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1 I N T R O D U C T I O N Nuremberg, Germany, November 20, 1945 In his opening statement as the American chief counsel for the prosecution at the International Military Tribunal at Nuremberg, U.S. 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 On loan from the U.S. Supreme Court for the purpose of negotiating the London Charter establishing the International Military Tribunal (IMT), and later serving as the tribunal’s first lead prosecutor for the United States, Justice Jackson immediately understood that the trials he had arranged and the theory of his prosecution placed the American military profession in a historic ethical dilemma. In a 1946 article, published in what was then the professional journal of the U.S. Army, Jackson argued that the standards of liability that the IMT was holding as binding on the officers of the former Axis powers were, rather than novel initiatives, inherent in American military tradition and doctrine. Jackson, then, faced a formidable task in presenting his arguments, for many American military officers were concerned about firm precedents being established and the possibility that such precedents could be used against American commanders in the future. Although the War Department had both initiated the tribunal process and crafted the charges, Jackson realized that it would be insufficient to portray the charter as simply a binding order initiated by a competent and recognized authority. Doctrine usually assumes a longevity that exceeds the tenure of an appointed or elected leadership. 2 I N T R O D U C T I O N Jackson had to present the charter to the American military profession as part of its own tradition. First, he had to balance the norms of military obedience to higher authority, especially civilian authority, with the concept that certain orders are by their nature manifestly illegal and should not be executed. Second, he had to address the reality that, although members of the military profession are by definition the managers of violence, they must abide by rules that recognized that the means that can be utilized in war are not unlimited and that military commanders are liable when the conduct of their subordinates exceeds those limitations. The official position of the United States vis-à-vis Justice Jackson’s ominous challenge has been one of steady retreat 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 document U.S. General Order No. 100, also known as the Lieber Code (after its principal author, Francis Lieber), which incorporated all of the major principles of Augustinian just war doctrine. The U.S. Army, after administering the American war crimes program that included the IMT, incorporated a rigorous definition of command responsibility into its preeminent doctrinal manual on the law of war, Field Manual 27–10, the 1956 revision of which superseded earlier versions. During the course of the Vietnam war, however, the United States failed to hold its own military commanders responsible for dereliction in preventing grave breaches of international humanitarian law.2 Subsequently, the United States consistently refused, and continues to refuse, 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. Rather than coming out of the tradition of legal positivism or political realism, many of the principles of the Nuremberg-era trials have their origin in the first modern codification of the laws of war during the U.S. Civil War, in U.S. General Order No. 100. Despite the continuities and discontinuities, the development of American military doctrine has been represented by the history of contested weltanschauung (worldviews) between those who championed functionally aristocratic models of military professionalism and those who championed democratic models. The basic assumptions of Augustinian just war doctrine [3.137...

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