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. So Army, or any other governmental agency. Rsferences to this study should include the foregoing statement. bs Major Charles Je Baldree, 097 360, United States Amy April 1967 LAW LIBRARY 1 A study of the four standards of procedural due process/fair trial required by the 1949 Geneva Conventions and the applicabion of these standards by the United States to the trial of war crimes. TABU OF CONTENTS PAGE CHAPTER II. STANDARDS OF PROCEDURAL DUE PROCESS UNDER INTERNATIONAL LAW........................................ A . Civil Crjminal Law.................................. B. The Law of 'War ...................................... 111. JURISDICTION TO TRY WAR CRIMINALS ........................ A . Basic Principles ..................................... B. The 1949 Geneva Conventions.......................... IV. CONSIDERATIONS AFFECTING PROSECUTORIAL DISCRETION ........ A. Staff Judge Advocate Duties and Responsibilities .................................... 8. Custody of the Accused .............................. C . Determination of Status............................. B. Other Considerations ................................ V . WAR CRIMES TRIBUNALS ..................................... 58 A . Historical Background ............................... 58 B. Types of Tribunals.................................. 60 C . United States War Crimes Tribunals .................. 72 VI. TRIAL OF THE PRISONER OF WAR ............................. 87 A . Procedural Rights Before and During Trial........... 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 IN OCCUPIEX)' TERFXTORY ....................................... 131 A . Procedural Rights Before and During Trial........... 131 TABLE OF CONTENTS (continued) PAGE CHAPTER B. Sentencing Power .................................... 134 C . Post-Trial Procedural Matters ..........*.......... 136 IX. GRAVE BREACH PROSECUTIONS..................................138 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 .Judicial Proceedings before United States Army War Crimes Tribunals Under the 194.9 Geneva Conventions ................O.O.......... 150 Be Factors in Determining "Fair Trial" ................. 151- C . Definition of Prisoner of War. Art. 4. GPW .......... 152 TABU OF CASES AND STATUTES.............O...................... 154 INTRODUCTION The newly arrived Army Judge Advocate officer in Viet-Nam read through the two war crimes files assigned to him to prosecute as capital offenses before US military tribunals. The offenses had taken place in South Viet-Namese territory during the time of US military assistance to defend against the aned a4 ession from North viet-N~III.'The first file concerned the murder of a village chief, his wife and three children, and two teachers by two members of the North Viet-Nan ~rmy. The second file reflected that a US Army batallion commander had been fatally shot in his sleep by three guerallas who had posed as indigenous mess hall employees, thereby gaining admission to the compound early one morning and thereafter 1. The explanation of the Administration's policy of assistance and the recognition in international law of self-defense in the face of armed aggression is outlined by the Legal Advisor to the State Department, Mr. Meeker, in The Legality of United States Participation in the Defense of Viet-Nam, 4 State Dept Bull-'.-. 474 28 MaPC~1966; see als-an2 International Law of ~llf-~efense,56 State Dept Bull. 56 (1967) ; Rusk, ViebFJam: Four Ste s to Peace, 53 State Dept Bull. 50 (12 July 1965)~Segal Aspects of the VieLNam Situation, 60 Am. J. Int'l. L. J 750 (1966) and for criticism of the U.S. position, see Falk, International Law and the United States Role in the Viet Nam War, 75 Yale L. J. 1122 (1966). 2. A brief summary of the violence inflicted upon helpless civilians in South Viet Nam, including mining of roads, kidnapping villagers, burning homes, and torture and murder of governmental officials and their families, see Nallin, T$,rlROR,,I,N, -VT&&Q$ (1 966). President Johnson reports that in 1965, the Viet Gong killed or kid- napped 12,000 South Vietnamese civilians, 55 State Dept Bull -144,117 (1966)e entering the victim's tent where he sleptO3 The files contained both sworn and unsworn statements from witnesses, mostly regarding hearsay matters; depositions from several villagers and from some US military personnel who had been reassigned to either the US or Europe or had been discharged; and sworn statements from the four accused in custody which the CID, in cooperation with the Viet- Namese authosities, had obtained. The fifth accused, one of the P' guerrklls, had fled to a neighboring state. The trials had been authorized by higher headquarters and qualified US Amy counsel had been assigned to represent the five defendants and interpreters provided to each accused or his counsel. The Army prosecutor leaned back in his chair, gazed at the overhead fan stirring the humid air, and considered the procedural aspects of these trials: What duty, if any, does the United States have regarding a fair trial under international law7 If such a duty exists, what are the components of a "fair trialw? To what & extent does the 1949 Geneva Conventions +ffec t the conduct of a was crimes trial? Upon what principles of jurisdiction can the trials be conducted? Can the accused have a choice of defense counsel and, if so, what qualifications must he possess? What about the right of the accused to call witnesses and present evidence, and can the statements and depositions be introduced? Does international law 3 Kelly, Assassination in War Time, 30 Mil L Rev 101 (1 966) ; Baxter, So-Called tunprivileged Belligerency: Spies, Guerrillas, and Saboteurs, 28 Brit. Yb. Int'l. L. -323.-- 342-3 (1951 1. See also COMMENTARY 111, :%&~anote 37 at 61. - permit trial & absentia? What punishment is imposable in the event of conviction? And, finally, what judicial and non-judicial remedies are available to assert a claim of denial of justice? The present inquiry deals with the procedural aspects of the general topic of state responsibility arising from the prosecution of violations of the law of war during hostilities as well as L occupation and will be considered under the following headings: standards of due process of law under international law, principles of jurisdiction, types of war crimes tribunals, procedural rights P accorded a prisoner of war and the unlawful belligerent (guerrdlla) for offenses committed during hostilities and during occupation, procedural rights granted in the trial of a grave breach, and post- trial actions regarding such proceedings. The paper is restricted, so far as possible, to the problem of the trial of the enemy alien conducted outside the US and the impact of customary international law and the lg* Geneva Conventions upon war crimes trials. Emphasis is upon the prosecution of con- ventional war crimes and grave breaches4 against prisoners of war 4. War crimes are generally divided into three categories: a) crimes against peace .. the planning, preparation, initiation or waging of a war of aggression; b) crimes against humanity - deporta- tion, enslavement and other inhuman acts committed against large populations; and c) war crimes - violations against the laws of war - murder, ill-treatment or deportation of slave labor of civilian populations, killing of hostages, plunder, and wanton destruction of villages, towns and cities. Stone, LEGAL CONTROLS OF INTERNATIONAL CONFLICT 358 (1954). The term 'grave breaches' combines the aore serious crimes from the categories of conventional war crimes and crimes against humanity. Little has been asserted as to the war and unlawful belligerents before US Amy tribunals. The paper does not deal, except quite incidentally, with what constituted a war crime or with other substantive or evidentiary matters. It is not the purpose of this paper to advocate in any way that war crimes trials be conducted by the US, but merely to review critically the WW II war crimes trials conducted by the US and to analyze the provisions of the Geneva Conventions in older to determine what action the United States Army must or should follow in the event it is assigned the task of conducting such trials. against peace as being a valid substantive war crime. See I1 Oppenheim, INTERNATIONAL LAW 566-7, ( 7th ed, 1952) for the inclusion of all ma$rauding acts as war crimes. Para 504, U. S. Deptt of Army, Field Manual 27-1 0, Law of Land Warfare (1956) (Hereinafter cited as F'M 27-1 0) lists non-grave breach war crimes, including : use of forbidden arms or ammunition, abuse of or firing on the flag of truce, use