commuted six
of the deakh sentences (out of forty-three o r i g i n a l l y adjudgedlto
l i f e , and allowed six other death sentences to be carried o u t on
a finding t h a t the p r e - t r i a l investigation had n o t prejudiced the
s i x death sentences; see Koessler, Review and Investigation Odyssey
i n the Malmedy Massacre Case, 6 Crim. L. Rev. 39 (1'959).
to the f i e l d army commander. 263 There i s no w r i t t e n a u t h o r i t y
f o r the proposition t h a t the President must appoint o r delegate

h i s appointing authority, b u t the p r a c t i c e to t h i s e f f e c t has a r i s e n

and i s binding today.

Under the National Security Act of 1947, a s amended, there

a r e now seven unified and one specified combatant commands responsible

to the J o i n t Chiefs of and it is proper f o r these commanders

to be delegated the a u t h o r i t y to appoint m i l i t a r y commissions and

t o re-delegate such appointing authority.

3. Composition
Generally, three to f i v e o f f i c e r s w e r e appointed 4x1 serve

a s members of the commission, the senior member being designated

a s President. Although challenges f o r cause were not generally

permitted under e i t h e r the American o r B r i t i s h system during

World War 1 1 . ~ ~ such

5 -
challenges must be permitted i n order to

263. Koessler, American War Crimes T r i a l s i n Europe, 39 Geo. La J.

18, 34 (1950). Jhthe Yamashita case, the President d i r e c t e d the J o i n t
Chiefs of ~taff' t o i n s t r u c t General MacArthur, Commander-in-Chief , TdS
Amy Forces, Pacific, to paroceed with the t r i a l s of war criminals; i n
turn, Lieutenant General Styer, Commanding General, US Army Forces,
Western Pacific, was directed to proceed with the t r i a l of General
Yamashita; 327 U. S. 5, 10-1 1. In the same manner, the m i l i t a r y
c o m i s s i o n i n the Eisentrager case was established by the Commanding
General, US Forces a t Nanking a f t e r he received authorization from the
J o i n t Chiefs of S t a f f through the Commanding General, US Forces, China
Theater; 339 U.S. 763, 766.
264. 10 USC 6 124 ( 1 9 6 2 ) ( ~89-651
~ ) The unified commands are:
Europe, P a c i f i c , Atlantic, Southerfl,Alaskan, Continental A i r , and
Strike. The s p e c i f i e d command is the S t r a t e g i c A i r Command. The
Ad j u t a n t General' s School, Memorandum 202-1 , Organization of the Depart-
~

ment of Defense p 13 (April 1966).

265. A r t i c l e I1 ( e ) Ordinance No. 7, promulgated under Control
Council Law No. 10 f o r ?.he t r i a l by the US a t Dachau contairied a
ensure a f a i r and impartial tribunal and t h a t the accused has the

opportunity to r a i s e any grounds f o r bias and other factors a t

the trial l e v e l and place the matter i n the record f o r appellate

considera tion. 266

Several of the A l l i e s permitted foreign o f f i c e r s t o serve

a s members of t h e i r commission, but the United S t a t e s did not

during WW 11.267 It is regarded the b e t t e r practice to exclude

from membership foreign o f f i c e r s because they might f e e l under an

obligation to vote in favor of conviction and a severe sentence.

The members of the m i l i t a r y c o m i s s i s n should be where

possible senior in grade to the accused,268 and f r e e from all

..

prohibition against challenges by the accused against e i t h e r the

tribunal o r i t s members; Appendix L, Taylor, FINAL REPORT 286 (1949).

266. The Yokahama t r i a l s proved t o be the exception a s t o allow-

ing challenges f o r cause against members of the US Army military
commission because in the f i r s t such t r i a l , the accused's challenge
against a member on grounds he had been a Japanese gW i n the Philip-
pines was sustained; Spurlock, The Yokahama War Trials, 36 A.B.A. J.
387, 388(1950). Professor L.C. Green regards the i m p a r t i a l i t y of the
tribunal a s one of the most important components of a f a i r t r i a l , see
Legal Issues i n the Eichmann Trial, 37 Tul. L. Rev. 641 (1963). Snee
and Pye conclude t h a t a f a i r and impartial tribunal is a l s o implicitly
required and t h a t challenges be allowed so as to ensure a fair trial
f o r the accused; Due Process in Criminal Procedure: A Comparison of
'Itro Systems, 21 Ohio S t a t e L. J. 4-67, 496-7 (1960).

267. For example, French o f f i c e r s sat a s members of p British

militam court i n Germany involving the death of ~ r e n c w n a t i o n a l s , a s
reported in 5 LAW REPORTS, 39 (1948). Article V of the B r i t i s h Royal
Warrant allowed f o r Mixed Inter-Allied Courts, see 4 LAM REPORTS 127 f o r text.
268. The objection by a German Lieutenant General being t r i e d
before a US Army m i l i t a r y commission composed of o f f i c e r s of l e s s e r
rank was rejected where he requested o f f i c e r s senior in grade to
serve a s commission members, United S t a t e s v Laelzer, a s reported
i n 11 LAW REPORTS 53 (1949).
command influence .
4. The Law Member
None of the Allied tribunals in the 1940's had an o f f i c e r
to serve a p a r t from the tribunal and advise it on l e g a l matters, these
d u t i e s normally were performed by the T r i a l Judge Advocate (prosecutor),
The two I.M. T ' s consisted of j u r i s t s from several countries, the
Subsequent Proceedings a t Nuremberg had a s judges members frcm
various s t a t e courts, .but other tribunals involving the US lacked the
services of attorneys, except f o r counsel. The United ati ion^'
Command r u l e s f o r m i l i t a r y commission, dated 28 October 1950, provided
f o r the appointment of a five-member commission with a Law Member to

be from the Judge Advocate General's Corps to serve a s l e g a l advisor

and vote with the a practice followed by the B r i t i s h
m i l i t a r y courts i n the trial of WW I1 war criminals.
There is no mention among the reported cases o r writings
t h a t international l a w requires a judge to preside over the trial of
an a l i e n and a f o r t o r i a war criminal, Although, under A r t i c l e 3

of the Civilian Convention there i s no duty to appoint a trial judge,

it would serve the i n t e r e s t s of justice to do so and have him
discharge h i s d u t i e s to a d v s e the commission on matters of law.
The Law Member should not vote with the commission nor otherwise
p a r t i c i p a t e in t h e i r closed deliberations.

269. Rule 6c, of order e n t i t l e d Trial of Accused Mar Criminals,

issued by General Headquarters, Unit& Nations Command, AG 000.5
(hereinafter referred to a s UNC Procedure.)
 5. Defense Counsel
Customary international law quite c l e a r l y provides f o r the
services of an attorney t o a s s i s t the accused, o r a t l e a s t t h a t the
accused be afforded the opportunity t o have these services. The
Declaration of Human Rights, the Prisoner Convention, the Civilian
Convention provisions relating to occupation, a l l r e f e r to the
requirement of a defense counsel to a s s i s t the accused. P r i o r to

these pronouncements, counsel had been provided by the A l l i e s

during the trial of w e WW I1 war crimes and denial of counsel t o
Allied prisoners of war during t h e i r trials served a s the basis of
charges of violations of the law of war against those enemy p e r s ~ n n e l
responsible f o r such denial. 270
Before the I.W.T. in Nuremberg, German attorneys (often

times former members of the Nazi party themselves) served a s counsel

f o r the accused, and t h i s practice was followed before the Subsequent
~ r o c e e d i n ~ s . The
~ ~ ' other t r i a l s conducted by the United States,
however, found American m i l i t a r y attorneys serving a s defense
counsel, The UN Command would have r e s t r i c t e d the appointment of
counsel to those members of the bar of any nation which was a
Such a r e s t r i c t i o n is untenable
member of the United ~ a t i o n s . ' ~ ~
and the accused's choice of counsel should remain unfettered, subject
to curtailment only on the basis of s e c u r i t y considerations.

Supra note 23,

271. Taylor, FINAL REPORT 297.

272, Rule 32, UNC Procedure.
In the event of rejection of requested counsel, the r e c o d should
r e f l e c t the reasons therefor.

6. Admissibility of Evidence
Under the heading of a f a i r and f u l l hearing required by

international law, there appears to be no objection to the c i v i l

law system rule t h a t a l l evidence of probative value be admitted and

t h a t the t r i e r s of the f a c t a r e t o attach weight thereto. This

practice was followed,by the United S t a t e s WW 11 war crimes trials

and was not-found t o be A j e c t i o n a b l e by the US Supreme Court, 273

This rule allowing evidence of probative value r e s u l t s in: the

admission i n c a p i t a l cases of depositions,diaries, hearsay and

evidence of a s i m i l a r nature, subject to:the accusedt s a b i l i t y to

refute it and the weight t o be attached to such evidence by the

m i l i t a r y commission.

General Yamashita objected to the introduction of depositions,

hearsay evidence and the l i k e a t h i s trial which resulted in the

death sentence. The Supreme Court ruled t h a t since he was not

subject t o the A r t i c l e s of War and since the President had

permitted evidence of probative value t o be admitted, these was

no prohibition t o the receipt of t h i s evidence, This mrling i s

consistent with the international law standard of due process and

it is proper f o r the President t o exercise h i s authority and change

the rule i n the Manual f o r Courts-Martial, 1951, which now bars

t h i s type of evidence in a t r i a l before a m i l i t a r y commission.

273 In re Yamashita, 327 U.S. 1, 20(1946). I n evaluating the

US trials, Professor i'orencz s t a t e s t h a t there was no denial of
108
 Although the deposition involved in the trial by a general
court-martial requires t h a t the accused and h i s counsel be present
a t the taking thereof,n4 no such requirement e x i s t s under i n t e r -
national law and it i s permissible t o secure testimony from an
absent witness under an omler of the tribunal and where the
testimony is taken under oath.
Professor Quincy Wright adds t h a t international tribunals
a s well as courts i n most c i v i l law countries admit such evidence. 275 ,

This procedure can be .tailored to the m i l i t a r y commission. proceeding

-

through instructions by the Law Member who would rule on the proffered

justice o r deprivation of a f a i r t r i a l because of the probAtive value

rule; in f a c t , the accused made use of t h i s evidentiary rule more
than the prosecution, supra note 257 a t 148.
274. A r t . 49d, UCMJ.
27% War Criminals, 39 Am. J, I n t l l . L. 257, 285 (1945). and Due
Process and International Law, 40 Am. J. Intl. L. 398, kl4-5 ( 1 9 m
A r t . 72, GC assures t h a t protected persons " s h a l l have the r i g h t to
present evidence necessary to t h e i r defense,. .I1 P i c k t indicates t h a t
the d r a f t e r s wanted t o show t l c l e a r l y t h a t the accused may use all
other methods of proof such a s the production of documents o r other
written evidence.I1 COMMENTARY N 356. The US has recently enacted
l e g i s l a t i o n permitting assistance of US d i s t r i c t courts in gathering
evidence i n c s b i n ~ l ,a s well a s c i v i l , cases before foreign courts
and international kribunals. P r i o r t o enactment of 28 USC 8 1782 in
1964, the existing l e g i s l a t i o n permitted assistance only i n c i v i l
cases. (In re Letter Rogatory, 26 F. Supp. 852 (D.C. Md. 1939)
where ~ a l t i n o r ecourt refused t o a s s i s t in murder trial pending in
Versailles, France, ) Thus, the US w i l l give assistance a system
of l a w allowing admission of matters with probative value. Legisla-
t i v e h i s t o r y of t h i s Act is found in 2 CONGRESSIONAL AND ADMINISTFiA=
TIVE NEWS 3782, 3784.-5 (1964). For the practice a s used by B r i t i s h
Commonwealth m i l i t a r y tribunals, see Dunn, Trial of War Criminals,
19 Aust. L. J. 359(1946), f o r comparison of US authority and
B r i t i s h Royal Charter provisions.
testimony's possession of probative value, then i n s t r u c t the members

of the commission of t h e i r duty t o attach whatever weight they deemed

appropriate in order to e s t a b l i s h the t r u t h of the matter in issue.

7, Calling Witnesses

The standard of a f a i r trial under Article 3 of the Civilian

Convention requires t h a t the accused have the r i g h t to c a l l

witnesses. Every e f f o r t must be made to allow the accused t o produce

necessary witnesses and produce relevant evidence on h i s behalf,
<

It would be proper f o r the tribunal to appoint commissioners

f o r the purpose of taking evidence from d i s t a n t witnesses, a practice

followed by the United S t a t e s in the Subsequent Proceedings a t

.
Nuremberg 276 The accused i s to be affo,d eve, opportunity to

l o c a t e and interview material witnesses in order to exercise f u l l y

h i s r i g h t s in t h i s regasd under the Civilian Convention. Where the

witness in question is o r may himself become the accused in a'criminal

proceeding should h e personfi l l y appear, the accused would be required

t o secure h i s testimony by means of an a f f i d a v i t o r s i m i l a r writing,

because involuntary self-incrimination is not permitted. The same

would hold true f o r the prosecution, but would be limited ( i f a t all

applicable ) to rebutting matters in extenuation and mitigation.

The problem of reluctant witnesses confronted Eichmann during

h i s t r i a l in 1962 i n Tel Aviv, Israel. H i s able defense counsel,

Dr. Servatius, objected to the court f o r the f a i l u r e bf the

276. Taylor, FINAL RBPORT 89-90.

prosecution to g r a n t s a f e conduct to only those defense witnesses
not wanted by the S t a t e of I s r a e l and thus excluding many witnesses
who were then wanted by the a u t h o r i t i e s o r might be through t h e i r

testimony from the witness stand. The c o u r t pi126niled the objection,

s t a t i n g t h a t secondary evidence was t h e proper method of presenting

t h i s testimony. 277 Where it is necessary f o r the defense counsel

o r h i s a s s o c i a t e s to t r a v e l i n t o areas frequently s u b j e c t to h o s t i l e

actions o r t o countries n o t recognized diplomatically by the United

S t a t e s , every e f f o r t must be made by the U.S. t o f a c i l i t a t e the

necessary t r a v e l i n order t o secure the testimony from e s s e n t i a l
witnesses. 27 8

8. T r i a l i n Absentia
Can an unlawful b e l l i g e r e n t be t r i e d i n absentia, a s in the

case where he has f l e d the country and e x t r a d i t i o n o r o t h e r means t o

secure custody a r e f u t i l e ? Although Martin Bonnan's defense
counsel's motion t o b a r t r i a l on the ground t h a t he was n o t

present before the I n t e r n a t i o n a l Military Tribunal a t Nuremberg

was overruled and Borman was convicted and sentenced to

2770
641 , 655 (1963 ) .
Green, Legal Issues i n the Eichmann T r i a l , 37 Tul.L. Rev.
For a general a c c o h t of the trial from the
prosecutorts vantage point, see Hauser JUDGMENT IN JERUSALEM
(1966).
278. The United S t a t e s was n o t only required t o v a l i d a t e a
passport to Communist Red China and North Korea, but a l s o finance
the t r a v e l of the defense oounsel i n 1958 f o r the purpose of taking
depositions from known individuals incident to a s e d i t i o n t r i a l .
United S t a t e s v Powell e& a l , 156 .?I Supp. 526 (ND Cal, 1957).
death,279 such a proceeding has v a l i d i t y today under i n t e r n a t i o n a l

law. 280 Some of the c i v i l law countries permit trials in absentia

i n criminal cases, but, a s i n the case of Germany, it i s o f t e n

r e s t r i c t e d t o n a t i o n a l s and there i s eve* e f f o r t t o allow f o r

the re-opening of the case upon good cause when the convicted

person r e t u r n s to the j u r i s d i c t i o n of the court. 281 Also, the

United S t a t e s insists t h a t persons extradited from the US be given

a new t r i a l i n those cases where a trial in absentia has been

conducted by the requesting government. 282

279. 22 'ITE TRGAL OF MAJOR WAR CRIMINALS 528(1951) The defense .

counsel, Fredrich Bergola, objected to the t r i a l of h i s absent c l i e n t .
Two questions l i n g e r regarding Borman: i s he a l i v e and i f so, what
should be done with him in the event h i s whereabouts becomes known.
A s to the first, t h e r e is much speculation. A s t o the second
question, t h e r e a r e two courses of a c t i o n open: a ) return Borman to
the Control Council f o r appropriate a c t i o n under A r t i c l e 29 of the
I.M. T. Charter which empowered t h i s agency t o c a r r y o u t the judgments
of the Tribunal ( i t could n u l l i f y the judgment and release Borman t o
another s t a t e f o r t r i a l , o r modify the sentence to imprisonment f o r
l i f e o r a term of years o r b) release him t o a requesting s t a t e f o r
prosecution on the same charges a s were before the I.M.T., in whole
o r in p a r t , o r on new charges ( i f possible). It is submitted t h a t
the b e t t e r choice l i e s in the second a l t e r n a t i v e .
280. The Anglo-American r u l e is traced t o the power of the c o u r t
t o enforce i t s judgment once rendered b u t today's concept of presence
a t t r i a l i s so rooted i n f a i r n e s s , t h a t t r i a l in absentia appears to
be vanishing from the scene. Snee & Pye, supra note 266 a t 485-8.

281 . A r t . 277 of the German Criminal Code allows trial in absentia;

A r t . 14 provides f o r maximum punishment a s l i f e imprisonment, c a p i t a l
.
punishment having been abolished. 4 THE AMERICAN SERIES OF FOREIGN
PENAL CODES (1961 )
282. Galinna v Fraser, 177 F. Supp. 856 (DC Conn. 1959), holds
t h a t it i s n o t contrary t o due process t o e x t r a d i t e a person, even
where the a.ccused might n o t receive a new t r i a l , the f i r s t one having
been i n absentia.
 9. Copy of the Charges & T r i a l Preparation

The accused and h i s counsel, a t the f i r s t opportunity,

should be furnished with a copy of the charges and a l l i e d papers

i n a language which they understand. Adequate time to prepare f o r

the case must be allowed by the appointing authority. 283

10. Voting
The rulings and judgments by the two I.M.T.'s were by

way of majority vote, b u t the o t h e r war crimes trials involving the

United S t a b s followed the 213 r u l e a s to all issues, including

findings and sentence. The UN Command proposed a voting scheme

which should be adopted by the m i l i t a r y commission i n f u t u r e

t r i a l s , namely: 213 vote on a l l questions, including findings and

sentence, except t h a t i n c a p i t a l cases a 314 vote was required

a s t o findings and sentence. '* There is no requirement under

i n t e r n a t i o n a l law t h a t a c e r t a i n vote is required in order to have

a v a l i d conviction and punishment.

283. Although A r t i c l e 3, GC, is aimed only a t swnmary judgment

(COMMENTARYN 39), the accused is e n t i t l e d to know of the charges
a g a i n s t him and t o have adequate time i n which to prepare h i s defense.
Several of the cases prosecuted by the US were on charges t h a t the
accused f a i l e d to allow the victims t o prepare f o r t h e i r t r i a l s .
5 LAW REPORTS 1, 60, 466 (1948). General MacArthur ordered
new trials i n two instances wherein the prosecution f a i l e d t o
t r a n s l a t e c l a s s i f i e d documents f o r the accused. Spurlock,
supra note 266 a t 389.

284. Rule 35, UNC Procedure.

 B. Sentencing Power
Sentencing power of the m i l i t a r y commission c o n s i s t s of

two topics: what punishments a r e imposable and &w can they be

imposed. H i s t o r i c a l l y , the m i l i t a r y commission has en$oyed unlimited

power in regards to the imposition of punishments. Colonel 'Wihthrop

reports t h a t the commission i s n o t limited a s i n the case of the

'
courts-martial and t h a t i t s punishments include: death, imprisonment,

and f i n e , plus indemnification f o r property stolen, r e s t o r a t i o n ,

confiscation and even required to pay the c o s t s of the prosecution.

During the War Between the S t a t e s , the m i l i t a r y commission would

o f t e n banish o r expel the accused, o r impose i n t e v e n t . 285

The trials conducted before the I.M.T.'s, the Subsequent

Proceedings, and the o t h e r t r i a s o f war criminals were guided by

286
the p r i n c i p l e t h a t the punishment should be s u i t e d to the crime.

Great f l e x i b i l i t y was granted the US m i l i t a r y commission in

imposing death o r l e s s e r punishments of imprisonment. The a u t h o r i t y

to impose these punishments a s well a s confiscation and r e s t o r a t i o n

i n appropriate cases should be c a r r i e d forward into f u t u r e trials.
On the matter of voting, the m i l i t a r y commission has

t r a d i t i o n a l l y used the 2/3 r u l e i n order to convict and to sentence.

This r u l e was applicable t o a l l US war crimes proceedings:.'i?ollowing

World War 11, except the two IaMoTo's where a majority vote controlled

a s t o the imposition of punishment. A dramatic c o n t r a s t in the a r e a

286. Control Council Law No. 10 appearing in both 15 S t a t e Dept.

B u l l . 862(1946) and Taylor, FINAL REPORT 250-1 (1949); see a l s o A r t i c l e s
26 and 28, I.M.T. Charter, 13 S t a t e Dept. B u l l . 222 (1945).
of voting e x i s t s when one compares the 213 r u l e to impose the
death sentence on the unlawful b e l l i g e r e n t f o r commission of a
c a p i t a l offense, whereas the prisoner of war must be found g u i l t y
4
a s well a s sentenced by a general court-martial by a unanbmous vote.
The UN Commandls pmposed voting scheme c a l l e d f o r a 2/3
vote on findings and sentence a s to non-capital offenses and 314
vote a s t o c a p i t a l cases. 287 This voting procedure is submitted
as the b e t t e r approach.

During the Second World War war crimes t r i a l s , the common

law countries followed t h e p r a c t i c e of merely announcing the findings

and sentences without comment, whereas the c i v i l law countries
accompanied t h e i r decisions with w r i t t e n j u s t i f i c a t i o n f o r t h e i r
conclusions. The i n t e r n a t i o n a l law standard of due process does
n o t require reasons f o r the findings o r sentence and the US
t r i b u n a l s should n o t do so.

6. Post-Trial Procedural Matters

1. Review by M i l i t a r y Authorities

Acting under the A r t i c l e 3 standard of due process to

ensure a f a i r t r i a l , there i s absolutely no requirement to review
o r t o allow appeal from the decision of the t r i b u n a l in the event
of conviction in order to execute it.288 However, the p r a c t i c e

287. Rule 35, UNC Procedure.

288. Thus, the proposed I n t e r n a t i o n a l Criminal Court ( i n A r t . 50)
expressly s t a t e d t h a t there would be no appeals from convictions. Text
of the d r a f t s t a t u t e contained i n 4.0 Am. J. I n t r l . L. Supp. l(1952).
- -
~ ~ ~ r a i of
s dthei post-WW II emergence of j u d i c i a l review-& Euro e appears
i n Dietze, J u d i c i a l Review i n Eumpe, 55 Mich. L. Rev. 539 (1 9577.
within the US Army has been f o r the appointing authority, a t l e a s t ,
to review the commissionls action and then order the sentence i n t o
execution. Colonel Wihthrop r e f e r s to the action of the reviewing

o r appointing o f f i c e r being much wider i n the case of a military

commission than in a courLmartia1 case, i n t h a t the sentence of the

commission can be changed by making the punishment l e s s severe,

such a s changing imprisonment t o release of the accused upon a pledge

of good behavior o r l e g a l conduct in the future, in addition to the

normal powers t o approve, disapprove o r remit the punishment. 290

Various methods of review were followed by the US Army

incident to the World War I1 trials, ranging from approval by

the Preslident in the Quirin case to the approval by the f i e l d

commanders in Germany in those cases t r i e d under Control Council

Law Number 10. The two I.M. T. t s were reviewed by the Control
Council a s to the Nuremberg proceedings and by the Supreme Allied

Comnander a s to the Far East proceedings, there being no provision

f o r appeal in e i t h e r of these proceedings. However, p e t i t i o n s f o r

clemency were allowed by the Control Council.

In addition t o action by an appointing authority, there

was a higher l e v e l of command which exercised reviewing power a s

to a l l other cases t r i e d by the United States. The Subsequent

Proceedings a t Nuremberg and the t r i a l s conducted a t Dachau under

Control Council Law Number 10 were forwqrded t o the US Military

290. Koessler, supra note 263.

Governor of the US Zone of Occupation who, a s the reviewing authority,
exercised the p o u r to mitigate, reduce, o r otherwise alter the

sentence, subject to the prohibition against increasing it. The

Dachau t r i a l s were reviewed by the judge advocates on the s t a f f of

the appointing a u t h o r i t i e s (the Commanding Generals of the 3rd and

8th Armies) who then took action which was f i n a l on a l l cases, except

those involving the death sentence which were forwarded t o the

theater commander f o r h i s approval. In addition, there was appointed

by the theater commander in 1950 a Mar Crimes Modification Board

to handle the matter of lieniency. This was necessary because

the s e v e r i t y of the sentences became l e s s and l e s s a s the years

passed and there was a need t o a d j u s t the sentences. 29 1

The UN Command provided f o r review by the Supreme

Allied Commander in c a p i t a l cases and the action by the appo'inting

authority in a l l other cases was f i n a l . 292

Where the United States conducts war crimes trials in the

future, there should be uniform m i l i t a r y review procedures under

which the f i e l d army appointing authority is granted f i n a l review

powers on all findings and sentences not extending t o death, in

which case the record of trial must be acted upon by the theater

commander. A War Crimes Modification Board should be created t o

review a l l sentences t o consider clemency matterS,

291, Koessler, s j a note 263 a t 92. See a l s o Taylor, FINAL

mPORT 90-93,
292. Rule 40, UNC Procedure.
 2. J u d i c i a l Review

Should the proceedings before a m i l i t a r y c o m i s s i s n be

reviewable by a US court? The Supreme Court answered t h i s

question i n the negative when many of those convicted by such

t r i b u n a l s sought p e t i t i o n s f o r leave to f i l e motions f o r w r i t s of
habeas corpus. In the first case to come before it, the Supreme
Court i n the Q u i r i n case dismissed the p e t i t i o n upon i t s finding

t h a t the commission was properly constituted and t h a t ' the t r i b u n a l

d i d n o t deny the accused a f a i r t r i a l . This case takes-on added

significance a s to the lack of the r i g h t t o obtain j u d i c i a l review

when one considers t h a t the t r i a l took place i n Washington, D.C.

a t a time when c i v i l i a n courts were open and functioning. The
Court was quick t o c a s t aside an attempt by t h e President in. h i s

Proclamation to foreclose the c o u r t s from reviewing t h i s case, 293

since, a s t h e majority reasoned, t h i s d i d n o t "preclude access to
the c o u r t s f o r determining i t s a p p l i c a b i l i t y to the p a r t i c u l a r

case. s 294

There were no o t h e r US t r i a l s of war crime offenses

during the war, but a f t e r the war most every person convicted by

US t r i b u n a l s sought j u d i c i a l review of decisions rendered by

t r i b u n a l s established by the US a c t i n g a u n e o r j o i n t l y with o t h e r
nations.295 The f i r s t such case involved General Yamashita who

293 7 Fed. Reg. 5101 (1942).

294. 317 U.S. 1, 25 (1942).

292. Footlote1ofthedecisioninHirotavMacArthur,~35U.S.
87 (1948) lists the many cases i n which j u d l c i a l review had been
sought; see a l s o footno-b 1 of the ~ i s e n t r a g e rcase, supra note
263 a t 767 f o r a d d i t i o n a l cases.
asserted, i n t e r a l i a , t h a t the denial of c e r t a i n basic r i g h t s

thereby deprived the military commission of jurisdiction t o t r y

him and t h a t habeas corpus was the oniy method by which he could

t e s t the findings and sentence. The Supreme Court denied the

p e t i t i o n , holding t h a t the p e t i t i o n e r had been accorded a f a i r

t r i a l , in t h a t no command of the Constitution, s t a t u t e , o r

m i l i t a r y command had been violated. 296* This case was decided in

February 1946 and it was not f o r another two years t h a t the Court

decided another war crimes t r i a l when it considered the challenge

of the proceedings before the I.M.T. f o r the Far East.

I n t h i s period of time, however, many of those convicted

a t Nuremberg i n the twelve Subsequent Proceedings applied td the

U.S. Supreme Court f o r the issuance of the w r i t of habeas corpus,

but all such requests were denied in Memorandum opinions indicating

a lack of jurisdiction i n the Court t o consider the cases. The

JusticeSwere divided four t o four, with Mr. Justice Jackson

taking no p a r t i n the case a r i s i n g i n Germany because of h i s

work a s Chief Prosecutor before the I.M.T. a t Nuremberg and in

creating Control Council Law Number 10 on which a l l the other cases

i n Germany were based.

However, when the case from the Far East tribunal came to

the Court on a request to f i l e a p e t i t i o n , Mr. Jackson decided to

vote i n favor of granting a hearing to t h i s g r e a t issue before the

Nation. In casting h i s vote a s he did, he c a r e f u l l y pointed out h i s
position and declared h i s feeling t h a t a hearing must be granted to

296. 327 U.S. 1 (1946).

119
bring the matter i n t o the open in view of the equal division of
the Court and because the four who favored the hearing of the
German cases had taken t h e i r opinions'out of conference and t o
the public. 297
The day a f t e r hearing argument the Court handed down a
per curiam opinion i n which the p e t i t i o n was denied. The Supreme
Court considered t h a t the International Military Tribunal f o r the
Far East was not a tribunal of the United States, but rather an
international tribunal established by General MacArthur a s the
Supreme Allied Commander f o r the Allied Powers. In view of the
international nature of the tribunal, "...the courts of the
United S t a t e s have no power o r authority to review, to affirm, s e t

aside o r annul the judgments and sentences imposed... s 298

A s in the Yamashita case, JusticesMurphy and Rutledge

dissented but f i l e d no opinion. J u s t i c e Jackson took no p a r t in
the decision. J u s t i c e Douglas concurred i n the r e s u l t only because
the tribunal was not a court but was r a t h e r [Ian instrument of
m i l i t a r y powerN. He would have granted the D i s t r i c t Court
jurisdiction to examine the cause of the r e s t r a i n t of l i b e r t y and
he would not deny the w r i t of habeas corpus where an o f f i c e r of the
United S t a t e s was concerned, eMeH though he was acting in the
capacity a s a member of an international command. To quote from

2-97. 335 U.3. 876 (1948).

h i s opinion:

The conclusion i s therefore p l a i n t h a t the Tokyo Tribunal

acted a s an instrument of m i l i t a r y power of the Executive
Branch of Government. It responded to t h e w i l l of the
Supreme Allied Commander a s expressed in the m i l i t a r y order
by which he constituted it. It took i t s laws from i t s
c r e a t o r and d i d not a c t a s a f r e e and independent t r i b u n a l

.
to adjudge the r i g h t s of the p e t i t i o n e r s under i n t e r n a t i o n a l
law.. .Insofar a s American p a r t i c i p a t i o n is concerned, there
is no c o n s t i t u t i o n a l objection, For the capture and c o n t r o l
of those who were responsible f o r the Pearl Harbor i n c i d e n t
Qas a . p o l i t i c a l question on which the President a s Commander-
in-Chief, and a s spokesman f o r the nation in foreign a f f a i r s ,
had the f i n a l say. ( a t p 215)
On the b a s i s of the Hirota case, the Court of Appeals

f o r the D i s t r i c t of Columbia dismissed a g r a n t of the w r i t of habeas

corpus by a lower c o u r t i n a case a r i s i n g from the Subsequent Pro-

ceedings, e n t i t l e d Flick v Johnson. This holding by the Court of

Appeals traced the developments leading up t o the enactment of the

Control CouncLL Law Number 10 and found t h a t since the t r i b u n a l

which t r i e d the p e t i t i o n e r s had t h i s law a s i t s source of

j u r i s d i c t i o n , it was an i n t e r n a t i o n a l t r i b u n a l over which the

n a t i o n a l courts were barred from exercising power. 299 The p e t i t i o n e r s

had urged t h a t the t r i b u n a l was i n f a c t n a t i o n a l i n nature and had
1
300
L C R ~ ~ O R ~ '
been i l l e g a l l y constituted, The Supreme Court denied &&%msmr.

Should the South Viet-Nam government arid i t s f i v e a l l i e s

providing m i l i t a r y f o r c e s agree t o punish v i o l a t o r s of the laws of

war, e s t a b l i s h a Central Council f o r the Prosecution of War

'C

299 174 F. 2d 983 (DC C i r . 1949) and a l s o reported in 3

TRIALS, s t y l e d United States v Flick.

300. 338 U.S. 879 (1949) and Note, 59 Yale L. Rev. 997 (1950).
Criminals which authorizes the member states to conduct t r i a l s , and
the US then prosecute war crimes before m i l i t a r y commissions, it

is submitted t h a t the proceedings of $his nature would be inter-

b

national i n nature and thus definetkly beyond the reach of the US

courts should e f f o r t s be made to seek judicial review.

The f i n a l PTorld Mar I1 war crimes case t o be decided by the

US Supreme Court involved the t r i a l by a US Army m i l i t a r y commission

of twenty-ane German nationals on breaches of the surrender agree-

ment. The accused continued to gather m i l i t a r y intelligence d a t a

f o r the Japanese regarding US troops a c t i v i t i e s in China a f t e r the

surrender of Germany i n May 1945. They were considered ' m i l i t a r y

personnel and t r i e d before a commission appointed by the Commanding

General, US Army Nanking Headquarters Command, in August 1945.

They were found g u i l t y and sentenced to imprisonment which was

carried o u t i n the Landsberg Prison where they were placed i n the

custody of the Commanding General, T h i d US Army a f t e r t h e i r

sepa t r i a t i o n to Germany. 30 1

The p e t i t i o n , f i l e d with the D i s t r i c t Court i n Washington,

D. C., was dismissed because the p e t i t i o n e r s were never within the
t e r r i t o r y of the court.302 The Court of Appeals, however, reversed

301. United S t a t e s v Eisentrager, a s reported i n 14 LAW REPORTS

8 (1949).
302. The s t a t u t o r y authority f o r the issuance of a w r i t of habeas
corpus then, a s now, appears in 28 USC 3 2245 which rovides, in
p a r t , t h a t a prisoner i s e n t i t l e d to a writ where (a? he i s i n custody
under o r by color of the authority of the United S t a t e s o r is
committed f o r t r i a l before some US court, o r (b) he is a c i t i z e n of
a foreign country, who i s in custody f o r an a c t done under the authority
of any foreign s t a t e . The purpose of the w r i t is t o inquire i n t o the
l e a l i t y of detention of one i n custody. Heflin v United States,
355 U.S. 415 (1959).
the dismissal on the theory t l a t If.. .any person who i s deprived of

h i s l i b e r t y by o f f i c i a l s of the United S t a t e s , acting under purported

a u t h o r i t y of t h a t Government, and who can show t h a t h i s confinement

is in v i o l a t i o n of a prohibition of the Constitution, has a r i g h t

t o the writ." I n following along the theme of Mr. J u s t i c e Douglas
. .

i n the Hirota case, the Court of Appeals based its position on these
elements : (1 ) t h e F i f t h Amendment's due process phrase applies to

"any personIf , ( 2 ) where the Government action i s in v i o l a t i o n of

the Constitution, it i s void, (3) the j u d i c i a l branch has the

power to examine a l l a c t s of the government to ensure compliance

with the Constitution and (4) the w r i t of habeas corpus is the

"time-honored" process to t e s t government action a f f e c t i n g personal

liberty. Moreover, a t the time of the decision, the Supreme Court

had M e d t h a t the d i s t r i c t c o u r t must hear writ of habeas corpus

proceedings on the b a s i s of testimony from witnesses present in

c o u r t and t h a t depositions o r o t h e r ex p a r k statements o r a f f i d a v i t s

were improper. 303

On c e r t i o r a r i , the Supreme Court reversed the Court of

Appeals and dismissed the p e t i t i o n , holding t h a t non-residen t a l i e n

enemies a r e n o t embraced by the Constitutional guarantees of the

country a g a i n s t whom they have taken arms, and thus could n o t

bring habeas corpus a c t i o n s in the c o u r t s of the United S t a t e s . 304

The decision w a s 6-3, with Mr. J u s t i c e Black, with whom J u s t i c e s

303. 174 F. 26 961 (DC C i r . 1949).

304. 339 U.S. 763 (1950).
Douglas and Burton concurred,.dissenting.

'She Court based its denial of the w r i t on the ground t h a t

the p e t i t i o n e r s had never been within the United States and were

a l i e n enemies. The Court a l s o maintained the d i s t i n c t i o n between

lawful and unlawful combatant. Speaking f o r the majority, Mr.

Justice Jackson s t a t e d :305

To grant the w r i t to those prisoners might mean t h a t

.
our a m y must transport them across the seas f o r hearings
,.This might also require transportation f o r whatever
. witnesses the prisoner desired to c a l l a s well a s trans-
portation f o r those necessary to defend l e g a l i t y of the
sentence. The w r i t , since it i s held t o be a matter
of r i g h t , would be equally available to enemies during
h o s t i l i t i e s a s i n the present twilight war and peace.
Such trials would hamper the war e f f o r t and bring a i d and
comfort to the enemy. They would diminish the prestige of
our commanders, not only with enemies but ?h?i-thwavering
neutrals. It would be d i f f i c u l t t o devise more e f f e c t i v e
f e t t e r i n g of a f i e l d commander than to allow the very .
enemy he i s ordered to reduce t o submission to c a l l him to
account in h i s own c i v i l courts and d i v e r t h i s e f f o r t s and
a t t e n t i o n from the mfiitary offensive abroad to the l e g a l
defense a t home,

The Court then proceeded t o demonstrate the e r r o r committed

by the C i r c u i t Court i n granting e x t r a - t e r r i t o r i a l application of

t h i s important procedural right, and concluded that: When we

analyze the claim prisoners a r e asserting and the court below

sustained, it amounts to a r i g h t not to be t r i e d a t a l l f o r an

offense against our armed forces. If the F i f t h Amendment protects

305- Supra note 304 a t 777-8. A t the time of t h i s decision,

the Supreme Court had ruled i n Walker v Johnson, 31 2 U.S. 284 (1941 ),
t h a t ex par& statements were improper evidence during w r i t of habeas
corpus cases; however, t h i s ruling was changed by 28 USC 3 2246 (1 964)
which permits the use of o r a l o r deposition evidence, o r even
a f f i d a v i t s , i f the t r i a l judge so orders.
them from m i l i t a r y t r i a l , the Sixth Amendment c l e a r l y prohibits t h e i r ,

t r i a l by the c i v i l c o ~ r t s . ~

It is not t h a t the c i v i l r i g h t s group of Amendments contain

no l i m i t a t i o n s as t o t e r r i t o r y o r persons, but the Court refused to
adopt the construction below which would "mean t h a t during m i l i t a r y

occupation irreconcilable enemy elements, g u e r r i l l a f i g h t e r s , and

lwerewolvesf could require the American judiciary to assure t h e i r

freedoms of speech, press, and assembly...right t o bear aws...

s e c u r i t y against unreasonable search and seizure...as well a s r i g h t s
t o jury t r i a l s . ,1306
Moving on to the second and t h i r d points of the CircuLt

Court's decision, J u s t i c e Jackson held t h a t the m i l i t a r y commission

has jurisdiction to punish those g u i l t y of offenses against the.

law of war and, relying on Yamashita, s t a t e d t h a t the sole function

of the c o u r t i s to determine the lawful power of the commission and

t h a t there was no showing here t h a t it acted i n excess of i t s

lawful powers.

In h i s dissent, Justice Black agreed fully with the

C i r c u i t Court's extension of the habeas corpus jurisdiction to alieq -

enemies f o r the limited purpose of determining whether the m i l i t a r y

commission was Illegally constituted and whether it had jurisdiction

to impose the punishment f o r the conduct charged. 11307
In summary, the Supreme Court's position has been uniformly

306. Supra note 304 a t 784.

307 Supra note 304 a t 797.

to deny p e t i t i o n s f o r w r i t s of habeas corpus a r i s i n g from war crimes
t r i a l s on the grounds t h a t e i t h e r the t r i b u n a l i n question was
i n t e r n a t i o n a l in nature o r t h a t the p e t i t i o n e r was n o t e n t i t l e d
to such a w r i t . I n denying the entitlement to the w r i t , the Court

has addressed i t s e l f to both the in-country and o u t of country

s i t u s regarding t r i a l and confinement. I n each case, it is noted I

t h a t the Court assured i t s e l f t h a t the m i l i t a r y commission had

j u r i s d i c t i o n over the subject matter and the .accused, t h a t a
f a i r t r i a l was conducted, and an otherwise l e g a l sentence was
imposed, thereby achieving i n d i r e c t l y what it pretends n o t to have
the power t o do d i r e c t l y , while maintaining a t a l l times t h a t the
Constitution does n o t follow the f l a g i n such s i t u a t i o n s . 308
The l a s t case i n p o i n t of time t o r a i s e the issue of wa,r
crimes t r i a l s before the f e d e r a l courts is the 1956 decision from
the 10th Circuit, upholding the t r i a l by m i l i t a r y commission on
charges t h a t the accused passed through the m i l i t a r y l i n e s of the
United S t a t e s f o r the purpose of spying during November 1944 on
behalf of the Third Reich, appearing in c i v i l i a n a t t i r e f o r
purposes of espionage and conspiracy to commit these offenses.
Under the same P r e s i d e n t i a l Proclamation i n the Q u i r i n case, the
President charged the accused with v i o l a t i n g the law of war and
d i r e c t e d the Commanding General, Second Service Command t o
convene a m i l i t a r y commission f o r t r i a l . The accused applied

308. Fairman, Some New Problems of the Constitution Followin

the Flag, 1 Stan. L. 587 (1949); Note, 44Mich. L. Rev. 855 (1946).
f o r a w r i t of habeas corpus some time a f t e r h i s conviction, a l l e g i n g
t h a t he was t r i a b l e only by the c i v i l courts and t h a t he was a US
c i t i z e n , thus e n t i t l e d to t r i a l i n the c i v i l courts.
C i r c u i t Judge Murrah, on behalf of the majority, dismissed
the p e t i t i o n and held t h a t the p e t i t i o n e r was an unlawful b e l l i g e r e n t
by use of the t r a d i t i o n a l l y recognized body of i n t e r n a t i o n a l common
l a w " and t h a t the p e t i t i o n e r 1s c i t i z e n s h i p in the United S t a t e s I

does n o t d i v e s t the commission of j u r i s d i c t i o n over him, o r confer

upon him any c o n s t i t u t i o n a l r i g h t s n o t accorded any o t h e r b e l l i g e r e n t
under the law -of war. n309

3. Geneva Conventions
.
The Civilian Convention has n o t made any inroads i n t o
these decisions and the conclusion remains the same : the unlawful
b e l l i g e r e n t is n o t e n t i t l e d to j u d i c i a l review by the f e d e r a l courts
of h i s trial and conviction by the US m i l i t a r y commission,
i r r e s p e c t i v e of whether the t r i a l . took place within the United
S t a t e s o r elsewhere.
Under the A r t i c l e 3, GC standard of due process, there is
no duty to permit the accused j u d i c i a l review and none should be
granted by the courts i n absence of l e g i s l a t i o n .

4, Action by the Protecting Power

I n addition t o the review procedures within the m i l i t a r y
establishment and the remote p o s s i b i l i t y of securing j u d i c i a l review

309. Coplepaugh v Looney, 235 F, 2d 429 (1 0 t h C i r . 19561, c e r t .

-denied
32-
i n a f e d e r a l court, the unlawful b e l l i g e r e n t i s e n t i t l e d to the

services of a Protecting ~ o w e P ' O o r o t h e r humane organization t o

ensure t h a t the A r t i c l e 3 standaml of due process is complied with

by the Detaining Power.

When a d e n i a l of j u s t i c e is asserted, the Protecting Power

(a n e u t r a l o r the IGRC) o r the accused's s t a t e would seek to secure

e i t h e r a new trial o r the release and r e p a t r i a t i o n of the unlawful

b e l l i g e r e n t , o r modification of the sentence. Demand could a l s o

be made f o r those responsible to be t r i e d f o r c o m i s s i o n 03 a

grave breach under the Civilian Convention.

The matter of disputes concerning the application of the

Civilian Convention i s provided f o r in A r t i c l e 12 which requires

the p a r t i e s to submit t h e i r disagreement t o the good o f f i c e s o f .

the Protecting Power and i t s proposals a r e to be given e f f e c t by

the P a r t i e s , in hopes of prompt resolution of the matter. I n the
event the Protecting Power is unable to bring about a settlement,

the P a r t i e s are urged to r e f e r the matter to the I n t e r n a t i o n a l

Court of Justice. A provision requiring compulsory submission to

the World Court was rejected during the Diplomatic Conference of the

1949 Conventions because the United Nations Security Council was

responsible f o r laying down conditions of the Court's j u r i s d i c t i o n

310. See COMMEXTARY IV 80-92 f o r background on d u t i e s of the

Protecting Power. See a l s o , MacGildeon, Some Observations on t h e ; P a r t
of P r o t e s t in I n t e r n a t i o n a l Law, 30 B r i t . Yb. I n t t l . L. 293 (1953).
f o r general discussion on p r o t e s t s , a proper form of proceeding to
remedy a claim of d e n i a l of justice.
under A r t i c l e 35 of the Court's Statute. 31 1
B r i e r l y divides i n t e r n a t i o n a l disputes i n t o two groups:
j u s t i c i a b l e o r those of a l e g a l nature, and non- j u s t i c i a b l e o r
p o l i t i c a l nature. 312 Since we a r e dealing with j u d i c i a l proceedings
under A r t i c l e 3 of the Civilian Convention, all disputes would be
of a l e g a l nature i n which case they are r e f e r r a b l e to the I n t e r -
n a t i o n a l Court of J u s t i c e a s involving the i n t e r p r e t a t i o n of a t r e a t y ,
I
the question being whether v e l non the granting o r withholding of a
p a r t i c u l a r procedural r i g h t is i n accord with the standard of
A r t i c l e 3, namely, t h a t sentences and executions follow the
judgment pronounced by a r e g u l a r l y c o n s t i t u t e d court, affording
a l l the j u d i c i a l safeguards which a r e recognized a s indispensable
by c i v i l i z e d peoples. 31 3

311. COMMENTARY IV 116-7. Where a death sentence i s c a r r i e d

o u t a wrongful damage claim might accompany the a s s e r t i o n of d e n i a l
of j u s t i c e incident to t h a t sentence. I n such' cases, %lie c u r r e n t
l e g i s l a t i o n p r o h i b i t s payment of e i t h e r personal i n jury o r death
claims (10 USC B 2734, the Foreign Claims Act, and paragraph 8b,
Army Regulation 27-28, 20 M y 1966). In the event of imprisonment
due to d e n i a l of j u s t i c e , the same r e s u l t would attach. Even
where t h e US acted contrary t o i n t e r n a t i o n a l law, a foreign c o u r t
refrained from deciding the issue of l i a b i l i t y . Falk,
Shimado Case: A Legal Approach of the Atomic Attack Upon Hiroshima
and Nagasaki, 59 Am. J. I n t l l . L. 759 (1965).
31 2. LAW OF NATIONS 286 (5th ed 1961 ) .
31 3 . Have the p a r t i e s to the Geneva Conventions relinquished
any sovereign immunity from s u i t a r i s i n g from d e n i a l of j u s t i c e
claims? It is submitted t h a t there has been no such relinquish-
ment o r waiver in the absence of an i n t e n t t o do so. For general
discussion on topic, see Lauterpacht, The Problem of ~ u r i s d itci o n a l
Immunities of Foreign S t a t e s , 28 B r i t . Yb. I n t s l . L. 220, f n 237
(1951 ).
 I n the event of d i s p u t e s regarding the trial of an unlawful

b e l l i g e r e n t , t h e proposals by the P r o t e c t i n g Power should be

complied with as soon a s rendered i n o r d e r to maintain t h e

8

human$tarian s p i r i t of the Convention.

 VIII

TRIAL OF THE UNLAWFUL BELLIGERENT IN OCCUPIED TERRITORY

A. Procedural Rights Before and During T r i a l

The t h i d standard of procedural due process provided by
the Geneva Conventions i n the event of t r i a l f o r war crimes is

found i n A r t i c l e s 64-76 of the Civilian Convention.

Generally speaking, the Occupying Power 2s required t o

keep in e f f e c t a l l the l o c a l iaws, c o n s i s t e n t with i t s security.

I n the event new laws a r e enacted o r l o c a l laws a r e modified, the

Occupying Power must n o t i f y the people of the occupied t e r r i t o r y

and is not t o t r y v i o l a t i o n s of such additions o r modifications

unless the accused had knowledge thereof. The Convention a l s o

provides f o r the l o c a l courts t o continue during occupation, and

t h a t any laws enacted by the Occupying Power s h a l l not have

r e t r o a c t i v e e f f e c t . 314 The Occupying Power's r i g h t t o t r y persons

f o r conduct v i o l a t i o n of the law of war p r i o r t o occupation is
c l e a r l y recognized i n A r t i c l e 70.

The Occupying Power is e n t i t l e d ts use only non-political

m i l i t a r y courts where the l o c a l courts a r e considered inappropriate,

a s would be the case with a war crime prosecution. 315 Most of the

discussion i n Section V I I , dealing with the t r i a l of the unlawful

b e l l i g e r e n t i n non-occupied t e r r i t o r y applies here, except a s noted

314. A r t . 64 and 65, GC.

31 5- A r t . 66, GC,
below.

The Civilian Convention requires t h a t the accused &y be

promptly informed of the charges a g a i n s t him in a language which

he understands, and the r i g h t ts a speedy t r i a l . The Protecting

Power (performing the same d u t i e s a s under the Prisoner convention)

i s t o be n o t i f i e d three weeks i n advance of t r i a l b u t only i n

c a p i t a l cases o$ where imprisonment can exceed two years. The

Protecting Power i s e n t i t l e d to receive a copy of the f i l e upon

request. The Occupying Power i s t o provide t h e same information

a s i n the case of a prisoner of war, except t h a t the Civilian

Convention c a l l s f o r a c i t a t i o n of the penal l a w r a t h e r than a

discussion of the applicable law. The appointing a u t h o r i t y should,

nevertheless, f u r n i s h the Protecting Power a copy of the p r e - t r i a l

advice, 316

The accused has the r i g h t bb h i s choice of counsel and

counsel is f r e e to c o n s u l t with h i s c l i e n t and others and to

I-
have necessary f a c i l i t i e ~ ~ o
defense.
r Where the accused f a i l s

to make a choice, the Protecting Power may do so. I n a serious

case, the Occupying Power is given the r i g h t to appoint counsel only

where the accused f a i l 4 to do so and the Protecting Power is not

317
func tioningo- The phrase Ifcompeten tfii n t e r p r e t e r the Prisoner
Convention is deleted and only an i n t e r p r e t e r need be furnished;

but the accused nay waive the services of an i n t e r p r e t e r a t

e i t h e r the preliminary hearing phase o r even during t r i a l ,

--

316, A r t . 71, GC.

31 7. A r t . 72, GC,
indicating a lessening of the concept of procedural process i n these
cases. 31 8 However, the record should c l e a r l y r e f l e c t the reasons

f o r the waiver, e s p e c i a l l y i n serious cases,

A t $rial,, the accused has the r i g h t t o present evidence,

call witnesses, and the assistance of counsel, 31 9
Aside from the provisions dealing with procedural r i g h t s

incident to a j u d i c i a l proceeding, the Convention provides t h a t

dThere absolute m i l i t a r y n e c e s s i t y so requires,a person otherwise

protected by the Convention who is detained as a spy o r saboteur o r

who i s under " d e f i n i t e suspicionit of a c t i v i t y h o s t i l e to the

s e c u r i t y of t h e Occupying Power i s considered a s having f o r f e i t e d .

h i s r i g h t to cornmunixate, 320 Also, the Convention gives the

Occupying Power g r e a t leeway i n deciding what persons it can

i n t e r n a s c o n t r o l measures i n the discharge of its-d u t y t o

maintain law and order, 321 Hence, a r r e s t and detention would be

proper where there i s more than mere suspicion t h a t the accused

committed the v i o l a t i o n of the laws of war. Ex post f a c b laws

31 8. A r t . 72, GC.
319. -
I bid.
320. A r t , 5, GC. A r t i c l e 25, G6 gives the detained person the
r i g h t to corirespond with f r i e n d s , r e l a t i v e s , etc. The I n t e r n a t i o n a l
Commission of J u r i s t s has studied the issue of detention and the
r i g h t to communicate; recommend t h a t even though a person can be
detained in s o l i t a r y confinement f o r maximum of twenty dajrs i n some
s t a t e s under emergency conditions, he should be allowed to contact
h i s attorney, Report, The Right of Arrested Persons to Communicate,
85 (1964).
321. A r t . 41, GC.
a r e prohibited. There i s no provision t h a t requires the Occupying

Power to conduct a p r e - t r i a l investigation, 322

B. Sentencing Power

Considerable inroads have been made into the punishment

which an Occupying Power can met&ou$ f o r v i o l a t i o n s of the laws.

A r t i c l e 6 8 of the Convention limits the Occupying Power to impose

the death sentence only where the offense involves espionage,

serious a c t s a g a i n s t the m i l i t a r y s e c u r i t y of the Occupying Power,

o r i n t e n t i o n a l offenses r e s u l t i n g i n death of one o r more persons

and f u r t h e r , t h a t the death penalty must have been authorized

under the l a w of the occupied country in force a t the time %he

occupation commencsd. 'The United S t a t e s , i n making one of i t s two

reservations: to the 1949 Geneva Conventions, reserved the r i g h t t o

impose the deabh penalty without regard to t h i s l a s t l i m i t a t i o n .

jSI pssl?sc
In explaining its reason, N e s e ~Yingling and Ginnane state t h a t

the United S t a t e s , joined by the United Kingdom, desired the.

a b i l i t y to take d r a s t i c a c t i o n a g a i n s t i l l e g a l combatants a c t i v i t i e s

and thus be in a b e t t e r position to p r o t e c t i t s e l f . 323 It was

the vote of those countries recently under occupation which,
Y
coupled with those nations which have abol6shed the death penalty,

resulted i n the A r t i c l e 6 8 limitation. P i c t e t reports t h a t the US

wished t o remain f r e e t o impose the death sentence in those s i t u a t i o n s

322. A r t . 85, GC.

323 The Geneva Conventions of 1949, 46 Am. J. l n t t l . L. 393,

424 (19521, The Reservation appears a t 6 U.S.T. & O.I.A. 3694(1955).
 where the soon-to-be-occupied. country h a s t i l y abolished the death

punishment. 324

Another p r i n c i p l e consideration is the d i s t i n c t i o n drawn

by the Convention between major and minor offenses and the sanctions

which can be imposed in each category. Internment o r imprisonment

f o r two years o r l e s s is required in the case of a minor offense

which is defined a s conduct n o t s e r i o u s l y damaging property of the

Occupying Power o r n o t c o n s t i t u t i n g an attempt on l i f e o r limb of

the forces of t h e Occupying &ere 325

The a t t e n t i o n af the c o u r t i s to be i n v i t e d t o the f a c t

t h a t the protected person is n o t a national. of the prosecuting

S t a h and t h a t he is n o t bound to owe any allegience to it. The

. Convention a l s o p r o h i b i t s the imposition of the death penalty upon

one n o t y e t 18 years of age a t the time of the offense. 326
Details of the t r i a l and sentence a r e to be forwarded to

the Protecting Power where the death sentence o r 5Aprisonment f o r

two years o r more i s imposed. Six months must elapse from the d a t e
of t h i s n o t i f i c a t i o n u n t i l the execution of the death penalty.

Sentences to imprisonment a r e to be served in the Occupied country,

thus avoiding the mass t r a n s f e r and deportations by Germany during

the Second World war. 327 Upon l i b e r a t i o n , these imprisoned personnel

324, COMMENTARY IV 345-6.

325. A r t . 68, GC.

326. -
I bid.

327 A r t . 71, GC.

a r e to be handed over t o the a u t h o r i t i e s of the l i b e r a t e d country. 328

A s i n the case of prisoners of war, time spent i n p r e - t r i a l

confinement is to be deducted from the approved sentence, and

the sentence must be proportionate t o the offense. 329

C. Post- t r i a l Procedural Matters

The Civilian Convention is s i l e n t a s t o the entitlement of

procedural safegualds following t r i a l , except t h a t it provides in

Article 66 t h a t "Courts of appeal s h a l l preferably s i t in the

occupied country." Although it is not c l e a r from reading the

reports of the Diplomatic Conprence whether such courts were

required, Mr. P i c t e t assumes t h a t such courts a r e to consider the

accused's case by way of an appeal. 330 Thus, the proceedings before

the m i l i t a r y commission of the unlawful b e l l i g e r e n t would have

to be revised, preferably by the War Crimes Modification Board,

discussed in Section VII, s i t t i n g i n the occupied country.

Similarily, the discussion on judicial review by the US

courts contained in the above Section is applicable here.
In the Prisoner Convention, there was a provision relating
to the r e s o l a of disputes. Article 149 of the Civilian

Convention provides s i m i l a r machinery in the event there i s a

dispute between the interested P a r t i e s concerning a violation of

328. Art. 77, GC.

329 Art. 69, GC.

330 COMMENTARY I V 340-1

the Convention, a s in the case of d e n i a l of justice. The inquiry
procedure, o r i g i n a t i n g in the 1929 Convention f o r Sick and Wounded

in the Field, is o b l i g i t o r y when a Partyto the Conflict requests

it, although the method of procedure is l e f t to the Parties. Also,

A r t i c l e 12 of the C i v i l i a n Convention provides f o r c o n c i l i a t i o n

procedure, a f e a t u r e common to all f o u r Conventions, i n order to

resolve any disputes as quickly as possible and with the

humanitarian purposes of the Conventions i n mind.

 IX
GRAVE BFUUCH PROSECUTIONS

A. Procedural Rights Before and During T r i a l

The f o u r t h and l a s t standanl of a f a i r t r i a l c e n t e r s

around the C i v i l i a n Convention1 s grave breach a r t i c l e ( A r t i c l e 146)

which provides t h a t a protected person, when charged with a grave

breach, i$ e n t i t l e d t o the "safeguards of proper t r i a l and defense,

which s h a l l n o t be l e s s favourable than those provided by A r t i c l e

105 and those followingif of the 1949 Prisoner Convention. The

d r a f t e r s considered t h a t because most of the persons accused of grave

breach offenses would q u a l i f y under the expanded d e f i n i t i o n of a

prisoner of war ( A r t i c l e 4, GPW), it would be proper to provide

i n the C i v i l i a n Convention t h a t protected persons would a l s o

b e n e f i t from c e r t a i n Prisoner Convention safeguards. 331 However,

the emerghce of the g u e r r i l l a f i g h t e r on today's s c a l e apparently

was not con-lated by the d r a f t e r s , although there was a manifests--

t i o n o f ,the new warfare raging in Greece, s t a r t i n g in 1947, i n which

g u e r r i l l a s c a r r i e d on the e f f o r t of the Communists to bring about

the downfall of the Greek government.

A r t i c l e 146 r e f e r s to f o u r provisions of the Prisoner

Convention: A r t i c l e s 105 through 108 which apply equally to the

unlawful b e l l i g e r e n t captured incident to the c o n f l i c t o r on

occupied t e r r i t o r y . These f o u r GW a r t i c l e s r e l a t e t o q u a l i f i e d

331 COMMENTARY I V 595.

 defense counsel, two weeks to prepare f o r t r i a l , (Art. 105) r i g h t

of p e t i t i o n o r appeal (Art. 106, communication of d e t a i l s ~f the

sentence t o the Protecting Pcn~er(Art. 107) and serving of sentences

i n same establishments and same conditions a s members of the

armed forces of the Detaining Power (Art 108).

I n i t i a l l y , the question is raised a s to whether the A r t i c l e

14.6 standard requires fl iden t i c a l u o r I1similar hreatmentil of the

protected person. There i s no prohibition a g a i n s t the Detaining

o r Occupying Power from granting to the protected person i d e n t i c a l

treatment it accords t o i t s armed forces personnel, b u t the i n t e n t

of the i n t e r n a t i o n a l community was&
-p t o assimilate the unlawful
b e l l i g e r e n t i n t o the penal provisions applicable t o the m i l i t a r y

f o r c e s of the prosecuting s t a t e , but merely to assure safeguards

which were n o t l e s s favourable. F i r s t , the provisions of A r t i c l e

105 w i l l be discussed i n t h i s section, A r t i c l e 107 and 108 in

Section B and A r t i c l e 106, dealing with appeals, i n Section 6. Then,

, an asse$?ent i n complying @e requirements w i l l be made under

US practice.

A r t i c l e 105 of the Prisoner of War Convention provides

these r i g h t s : a s s i s t a n c e of q u a l i f i e d counsel of the accusedfs

choice and the a s s i s t a n c e of a prisoner commrade; r i g h t t o c a l l

witnesses; services of a competent i n t e r p r e t e r ; procedure f o r the

s e l e c t i o n of counsel should the PW o r Protecting Power f a i l to

s e l e c t wMA&n one; r i g h t of counsel t o have two weeks to prepare

f o r t r i a l ; r i g h t of necessary f a c i l i t i e s and freedom of interview

with the accused, o t h e r EWts, and any witness regarded by him a s
necessary to interview; copy of the charges and a l l i e d papers t o be
furnished the PW and h i s counsel i n a language which they understand;
and a representative of the Protecting Power is e n t i t l e d to attend

the t r i a l .

These r i g h t s enumerated i n A r t i c l e 105, GPW, appear in

A r t i c l e s 71 and 72 of the GC, and have been t r e a t e d in t h i s paper

a s being applicable i n the t r i a l under A r t i c l e 3 s t a n d a d of due

process. Therefore, the unlawful b e l l i g e r e n t .on trial f o r committing

a grave breach i s to receive the same procedural safeguards a s i f he

were t r i e d under the A r t i c l e 3 o r the A r t i c l e s 64-76 standards.

No mention, however, i s made of the type o r kind of c o u r t

which s h a l l conduct the t r i a l of the grave breach prosecution.

A r t i c l e 146's reference t o the Prisoner of War Convention does n o t

have w k t f i i n its ambit any regard t o a tribunal. A r t i c l e 71, GC,

does r e f e r to a "regular t r i a l n and A r t i c l e 66 requires the Occupying

Power to use i t s non-political m i l i t a r y courts i n the t r i a l of

inhabitabls. Thus, the US m i l i t a r y commission is the proper

t r i b u n a l f o r the t r i a l of the unlawful b e l l i g e r e n t charged with a

grave breach offense . The general court-martial s j u r i s d i c t i o n

does n o t include t h i s group of persons within i t s g r a n t of a u t h o r i t y
and thus is n o t the proper tribunal. 332

332. A r t i c l e s 104 and 106, UCMJ, (10 U6C 904 and 906) prescribe
that person charged with aiding the enemy o r wartime espionage
is s u b j e c t to trial by e i t h e r a court-martial o r military commission.
Because A r t i c l e 2 of the UCMJ does n o t s u b j e c t a l l persons t o i t s
provisions, the conclusion is forced t h a t these two penal provisions
a r e to be regarded a s limited codification of the law of war and
$hat only the m i l i t a r y commission has j u r i s d i c t i o n to t r y those
persons n o t s u b j e c t to the Code.
 B. Sentencing Power

Under A r t i c l e 146, acting i n a s i m i l a r fashion to the due

process clause of the 14th Amendment to the Constitution by applying

standards to s t a t e government o r i g i n a l l y meant t o apply only -to the

f e d e r a l government, 333 the It&otected person-is e n t i t l e d to safe-

guards no l e s s favorable %ban the sentencing power exercised by the

Detaining Power in the case of prisoners of war. A r t i c l e 107 of the

Prisoner Convention d e a l s with n o t i f i c a t i o n of' findings and sentence

t o the Protecting Power and A r t i c l e 108 concerns the execution

of penalties.

A s will be recalled from the Section involving prisoners

of war, the Protecting Person i s to be n o t i f i e d of the r e s u l t s of

t r i a l i n a summary communication, indicating r i g h t of appeal, and

whether the PW d e s i r e s t o appeal. Under the _UCMJ, the gId is

e n t i t l e d to the b e n e f i t s of the Table of Maximum Punishments, thus

the convicted protected person would be e n t i t l e d to a s i m i l a r

c e i l i n g i n the event punishment i s imposed. Als6, the form of

punishment could n o t include confiscation, r e s t o r a t i o n of s t o l e n

property o r indemnification, b u t would be l i m i t e d to death,

imprisonment o r fine.

A d e t a i l e d communication is to be forwa'ded the P r o t e c t h g

Power i n the event t h e death sentence is adjudged by the m i l i t a r y

commission o r i n the event the sentence of any nature is ordered

.., .

333 See Brennan, Extension of t h e B i l l of Rights t o the S t a t e s ,

4 4 J. of Urban L. 11 (1966).
executed. This n o t i f i c a t i o n i s t o include a copy of the promulgating
order, s e t t i n g f o r t h the offenses, the findings and sentence; a
summarized r e p o r t of the p r e - t r i a l investigation and t r i a l ; and
l o c a t i o n of place of confinement.
A r t i c l e 108, GPW, requires t h a t PWs' serve thekr sentences
" i n the same establishments and under the same conditions a s in
the case of members of the armed forces of the Detaining I?ower.lf
The C i v i l i a n Convention can be s a t i s f i e d by acconling the convicted
protected person with separate but equal f a c i l i t i e s . There is no
requirement t h a t the protected person i n t h i s case be e n t i t l e d t o
the same b e n e f i t s , j u s t n o t l e s s favourable. Had the d r a f t e r s
intended those convicted of grave breaches be e n t i t l e d to the
same provisions, such could have been provided. Here, the t h r u s t
of A r t i c l e 146's reference t o Articles l o 5 - 108 of t h e GEW is
t o the trial safeguards and appellate reuaew. Other provisions
dealing with confinement f a c i l i t i e s a r e found in the C i v i l i a n
Convention.

C. Post-Trial Procedural Matters

What a p p e l l a t e review i S the protected person convicted

of a grave breach e n t i t l e d ? A r t i c l e 14.6, GC, provides f o r n o t
l e s s favourable treatment, Does t h i s mean t h a t the protected
person is e n t i t l e d to review of h i s conviction of a grave breach
by the Board of Review, Court of M i l i t a r y Appeals, and p r e s i d e n t i a l

a c t i o n i n the case of c a p i t a l punishment? O r , is he e n t i t l e d

t o a review procedure within the m i l i t a r y a s outlined i n Section
VII?
A r t i c l e 106, GPW, provides t h a t the PW Itshall have, in the same

manner a s the members of the armed forces of the Detaining

Power, the r i g h t of appeal o r p e t i t i o n from any sentence pronounced

upon him...f1 The PW is a l s o t o be advised of h i s r i g h t t o appeal

o r p e t i t i o n and the applicable time l i m i t s in order t o exercise

t h i s right.

A l i t e r a l i n t e r p r e t a t i o n of A r t i c l e 14h would compel the

conclusion t h a t the protected person i s e n t i t l e d t o e x a c t l y the

same review r i g h t s a s the PW. But from a p r a c t i c a l standpoint,

it seems proper to conclude t h a t Itnot l e s s favourablefl does n o t

mean i d e n t i c a l , thus the review within the m i l i t a r y ( f i r s t by the

appointing a u t h o r i t y and then the t h e a t e r commander) is proper.

Keeping i n mind the purpose of trial - a f a i r and i m p a r t i a l hearing-,

there appears to be l i t t l e more t o be gained by requiring a l l cases

to be viewed by a procedure accorded by the US Amy to its own

personnel. It is untenable t h a t a r e s u l t reached under the
l i t e r a l i n t e r p r e t a t i o n would apply. None of the American

delegation conveived of such a r e s u l t during the d r a f t i n g of the

Conventions, nor is t h e r e mention of such a conclusion i n the

accounts following the signing in August 1949. I n commenting on

the application of t h i s portion of the Civilian Convention, Mr.

Yingling r e p o r t s t h a t A r t i c l e 146 was designed t o incorporate

"roughlyIf some of the GPW provisions.

This area of the Conventions w i l l provide a f e r t i l e

f i e l d f o r controversy should the US deny an accused the same

r i g h t s a s enjoyed by a PW with regards to review procedure and
g r a n t the accused only the m i l i t a r y review by the appointing and

reviewing authority. It i s submitted t h a t the protected person

i s n o t e n t i t l e d t o a review of such porportions a s t h e EW, since

the purpose in both cases is to afford an opportunity t o review

the case, there being doubtful merit in the contention t h a t there

i s more " j u s t i c e " in a procedure having three o r f o u r l e v e l s of

review than i n one having one o r two.

A s discussed i n Section VIII, regarding the t r i a l of the

i n h a b i t a n t of occupied t e r r i t o r y f o r war crimes, the protected

person charged with a grave breach would be e n t i t l e d t o the

C i v i l i a n Convention's provisions regarding c o n c i l i a t i o n and

enquiry, so a s t o minimize disputes and ensure t h e i r prompt

solution.

The "grave breach" t r i a l would stand on the same footing

a s the t r i a l under the A r t i c l e 64-76 standard i n s o f a r a s j u d i c i a l

review by US c o u r t s is concerned. It is regarded a s improper

f o r the US courts to review these proceedings in the absence of

enabling Congressional l e g i s l a t i o n .
 X.

CONCLUSIONS AND R L C O ~ N I I A T I O N S

A. Conclusions
The questions propounded a t the o u t s e t may now be answered.

The United S t a t e s does have a duty under i n t e r n a t i o n a l law to

accord to the accused a f a i r t r i a l on the b a s i s of the 1949 Geneva

Conventions. The components of the concept of a " f a i r t r i a l H

depend upon the s t a t u s of the captive, the s t a t u s of the captor and

'

the nature of the offense charged.

Where the accused charged with committing war crimes i s

a prisoner of war, he is assimilated into the provisions of the

Uniform Code of M i l i t a r y J u s t i c e , i r r e s p e c t i v e of whether the U3 i s

the Detaining Power o r the Occupying Power. The ffunlawful

b e l l i g e r e n t f ' , on the o t h e r hand, i s t o be t r i e d according t o

customary i n t e r n a t i o n a l law's concept of what c o n s t i t u t e s a f a i r

t r i a l when he is t r i e d by a Detaining Power. A t a minimum, these

procedural r i g h t s include: advance notice of the charges, assistance

of counsel and an i n t e r p r e t e r , compulsory process t o obtain witnesses

and o t h e r evidence, adequate time to prepare f o r t r i a l , and a f a i r

and i m p a r t i a l t r i b u n a l before which the accused can present evidence

and cross-examine witnesses. The death sentence is possible i n

such a t r i a l . The tlunlawful belligerentti t r i e d f o r war crimes

committed during b e l l i g e r e n t occupation and who q u a l i f i e s a s a

lprotected persont is accorded due process under c e r t a i n provisions

of the Geneva C i v i l i a n Convention which makes mandatory upon the

Occupying Power those r i g h t s j u s t enumerated f o r the t r i a l by the

Detaining Power, plus: two weeks to prepare f o r t r i a l , representative

of the Protecting Power to be n o t i f i e d of the t r i a l and a t t e n d the

proceedings, i n s t r u c t i o n to the c o u r t t h a t the accused owes no

allegiance to the captor state, opportunity t o appeal the findings

and sentence, six month wait before execution of the death sentence,

procedure f o r disputes a s t o application of the Convention, and

no punishment i n excess of two years f o r offenses n o t amounting to

t h r e a t o r l o s s of l i f e o r serious a c t s of sabotage a g a i n s t the

Occupying Power.

The " f a i r t r i a l N duty in the case of a non-mnT f o r a grave

breach includes those r i g h t s accorded the accused t r i e d by the

Occupying Power f o r a non-grave breach, plus a d d i t i o n a l procedural

r i g h t s n o t l e s s favorable than enjoyed by the PW when t r i e d f o r war

crime offense's. The e f f e c t of t h i s l a s t standard of a " f a i r t r i a l f f

is to brirlg the accused i n the non-occupied t e r r i t o r y s i t u a t i o n

into the b e n e f i t s conferred upon those t r i e d by the Occupying

Power, The r i g h t s of the unlawful b e l l i g e r e n t t r i e d by the Occupying

Power already a r e n o t l e s s favorable than the grave breach standard

of procedural due process when t r i e d by the United States.

The exercise of j u r i s d i c t i o n would be based on the

t e r r i t o r i a l p r i n c i p l e where t h e a c t took place i n t h e United

S t a t e s o r on t e r r i t o r y over which t h e U.S. exercised exclusive

control. The most frequent b a s i s of j u r i s d i c t i o n over war

criminals would be t h e u n i v e r s a l i t y p r i n c i p l e , however,

The t r i a l of the PW must be before a general court-martial

146
and a p p e l l a t e matters would follow the course now i n e f f e c t f o r

members of t h e B,g.armed forces, namely, review by a b a r d of

k v i e w and then the Court of i 5 i l i t a r y dippeals i n c e r t a i n cases
and approldal by the President-'in the event of a death sentence.

The m i l i t a r y commission is the proper t r i b u n a l before which the

unlawful b e l l i g e r e n t is t o be t r i e d and the procedure attending such
a t r i a l i s to be the same, i r r e s p e c t i v e of which of the three

Civilian Conventions might apply, namely; a s s i s t a n c e of counsel,

adequate time to prepare f o r t r i a l , services of an i n t e r p r e t e r ,

r i g h t t o c a l l witnesses and introduce evidence, i n s t r u c t i o n to

t h e t r i b u n a l t h a t t h e accused owes no allegiance t o the u.a., right

to challenge the commission and the non-voting law member f o r cause,

and review of the case by m i l i t a r y a u t h o r i t i e s . The Protecting

Power is to be advised s f t h e proceedings and furnished a l l possible

a s s i s t a n c e and information.

Cha~gescan be drawn from customary i n t e r n a t i o n a l law o r

from t r e a t i e s and conventions i n both t h e t r i a l of the PrJ and the

unlawful b e l l i g e r e n t , except t h a t c a p i t a l cases a r e l i m i t e d to

the Table of Pliucimun Punishments i n t h e case of t h e prisoner of war.

Qbtaining custody over the absent accused w i l l depend f o r the most

p a r t on requesting h i s surrender from a m i l i t a r y a l l y o r on

extradition treaties.

'lhe r i g h t t o s e l e c t counsel should be limited only by

s e c u r i t y considerations i n the case of both the PuJ and the unlawful

belligerent. 'fhe introduction of evidence having probative value

i s proper i n t r i a l s before t h e m i l i t a r y commission, but is subject
t o technical exclusionary r u l e s i n t r i a l s before t h e general

court-martial.

Compared with the - i I1 experience, f u t u r e prosecutions,

i f any, would follow s u b s t a n t i a l l y t h e same procedure u t i l i z e d by

the United S t a t e s i n t h e conduct of i t s t r i a l s of war criminals

before milktary commissions, except t h a t t h e prisoners of war

would be t r i e d before a general court-martial and e n t i t l e d to

a d d i t i o n a l b e n e f i t s accorded to members of t h e US Armed Forces

under t h e Uniform Code of M i l i t a r y Justice.

B. Rscommendations
A t the present, there i s absolutely no w r i t t e n guidance
i n t h e form of a d i r e c t i v e o r regulation regarding the manner i n

which a m i l i t a r y commission w i l l be created, operate, o r i t s ac*ions

reviewed. To avoid t h e haphazard method of appointing these

commissions as witnessed i n World War 11, there should be author-

i z a t i o n t o t h e commanders of the unified and s p e c i f i e d commands to

appoint such t r i b u n a l s f o r t h e t r i a l of war criminals, o r to delegate

t h i s appointing a u t h o r i t y one level. 334

As to t h e operation and review of t h e commissions, the

provisions- of the iieneva Conventions s e t f o r t h the standards of

procedural due process i n c i d e n t t o j u d i c i a l proceedings, and our

334.. Such a c t i o n would require amending paragraphs 30228

(unified commands and 30247 (unified command) of J o i n t Chiefs of
S t a f f Publication -No. 2, Unified Action Armed. Forces (Sep 1 9 5 9 ) ~
which s e t f o r t h t h e present a u t h o r i t y of these commanders.
WW I1 experience i n d i c a t e s t h a t t h e United S t a t e s w i l l follow the

granting of those r i g h t s which c l o s e l y p a r a l l e l t h e r i g h t s required

of A r t i c l e s 64 through 76 and A r t i c l e 146, GC, i r r e s p e c t i v e of

whether t h e A r t i c l e 3 standard is applicable.

The need f o r a d d i t i o n a l t r e a t i e s on t h e s u b j e c t of

e x t r a d i t i o n and f o r n a t i o n a l l e g i s l a t i o n t o implement t h e 1949

Geneva Conventions i n t h e a r e a of grave breaches has been examined

and should provide t h e b a s i s f o r a c t i o n in order t o ensure an

e f f e c t i v e system of repressing war crimes,

In closing, the war crimes t r i a l s conducted by t h e United

S t a t e s would follow two somewhat d i f f e r e n t procedures and before

two d i f f e r e n t t r i b u n a l s , depending on the s t a t u s of t h e accused.

Where the accused i s a Prisoner of war, he w i l l be t r i e d before

t h e general court-martial and s u b j e c t t o the procedural r i g h t s

contained i n 'the Uniform Code of M i l i t a r y Justice. The unlawful

b e l l i g e r e n t , however. would be amentable t o t r i a l before t h e

m i l i t a r y commission which would d i f f e r from t h e PWTs t r i a l s i n these

procedural respects : no requirement f o r presence of accused a t

p r e - t r i a l investigation, no r i g h t to w r i t of habeas corpus i n

f e d e r a l c o u r t s , (one evidentiary matter) no r i g h t t o exclude

hearsay evidence because of t h e probative value standard applicable

i n t r i a l s by t h e m i l i t a r y commission, s u b j e c t t o death sentence

f o r g r e a t e r number of substantive offenses, and review of t h e

f i n d i n g s and sentence w i l l be conducted within the m i l i t a r y system.

I n e i t h e r event, the t r i a l of the war criminal w i l l accord the

accused a " f a i r trialf1.

 -
JUDICIAL PRO-EEDINGS CONDUCTED BEFORE US ARMY WAR CRLMES TFUBUNALS
UNDER THE 1949 GENEVA CONVENTIONS
I. 11. 111. IV.
Status of the accused Applicability Tribunal Procedural Due Process

of GPW/GC Standard

A. Prisoner of War GPW General CourLMartial UCMJ and decisions of C t of M i l App

P
R
0 P

1. Insurgency, c i v i l war,
armed c o n f l i c t not of an
i n t e r n a t i o n a l character.
M i l i t a r y Commission , A l l the
j u d i c i a l guarantees which a r e
recognized a s indispensable by c i v i l i z e d
T E
E R
C S M i l i t a r y Commission
T 0
E N
D S
Military Commission
M i l i t a r y Commission
person s t a t u s .
C. Others* M i l i t a r y Commission A l l the j u d i c i a l guarantees which a r e
recognized a s indispensable by c i v i l i z e d
peoples.
*
-
denotes US nationals, n a t i o n a l s of n e u t r a l s t a t e s t o the c o n f l i c t and ~ t h e persons
f a i l i n g t o q u a l i f y a s Itprotected personsft under A r t . 4, GC.
APPENDIX 6,
1 50

r
 FACTORS TO BE CONSIDERED I N DETERMINATION OF
A 'FAIRs TRIAL
2hase of T r i a l Standards Prescribed by
GC Art
- NATO- Eurowean Conv.
GCM/GPW ~rt-3" 64-76 kt146 SOFA ~um&Rights
lnformed of charges Yes Yes Yes Yes Yes Yes
Ma1t r e a tmen t pmhibated
Prompt p r e - t r i a l i n v e s t i g a t i o n
Presence a t p r e - t r i a l inv.reqfd
Yes
Yes
Yes
Yes
Yes
N0
Yes
Yes
No
Yes
Yes
No
:::
No
Yes
N/A
No
Prompt t r i a l required Yes Yes Yes Yes Yes Yes
Adequate time to prepare defense Yes Yes Yes Yes Yes Yes
Counsel of h i s choice Yes Yes Yes Yes Yes Yes
Notification of Protect. Power Yes Yes Yes Yes Yes N/A
Use of Nec. F a c i l i t i e s Yes Yes Yes Yes N/A N/A
Furnished Cop. of chargs e t a 1 Yes 'Yes Yes Yes Yes N/A
I n t e r p r e t e r provided
Challenge t r i b u n a l f o r cause
Double jeopardy prohibited
Yes
Yes
Yes
Yes
No
Yes
N/A
N0
Yes
N/A
No
Yes
N/A
N/A
2;
N /A
Double punishment prohibited Yes Yes Yes N/A N/A

11. Trial

Defense counsel present Yes Yes Yes Yes Yes Yes

I n t e r p r e t e r provided Yes Yes Yes Yes Yes Yes
Confrontation of witnesses
Compulsory process of witnesses
Pr- yent defense personally
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes :;;
l u n t a r y confessions excl.
Hearsay evidence excluded
Yes
Yes
Yes
Yes
Yes
No
Yes
Yes
N0
Yes
Yes
No
9;
N/A
Yes
N/A
N/A
Depositions excl. i n cap. case Yes No No No N/A N/A
Presumption of innocence
S e c r e t t r i a l allowed
Separate findings and sentence
Yes
No
Yes
Yes
N0
Yes
Yes
No
Yes
Yes
No
Yes
;;
N/A
: Yes
N/A
N /A
Credit p r e - t r i a l cnf. on sent. No No Yes Yes N/A N/A

111. Post- t r i a l

Impartial review yes Yes Yes Yes N/A N/A

E n t i t l e d w r i t of habeas corpus Yes No No No N/A N/A
Prohib. c r u e l and unhumane punish.Yes Yes Yes Yes N/A N/A

* Conclusions by author as to applicable procedural safeguards required by i n t e r n a t i o n a l

law.
I

APPENDIX B

151
 A r t i c l e 4, rrtisoner Convention

A. Prisoner of war, i n the sense of the present Convention, a r e

persons belonging t o one of the following categories, who have f a l l e n
i n t o the power of the enemy;

(1 ) Members of the armed f o r c e s of a Party to the c o n f l i c t ,

as w e l l as members of m i l i t i a s o r volunteer corps form-
ing p a r t of such armed forces.

(2) Members of o t h e r m ilitias and members of o t h e r volun-

t e e r corps, including those of organized r e s i s t a n c e
movements, belonging t o a Party t o t h e c o n f l i c t and
operating i n o r outside t h e i r own t e r r i t o r y , even i f
t h i s t e r r i t o r y i s occupied, provided t h a t such militias
o r volunteer corps, including such organized r e s i s t a n c e
movements, f u l f i l the following conditions:

( a ) t h a t of being commanded by a person responsible

f o r h i s subordinates;
(b) t h a t of having a f i x e d d i s t i n c t i v e sign recognizable
a t a distance;
( c ) t h a t of carrying arms openly;
( d ) t h a t of conducting t h e i r operations i n accordance
with the laws and customs of war.

(3) Iembers of regular armed f o r c e s who profess allegiance

t o a government o r an a u t h o r i t y n o t recognized by the
Detaining Power.

(4) Persons who accompany the armed f o r c e s without a c t u a l l y

being members thereof such a s c i v i l i a n members of
military a i r c r a f t crews, war correspondents, supply
c o n t ~ atco r s , members of labour u n i t s o r of s e r v i c e s
r e s p ~ n s i b l ef o r the welfare of the armed f o r c e s ,
provided t h a t they have received authorization from
t h e armed f o r c e s which they accompany, who s h a l l
provide them f o r t h a t purpose with an i d e n t i t y card
s i m i l a r t o the annexed model.

(5) Members of crews, i n ~ l u d i n gmasters, p b L 0 and appren-

t i c e s , of the merchant marine and the prews of c i v i l
a i r c r q f t of the P a r t i e s b the c o n f l i c t , who do n o t
b e n e f i t by more favourable treatment under any o t h e r
provisions of i n t e ~ a t i o n a llaw.

(6) I n h a b i t a n t s of a nonoccupied t e r r i t o r y , who on the

approach of the enemy spontaneously take up arms to
r e s i s t the invading forces, without having had time to
form themselves i n t o regular armed ' u p i t s , provided they
c a r r y arms openly and respect the laws and custom, of war.

APPENDIX C
B. The following s h a l l likewise be t r e a t e d a s prisoners o f . w a r
under the present Convention:

(1 ) Persons belqnging, o e h a v i n g belonged, to the armed

f o r c e s of the occupied country, i f the occupying Power
considers i t necessary by reason of such allegiance to
i n t e r n them, even though it has o r i g i n a l l y l i b e r a t e d
them while h o s t i l i t i e s were going on outside the t e r r i t o r y
it occupies, i n p a r t i c u l a r where such persons have made
an unsuccessful attempt to r e j o i n the armed forces to
which they belong and which are engaged i n combat, o r
where they f a i l t o comply with a summons made t o them
with a view to internment.

The persons belonging to one of the categories enumerated

i n the present A r t i c l e , who have been received by n e u t r a l
o r non-belligerent Powers ,on t h e i r t e r r i t o r y and whom
these Powers a r e required to i n t e r n under i n t e r n a t i o n a l
law, without prejudice t o any more favourable treatment
which these Powers may choose to give and with the
exception of A r t i c l e s 8, 10, 15, 30, f i f t h paragraph,
58-67, 92, 126 and, where diplomatic r e l a t i o n s e x i s t be-
tween the P a r t i e s to the c o n f l i c t and the n e u t r a l o r non-
b e l l i g e r e n t Power concerned, those A r t i c l e s concerning
the Protecting Power. Where such diplomatic r e l a t i o n s
e x i s t , t h e P a r t i e s t o a c o n f l i c t on whom these persons
depend s h a l l be allowed t o perform towards them the
fimctions of a Protecting Power a s provided in the
present Convention, without prejudice to the functions
which these P a r t i e s normally exercise i n conformity
with diplomatic and consular usage and t r e a t i e s .

APPENDIX C (cont. )

153
 TABLE OF GASES AND STP;TUTES

United S t a t e s Supreme Court

Abel v United Stakes. 362 U.S. 21 7 (1 940) .................

Heflin v United S t a t e s . 358 U.S. 41 5 (1 959) ...............

Nishikawa v Dulles. 356 U.S. 129 (1 958) ...................

Fowler v Wilkinson. 353 U.S. 583 (1957)...................

Wilson v Girard. 354 U.S. 524 (1 957) ......................

Burns v Wilson. 34.6 U.S. 137 (1953) .......................

United S t a t e s v Lutwak. 344 U.S. 604 (1 953) ...............

F r i s b i e v Collins. 342 U.S. 519 (1952) .................... 36n

Johnson v Eisentrager. 339 U.S. 763 (1 950) ................ 104.n. 80n

118n. 120n
122n

Wade v Hunter. 346 U.S. 137 (1949) ......................-.. 46n

Oyama v California. 332 U.S. 632 (1948) ................... 5n

In re Yamashita. 327 U.S. 1 (1946) ........................29. 74. 78n

8011. 84n.
99. 104.n,
108n

Ex p a r t e QuiRin. 317 U.S. 1 (1942) .......................480n.

9n. 78n.

8111.
102. 118

Walker v Johnson. 31 2 U.S. . 284 (1 941 )..................... 124n

United S t a t e s v Curtis-Wright Export Corp. ............... 80n

299 U.S. 304 (1936)
Factor v Laubenheimer. 290 U.S. 276 (1933) ................ 34n

Growell v Benson. 285 U.S. 22 (1 931 ) ...................... 100n

The Western Maid, 257 U.S. 41 9 (1 922).......,............ I 4n

Moyer v Peabody, 212 U,S 78 (1909). ....................... iOOn

Neely v Henkel, 180 U.S. 109 (1901 ) .......................33n, 57n

Ker v I l l i n o i s , 1 19 U.S. 436 (1 886). ...................... 35n

Foster v Baker, 2 P e t e r s 253 (1829) ....................... 34.n

C i r c u i t Court of Appeals

United S t a t e s e x r e 1 Marks v Esperdy, 315 F. 2d 673

(2d C i r . 1963) ............................................ 43n
Argento v Horn, 241 F. 2d 258 (6th C i r . 1957). ............ 31 n

Coplepaugh v Looney, 235

-
c e r t . denied 352 U.S. 101
F.
4
(I
2d 429
..............
(1 956). .........
0th C i r . 2 956),
.81n, 8311,

1 27n

ce2t. denied 338 U.S. 879 (1949) ...........................8On,

Flick v United S t a t e s , 174 F. 2d 983 (DC C i r . 1949).
123

United S t a t e s D i s t r i c t Courts

United S t a t e s ex re1 Marks v Esperdy, 203 F. Supp.

389 (SD NY. 1962)... ......................................

Gallina v Fraser, 177 F. Supp. 856 (DC Conn. 1959)........

(SD Calif. 1956) ..........................................

Artukovic v Boyle, 14-0 F. Supp. 245

United S t a t e s v Powell, 156 F. Supp. 526 (ND Cal. 1957)..1.

In r e Krausman, 130 F. Supp. 926 (DC Conn. 1955). .........

In r e L e t t e r Rogatory, 26 F. Supp. 852 (DC Md. 1939). .....

United S t a t e s Court of Military Appeals

105(1962) ................................................

United S t a t e s v Smith, 13 U.S.C.M.A. 105, 32C.M.R.

United S t a t e sv 4
Shultz, C.M.R. ..............

104 (19%)
United S t a t e s Constitution

.
A r t I. 8 8. cl 10 . ........................................?On. 78n
.
A r t I. 8 8. c l . 11 ....................................... 79n

.
A r t I. 3 8. c l 12. ....................................... 79n
A r t . I. 9 8. c l . 14.............................O.........
79n
Art . I. 3 8 . cl . 18....................................... 79n

A r t . 11. 3 2. cl . 1 ....................................... 79n

A r t . 111. B 2. c l . 3 ......................................7 0 79n

Amendment I V.............................................. 1On

Amendment V. .............................................. 1On

Amendment XIV.. ........................................... 141

Federal Statutes .Currently i n force

5 USC 3 701 ( b ) ( l )(F) ......................................

10 USC 8 800. .............................................

10 USC 8 802..............................................

10 USC 818 ..............................................

10 USC 5 836 ..............................................

10 USC ..............................................

8 906
10 USC 5 2734.............................................

10 USC 3 3037 .....................me.....o................

18 USC 203 ..............................................

18 1037.............................................
USC 6 57

 .............................................

1 8 USC 5 3181

18 USC 8 3185.. ...........................................

28 USC 6 1782~.....o....~...o~o.*a*..o.~oaoooo~~o~o~oo~o**

28 USC 8 2246 .............................................

Federal S t a t u t e s - Repealed

1 3 Stat. 356....ao.~..........ooooeomo*eeoe*o*o****oo****o

10 US6 5 147-593...e*.m

Treaties and o t h e r I n t e r n a t i o n a l Agreements

Geneva Convention f o r the Amelioration of the

.....................................12n
Condition of Sick and Wounded i n the Armed
Forces i n the Field..
2011,
13n,
45n

Geneva Convention f o r the Amelioration of the

Condition of t h e Sick and Wounded and shipwrecked
Members of Armed Forces a t Sea.. ......................... .12n, 13n,
20n, 45n

Geneva Convention Relative t o the Treatment of .'

Prisoner of War.............. ............................... 13n

20n, 45n,
49n, 53%
55% 56n,
72, 87, 89n,
9% 91, 92,
93, 9% 95n,
96n, 139, 142

Geneva Convention Relative to the Protection of

C i v i l i a n Persons i n Time of War.. ....................... . 1 h , 13n, 20n,
45n,49n, 53n,
56n,61n, 85,
127,131,132n,
133,134n,
135n,136,137,
138,139,142

Reservation t o the Geneva Convention Reletive t o t h e

Treatnent of P W f s by the U.S., 4 U.S.T. & O.I.A.
3694(1955) . . . . ....
. ~ . ~ ~ . . ~ ~ . ~ ~ ~ ~ e ~ ~ ~ ~ ~ . ~ ~ ~ ~ ~ ~ ~ e 0 ~
Reservation t o t h e Geneva Convention Relative to the

........................................
Treatment of PWJs by the U.S.S.R.,
3467, 3508, (1955)
6 U.S.T. 4 O.I.A.
74

Reservations to the Geneva Convention Relative t o t h e

344

(1957) .....................................................
Treatment of PWfs by North Viet Nan, 27 U.S.T.S.
15n

...............
Treaty of Montevidea, 49 S t a t . 31 11 (1 933). 31

The Moscow Declaration, 9 State Dept. B u l l .

310 (1943) ................................................ 59

The London Agreement, 1 3 S t a t e Dept. Bull.

222(1945) ................................................ 59, 64

Allied Control Council Law No. 10 (1945).

12 Fed. Reg. 3555....o...............................e....64,6 5,104.n.
116,121

Ordinance No. 7 (1 946). ,................................ 65

59 S t a t . 154-4, E.A.S. No. 472 (1945) ......................

Charter of the I n t e r n a t i o n a l Military Tribunal,

112n

O.I.A. 1792, 1802 ........................................

NATO S t a t u s of Forces Agreement, 4 U.S.T. &
8

4 U.S.T. 8 O.I.A. 1846

.
....................................
Security Agreement be tween the U. S and Japan,

U.S. Department of S t a t e , Treaties in .......

Force, 1966.. 33

 BIBLIOGRAPHY

INTERNATIONAL & WORLD ORGANIZATION MATERIAL

World Court

Advisory Opinion on Reservations to the Convention on the Prevention

and Punishment of the Crime of Genocide ( 1951 ) I. C J 15 ..
Case of t h e S.S. "Lotusfl (1927) P.C.I.J., s e r . A. No. 9.

I n t e r n a t i o n a l M i l i t a r y Tribunal

United S t a t e s v Karl Brandt, Case No. 1, I and I1 TRIALS. (1950-51)

United S t a t e s v Milch, Case No. 2, 111 TRIALS (1 950-51 ).

United S t a t e s v Joseph A l t s t o e t t e r e t a l , Case No. 3, I11 TRIALS

(1 950-51 ).

United S t a t e s v Pohl, Case No. 4, V TRIALS, (1 950-51 )

United S t a t e s v Flick, Case No. 5, 111 TRIALS (1950-51 ).

United S t a t e s v Krauch, Case No. 6, V I I and V I I I TRIALS (1950-51 ).

United S t a t e s v L i s t , Case No. 7, X I TRIALS, (1 950-51 1.

United S t a t e s v G r e i f e l t , Case No. 8, I V and V TRIALS, (1950-51 ).

United S t a t e s v Ohlendorf, Case No. 9, I V TRIALS, (1 950-51 ).

United S t a t e s v Krupp, Case No. 10, I X TRIALS, (1950-1 )

United S t a t e s v won Leeb, Case No. 12, X and X I TRIALS, (1950-51).

United S t a t e s v Eirota, I n t e r n a t i o n a l M i l i t a r y Tribunal f o r t h e Far

East (1948).

United S t a t e s v Goering e t a l , I n t e r n a t i o n a l M i l i t a r y Tribunal f o r

the T r i a l of Major War Criminals (1 94.6 )

-
Books

B r i e r l y , Law of Nations (5th ed. 1954)

Brooks, The World of Washington Irving (1 922)

Davidson, The Trial of the Germans ( 1 966)

E l l e r t , NATO " F a i r Tfi a l N Safeguards (1964)

Gardner, In P u r s u i t of world Order (1964)

Greenspan, The Moders Law of Land Warfare (1959)

Glueck, War Criminals: Tneir Prosecution and Punishment (1944)

Harris, S r a n n y on T r i a l (1 954)

Hausner , Judgment i n Je rsualem (1 966 )

Hingotani, Prisoners of War (1963)

Howard, Digest of Opinions of t h e Judge Advocate Generals of

t h e Army (191 2)

Kooks, Prisoners of War (1 924)

Mallin, Terror i n Viet N a m (1966)

Mueller and Wise, I n t e r n a t i o n a l Criminal Law (1 965)

Nobleman, American M i l i t a r y Government Courts in Germany (1953)

Oppenheim, I1 I n t e r n a t i o n a l Law (7th ed. 1952)

Reel, The Case of General Yamashita (1949)

Shirer, The Rise and F a l l of the Third Reich (1960)

Stone, Legal Controls of I n t e r n a t i o n a l C o n f l i c t (1959)

Taylor, F i n a l Report t o the Secretary of the Army (1 949)

Winthrop, M i l i t a r y Law and Precedents (2d ed. 1920)

Woetzel, The Nuremberg T r i a l s in I n t e r n a t i o n a l Law (1 962)

Wright, Q., A Study of War (1 964)

Constitution of the United S t a t e s , The (6th ed. 1964)

Books (cont-hued)

F i n a l Record of the Diplomatic Conference of Geneva of 1949,

vol. 2 A (1950)

The Geneva Conventions of 12 August 1 949 (ICRC ed. 1952)

The Geneva Conventions of 12 August 1949, Commentary 111, Geneva

Convention Relative t o the Treatment of Prisoners of War ( p i c t e t
ed. 1960)

The Geneva Conventions of 12 August 1949; Commentary N, Geneva

Convention Relative t o the Protection of Cdvilian Persons i n

Time of War (Pic t e t ed. 1958)

I n t e r n a t i o n a l Military Tribunal f o r t h e Far East - Dissenting

Judgment (1953)

Law Reports of Trials of War Criminals (1947-49)

Treatment of B r i t i s h Prisoners of War in Korea (1955)

T r i a l s of War Criminals Before the Nuremberg Tribunals (1946-49)

Undergrounds I n Insurgent, Revolutionary and Resistance Warfare ( 1963 )

Other U.S. Government Publications

Manual f o r Courts-Martial, 1951

Manual f o r Courts-Martial. 1928

Legal and L e ~ i s l a t i v eBasis, Manual f o r Courts-IYIartial, 1951 (1 951 )

U.S. J o i n t Chiefs of S t a f f Publication No. 2 (~ovember1959)

Army Digest, February 1967

Military Review, December 1966

U. S. Pept of Army Pamphlet 27-1 74, Military J u s t i c e

of Courts-Martial (1965)
- jurisdiction
U.S. Dept. of Army Pamphlet 27-5, S t a f f Judge Advocate Handbook (1965)

U. S. Dept of Army Pamphlet 101-5, Staff Officer1 s Field Manual (1964)

U.S. Dept, of Army Regulation 320-5, Dictionary of U.S. Army Terms

161

Other U. S. Government Publications (continued 1

U.S. Dept. of Army Pamphlet 360-521, Handbook f o r US Forces in

Vietnam ( June 1966 )

Depl t of Army Regulation 27-28, Claims Arising i n Foreign Countries

U.S. Dept. of Army F i e l d Manual 27-1 0, Law of Land Warefare (1956)

U.S. Dept of Army Field Manual 21-21, Special Forces Operations (1965)
U.S. Dept of Army F i e l d Manual l9-LCO, Enemy Prisoners of War and
C i v i l i a n Internees (Augyst 1964)

U.S. Dep't of Army, The Adjutant General's School, Memorandum 202-1,

Organization of the Department of Defense, (April 1966)

M i l i t a r y Assistance Command, Viet N a m , Directive No. 20-4

U.S. Bureau of Prisons, Report No. 39 (June 1966.)

S t a t e Department Documents

U.S. S t a t e Dept. B u l l . 56 (1967)

U.S. S t a t e Dept. Bull. 55 (1966)

U.S. S t a t e Dept. B u l l . 54 (1966)

U.S. S t a t e Dept. Bull. 53 (1965)

U.S. S t a t e Dept. B u l l . 50 (1965)

U.S. S t a t e Dept. Bull. 19 (19168)

U.S. S t a t e Dept. Bull. 1 5 (19'46)

Congressional Materials

Hearings Before the Committee on Foreign Relations, US Senate, 84th

Congress, 1 s t Sess., 3 June 1955, on the Geneva Conventions f o r
the Protection of War Victims.

Interim Report to t h e U.S. Senate by Senator Homer Ferguson, Foreign

Relations Committee, 81 s t Congress, 1s t Sess. (1 949)
Senate Report, No. 130, 64th Congress, I s t Sess. (1916)
 Newspapers

The New York Times

The Los A n ~ e l e sTimes

The Washington, D,C. Post

United Nations

United Nations Declaration on Human Rights, 19 S t a t e Dep't Bull.

751(1948).

United Nations Command, Trial of Accused War Criminals, order issued

by General Headquarters, AG 000.5, 28 October 1950.

United Nations Doc, A/CN. 417 Rev. 1 (1949).

Law Review A r t i c l e s

Bande, Eichmann T r i a l s : Some Legal Aspects, 1961 'Duke L. J , 400.

Baxter, Asylum t o Prisoners of War, 30 B r i t . Yb. I n t y l . L. 481 (1953)

' Baxter, So-Called Unprivileged Belligerency Z : Spies, Guerillas. and

Saboteurs, 28 B r i t . Yb. I n t l l . L. 323 (1951 ).

Beckett, The Exercise of Criminal J u r i s d i s d i c t i o n over Foreigners,

6 B r i t . Yb. I n t ' l . L. 44 (1925).

Biddle, The Nuremberg T r i a l , 22 Va. L. Rev. 679 ( 1947).

Bilder, Control of Criminal Conduct i n Antartica, 52 Va. L. Rev. 231

(1966).

Brand, The War Crimes T r i a l s and the Law of War, 26 B r i t . Yb. I n t l l .

Lo 414 (1949).
Carnigie, J u r i s d i c t i o n over Violations of the Laws and Customs of War,

39 B r i t o Yb. I n t r l L. (1963).

Colby, War C r i m e s , 23 Mich. L. Rev. 482 (1923).

Cowles, Universality of J u r i s d i c t i o n over War Criminals, 33 Calif.

L. Rev. 176 (1945).

Dietze, J u d i c i a l Review i n Europe, 55 Mich. L. Rev. 539 ( 1 957).

 Duke, War Crimes - Obedience t o Order, US Naval I n s t i t u t e Proceedings

82 (1964).

Dunn, T r i a l of War Criminals, 19 ~ u s t .L. J. 351 (1946).

Esgain & Solf, The 1949 Geneva Convention Relative t o t h e Treatment

of Prisoners of War: Its P r i n c i p l e s , Innovations, and ~ ei cfi e n c i e s ,
41 N.C.L. Rev. 537 (1963).

Evans, Acquisition of Custody over the I n t e r n a t i o n a l Fugitive

Offender, 40 B r i t . Yb. I n t f l . L. 77 (1964J.

Fairman, Some New Problems of the Constitution Following the Flag,

1 Stan. L. Rev. 587 (1949).

Falk, The Shimoda Case: A Legal Apprisal of t h e Atomic Attack Upon

Hiroshima and Nagasaki, 59 Am. J. I n t l l . L. 759 (1965).

Falk, I n t e r n a t i o n a l Law and the US Role i n the Viet Nam War,

75 Yale L. J. 1122 (1 966).

Fawcett, The Eichmann Case, 38 B r i t . Yb. I n t r l . L. 1,81 (1962)

Finch, An I n t e r n a t i o n a l Criminal Court : A Case Against Adoption,

38 A.B.A. J. 644 (1952).

Forencz, Nuremberg T r i a l Procedure and the Rights of the Accused,

39 C r i m . L. & C r i m . 145 (1 948).

Garcia-Nora, Crimes Against Humanity and the P r i n c i p l e of Non-

Xxtradition of P o l i t i c a l Offenders, 62 Mich. L. Rev. 927 ( 1 96%).

~ l u e c k ,By.,-What--TribunalsS h a l l War Offenders Be Tried?, 56 Ham.

L. Rev. 1059 (1942).

A . 'W. Green, The M i l i t a r y Commission, 42 Ani. J. I n t r l . Lo 832 (1948)

I
L. C. Green, Leva1 Issues i n the Eichmann Trial, 37 Tul. L. Rev.
641 (1963).

C. Green, The Maxim NULLUM CRIMEN SINE and the Eichmann T r i a l ,

B r i t . Yb. I n t l l / L. 457 (1962)0
Harris, European Convention on Human Rights, C r i m . L. Rev. 205 (1966).

Harris, UN Adopts I n t e r n a t i o n a l Covenants on Human Rights,

56 Deprt of S t a t e Bull. 104 (1966).

Hudson, Charter Provisions on Human R i ~ h t si n American Law, 44. Am.

J. I n t f l . L. 545 (1950).
Hyde, Japanese Executions of American Aviators, 37 Am. J. I n t l l . Lo
480 (1943).

Jackson, The Tkials of War Criminals, 32 A.B.A. J. 319 (l91c6).

Johnson, Two Threats t o Peace: Hunger and Aggression, 55 Deprt. of

S t a t e Bull. 114 (1966).

Johnson, Four E s s e n t i a l s f o r Peace i n Asia, 55 S t a t e Depft. Bull.

158 (19661.

Koessler, Review and Investigation Odyssey i n the Malmedy Massacre

-Case 6 C r i m . L. Rev. 39 ( 1 959).

Koessler, American War Crimes T r i a l s i n Europe, 39 Geo. L. J. 18 (1950).

Kaplan, C o n s t i t u t i o n a l Limitations on T r i a l s by Military Commissions,

92 Pa. L. Rev. 119 (1 943).

Kelly, Assassination i n War Time, 30 M i l . L. Rev, 101 (1 966).

Korey, Human Rights Treaties: Why i s t h e U.S. S t a l l i n g ? , 45 Foreign

A f f a i r s 414 (1967).

Lauterpacht, Law of Nations and PunSshment of War Crimes, 21 B r i t .

L. 58 (I9W).

Yb. I n t f l .

Lauterpacht, The Limits of the Operation of t h e Law of War,

30 B r i t . Yb. I n t r l . L. 206 (1953).

1,auterpach-L. The Problem of t h e Revision of the Laws of War,

24 B r i t . Yb. I n t l l . L. 360 (1952).

E. Lauterpacht, Some Concepts of Human Rights, 11 HOW. L. Jo 264 (1 965).

Levie, Penal Sanctions f o r Maltreatment of Prisoners of War,

56 Am. J. I n t r l . L. 433 (1962).

MacDougal & Bebr, Human Rights - S t a t u s Todax, 58 Am. J. I n t ' l . Lo

603 (1964).
MacGildeon, Some Observations on the P a r t of P r o t e s t i n I n t e r -
n a t i o n a l Law, 30 B r i t . Yb. I n t f l . L. 293 (1953).

Malik, Human Rights i n the United S t a t e s , 6 I n t , J. 275 (1951 ).

Manes, Barbed Wire Command: The Legal Nature of the Command

R e s p o n s i b i l i t i e s of t h e Senior Prisoner in a Prisoner of War Camp,
10 M i l . L. Rev, 1 (1 960).
Meeker, Viet-Nam and the I n t e r n a t i o n a l Law of Self-Defens

56 Depf t of S t a t e Bull. 54 ( 1 967.

Miller, War Crimes T r i a l s a t Yokahama, 15 Brook. L. Rev. 191 (1 949).

Morgenstern, Asylum f o r War Criminals, 30 B r i t . Yb. I n t ' l . L.

382 (1953)-

Neumann, Neutral S t a t e s and Extradition of War Criminals,

45 Am. J. I n t l l . L. 495 (1 951 ).

OIHiggins, Unlawful Seizure and I r r e g u l a r Extradition,

36 B r i t . Yb. I n t f l . L. 279 (1 960).

Orfield, What Constitut&s F a i r Criminal Procedure Under Municipal

and I n t e r n a t i o n a l Law, 12 P i t t . L. Rev. 35 (1950).

P e l l a , Towards an I n t e r n a t i o n a l Criminal Court, 44 Am. J. I n t f l . L.

44 Am. J. I n t l l . L. 37 (1950).

P i c t e t , The New Geneva Conventions f o r the Protection of War Victims,

45 Am. J. I n t ' l . L. 462 (1 951 ).

Re, The NATO SOFA Agreement and I n t e r n a t i o n a l Law, 50 Nw. L, Rev.

349 71955).

Rowson, P r i z e Law During the Second World War, 24 B r i t . Yb. I n t t l . L.

160 (1947).

Roy, Is the l a w of Responsibility of s t a t e s For I n j u r i e s t o Aliens

a P a r t of Universal I n t e r n a t i o n a l Law? 55 Am. J. I n t l l . L.- 863 (1961).
Rusk, Uiet-Nam: 4 Steps t o Peace, 53 Depl t. of S t a t e Bull. 50 (1965).
Sager, Charter v s Constitution: An I n t e r n a t i o n a l Criminal Tribunal
i n American Law, 11 How. L. J. 607 (1965).

Schwartzenberger, The Judgment a t Nuremberg, 21 Tul. L. Rev. 329

(1 947).

Schwelb, The Works of the War Crimes Commission, 23 B r i t . Yb. Intll.L.

363 ( 1 9 ' 6 .

Snee & Pye, Due Process i n Criminal Procedure: A Comparison of Two

Systems, 21 Ohio, St. L. J.

Snyder, It's Not t h e Law - The War G u i l t T r i a l s , 38 Ky. L. J.

81 (194.9).

Spurlock, The Yokahama War T r i a l s , 36 A.B.A. J. 381 (1 950).

Taylor, The Nuremberg T r i a l s , 55 Col. L. Rev. 488 (1951 ).

Tilman, The Nonlessons of the Malayan Emergency, M i l i t a r y Rev. 62

(Dec. 1966).

Westerman, I n t e r n a t i o n a l Law P r o t e c t s Prisoners of War, Army Digest,

32, February(l967),

Wheeler, The United S t a t e s Achievements in Viet-Nam, 56 Deplt of

S t a t e Bull. 186 (1967).

Wright, Q., )Legal ~ s p e c t sof t h e Viet-Nam S i t u a t i o n , 60 h. J. I n t l l . L.

7-50 (1966).

Wright, Q., Outlawry of War and t h e Law of 'War, 47 Am. J. I n t ' l . L.

365 (1953).
Wright, Q., Proposal f o r an I n t e r n a t i o n a l Criminal Court,
46 Am. J. I n t ' l . L. 60 (1952).
Wright, Q., The Law of t h e Nuremberg T r i a l s , 41 Am. J. I n t f l . L.
38 (1947).
Wright, Q., WarCriminals, 39Am. J. I n t g l . L. 257 (1945).

Yingling and Ginnane, The Genva Conventions of 1949, 11.6 h. J. I n t r l . L.

393 (1952).

Notes and Comments

59 Am. J. I n t ' l . L. 351 (1965).

48 Am. J. I n t t l . L. J. 616 (1954).

44. Am. J. Intrl. L. Supp. 1 (1952).
22 Am. J. I n t ' l . L. 667 (1 928).

The Cambridge L. J. (Apr 1966).

62 Col. L. Rev. 371 (1962).

1964 Duke L. Rev. 866 (1 964).

80 Ham. L. Rev, 851 (1967).

56 Ham. L. Rev. 631 (1943).

3 Ham. I n t . L. Club Bull. 80 (1961 ).
44 Mich. L. Rev. 855 (194.6).

167
 Notes and Comments (continued)

24 P i t t . L. Rev. 73 ( 1 962).

59 Yale L. Rev. 997 (1950).

Personal Interviews

Professor Howard S. Levie, St. Louis University School of Law,

St. Louis, Mo.

Colonel Waldemar A. Solf, Chief, M i l i t a r y J u s t i c e Division, Office of

the Judge Advocate General, US Army.

Colonel George Westerman, Chief, I n t e r n a t i o n a l A f f a i r s Division,

Off i c e of t h e Judge Advocate General, US Army.

, Lt. Colonel Kenneth A. Howard, I n s t r u c t o r , M i l i t a r y J u s t i c e

Division, The Judge Advocate Generalt s School.

Mr. Albert J. Esgain, Special Consultant t o the Judge Advocate

General of t h e Army on P r i v a t e I n t e r n a t i o n a l Law Matters and Chief,
Opinions Branch, I n t e r n a t i o n a l A f f a i r s Division, Office of the Judge
Advocate General, US Army.