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. [...]
[...] Actually, the racist aspect of the trial is shown through the fact the Yamashita version of command responsibility theory was not used against German war criminals at Nuremberg, nor was it applied to US officers during the Vietnam War. Besides, we can think that the sentence was motivated by a desire of revenge among the American Commission. Moreover, as Murphy pointed out, Yamashita's rights under the due process clause of the 5th Amendment of the US Constitution were grossly and openly violated without any justification. [...]
[...] II- Yamashita and command responsibility : a debatable unique approach The Yamashita case is surrounding with controversy in many respects. Indeed, the two dissenting judges of the US Supreme Court, namely Rutledge and Murphy, put forward that the Commission denied Yamashita a fair trial and accused him of a failure to exercise adequately his command responsibility when no conclusive evidence directly linked him to the violations. A controversial trial disrespectful of the rights of the accused It must be admitted that Yamashita's trial entailed two thorny problems that put the verdict stating the guilt of Yamashita into question. [...]
[...] 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. [...]
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