Staff Officer Responsibility for War Crimes
Davidson, Michael J., Military Review
IN 1945 BRITISH and American bombers devastated Dresden, Germany. On the night of 13 February the Royal Air Force dropped 2,646 tons of bombs-44 percent incendiaries-into the heart of the city. The next day US Eighth Air Force bombers dropped 771 tons-38 percent incendiaries-- aiming at Dresden's marshaling yards.' Besides destroying the city's military industrial capacity and railroad marshaling yards, the aerial attack caused "exceptionally high" civilian casualties and substantial damage to the city's residential areas.2
The legal justification for these raids has been widely debated; the legal rules affecting aerial bombardment were not codified until after World War II. While some have suggested that "the attack on Dresden might have been illegal," other commentators consider Dresden to have been a "legitimate military target."3 Assuming that the most controversial aspects of the Dresden bombings would be considered a violation of the laws of armed conflict if carried out today, what responsibility does the planning staff bear for such an attack?
During the Vietnam War, US soldiers of the American Division massacred hundreds of South Vietnamese civilians near the village of My Lai. Division Commander Major General Samuel Koster and Assistant Division Commander Brigadier General George Young were initially charged, but the charges were later dismissed and the officers were administratively punished.' Lower-level commanders were court-martialed. Brigade Commander Colonel Oran Henderson and Company Commander Captain Ernest Medina were acquitted. Platoon Leader Lieutenant William Calley was convicted, but eventually, the Secretary of the Army paroled him. These trials, especially Calley's, are relatively well-known events and were the basis for books and articles about command responsibility for war crimes and the availability of a superior-orders defense.
However, buried as a historical footnote in that dark chapter of US military history was the recommendation to prosecute several staff officers involved in the operation. Following his investigation of the My Lai massacre for the Army, Lieutenant General William R. Peers and his investigative team made highly unusual and largely unprecedented recommendations. The Peers Commission proposed that charges also be preferred against a number of American staff officers, including the division chief of staff, the brigade operations officer, the task force operations and intelligence officers, and the division chaplain.'
Much has been written about war crime responsibility by those who order and commit them, but little has been written about the responsibility of those who facilitate such offenses. US staff officers are the envy of other armed forces. When told to "make it happen," they overcome any obstacle to accomplish the mission. Unfortunately, the same qualities that make US staff officers some of the world's best create a potential nidus for perpetuating illegal orders during wartime. Because most officers spend more time as staffers than commanders, discussing staff officer responsibility for law-of-war violations appears particularly germane.
This article discusses both the Allied actions at Dresden and US soldier conduct at My Lai but does not imply an analogy between the two. Each is merely a historical example used to discuss the law of armed conflict as it applies today. Further, this article does not purport to address the Dresden raid's legality under the legal standards of the time.
After World War II, the victorious Allies tried major Nazi war criminals before an international military tribunal at Nuremberg, Germany. Military courts of the various Allied nations, such as France, Russia, Britain and the United States, tried lesser officials. By 1948 approximately 3,500 Germans had been tried for war crimes; similar trials of another 2,800 Japanese war criminals had been held in the Far East.6
The Nuremberg war crimes trials, and others conducted by individual nations throughout Europe and the Far East, defined and formulated international law for war crimes. …