Abstract
Seventy-five years have passed since Hostage, a post-World War II case in which Lothar Rendulic was acquitted of Northern Norway’s devastation and forcible evacuation on account of his faulty yet honest judgment. This introductory chapter surveys the current state of our knowledge about honest errors in modern combat decision-making by synthesising the findings of the anthology’s contributing authors. First, contemporaneous sources suggest that Rendulic did not consider it militarily necessary to devastate the region in its entirety or to evacuate all of its residents by force. Second, even though Rendulic’s acquittal was factually contentious, it was arguably on firmer legal ground. His case has led to the emergence of an eponymous rule against second-guessing difficult combat decisions, the reasonable commander test in international humanitarian law and the mistake of fact defence in international criminal law. Third, assessing the reasonableness of battlefield errors remains challenging because of the limitations of modern information technology, the diminishing room for empathy in the soldierly profession, and the salience of institutional bias.
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Notes
- 1.
Tulloch 2011, p 163.
- 2.
US Military Tribunal V, The Hostage Case (United States of America v Wilhelm List et al.), 1948, 11 Trials of War Criminals Before the Nuernberg Military Tribunals 757 (Hostage).
- 3.
Ibid., p 1296.
- 4.
Ibid.
- 5.
See Chap. 2.
- 6.
See Chap. 3.
- 7.
- 8.
See Chap. 4.
- 9.
Hostage Indictment, above n. 2, p 764, para 7.
- 10.
Ibid.
- 11.
Ibid., para 9(a).
- 12.
Ibid., para 8.
- 13.
Ibid., para 10.
- 14.
Regulations concerning the Laws and Customs of War on Land, annexed to Convention (IV) respecting the Laws and Customs of War on Land, opened for signature 18 October 1907, International Peace Conference, The Hague, Official Record 631 (entered into force 26 January 1910), Article 23(g).
- 15.
Unlike deportation, forcible transfer not involving the crossing of a boundary out of occupied territory first became prohibited under Article 49 of Geneva Convention IV and criminalised as a grave breach, effectively a war crime, under Article 147 of the same convention. See Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War, opened for signature on 12 August 1949, 75 UNTS 287 (entered into force 21 October 1950), Articles 49, 147.
- 16.
Hostage Judgment, above n. 2, pp 1295–1296.
- 17.
Ibid., p 1296.
- 18.
Ibid.
- 19.
Ibid.
- 20.
Ibid.
- 21.
- 22.
See Chap. 5.
- 23.
See Chap. 6.
- 24.
See Chap. 5.
- 25.
- 26.
See Chap. 6.
- 27.
Hostage Judgment, above n. 2, p 1297.
- 28.
Ibid.
- 29.
- 30.
See Chap. 7.
- 31.
Statute of the Permanent Court of International Justice, opened for signature 16 December 1920, 6 LNTS 379 (entered into force 1 September 1921), Article 38.
- 32.
Statute of the International Court of Justice, opened for signature 26 June 1945, USTS 993 (entered into force 24 October 1945), Article 38.
- 33.
Hostage Judgment, above n. 2, p 1235.
- 34.
Ibid.
- 35.
- 36.
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), opened for signature 8 June 1977, 1125 UNTS 3 (entered into force 7 December 1978), Article 57.
- 37.
See also Chap. 11.
- 38.
See Hostage Judgment, above n. 2, pp 1296 (“If the facts were such as would justify the action by the exercise of judgment, after giving consideration to all the factors and existing possibilities, even though the conclusion reached may have been faulty, it cannot be said to be criminal”), 1797 (“We are concerned with the question whether the defendant at the time of its occurrence acted within the limits of honest judgment on the basis of the conditions prevailing at the time”) and 1297 (“It is our considered opinion that the conditions, as they appeared to the defendant at the time were sufficient upon which he could honestly conclude that urgent military necessity warranted the decision made. This being true, the defendant may have erred in the exercise of his judgment but he was guilty of no criminal act”).
- 39.
Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 3 (entered into force 1 July 2002), Article 32(1).
- 40.
See also Chap. 11.
- 41.
See Chap. 9.
- 42.
See Chap. 10.
- 43.
See Chap. 11.
- 44.
Hostage Judgment, above n. 2, p 1297.
- 45.
Ibid.
- 46.
Ibid., p 1295.
- 47.
See Chap. 9.
- 48.
Hostage Judgment, above n. 2, p 1297.
- 49.
See Chap. 10.
- 50.
ICTY 2000, para 50.
- 51.
Ibid.
- 52.
It is arguable that Hostage employed the latter standpoint when it held (Hostage Judgment, above n. 2, pp 1245–1246): “In determining the guilt or innocence of an army commander when charged with a failure or refusal to accord a belligerent status to captured members of the resistance forces, the situation as it appeared to him must be given the first consideration. Such commander will not be permitted to ignore obvious facts in arriving at a conclusion. One trained in military science will ordinarily have no difficulty in arriving at a correct decision and, if he willfully refrains from so doing for any reason, he will be held criminally responsible for wrongs committed against those entitled to the rights of a belligerent. When room exists for an honest error in judgment, such army commander is entitled to the benefit thereof by virtue of the presumption of innocence.”
- 53.
See also Chap. 11.
- 54.
See Chap. 10.
- 55.
See Chap. 6.
- 56.
See Chap. 11.
- 57.
See also Chap. 8.
- 58.
See also Chap. 9.
- 59.
Best 1994, p 330.
References
Best G (1994) War and Law Since 1945. Clarendon Press, New York
ICTY (2000) Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia. https://www.icty.org/x/file/Press/nato061300.pdf
Tulloch B (2011) Terror in the Arctic. Matador, Leicestershire
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Hayashi, N., Lingaas, C. (2024). Honest Errors in Combat Decision-Making: State of Our Knowledge 75 Years after the Hostage Case. In: Hayashi, N., Lingaas, C. (eds) Honest Errors? Combat Decision-Making 75 Years After the Hostage Case. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-611-6_1
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