INDEPTH: IRAQ
Command liability
Robin Rowland, CBC News Online | May 6, 2004
Strict liability: Japan
General Yamashita testifies at the military commission Photo credit: U.S. army
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The first war crimes trial at the end of the Second World War was that of Japanese General Tomoyuki Yamashita, who was governor general and commander-in-chief in the Philippines at the time U.S. forces recaptured the country. While Yamashita's troops were fighting the Americans in the mountains of Leyte, other troops, technically under his command, but with whom Yamashita had little or no contact, went on a rampage in Manila, destroying much of the city, killing thousands. General Douglas MacArthur had Yamashita tried for war crimes on the grounds that "he knew or should have known" of the crimes committed by his soldiers.
The military tribunal that convicted Yamashita came to the conclusion that "the crimes were so extensive and widespread both as to time and area, that they must have been willfully permitted by the Accused or secretly ordered by the Accused." The tribunal dismissed the defence that Yamashita was under attack by U.S. forces and could not have exercised control over the soldiers in Manila. After an unsuccessful appeal to the U.S. Supreme Court, where the majority of justices refused to consider whether or not the trial was fair, Yamashita was hanged.
It was with the Yamashita trial that the first accusations arose that the United States was applying "victor's justice." Later legal research showed that while senior Japanese commanders were probably aware of atrocities committed by their troops, these actions were unlikely to be reported up the chain of command because both the reporting officer and the superiors were likely to lose face.
The High Command: Germany
Two German cases, the trials of some of the highest-ranking German generals held after the main Nuremberg trials, modified the strict standards set in the Yamashita case. The judges upheld the principles that senior officers had a duty and responsibility to prevent war crimes, and that the commander should be held criminally responsible for transmission of illegal orders down the chain of command. But the judges added that to be found guilty the commander must have had knowledge that the order was illegal. The ruling noted "Criminality does not attach to every individual in the chain of command. There must be personal dereliction. That can occur only when an act is directly traceable to him or where his failure to properly supervise his subordinates constitutes criminal negligence on his part."
The one exception is the "executive commander" who exercises power over occupied territory. That commander is responsible for acts committed within his jurisdiction because he must maintain peace and order in that territory.
The 1949 Geneva Convention
The 1949 Geneva Convention codified the crime by defining criminal responsibility as "personal neglect amounting to wanton, immoral disregard of his subordinates amounting to acquiescence."
| DUTIES OF COMMANDERS AND SUPERIORS |
In the years since the Second World War, the combination of trials and the various international treaties have given commanders and superiors a number of obligations. These are:
1) The duty to prevent: a commander has an absolute duty to prevent crimes. A commander may be guilty of negligence if he realizes that a lack of training may mean that soldiers under his command could commit crimes. In the case of the massacres of Palestinians in Beirut refugee camps, an Israeli commission of inquiry found the Israeli Defence Force commanders failed in their duty as occupiers to prevent a massacre.
2) The duty to control: a commander has the duty to control and discipline his forces to prevent the commission of crimes.
3) The duty to act: a commander must take action when a crime is discovered. There are four choices:
· Take no action.
· Take administrative action against the perpetrator.
· Administer "non-judicial" punishment.
· Trial by court martial.
4) The duty to punish: The commander has a duty to punish those found guilty of committing crimes.
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