American Journal of International Law July, 1986 Agora *608 SOME COMMENTS ON PROFESSOR D'AMATO'S "PARADOX" Howard S.

Levie [FNa1] Copyright 1986 by the American Society of International Law; Howard S. Levie When I read Professor D'Amato's Comment the first time, my immediate impression was that it had been written with tongue in cheek. When I read it again, I was even more convinced that such was the case! While Professor D'Amato and I rarely agree with respect to applicable rules of the law of war, [FN1] I have heretofore always found his arguments to have some merit. In this case, I do not. The two doctrines at issue--the "command responsibility" of the superior under certain circumstances for offenses against the law of war committed by his subordinates, and the denial of the subordinate's right to assert the defense of "superior orders" in a trial for offenses against the law of war allegedly committed pursuant to such orders--had been the subject of considerable *609 controversy even prior to the numerous war crimes trials after World War II. [FN2] The frequently criticized Yamashita Case [FN3] epitomizes the doctrine of command responsibility. (It should be borne in mind that most of the criticism of that case was not directed against the validity of the rule of command responsibility as such, but against the application of the rule on the facts of that particular case. [FN4]) The doctrine of command responsibility, in a somewhat restricted form, [FN5] was codified in Article 86(2) of the 1977 Protocol I. [FN6] The doctrine of superior orders, on the other hand, while the most frequently offered, and uniformly rejected, defense in the post-World War II program of war crimes trials, was not the subject of major jurisprudential controversy during that program, but has since become so. It was specifically denied as a defense by Article 8 of the London Charter, which created the International Military Tribunal; [FN7] by the Charter of the International Military Tribunal for the Far East; [FN8] by Control Council Law No. 10, issued by the Allied Control Commission for Germany; [FN9] and by most national courts. [FN10] However, a provision codifying this exclusionary rule was rejected by the Diplomatic Conference that drafted the four Geneva Conventions of 1949 [FN11] and again by the Diplomatic Conference that drafted the 1977 Protocol I. [FN12] *610 While

the latter conference acted as it did because of fears concerning the impact of such a codified provision on military discipline, or because of a belief that the proposal did not go far enough in outlawing the defense, the fact remains that the proposal was rejected. [FN13] With that brief discussion of the law, let us examine the concern that these two rules have occasioned in Professor D'Amato. At the risk of oversimplification, I understand him to find a problem in the following situation: A gives his subordinate, B, an illegal order to commit an act that constitutes a war crime; B obeys the order and commits the offense; B may be found guilty of the commission of the war crime, the defense of superior orders not being available to him. But inasmuch as B had the duty to refuse to obey the illegal order, a duty he failed to meet, Professor D'Amato finds it logically difficult to reach the conclusion that A, who gave the illegal order, should also be held guilty of an offense for having given that same order. Thus, he says that "if B was denied the defense of superior orders because A's order was illegal, then the responsibility for the criminal act was entirely B's. No additional responsibility should be attributed to A" (emphasis added). It appears to me that Professor D'Amato has raised a straw man that will be blown down by a very slight puff of wind and that the substitution of other characters in his example will quickly demonstrate the validity of that statement. A Cosa Nostra "godfather" orders one of his "soldiers" to make a "hit," to murder a member of a rival "family"--apparently not an unusual occurrence. The soldier does so and is caught in the act. Obviously, he may be tried for the murder and the defense of superior orders is not available to him. Rather than accept the inevitable, he violates the code of the Cosa Nostra and talks, disclosing that the murder was ordered by the godfather. The latter is then indicted for murder, conspiracy to murder, etc. It is difficult to conceive that anyone would contend that the godfather could defend on the ground that his order to his soldier to murder the member of the rival family was illegal, that the soldier should not have obeyed it, and that, therefore, when he did so, the godfather could not be found guilty of an offense--yet that is precisely what Professor D'Amato postulates as his problem! The hole in the logic of the sequence stated by Professor D'Amato appears to lie in the inclusion of the statement "No additional responsibility should be attributed to A." Why not? If a near-bankrupt businessman hires a "torch" to burn down his plant so that he may collect the insurance, is he not just as guilty of arson as the hired arsonist? Is there any rule of law, municipal or international, that insulates one offender against the law from punishment *611 just because the actual bullet was fired, or the match was lit, by another, but at his

instigation? Professor D'Amato states that "the conceptual paradox lies in finding both A and B responsible for the war crime." I find no "conceptual paradox" in reaching such a conclusion, either with respect to common law crimes or with respect to war crimes--which latter are, for the most part, common law crimes committed against enemy military or civilian personnel or against nonmilitary objects. Yielding before that "conceptual paradox" would eliminate the crime of "felony murder"--for, using Professor D'Amato's methodology, inasmuch as the man who pulled the trigger was "100 percent liable" for the commission of the crime, there would be no percentage left to apply to his partner in crime. Why is it "unreasonable" to find two, or even more, persons each "100 percent guilty" of the commission of a single criminal act? ("Mitigating circumstances" may reduce the punishment one of them is to suffer, but this has nothing to do with his guilt.) Professor D'Amato asserts that "the so-called defense of superior orders is not a defense at all; although it may be pleaded in mitigation of punishment, it does not go to the determination of guilt." This is confusing cause and effect. The "so-called defense of superior orders" is not a "so-called defense"; it is a real defense, which, for valid reasons, the international community elected to make unavailable to any person charged with the offense of having committed a war crime. However, because, in certain circumstances, it might indicate a diminished mens rea, the rule that denies the substantive defense to the accused has often (but not necessarily) permitted proof of superior orders to mitigate punishment. This practice in no way alters the fact that in the court of a country that permits it to be asserted as a defense, it would go to the determination of guilt and, if established, could be a complete defense. As I have indicated, I find no need to "resolve the paradox" inasmuch as I do not find a paradox; hence, the "Split-Responsibility Solution" and the "Dualist Solution" are, to me, nothing more than jurisprudential theorizing, theorizing that I find it quite unnecessary to indulge in for the purpose of solving Professor D'Amato's "problem."