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High Government Officials as War Criminals

Published online by Cambridge University Press:  27 February 2017

Colonel Willard B. Cowles
Colonel Willard B. Cowles*
Affiliation:
Attorney General of the United States
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Abstract

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Type
Second Session
Information
Proceedings of the American Society of International Law at its annual meeting (1921-1969) , Volume 39 , 1945 , pp. 54 - 68
Copyright
Copyright © American Society of International Law 1945

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References

* The opinions expressed herein are the writer's and do not necessarily represent those of The Judge Advocate General or the War Department. I wish to acknowledge valuable assistance given by Captain Williams,, Wayne D.J.A.G.D., in the preparation of this paper.Google Scholar

1 Article 3, 36 Stat. 2259, 2271: 2 Treaties etc. (Malloy) 2259, 2266.

2 Digest of Opinions of the Judge Advocate General of the Army (1912), p. 1067, n. 6; Winthrop, Military Laws and Precedents, 1920 (reprint), p. 838.

3 For. Reis, of the V. S., 1867, Pt. 2, p. 418.

4 Takahashi, , International Law Applied to the Russo-Japanese War, 1908, p. 186 Google Scholar.

5 Garner, International Law and the World War, 1920, Vol. I, p. 407; 10 A.J.I.L. 865.

6 See Pitman, Benn , The Assassination of President Lincoln and the Trial of the Conspirators, 1865 Google Scholar.

7 United States v. dePosoy, G.O. 339 (II) Division of the Philippines, 6 Nov. 1901.

8 Correspondence respecting the Brussels Conference on the Rules of Military Warfare, 1875, C. 1010, pp. 180-181; 313-314.

9 Introduction to Part III—Penal Sanctions and Article 84. English translation in Carnegie Endowment for International Peace, Division of International Law, Pamphlet Series No. 36, Documents Relating to the Program of the First Hague Peace Conference, pp. 47, 59.

10 36 Stat. 2371; 2 Treaties etc. (Malloy) 2326.

10a 36 Stat. 2277, 2295; 2 Treaties etc. (Malloy) 2269, 2281.

10b Spaight gives the following instances of trial and punishment for treacherous hostilities. Many others could be cited from our own military archives: “ It is treachery when a man throws up his hands in token of surrender and then seizes his rile again and shoots his trusting enemy. Three Boers were sentenced to death and shot for perpetrating such an act as this on 26th October, 1900, at Frederikstad, Transvaal. Another Boer was sentenced to be hanged for treachery; on 25th September, 1901, he, with two other Boers, approached a biock-house under a flag of truce and asked that he might see an officer, and when an officer of the South African Constabulary went out to meet them and speak to them, shot him in full view of the block-house. These are clear cases of treachery, for the victim was in each case disarmed by his enemy's assumption of a non-hostile character, and then, when not on his guard, shot down by the man he had trusted” : War Rights on Land, 1911, pp. 87-88.

11 32 Stat. 1803,1811, 1817; 2 Treaties etc. (Malloy) 2042, 2048, 2052.

12 Carnegie Pamphlet No. 30, as cited, p. 48.

13 Par. 101.

14 Par. 16. See also 1940 Basic Field Manual, Rides of Land Warfare, FM 27-10, pars. 4c and 39.

15 36 Stat. 2277, 2295, 2301-2302; 2 Treaties etc. (Malloy) 2269, 2281, 2285.

16 The Oxford Dictionary defines them as follows: Treachery—“ Deceit, cheating, perfidy; violation of faith or betrayal of trust; perfidious conduct.” Perfidy—“ The deceitful violation of faith or promise; base breach of faith or betrayal of the trust reposed in one; treachery; often, the profession of faith or friendship in order to deceive or betray.”

17 War Rights on Land, 1911, p. 87.

18 FM 27-10, par. 31.

18 36 Stat. 2277, 2295, 2302; 2 Treaties etc. (Malloy) 2269, 2281, 2286.

19 32 Stat. 1803, 1811, 1818; 2 Treaties etc. (Malloy) 2042, 2048, 2052.

21 Proceedings of the Hague Peace Conferences, 1899, Carnegie Endowment, 1920, p. 59.

22 Par. 192, U. S. Rules of Land Warfare, 1914, p. 60.

23 Note (a) to par. 139, Edmonds and Oppenheim, , The Laws and Usages of War on Land. 1912, p. 37 Google Scholar; Par. 139, Chapter 14, Manual of Military Law, p. 255.

24 Par. 139, Edmonds and Oppenheim, work cited, p. 37. The same instruction has remained in the British Manual down to date; Par. 139, Chapter 14,1914 Manual of Military Law, p. 255; Amendments (No. 12) Jan. 1936, to the 1929 British Manual of Military Law, Ch. 14, par. 139.

25 Edmonds and Oppenheim, The Law and Usages of War on Land, 1912, note (b) to par. 143. See Chapter 14 of the British Manual of Military Law, 1929, Amendments No. 12 (1936), note 1, to par. 143.

26 Hugo Grotius, The Law of War and Peace, Book III, Chapter III, par. VI.

27 E. de Vattel, The Law of Nations, Book III, Chapter IV.

28 This continental view is ably expressed by M. Bonfils: “ Acts done before the declaration have a doubtful character. Are they real hostilities, or merely unauthorized attacks? A State which has not been warned, and which sees its frontiers attacked, would be authorised in regarding the hostile soldiers and sailors as merely bandits or pirates committing an act of aggression, and in applying to them the national laws dealing with brigands, instead of the laws of war” (Translation from Spaight, War Rights on Land, 1911, p. 22).

29 3 Commentaries upon International Law (3d. ed., 1885), p. 84.

30 International Law, 1892 (6th ed.), p. 189.

31 7 Digest of International Law, 1906, p. 171.

32 International Law, 1913 (2d ed.), 24.

33 The Law of War Between Belligerents, 1908, pp. 199-200.

34 2 International Law, 1906, pp. 105, 106.

35 The Essentials of International Public Law, 1916, p. 358.

36 International Law, 1934 (2d ed.), p. 453.

37 War Rights on Land, 1911, p. 88.

38 The Principles of International Law, 1915 (6th ed.), p. 348.

39 Russian Manifesto of February 18, 1904, cited in Takahashi, International Law Applied to the Russo-Japanese War, 1908, p. 8.

40 Annuaire de L ‘lmtitut de Droit International, 1904 and 1906, in general

41 J. B. Scott, Resolutions of the Institute of International Law, 1916, p. 164.

42 3 Proceedings of the Hague Peace Conferences, p. 43, hereinafter cited as Hague Proc. See also 2 Oppenheim, International Law, 1912 (2d ed.), 123; Gamer, Recent Developments in International Law, 1925, p. 72; Lawrence, as cited, p. 348.

43 2 International Law, 1912 (2d ed.), 123.

44 3 Hague Proc. 157; French text, at p. 253.

45 Same, p. 30.

46 Same, pp. 157, 159. The questionnaire is set out at p. 253.

47 Same, p. 157.

48 Same, pp. 43, 160.

49 Same, p. 162.

50 Same, pp. 43, 44, 45, 46, 160, 163, 168; see also p. 253.

51 Stat. 2259, 2271; 2 Treaties etc. (Malloy) 2259, 2266.

52 War Bights on Land, 1911, p. 22.

53 2 International Law, 1912 (2d ed.), 126.

54 Ellery C. Stowell, “ Convention Relative to the Opening of Hostilities,” in 2 A.J.I.L. (1908) 50, 57.

55 36 A.J.I.L. (1942) 87, 88.

56 A. Pearce Higgins, The Hague Peace Conferences, 1909, p. 203.

57 2 Wheaton on International Law, 1944 (Keith's 7th ed.), p. 106.

58 Recent Developments in International Law, 1925, p. 72.

59 Traiti de Droit International Public, 1921, Sec. 1028. Translation.

60 Raleigh and Caston Railroad Co. v. Reid, 13 Wall. 269, 270 (1872); Botany Worsted Mills v. United States, 278 U. S. 282, 289 (1929).

61 Soughimoura, De la Declaration de Guerre, 1912, p. 4. Translation.

62 Land Warfare, par. 148, p. 38; see also Art. 35, Hague Regulations, 1907, 36 Stat. 2277, 2295, 2305; 2 Treaties etc. (Malloy) 2269, 2281, 2287; PM 27-10, op. cU., pars. 245, 267, 270.

63 The Treaty Section of the Division of Research and Publication of the Department ofState advises that the following States are parties to the Third Hague Convention: Austria-Hungary, Belgium, Bolivia, Brazil, China, Denmark, Ethiopia, Finland, France, Germany, Great Britain, Guatemala, Haiti, Japan, Liberia, Luxembourg, Mexico, Netherlands, Nicaragua, Norway, Panama, Poland, Portugal, Rumania, Russia, San Salvador, Siam, Spain, Sweden, Switzerland, United States of America.

64 Spaight takes the position that where the initial attack is by air, the time of the actual dispatching of the air squadrons “must be regarded as the opening of hostilities” : J. M. Spaight, Air Power and War Bights, 1933, p. 51.

65 See article by the present speaker in the June, 1945, issue of the California Law Review entitled, “ Universality of Jurisdiction over War Crimes.”

66 Ex parte Quirin et al., 317 U. S. 1 (1942).

67 Press Release, OWI-2026, 14 June 1943

68 T. Baty, The Canons of International Law, 1930, p. 27.

69 Air Power and War Bights, 1933 (2d ed.), p. 51.

70 Thus see L. H. Woolsey, 36 A.J.I.L. (1942) 77-78; Charles Cheney Hyde, same, p. 84; Ellery C. Stowell, same, pp. 87-88.

* On this point see footnote 65 of Colonel Cowles' paper, above [Ed. Note].