War Crimes culpability up the chain of command

Culpability for War Crimes extends up chain of command

It’s not just soldiers on the ground who may be accused of war crimes, but culpability can extend right up the command chain. It’s called the Yamashita Precedent.

Before a court rules on recent allegations of war crimes by Australian soldiers in the SAS, premature admissions of liability based on hearsay or other yet unproven evidence could be problematic legally for many commanders up stream of the soldiers actually accused. Whilst the allegations are very distressing and deserve the full force of law, it is in everyone’s interests to not only be transparent but also let the lawful processes take their course. The ramifications can be far reaching for everyone involved.

“The first American war‐crimes trial resulted in the hanging of Gen. Tomoyuki Yamashita the military governor of Japan to the Philippines September 1944 -45”.

The principal accusation against Yamashita was that he had failed in his duty as commander of Japanese forces in the Philippines to prevent them from committing atrocities.

In commenting on the principles behind war crimes trials, Frank Reel of the New York Times wrote the following article in 1971.

Yamashita Precedent

The American Military Commission in Manila first convicted the Japanese General in December 1945 and then the matter went on Appeal to the Commander in the Pacific General D McArthur who upheld the Commission’s verdict.

When General McArthur ordered the execution of the Japanese General Tomoyuki Yamashita in February 1946, he enunciated these ancient rules of chivalry with fine disregard of 20th century reality:

“The soldier, be he friend or foe,” he said, “is charged with the protection of the weak and unarmed. When he violates this sacred trust he not only profanes his entire cult but threatens the fabric of international society.”

The matter was further appealed to the Supreme Court of both the Philippines and then the Supreme Court in Washington.

Both courts affirmed the verdict.

Chief Justice Harlan Fiske Stone, speaking for five of his colleagues, cited the appropriate strictures designed at The Hague in 1907 to protect civilians in a war zone, and rested on the rule that an armed force

“must be commanded by a person responsible for his subordinates.”

General Yamashita was accused of violating “the laws of war.” He was allegedly responsible for the indiscriminate murder of unarmed civilians, including helpless women and children. My colleagues and I listened to many witnesses describe how Japanese soldiers killed hundreds of innocent Filipino villagers, often throwing their bodies into a ditch either before or after their execution.

General Yamashita personally had nothing to do with any of the atrocities with which he was charged.

There was no finding and there was no evidence that he had ordered or condoned them or knew about them.

There was not even any charge levelled against him to this effect.

The accusation—and later finding—was simply that he commanded all troops, including army, navy, and air force, in the Philippine Islands during the last ten months of the war, hence he was responsible for whatever they did.”

The verdict and sentencing of the commander was a

“departure from a fundamental protection of Anglo‐Saxon law to hang a man, not for anything he did but because of a position he held. Secondly, inherent in the findings of “violation of the laws of war,” is the assumption that there is a good way to kill and a bad way to kill. For example, that it is criminal to shoot unarmed civilians on the ground but legal to bomb them from the skies.”

https://www.nytimes.com/1971/03/31/archives/yamashita-precedent.html

“This controversial case has become a precedent regarding the command responsibility for war crimes and is known as the Yamashita Standard.[14][15]

The principal accusation against Yamashita was that he had failed in his duty as commander of Japanese forces in the Philippines to prevent them from committing atrocities.

The defense acknowledged that atrocities had been committed but contended that the breakdown of communications and the Japanese chain of command in the chaotic battle of the second Philippines campaign was such that Yamashita could not have controlled his troops even if he had known of their actions, which was not certain in any case; furthermore, many of the atrocities had been committed by Japanese naval forces outside his command….

American lawyer Harry E. Clarke, Sr., a colonel in the United States Army at the time, served as the chief counsel for the defense. In his opening statement, Clarke asserted:

"The Accused is not charged with having done something or having failed to do something, but solely with having been something...American jurisprudence recognizes no such principle so far as its own military personnel are concerned...No one would even suggest that the Commanding General of an American occupational force becomes a criminal every time an American soldier violates the law...one man is not held to answer for the crime of another [ Robert Barr Smith (September 1996). "Japanese War Crime Trials". Retrieved 10 February 2020.] “

The first time the principle of commander’s responsibility for his men was The trial of Peter von Hagenbach by an ad hoc tribunal of the Holy Roman Empire in 1474…. Hagenbach was put on trial for atrocities committed during the occupation of Breisach, found guilty of war crimes and beheaded.[ An Introduction to the International Criminal Court William A. Schabas, Cambridge University Press, Third Edition]

During the American Civil War, the concept developed further, as can be seen in the "Lieber Code". This regulated accountability by imposing criminal responsibility on commanders for ordering or encouraging soldiers to wound or kill already disabled enemies.[ The evolution of individual criminal responsibility under international law By Edoardo Greppi, Associate Professor of International Law at the University of Turin, Italy, International Committee of the Red Cross No. 835, p. 531–553, October 30, 1999.

 Command Responsibility The Mens Rea Requirement, By Eugenia Levine, Global Policy Forum, February 2005]

Yamashita set a precedent for extending liability to commanders for acts of omission.

Following the Supreme Court decision, an appeal for clemency was made to U.S. President Harry S. Truman, who declined to intervene and left the matter entirely in the hands of the military authorities.

On 23 February 1946, Yamashita was hanged at Los Ba?os, Laguna Prison Camp, 30 miles (48 km) south of Manila.

On 23 December 1948, Lieutenant General Akira Mutō, Yamashita's chief of staff in the Philippines, was executed by hanging in the Sugamo Prison Tokyo after having been found guilty of war crimes committed in China and the Philippines by the International Military Tribunal for the Far East.

The subsequent Nuremberg trials (formally the Trials of War Criminals before the Nuremberg Military Tribunals) were a series of twelve military tribunals for war crimes against members of the leadership of Nazi Germany, lasting from December 1946 to April 1949. They discussed explicitly the requisite standard of mens rea and were unanimous in finding that a lesser level of knowledge than actual knowledge may be sufficient.

This doctrine of command accountability has been added to the Geneva Conventions and was applied to dozens of trials in the International Criminal Tribunal for the former Yugoslavia.

It has been adopted by the International Criminal Court established in 2002."

Many SAS soldiers are not happy with the recent state of affairs:

https://www.townsvillebulletin.com.au/news/soldiers-call-for-chief-of-the-defence-force-to-step-aside-over-war-crimes/news-story/a5a0c88cb0c5405d3552cd551556d5d0

https://en.wikipedia.org/wiki/Tomoyuki_Yamashita

https://en.wikipedia.org/wiki/Subsequent_Nuremberg_trials

https://en.wikipedia.org/wiki/Command_responsibility#cite_note-Greppi-14

https://www.amazon.com/Yamashita-Precedent-Crimes-Command-Responsibility/dp/0842022023

https://www.austlii.edu.au/au/journals/AUIntLawJl/2009/4.pdf

https://classic.austlii.edu.au/au/journals/SydLawRw/2000/18.pdf

See what UK's experience was in 2016: