THERE IS A TENDENCY TO consider the concept of command responsibility relating to the commission of war crimes and crimes against humanity as a new phenomenon resulting from the Nuremberg Judgment.l In fact, even in feudal times it was clearly established that a commander might be liable, equally with the offender, for offences committed by those under his command. There seems to be little doubt that modern international law embodies the principle that, in addition to the individual responsibility of those who may actually perpetrate such crimes, criminal liability will also accrue to any political or military superior who orders, colludes in, condones, or fails to take steps to prevent their commission or repress and punish the actual offenders. This paper explores the application of that principle to actual situations, especially recent experience.
As early as 1439, Charles VII of Orleans, in terms that almost foreshadow Protocol I of 1977 additional to the Geneva Conventions of 1949 and extending certain aspects of humanitarian law relevant to international armed conflicts, promulgated an Ordinance providing:
18. The King orders that each captain or lieutenant be held responsible for the abuses, ills and offences committed by members of his company, and that as soon as he receives any complaint concerning any such misdeed or abuse, he bring the offender to justice.... If he fails to do so or covers up the misdeed or delays taking action, or if, because of his negligence or otherwise, the offender escapes and thus evades punishment, the captain shall be deemed responsible for the offence as if he had committed it himself and be punished in the same way as the offender would have been.2 It was not, however, until the capture of Napoleon after Waterloo in 1815 that we find an international effort to condemn a leader for what today would be called crimes against peace.3 The Congress of Vienna had originally declared Napoleon an international outlaw for having invaded France in violation of the 1814 Treaty of Paris, in which he had agreed to retire to Elba. By his escape from that island and his reentry into France with an armed force, the Congress of Vienna declared, Napoleon had "destroyed the sole legal title upon which his existence depended[,] . . placed himself outside the protection of the law, and manifested to the world that it can have neither peace nor truce with him.... [Napoleon has put himself outside] civil and social relations, and that as Enemy and Perturbator of the World, he has incurred liability to public vengeance."4
Since Napoleon had been declared an "outlaw," one who had "placed himself outside the protection of the law," the commander of the Prussian contingent of the forces of occupation wished, rather than bring him to trial, to have him shot out of hand. The other powers would not agree to this, and he was handed over to the British, who exiled him to St. Helena.5
This decision was made on political, not legal, grounds, but it clearly reflected the view that resort to war in breach of treaty was criminal. This approach was comparable to the medieval attitude toward a knight who had been captured and released on parole but had subsequently broken that parole.6 It was at the time of the American Civil War that the first attempt was made to introduce an up-to-date code for the conduct of armies in the field. Drafted by Professor Francis Lieber of Columbia College, New York, and promulgated by President Abraham Lincoln in April 1863 as a General Order to the Army, the Lieber Code was distributed to both the Union and Confederate armies; it soon formed the basis of many other national codes.7 However, though it contained a variety of articles detailing the duties of a commander, it nowhere suggested that failure of a commander to comply with these instructions, or issuance of orders contrary thereto, was illegal or merited penalty.8 Nevertheless, the principles actually embodied in the Code and also liability for issuing or executing illegal orders were both confirmed in the celebrated 1865 trial of Confederate Captain Henry Wirz, former commander of the Andersonville, Georgia, prison camp. …