Walking away from Nuremberg: Just war and the doctrine of command responsibility in the American military profession

On November 20, 1945, in his opening statement as the American Chief Counsel for the prosecution at the International Military Tribunal (IMT) at Nuremberg, United States Supreme Court Justice Robert H. Jackson addressed the issue of whether the legacy of that tribunal would be simple "victor's justice" or the establishment of principles of international reciprocity in holding individuals accountable for war crimes: "We must never forget that the record on which we judge these defendants is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our lips as well."1 The official position of the United States vis-a-vis Justice Jackson's apocalyptic challenge has been one of steady erosion from a precise affirmative standard for holding individual commanders directly responsible for war crimes.;Many of the principles of Nuremberg era trials have their origin in the U.S. Civil War era U.S. General Order No. 100, also known as the Lieber Code, that incorporated all the major principles of Augustinian just war doctrine. This project examines the evolution of the concept of command responsibility as U.S. military doctrine from the Lieber Code to the present. The development of military doctrine is considered in the context of contested weltanschauung (worldviews) between those who championed contrasting models of military professionalism.;Although the United States Army, after World War II, incorporated a rigorous definition of command responsibility into its preeminent doctrinal manual on the law of war, Field Manual 27-10, the United States failed to hold its own military commanders responsible for dereliction in preventing grave breaches of international humanitarian law during the course of the Vietnam War. 2 Subsequently, the United States has consistently refused to ratify international treaties and protocols that would replace the passive standard of command responsibility that the United States has enforced on its own military personnel with the affirmative standards inscribed in other recent international human rights statutes and war crime tribunal charters. Finally, this project will closely examine the relevance of the military doctrine of command responsibility to the national decisions to oppose the ratification of such treaties.;1Quoted in Telford Taylor, The Anatomy of the Nuremberg Trial, (New York: Little Brown, 1992), 168. 2U.S. Army Field Manual 27-10, Rules of Land Warfare , (Washington, DC: Government Printing Office, July 1956). 178-179.