Law of war crimes: command responsibility and the Yamashita precedent

Type :

Presentation

Pages :

5 pages

Format :

.doc

Published date :

01/12/2009

Category :

Law & contracts

Sub category :

Criminal law

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Summary :

Introduction.
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.
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.
Conclusion and perspectives on the notion of command responsibility.
Notes.

Abstract

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.