Law of war crimes: command responsibility and the Yamashita precedent

Résumé du document

In an interesting article from the Legal Times untitled ‘From the top on down'1, two American military judges, namely J.D. Hutson and J. Cullen, lay emphasis on the need to hold Secretary of Defence D. Rumsfeld accountable for abuses on his watch mostly directed at Afghans and Iraqis. Indeed, responsibility remains one of the most germane cornerstones of international criminal law. But, in that respect, we can wonder on what rationale they could base this charge. In international rules, civilian or military leaders, even though did not commit the criminal act or did not personally order it, bear distinct responsibilities to make decision and be held accountable for their consequences. Thus, those two judges assume that the military organization ‘cannot function without such accountability for decision'. More precisely, command responsibility is therefore an omission mode of individual criminal liability: the superior is responsible for crimes committed by his subordinates under his areas and facilities and for failing to prevent or punish. This doctrine of command responsibility linked to war crimes is closely associated with the name of General Tomoyuki Yamashita. He was the commanding general of the 14th Army Group of the Imperial Japanese Army in the Philippines during the Second World War. In the areas of the Philippines that were under his command, thousands of civilians were killed by Japanese soldiers, notably in Manila. On 29th October 1945, his trial by an American military Commission began, in Manila, shortly after the surrender of Japan and prior to the commencement of the well-known International Tribunals of Nuremberg and Tokyo.

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[...] Obviously, by virtue of those wide provisions, Yamashita could be charged on the fact that between October and September in the Philippine Islands, ‘while commander of armed forces of Japan at war with the United States of America and its allies, unlawfully disregarded and failed to discharge his duty as commander to control the operations of the members of his command, permitting them to commit brutal atrocities and other high crimes against people of the United States and of its allies and dependencies, particularly the Philippines; and he . thereby violated the laws of war'.4 Following this analysis, we can actually assert that the proceedings against Yamashita were legally justified by the Commission jurisdiction and the provisions setting out command responsibility. [...]

[...] Thus, they stated two things: that there had been widespread atrocities and crimes, and that Yamashita ‘failed to provide effective control as was required by the circumstances'.11 We think that, since all the extenuating circumstances were left out, the validity and the scope of the sentence is weakened. Indeed, for the Commission, as Yamashita was Commander of the Japanese forces, he was therefore guilty of every crime committed by every soldier assigned to his command. Hence, we could not approve of the sentence. Our viewpoint is consolidated in Toyoda's case. In fact, Toyoda, Japan's highest ranking naval officer, testified that the orders to defend Manila to the very end were not given by Yamashita himself. [...]

[...] Ann Marie Prévost ‘Race and War crimes: the 1945 War Crimes Trial of General Yamashita', Human Rights Quarterly in War Crimes Law, Vol II, The international library of essays in law and legal theory, second series, ed. By Gerry Simpson (2004) 303-338. Antonio Cassese, ‘International Criminal Law', Oxford University Press (2003) 203-211. Hostages and the High Command Trials' in Collection of Material and Documents, edited by Andreas Laursen and Peter Otken (2005/2006) 85-108. ‘ICTY Trial Chamber (1998) and Appeals Chamber (2001) Judgement in the Delalic et al (Celebici)' case in Collection of Material and Documents, edited by Andreas Laursen and Peter Otken (2005/2006) 169-196. [...]

[...] ‘Statute of the International Criminal Tribunal for the Former Yugoslavia (1993)' in Collection of Material and Documents, edited by Andreas Laursen and Peter Otken (2005/2006) 299-304. ‘Statute of the International Criminal Court (1998)' in Collection of Material and Documents, edited by Andreas Laursen and Peter Otken (2005/2006) 313-351. manual of the law of armed conflict', UK Ministry of defence, Oxford University Press (2004). Mark J. Osiel, ‘Obeying orders: Atrocity, Military discipline and The Law of war', Transaction Publishers (2002). John D. Hutson and James Cullen, ‘From the top and down', Legal Times, week of April vol. [...]

[...] Cassese p See the Yamashita case, US Supreme Court in February See Ann Marie Prévost ‘Race and War crimes: the 1945 War Crimes Trial of General Yamashita', Human Rights Quarterly 6. See Defense of Yamashita' by George Guy (1950) in Kai Ambos ‘Superior Responsibility' See Yamashita Precedent' by Richard L. Lael 8. Supra note Supra note Supra note Supra note Supra note See Collection of materials edited by Andreas Laursen and Peter Otken (2005/2006) Supra note Supra note Supra note 13 BIBLIOGRAPHY Richard L. [...]