As Attorney/Advisor in the International Affairs Division of the Office of The Judge Advocate of the Army during the Persian Gulf War, Judge Wallach researched questions of precedent for possible war crimes trials against Iraqi defendants. The views expressed here are the author’s, and do not represent any expression of official position of the United States Court of International Trade or of the United States Army.

We need to look very carefully at the language in President Bush’s Military Order. Many of the elements track right back to the Military Orders issued by President Roosevelt during and just after World War II. This is cause for concern, because some of the procedures and rules of evidence employed then would not be appropriate today.

The procedural part of the present Order, Section 4 has language that is almost identical to Roosevelt’s Order of July 7, 1942, which he issued for Ex parte Quirin:

• "…such evidence shall be admitted as would, in the opinion of the president of the Commission have probative value to a reasonable man." The Bush Order departs only slightly, saying "probative value to a reasonable person."
  
  
• President Bush further echoes Roosevelt in calling for conviction and sentencing (even the death penalty) upon concurrence of only two-thirds of the members present.

The hallmark of Quirin is extremely wide latitude in the admissibility of evidence. Quirin rules were folded in to the Nuremberg trials of ex-Nazis, and the Nuremberg rules were incorporated in the Tokyo trials of Japanese war criminals. At the end of the Second World War, the United States sponsored some nine hundred war crimes commissions and tribunals, with over three thousand defendants. About half of those trials took place in various locations in Germany. While the main trial—what everyone thinks of as `Judgment at Nuremberg’—was really quite fair, and even had several acquittals—many of the other trials had procedures that did not safeguard the defendants’ fundamental guarantees of rights given by the laws of war. Explicitly bound by "non-technical rules of evidence," these trials admitted hearsay, rumor, documents of dubious authenticity, as well as coerced testimony and confession. Defendants were deprived of their right not to incriminate themselves. We even know that in the post-Nuremberg trials in Germany, the United States Army resorted to mock trials as an investigative tool: They would bring the defendant to a darkened room where two U.S. army officers in uniform sat at a table lit by candles. In the corner of the table, there was a Bible. The defendant was made to sit a separate table next to a third U.S. uniformed officer who, without actually stating his function, purported to act as a defense attorney. Although he too was part of the prosecution, his job was to win the confidence of the defendant, induce him to "come clean," saying it was his "only chance." The attorney-client privilege has a high level of sanctity in most places (not least the United States) yet in these trials we conducted abroad it was suborned.¹

Such abuses are documented and analyzed in the many law review articles written between 1946 and 1949 by attorneys who represented defendants, particularly in the Far East trials. It is not unfair or exaggerated to say that these courts were established essentially to convict. The further you get from the chief Nuremberg trial, the more likely it was that prosecutors endeavored to convict with evidence that was insufficient or improperly obtained. There is no doubt that massive, indeed unprecedented war crimes, crimes against humanity, and genocide were committed by the Nazis. Those crimes had to be tried, and their engineers and perpetrators brought to justice. But we must examine the process by which the trials were conducted, analyze them in light of modern international law, and use their strengths and weaknesses to guide us to the right path as we contemplate prosecuting Al Qaeda.

When the Nuremberg rules—developed for a four-power court—were transferred to a much larger court in Tokyo (General MacArthur appointed judges from eleven nations), further complications ensued. With decisions being taken by a quorum and not all the judges being present from day-to-day, there was considerable inconsistency in rulings on the admissibility of particular pieces of evidence. Decisions literally changed from one day to the next, depending on who was on the bench. Loose rules are conducive to these kinds of problems. Justice must not be seen as unpredictable; it must be applied according to principle. One of the cases we look to when we study military commissions is the trial of General Tomoyuki Yamashita, who commanded the Philippine defense against General MacArthur’s victorious campaign. Yamashita was tried for the atrocities committed by soldiers under his command, found guilty and hanged in 1946. While Yamashita himself was widely known to have been brutal, the trial itself has been criticized on numerous grounds. In his dissenting opinion on Yamashita, U.S. Supreme Court Justice Richard Murphy described those proceedings held under Quirin rules as "judicial lynchings."

There was definite double standard—it was "Victors’ Justice," to quote Richard Minear.² At the end of the war, General Uschimaya, who had been in charge of the 5th Japanese army in the home islands, convened a military tribunal which tried two U.S. army air corps personnel for the bombardment of Kobe and Osaka—the allegation being carpet bombing against civilians. The fliers, after being subjected to some sort of summary procedure, were executed. In 1947, the United States tried Uschimaya, his chief of staff, his staff Judge Advocate, the three officers who were members of the military tribunal, as well as the executioner, for "having failed to apply to these [U.S. army] prisoners of war the type of procedure they were entitled to." The Japanese officers were convicted, and most were executed.

By virtue of their flexibility, military commissions are often spoken of as "enhancing the commander’s agility to manage the battlefield." I am all in favor of managing the battlefield, but let me stress that such "agility" does not imply ignorance or disregard of the laws of war. If you read the United States Army Field Manual 27-10, dealing with the laws of war on land, it begins by saying, "The principle rule…is the concept of chivalry." We must be very careful in how we define and treat our battlefield captures, for they may well have all the protections of the Geneva Conventions and the widely accepted principles of international humanitarian law.

I believe strongly that trials need firm and codified rules. Article 18 of the Uniform Code of Military Justice provides for the trial of war criminals, and not just U.S. war criminals. These court-martial rules certainly meet with international standards.

We do not yet know what the final rules for a military commission are going to be in 2001. If they hark back to the rules of the 1940s—as some of the draft language suggests--there will be doubt as to whether they are fair under today’s standards. The Geneva Conventions of 1949 specifically articulated the rights given by the written and customary laws of war. Since then, there has been a raft of international conventions that deal with due process and defendant’s rights. It may be that if someone participates in a proceeding that tries a defendant for war crimes, and that proceeding does not itself meet those minimum guaranteed standards, then that participation is in itself a war crime.

1 For a much fuller analysis of these issues with a wealth of supporting documents, please see Evan J. Wallach, "The Procedural and Evidentiary Rules of the Post World War II War Crimes Trials: Did They Provide an Outline for International Legal Procedure?," in Columbia Journal of Transnational Law, vol. 37, 1999.

2 Richard Minear, Victors’ Justice: The Tokyo War Crimes Trial. Ann Arbor: University of Michigan, Center for Japanese Studies, 2001.