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Law of war crimes: command responsibility and the Yamashita precedent

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  1. Introduction.
  2. The legal framework for Yamashita's trial in Manila.
    1. The actual jurisdiction of the American Military Commission.
    2. The legal basis of the charges against the General Yamashita.
  3. Yamashita and command responsibility: A debatable unique approach.
    1. A controversial trial disrespectful of the rights of the accused.
    2. The lack of real evidence of command responsibility: The birth of a questionable strict liability standard.
  4. Conclusion and perspectives on the notion of command responsibility.
  5. Notes.

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.

[...] Moreover, an American precedent existed supported the right to establish a military commission, together with its own rules, procedures, and appellate process in cases involving violations of the law of war.2 In addition, the Potsdam Declaration in July 1945 affirmed the Allied commitment to the establishment of democratic principles in a post-war Japan and put forward that ?stern justice shall be meted out to all war criminals'. Finally, we must precise that the Philippines remained American territory so that the ultimate sovereignty rested in the United States. [...]

[...] CONCLUSION AND PERSPECTIVES ON THE NOTION OF COMMAND RESPONSIBILITY Our analysis tries to focus on the controversial approach of the Yamashita case. On the one hand, it is accepted that the American military Commission had real jurisdiction on Yamashita's trial and that the charges against this Japanese General were legally based. Nevertheless, on the other hand, there is every reason to believe that the sentence was inadequate. To us, this precedent created a dangerous standard of strict command liability that must not have been applied to this case considering the actual circumstances. [...]

[...] Besides, an effort of codification was made with the redaction of Articles 86 and 87 of the 1977 First Additional Protocol to the Geneva Conventions in which we find a total rejection of Yamashita version of command responsibility. On this ground, the text elaborates further on responsibilities of military commanders. Those officers must not only ensure that their men are aware of the law of war, as outlined at the Geneva conventions, but they also must prevent and/or suppress all violations of that law.14 Finally, Article 28 of the Rome Statute of the International Criminal Court codified the doctrine of command responsibility. [...]

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