TY - JOUR
AU - Fellows,, Jamie
AB - Abstract The US Army’s war crimes trials of the hundreds of Japanese military personnel tried at Manila from 1945 to 1947 represent an opportunity to gain valuable insights into Allied ‘justice’ at a time when many aspects of war crimes jurisprudence were at a formative stage. Specifically, the Manila trials offer a unique portal into the jurisprudence of the doctrine of command responsibility. The ‘command responsibility trials’ at Manila, as they became known, are important for understanding the jurisprudential path to finding superiors criminally responsible for the criminal acts of their subordinates. This paper examines five trials from the US Army’s Manila trials in relation to the doctrine of command responsibility and in so doing, shows how the Manila trials significantly contributed to the development of the very important doctrine known as command responsibility. I. Introduction The criticism of ‘Victors’ Justice’1 is often levelled against Allied war crimes trials after World War II. In order to reflect on the application of Allied ‘justice’ during this tumultuous period, the United States Army’s war crimes trials in Manila conducted from 1945–1947 provide an important lens.2 Equally important, these trials provide authoritative guidance regarding the attribution of criminal responsibility as far as the doctrine of command responsibility is concerned. This doctrine came into sharp focus at the Manila trials. For the first time in the history of Western jurisprudence, military commissions were interpreting and creating law that would decide the fate of thousands of Japanese defendants based on a new conceptualisation of this doctrine. The doctrine of command responsibility involves a process of holding a superior criminally responsible for the unlawful conduct of his subordinates.3 Although the doctrine of command responsibility has its origins much earlier than the Pacific War crimes trials—and is not unique to the Manila trials—the United States Army and other Allied nations commonly used it to hold Japanese military superiors (of all ranks) criminally accountable for all manner of crimes allegedly committed by subordinates. As was exposed during the Manila trials, the doctrine of command responsibility inherently has a number of problems, as particularly the notorious Yamashita trial showed.4 The primary problem relates to the potential injustice of attributing criminal responsibility to a person who did not directly participate in war crimes, or did not know about or give orders to commit those crimes. This paper examines five trials of the 187 conducted by the United States military commission at Manila conducted between 1945 and 1947. The trials chosen for this paper were representative of numerous similar cases that grappled with questions surrounding command responsibility tried in Manila at the time.5 Each of the trials selected provides an important narrative as to how United States military commissions interpreted and applied matters of criminal responsibility to command responsibility such as: (1) the fault element (mens rea) for murder; (2) the issue of ‘contingent liability’; (3) conflicting and disputed fact evidence and ‘subjective bias’; (4) principal offenders and accessories; (5) mitigating factors; (6) the meaning of unlawfully ‘permitting’; (7) duties of commanding officers to control subordinates; (8) ‘intermediary’ liability; (9) the failures to provide adequate welfare to prisoners of war (POW) and civilian internees; (10) the meaning of ‘effective control’; (11) the meaning of ‘acquiescence’; and (12) the commanding officer’s ‘proximal’ and ‘temporal’ relationship to the offender and the offence. This paper highlights the tensions that existed between the accused defence team and the prosecution regarding the formulation of new laws by those who were responsible for interpreting and making that law and therefore establishing important precedents. The latter affected the lives of thousands of alleged war criminals.6 The Manila trials accentuate the proposition that the formation of law—particularly in the aftermath of war—is subject to the fallibilities and weaknesses inherent in the human condition. Lawmaking involves a potent cocktail of politics, vested interests, ideology, emotion, negotiation and, occasionally, arbitrary decisions by those with the power to make ‘the law’. The Manila trials make it clear that the process of formulating new law in the aftermath of war becomes even more complex and prone to criticism when the law in question relates to war crimes that were committed by the vanquished who are later prosecuted by the victors.7 When Japan surrendered to the Allies and the conflict in the Asia–Pacific ended, the Allies were aware of the mammoth task that lay ahead. Not only was the reconstruction of post-war Japan a priority in a race against the growing tide of Communism sweeping through the region, the Allies believed they needed to address the wrongs that were committed by Japan against Allied forces during this time. Each of the aggrieved Allied nations went about establishing military commissions to prosecute Japanese military personnel accused of committing war crimes. The scale of these trials is yet unmatched. The entire set of Allied trials was proof of the Allied resolve to identify, locate, house, feed, prosecute, detain and carry out the sentences (often involving executions) of thousands of Japanese military personnel. The crimes of which the Japanese were accused involved acts against an indeterminate number of civilian victims and Allied prisoners of war who had been unfortunate enough to be engulfed in Japan’s doomed experiment with expansionism from a bygone colonial era. Allied authorities were well aware of allegations that the Japanese were committing atrocities during Japan’s rapacious incursion throughout the Asia–Pacific region, even before hostilities between Japan and the Allies ‘officially’ commenced.8 The harsh and cruel treatment that Japanese military forces were reported to have meted out to vast swathes of the Chinese population was well documented. In response to these atrocities, the Allies made it clear in the Potsdam Declaration that there would be repercussions for Japan’s leaders and the military personnel found guilty of perpetrating these crimes.9 A lack of objectivity is a common allegation, both during the trials by defence10 and after the trials by scholars, with the vanquished often accusing the victors of conducting the process in a cloud of ‘Victors’ Justice’.11 II. The United States Army’s Manila Trials The Judge Advocate Section at United States General Headquarters, Southwest Pacific area, was responsible for undertaking war crimes investigations in the Philippines during, and for a short time after, the war.12 Once the War Crimes Trials Division (WCTD) of the Philippines–Ryukyus Command had been established in October 1945, responsibility for investigating war crimes and prosecuting alleged violations devolved to this new body.13 The WCTD prosecuted 87 war crimes cases comprising 191 defendants before the Philippine authorities took over responsibility for prosecuting the remaining Japanese defendants in 1947.14 The Manila trials of 1945–1947 represent one small, but crucial, part of the Allied war crimes programme in the Asia–Pacific region after World War II. Arguably, the importance of these trials is due to their likely precedential value, which other, subsequent Allied trials relied upon. This is particularly true for the trial of General Yamashita Tomoyuki, who was one of the earliest and most senior Japanese military personnel convicted for war crimes in the Philippines.15 The Manila trials represented a particularly important set of trials for the USA, because they were conducted by the United States Army and dealt with events during the vicious ousting of United States forces from the Philippines by the Japanese in early 1942. How might the jurisprudence emanating from the Manila trials have been affected by such an event as the loss of United States predominance in the Philippines? Some may argue that such a backdrop must surely have played some part in the decision-making process of the military commissions. The offences prosecuted at Manila were of a particularly brutal nature. Many involved acts perpetrated against United States POWs and Filipino non-combatants. The severity of the offences is reflected in the number of convictions and the number of death sentences handed down in comparison to other Allied trials. According to Piccigallo’s assessment, the number of those convicted and executed at Manila greatly exceeded that of any other United States military commission conducted in the Asia–Pacific region. Piccigallo cites statistics that show that around 43% of defendants at Manila were sentenced to death.16 In comparison, the number of death sentences handed out at other trials in the Asia–Pacific were far fewer (at Yokohama 5%, in China 13%, and in the Pacific Islands 8%).17 Why were these figures so low in comparison to the number of death sentences handed down in Manila? Was it to do with the sheer brutality that Japanese forces inflicted upon the people of the Philippines and Allied (mainly United States) POWs during the fateful occupation of the Philippine Islands?18 Or were there other (political) factors at play? Were the United States military commissions in the Philippines particularly vindictive? The extraordinarily high numbers of prosecutions and death sentences make the Philippine trials a compelling series of trials to examine. As with other Allied military commissions that held war crimes trials during this period, consistency in the application of the law was often lacking. This lack of consistency was partly due to a corresponding lack of definitive law on which commissions could rely. In addition, part of the problem was a lack of comprehensive legal direction at the outset of the trials with regards to criminal responsibility. The essence of this lacuna was squarely captured by George F Guy, a member of the Wyoming State Bar and a major in the Judge Advocate Section of the Eighth Army, who was assigned as one of the defence counsel for General Yamashita. Major Guy stated that the Yamashita trial represented the first time in history that the United States as a sovereign power has tried a General of a defeated enemy nation for alleged war crimes. While no one on either side said much about it, there was a general unspoken feeling that here indeed was something new in the ancient field of law … that we were about to make law … that here was stare decisis in its real meaning, because it would be the first decision upon which others would follow that would build up another branch of the law, the inexact science to which we were all devoted.19 The lack of clearly defined law contributed to challenges for the Allies. A more insidious explanation of the outcome of the Manila trials than undefined or absent law, however, was offered by Major Guy when he commented that the outcome of the trial was in part associated with American racial perceptions of the ‘occidental world’ and popular misconceptions that the Japanese were all ‘Samurai Fanatics’, ‘Empire Imperialists’ … whose hands dripped with the blood of helpless and innocent women and children. All Japanese officers were regarded alike, regardless of what individual records might be. In the case of Yamashita, the popular concept was even darker and bloodier, because he was commonly referred to in the press of the world as the ‘Tiger of Malaya’.20 That racist elements would play a part in the process or the outcomes of the Manila trials is hardly surprising given the propaganda at the time. Propaganda serves as a necessary psychological ingredient to prosecute a war, and the reporting of Japan’s activities during the war was highly charged around the topic of wartime atrocities, particularly in China and in respect of Allied POWs. It is thus understandable (though not excusable) that war crimes trials would be ‘infected’ to some degree with a reduced level of objectivity.21 Despite the existence of possible racist elements playing a part in the outcome of the trials, there were obvious jurisprudential gaps between the ‘ethical’ precepts and the formulation of ‘law’, since the Allies had not yet fully reconciled difficult ethical issues regarding criminal responsibility for war crimes at international law. The absence of a clear understanding of how to deal with such ethical questions led to a corresponding gap in creating a just and equitable ‘legal’ framework (at least initially). Military commissions throughout the Allied war crimes trials often struggled to produce a coherent legal justification for their decisions.22 These criticisms have not been lost on legal historians and several decades after the Allied trials, Richard Minear was vociferous in his criticism regarding the trials conducted by the Allies at the International Military Tribunal in the Far East (IMTFE).23 In his seminal text, Minear is a vocal opponent of the way the Allied forces established and prosecuted cases at the IMTFE. Minear provides a substantial narrative on the legal deficiencies in international law in relation to the motives behind establishing war crimes trials in general and the IMTFE in particular. He identified crucial legal problems associated with the specific charges levelled at the Japanese defendants, such as those relating to conspiracy, individual responsibility in international law, war of aggression, ex post facto liability and so on. Perhaps Minear’s criticisms are best viewed in the context in which he wrote this work, at the height of the Vietnam War. Given the highly charged milieu of the 1960s and 1970s, one cannot help but feel that Minear’s opposition to the IMTFE and the Allied war crimes trials was predicated, at least to some extent, on the possible hypocrisy of the USA’s own conduct during the Vietnam War with regards to the commission of war crimes by United States forces and the selectivity of United States authorities in choosing whether or not to prosecute war crimes. The inscription on the opening page of Minear’s text expresses his position: ‘Dedicated to the many Americans whose opposition to the war in Indochina has made them exiles, criminals, or aliens in their own land.’24 In his book The Case of General Yamashita, Adolf Frank Reel offers a unique perspective on the case, focussing on the interpretation of command responsibility by the United States military commissions in Manila.25 Reel was one of six United States military defence lawyers assigned to defend General Yamashita. In his book, Reel brings to the reader’s attention a more ‘human’ element of Yamashita’s personality that he had discovered during his encounters with the general. Yamashita, the commander of the Imperial Japanese 14th Area Army in the Philippines, was indicted, convicted and later executed on allegations of war crimes committed by his forces against Philippine civilians and United States POWs. The charge Yamashita faced was presented by Captain D C Hill of the Prosecution staff. It read: Tomoyuki Yamashita, General Imperial Japanese Army, between 9 October, 1944 and 2 September, 1945, at Manila and at other places in the Philippine Islands, while commander of armed forces of Japan at war with the United States of America and its allies, unlawfully disregarded and failed to discharge his duty as commander to control the operations of the members of his command, permitting them to commit brutal atrocities and other high crimes against people of the United States and of its allies and dependencies, particularly the Philippines; and he, General TOMOYUKI YAMASHITA, thereby violated the laws of war.           Dated 25 September, 1945. /s/Alva C. Carpenter,           ALVA C CARPENTER Colonel, JAGD           United States Army.26 Yamashita’s case does in many ways reflect questions about the nature of justice at the Manila war crimes trials specifically, and war crimes trials in general. The question of justice relates to the curious point that superiors were charged with war crimes on the basis of their subordinates’ conduct, despite the fact that often there was no (or very little) credible evidence to support the charge that superiors either gave orders to commit atrocities or knew of them. This notion sits uneasily with the traditional notion of Western justice, given that lack of knowledge of the crime goes directly to the issue of the element of mens rea, which is necessary in order to prove criminal responsibility. This was precisely the case with General Yamashita. The prosecution could not produce any specific evidence to support the allegation that General Yamashita ordered his troops to commit atrocities of any kind, or indeed that he knew his troops were engaged in such conduct. The fact that countless atrocities did occur, however, is irrefutable given the level of eyewitness testimony at Yamashita’s trial. The existence of war crimes, however, does not mean that Yamashita was involved. The defence’s argument that Yamashita neither knew nor ordered such atrocities is supported by the efficiency and ferocity of the United States counterattack in the process of reclaiming the Philippines.27 The effectiveness of the United States attack on Yamashita’s forces in the Philippines meant that Yamashita was unable to effectively command his troops and was himself forced to retreat to the mountains, where communications with field units was practically non-existent. Highlighting this irony, Major Guy, another of Yamashita’s defence counsel, summarised the resultant conundrum in which Yamashita found himself, ‘[W]e Americans did everything we could to destroy your army and cut your communications and to prevent your being able to control your troops, but we are now trying you for failure to control them’.28 III. The Law of Command Responsibility at Manila With the conviction of General Yamashita Tomoyuki, the law of command responsibility appeared settled: superiors would be held accountable for the criminal acts of their subordinates. However, as trials got underway for lower to mid-ranking Japanese military personnel charged with ‘failing to control’ their troops or ‘permitting’ those under their command to commit war crimes, it soon became evident that the question of criminal responsibility for superiors was, and could not be, resolved by a straightforward application of the ‘Yamashita principle’. The ‘fog of war’ led to ambiguities regarding command structures in the field, and under such circumstances it was often difficult to attribute blame to any one or more superiors for war crimes committed in the field. The devastatingly effective advance of the United States military invasion and the Filipino guerrilla insurgency created immense difficulties for communications between Japanese command centres and operations in the field.29 The lack of communication meant that there was often a break in the chain of command and Japanese forces in the field were left to their own devices, cut off from central command. The chaotic and dire circumstances that the retreating Japanese forces endured created a fertile breeding ground for the ill-disciplined and bandit-like behaviour exhibited by Japanese military forces. If one observation is possible from the many cases tried at Manila, it is that much of the brutality committed against United States and Allied POWs and Filipino non-combatants was, at least to some extent, a consequence of circumstances rather than design. The way that the war progressed against Japanese forces created the conditions and opportunities to commit acts of wanton brutality. The fact that most Japanese superiors on trial for the acts of their subordinates vehemently denied having any knowledge of the latter engaging in war crimes was a further obstacle—albeit, a minor one at times—for the prosecution. The lack of evidence relating to direct orders or specific knowledge on the part of the superior of unlawful acts committed by subordinates would, in many cases, support such denials. As such, it was not always clear whether criminal acts were a direct result of orders or, in the absence of evidence thereof, a belief in the minds of the perpetrators that ‘blanket’ directives existed to allow the mistreatment of non-combatants and civilians. Acts of brutality were often committed by the Japanese because their military superiors acquiesced, permitted, or failed to control their troops from perpetrating war crimes. The likely cause was ill discipline within Japanese ranks. Numerous POW camp commanders claimed they had little control over subordinates due to the dire conditions in the camps prior to the conclusion of the war.30 Such concerns raised by the accused cast some doubt as to whether they did in fact have a direct connection to the crimes. Despite this, United States military commissions at Manila were rarely swayed by these protestations and, overall, were more likely to convict a commander even in the face of overwhelming evidence that supported the accused’s argument that they were not aware of atrocities occurring. The trial of 2nd Lt Nanjo Masao clearly illustrates the military commissions’ apparent disregard of the lack of evidence supporting a finding of guilt due to assumed responsibility attributed to superiors.31 Nanjo Masao was convicted of specified crimes committed against Filipino non-combatants despite the lack of evidence attributing any responsibility to him and contrary evidence that indicated he was not even present when the crimes were committed. The first case this paper examines is that of Onishi et al.32 Onishi’s case deals with the way that military commissions in Manila tended to interpret the fault element (mens rea) of the offence. Military commissions often applied a broad interpretation of mens rea, finding that the accused ‘intended’ to commit the offence even where evidence suggested otherwise. The second case is that of Lieutenant-General Kono Takeshi. It highlights the arbitrary way in which military commissions attributed criminal responsibility to Japanese officers for the criminal conduct of subordinates even when scant evidence existed that the accused ordered or even knew of the specific conduct. The third case to be discussed is that of Lieutenant-General Ko Shiyoku, which illustrates the principle of ‘intermediate liability’ whereby a person of intermediate rank could be held accountable merely because they were closer in rank to the perpetrators and thereby relieving liability for superiors. The case of Vice Admiral Osugi Morikazu, by contrast, is an example of a senior Japanese officer escaping the death penalty due to the distance, both physically and in terms of rank, between him and the perpetrators. Osugi was ultimately convicted for ‘acquiescing’ to the war crimes through his extreme neglect of his duty as a senior Japanese officer to prevent them. His case is particularly significant because it examines the meaning of ‘acquiescence’ in the context of war crimes. Finally, the case of 2nd Lieutenant Kato Minoru, reveals the willingness of military commissions to infer liability for multiple crimes of a similar nature in the absence of sufficient evidence for each individual offence for which the accused was charged. A. The Joint Trial of Lieutenant-Colonel Onishi Seiichi, First Lieutenant Kawahara Hajime, Second Lieutenant Ogata Tsugiharu, Imperial Japanese Army, Manila, 22–29 August 1946 Military commissions in Manila at times interpreted the fault element (mens rea) broadly and convicted on a charge of murder where they held that the defendant may have known of the crime (often after the fact) or ‘acquiesced’ by failing in their duty to prevent the crime from occurring. Such a broad interpretation of the fault element bypasses the usual stringent need to show beyond reasonable doubt that the accused either ‘intended’ to commit the offence or acted with ‘reckless indifference’ to it. That such a broad interpretation was applied would seem to imply that rather than the ‘guilty mind’ element of the offence being paramount, the primary focus of the commission was on the rank and role of the accused, as was certainly demonstrated in the Onishi case. A term that appears appropriate in this context is ‘contingent liability’, whereby the accused’s criminal responsibility was ‘contingent’ upon the position he occupied. The case of Lieutenant-Colonel Onishi Seiichi33 could be described as a classic ‘command responsibility’ case involving the conviction of a mid-ranking Japanese army officer for the alleged unlawful killing of a Filipino civilian. The case centred around the question whether Lt-Col Onishi either gave orders or allowed the killing of Gavino Fuertes, a civilian who was suspected of engaging in guerrilla activities, by his subordinates.34 Together with 1st Lt Kawahara and 2nd Lt Ogata, Onishi was charged with the unlawful torture and killing of Fuertes on 7 April 1944 at Dumanjug, Cebu Island. The fact that Japanese forces were embroiled in a fierce guerrilla war with local militia provides some context to the way in which the Imperial Japanese Army (IJA) engaged with suspected guerrillas regarding the level of brutality meted out against those suspected of carrying out insurgent attacks against IJA forces. Lt-Col Onishi was the commanding officer of the 173rd Infantry Battalion stationed on Cebu Island. His primary role was to establish garrisons throughout the island to suppress resistance from local Filipino militia and to maintain control over the population and civilian infrastructure.35 On 1 April, 1944, Lt Akamine Yutaka, company commander in Dumanjug, was killed by guerrillas. It was alleged that, in reprisal, Onishi gave orders to round up any suspected guerrillas in the area, and that one of those apprehended was Fuertes. Prosecution witnesses claimed that Fuertes was a shoemaker who entered the town looking for work, and was not a member of the resistance.36 Witnesses testified that Fuertes was hung by his hands from a tree and severely beaten by the Japanese, who used an assortment of weapons to inflict severe wounds on him over several days. Fuertes eventually died of his wounds, but witnesses claimed that, prior to his death, he was paraded around the town and forced to carry a heavy stone above his head. A sign was placed around his neck that read ‘Don’t imitate me’.37 It was alleged by the prosecution that Fuertes’s body was later dumped and burned by the Japanese. Due to the extent of conflicting and contradictory testimony offered by the defence and prosecution witnesses, Onishi’s role in the killing can be described as unclear to say the least. There is no direct evidence that linked him or any orders he gave to the actual beating and eventual killing of Fuertes, and certainly no evidence to indicate that Onishi either took part in or witnessed the beating. Defence and prosecution witness testimonies were at odds and the Commission needed to wade through contradictory but equally plausible statements on both sides to make a determination of fact in relation to the role that Onishi played in the killing of Fuertes. How then did the Commission treat such discrepancies? Despite being equally plausible, the Commission in Onishi’s case favoured the prosecution’s version of events without providing any substantial justification for doing so. The fact that the Commission often favoured the prosecution’s version of events despite the existence of contradictory evidence underscores one of the primary flaws of war crimes trials – a perception of (or in the of Onishi case, actual) bias on the part of the accusers. A number of Filipino witnesses for the prosecution claimed that although they did not see Onishi directly taking part in the beating and torture of Fuertes, he was seen looking in the direction of the beating as it occurred.38 One witness claimed that Onishi was looking out from a window from the barracks at Fuertes being beaten, that the noise of the beating (including the blows and Fuertes’s screams) would have been clearly audible, and that despite this, Onishi did nothing to stop the beating.39 Other witnesses claimed that Onishi gave direct orders to the townspeople, including the mayor of the town, to beat Fuertes as he was being paraded by the Japanese through the town. The mayor claimed that neither he nor anyone else beat Fuertes—a point that was directly contradicted by 2nd Lt Kato Minoro, who stated that he saw the mayor and other townspeople strike Fuertes as he was paraded through town.40 Onishi claimed he never issued orders to kill civilians connected with guerrilla activities and was unaware of any civilians who were hung from a tree and beaten to death by those under his command.41 These assertions were backed up by several defence witnesses who claimed that no orders were given by Onishi to mistreat Filipino prisoners during the time that he was in the vicinity, and that Fuertes was killed on the orders of Warrant Officer Sakamoto.42 One of these witnesses also testified that Onishi was not in the same town on the day Fuertes died.43 The conflicting evidence meant that the Commission needed to make a decision of fact as to key parts of Onishi’s involvement in the killing. What is clear from the trial documents is that the Commission focussed primarily on the position that Onishi occupied in relation to those accused of actually committing the crime. The case clearly shows that Onishi’s liability primarily rested on the fact that he occupied a position of authority over the actual perpetrators and this seemed to be sufficient grounds on which to convict. The position adopted by the Commission with regards to Onishi’s criminal responsibility can be described as being ‘contingent’ upon the position he occupied. In other words, by virtue of the fact that Onishi occupied a position of authority over the accused, then prima facie there was a strong possibility that liability would follow. The Commission ruled that ‘there is little doubt that the facts presented by the prosecution prove a case of command responsibility…’.44 That the Commission reached such a conclusion is instructive, given that it ruled out any direct participation by Onishi in the killing. However, besides excluding actual participation, the Commission sought to determine whether Onishi gave the orders to beat prisoners—either explicitly or implicitly. If such orders were given, then, according to the Commission, such a finding would be ‘sufficient to make him a participant even though physically [he] did not touch the prisoner and was not present at the crime’.45 The Commission ruled that in view of the testimony heard, Onishi would have at least had some knowledge of the killing before, during and certainly after it had occurred. Dismissing Onishi’s testimony that he was elsewhere, the Commission considered that he was in close proximity to the killing and therefore likely to have known of the apprehension of any suspected insurgents. Coupled with the fact that he had the power to stop the killing but failed to do so, this led the Commission to believe that he gave the orders to kill Fuertes.46 Interestingly, for reasons that were not made clear, Lt Kawahara and Lt Ogata were acquitted of the charge. The Commission examined a variety of United States and other legal sources for the purpose, it seems, of discovering a legally justifiable way by which to convict the accused. In other words, the Commission wanted Onishi’s conviction to proceed, but they faced a dilemma as to the legal basis on which the conviction should stand. During the trial, the Commission considered whether Onishi was either a ‘principal’, ‘aider and abettor’ or an ‘accessory before the fact’.47 Ultimately, the Commission ruled that it did not matter which category applied, the fact that he had a role in the killing was sufficient for a finding of criminal responsibility. The Commission quoted several early decisions from United States courts martial and penal statutes that, in the words of the Commission, show that: [A]n officer, who commands or advises his subordinates and others under his control to commit a crime, is liable as a principal, even though he was an accessory or aider and was not present at the time the crime was committed. He can be charged with doing the act himself, regardless of the fact that the proof shows that his agents, subordinates and others, [sic] under his control did the act at his instigation or control.48 Hence, Onishi was found liable as a principal offender on the basis that the Commission made a determination of fact that he gave the order to kill Fuertes. In reaching this conclusion of law in relation to Onishi being a principal offender, the Commission relied heavily upon what it believed to be sound precedent in the case of United States of America v Koe Mikami.49 For Onishi to be tried as a principal, all the Commission needed to do was make a finding that he gave the order to commit the unlawful act. Once it had done so, the Commission ruled that ‘he [Onishi] is just as guilty of the crime as if he swung the club or rifle that did the actual killing’.50 According to the Commission, the order to kill Fuertes was the ‘first link in a chain of acts which resulted in the unlawful torture and killing of Gavino Fuertes’.51 The Onishi case thus illustrates a problem of the exact nature of the fault element (or mens rea) required to prove the charge that re-emerged continually throughout the Manila trials. No discussion is apparent in the review documentation as to whether Onishi satisfied the fault element as it related to the mens rea aspect of the offence for which he was charged. The charge stated: ‘Seiichi Onishi … did … wilfully and unlawfully torture and murder Gavino Fuertes, an unarmed, defenseless Filipino civilian, by hanging and beating him, in violations of the laws of war’.52 The charge’s first element related to the physical act or the actus reus, in this case the torture and murder. Given that the Commission ruled that Onishi had given orders to carry out the said conduct that led to the death of Fuertes, it may be taken that he did satisfy the actus reus element of the offence. The second element concerned the fault element or the mens rea, in other words, what Onishi was thinking or had in his mind at the time he gave the orders. It is this aspect of the offence that proved somewhat elusive and questionable with regards to the findings of his guilt. As specified in the charge, the prosecution still needed to prove beyond reasonable doubt that Onishi ‘wilfully’ tortured and murdered Fuertes—albeit indirectly through the orders he gave to subordinates. The requirement to prove mens rea under common law is crucial when making a determination of murder.53 In the absence of such a finding regarding the defendant’s state of mind at the time of the commission of the offence, it appears as though the Commission, as well as the subsequent reviewing authority, simply interpreted the knowledge aspect in a broad sense. The law as determined by the Commission was that Onishi, as the commanding officer in the area, was strictly liable for the death, despite the requirement for the prosecution to prove that he acted ‘wilfully’ to cause Fuertes’s torture and murder. The method used by the Commission to pronounce on Onishi’s guilt is of crucial importance for international law, because such a finding meant that it would then in other, similar cases be easier to convict after only a single element (in this case, the actus reus) had been proven. A further point of interest in this case relates to the fact that Onishi’s co-accused (Lt Kawahara and Lt Ogata) completely escaped liability for the killing. One explanation that can be offered for might be that Onishi was convicted on the basis of command responsibility—that is, he gave the orders, whereas Kawahara and Ogata gave no such orders. As Onishi took on that responsibility himself, Kawahara and Ogata’s conviction could not be made out because they gave no such orders, and were no different to many other lieutenants within the unit. The Commission found that Onishi either gave orders or allowed the unlawful killing of Gavino Fuertes, but despite the heinous nature of the crime and the brutality levelled at the victim,54 he received only a sentence of life imprisonment. The Commission (and the subsequent review) also ignored the fact that Fuertes’s murder was a ‘reprisal killing’ for Lt Akamine’s death at the hands of guerrillas. The Commission may or may not have allowed for this in the mitigation of sentence, but the trial documents do not shed any light on whether the life sentence incorporated punishment for ‘reprisal killings’. It would be of interest to ascertain whether the same penalty would have applied had a reprisal killing been carried out on United States military personnel. The fact that the Commission sentenced Onishi to life imprisonment rather than subjecting him to the death penalty suggests that it took the low number of victims into account. Comparison of Onishi’s sentence with other trials at Manila indicates that the greater the number of victims affected by the actions or omissions of the accused, the more likely it was that the defendant(s) would be sentenced to death. If only one victim was murdered, even under the most heinous of circumstances, then a life sentence may be appropriate. Such a sentencing principle determines the seriousness of the offence of murder on the basis of scale. However, the consequence of such an emphasis on scale—as opposed to the fact that murder was committed—is to depend merely on the number of dead as opposed to the condemnation of the act itself. B. The Trial of Lieutenant-General Kono Takeshi, High Commissioner’s Residence, Manila, 12 April 1946 Lieutenant-General Kono Takeshi of the 77th Brigade of the IJA55 is another of the several senior members of the IJA to have been convicted as part of the United States Army’s command responsibility trials.56 Much of the jurisprudence invoked by the prosecution derived from precedents established in the Yamashita case.57 Lt-General Kono was charged with crimes committed by Japanese troops against mainly Filipino civilians. The period in which the alleged crimes occurred spanned several years of Japanese occupation of the Philippine Islands. Many of the atrocities for which Kono was charged occurred on the island of Panay as part of the fierce and at times desperate battle that IJA forces experienced against local guerrilla groups and the advancing United States forces.58 The Kono case is indicative of the way in which military commissions dealt with the law surrounding the issue of command responsibility at the trials for senior ranking IJA officers. One of its controversial elements, as with other senior military trials dealing with the doctrine of command responsibility at Manila, was the volume of atrocities allegedly committed by Japanese forces attributed to one senior person, despite the absence of specific evidence that that defendant intended or ordered the acts, or knew that such acts were being perpetrated by his forces. In accordance with the precedent established in the Yamashita case, evidence that proved that the senior person had ‘intended’ or even simply known of the atrocities was seemingly deemed unnecessary. The conviction was primarily based on the position Lt-General Kono occupied within the military hierarchy. It sufficed to show that the accused occupied a position of authority within the relevant chain of command, commonly referred to as ‘contingent liability’. The application of ‘contingent’ liability in cases such as Kono’s is problematic for a variety of reasons, primarily due to the arbitrary way in which that responsibility is attributed. There does not appear to be any formula or test that can be duplicated to provide some semblance of consistency with regards to criminal attribution. As will be shown below and in the discussion in Part II, such an application of criminal responsibility leads to uncertainty and, in some cases, injustice for the accused. Lt-General Kono was arraigned at the High Commissioner’s residence at Manila on 15 April, 1946.59 The charge stated that he ‘did … unlawfully disregard and fail to discharge his duties in controlling the operations of members of his command by permitting them to commit brutal atrocities and other high crimes against the people of the United States and the Philippines’.60 The indictment listed 49 separate specifications with details of specific incidents on which the charge was based.61 Each of these outlined allegations involving the unlawful killing of individuals and/or groups of ‘unarmed, noncombatant Filipino civilians … in violation of the laws of war’.62 Each included the victims’ names and the place in which they were killed63 or gave an approximate number of victims who were killed in that location within an approximate date.64 At times, the specification simply mentioned that Kono permitted forces under his control to kill an ‘unascertained number of unarmed, noncombatant civilians’.65 The total number of those allegedly killed and tortured by Japanese forces on the island of Panay during the period of Kono’s command amounted to several thousands. Of crucial importance was the wording of the specification that related to the fact that Kono ‘unlawfully permitted’ the killing of non-combatants. No specification alleged that he gave direct orders to kill, nor that he witnessed or took part in the killings. According to the charge and specifications, his apparent criminal responsibility rested solely on the fact that he permitted the unlawful killings to take place. The defence raised a series of comprehensive objections in a document that extended to over 50 pages. The most contentious points for the defence rested on a number of aspects such as the meaning of ‘permitting’ the killings and the ambiguities relating to the ‘unascertained’ number of victims. Other contentious aspects concerned the actual perpetrators of the offences and the places where the killings took place.66 First and foremost, the defence argued that the charge should be set aside because the prosecution was unable to provide any evidence that the atrocities were committed with the knowledge of the accused (‘scienter’).67 The defence went on to state that in the event that the Commission refused to strike out the charge, the defence be provided with answers to a series of questions regarding the 49 specifications. As a prelude to the objections, the defence requested that the prosecution address five specific questions: What duties of a Lieutenant General of the Imperial Japanese Army he is charged with disregarding and failing to discharge; How and in what manner he disregarded and failed to discharge the duties referred to in (a) above; What measures for the control over members of his command, if any, he should have taken and is charged with disregarding or failing to discharge; What is meant by the phrase ‘permitting them’, and does it allege a crime of commission or a crime of omission; Ambiguities of the laws of war regarding the charge.68 These preliminary questions raised by the defence go to the heart of the obligations of a commander in the field for acts committed by subordinates—acts which may not have been known to, or knowable by, the commander. In doing so, the defence sought clarification of the boundaries of criminal responsibility for commanders. The defence’s line of discussion regarding the boundaries of superior responsibility is not to be understated because the outcome of this trial was important for many other trials at Manila and elsewhere. It was, therefore, of significant importance in the development of international law. A determination of the boundaries of superior responsibility in Kono’s case could add to the body of law established at the Yamashita trial and determine the outcome for many other trials being tried by the Allies throughout the Asia–Pacific at the time. Furthermore, the defence sought from the prosecution clarification as to the type of actions Kono should have taken in response to the atrocities committed by IJA troops in the field, a definitional clarification of the word ‘permitting’ and, importantly, the specific law—military or other—that the defendant was supposed to have violated. Had the prosecution clarified their position with regards to these questions, then those responses would have gone a long way towards clarifying the law in relation to command responsibility. The prosecution responded to the defence’s questions and objections, albeit in five pages (as opposed to the defence’s 50 pages of questions).69 In an extraordinary attempt to explain what they meant by ‘violation of the laws of war’, the prosecution stated that ‘the gist of the charge’ against Kono was ‘an unlawful breach of duty by the accused as a commanding officer to control the operations of the members of his command by ‘permitting them to commit” the atrocities specified’.70 The use of the term ‘gist’ is hardly a specific reference to any law that Kono violated. The prosecution attempted, however, to shed further light by referring to the United States Supreme Court’s decision in the Yamashita case. The passage from Yamashita upon which the prosecution relied stated that the ‘law of war’ required commanders, ‘who are responsible for their subordinates’, to take reasonable measures to ensure that ‘civilian populations and prisoners of war are protected from brutality’ from an invading army.71 The prosecution stated that Kono had a positive obligation as commander to ensure he was kept informed of what was occurring in the field so that his troops did not ‘violate the laws of war’ when it came to the protection of civilians and POWs. Such a duty being operative, therefore, would render Kono, as commander, liable even if he claimed he had no knowledge of the atrocities committed. In other words, the prosecution set up a cleverly constructed charge that would render Kono liable whether or not he knew of the atrocities. Furthermore, the prosecution stated that ‘if the accused says he did not know [of the atrocities], that admission in and of itself will support the charge that he failed to exercise proper control as a commanding officer’.72 Thus, the prosecution made it quite clear in their answer to the defence that it believed Kono was criminally responsible as a military commander for failing in his duty to ‘exercise control over his troops’.73 Such an important and fundamental principle, argued the prosecution, ‘distinguishes an army from a mob. It is a precept as old as armies themselves. For the commander to deny that he has control over his troops is for him to deny he has an army in the first place’.74 From this, it would appear that the prosecution sought to charge Kono on the basis that his role as commander alone was sufficient for him to have the requisite responsibility. In addressing the meaning of the term ‘permit’, the prosecution relied upon a general definition of ‘to permit’ as ‘to tolerate’, to give ‘consent’, ‘to grant (one) license or liberty’, or ‘to authorize’.75 To prove their point further, the prosecution provided examples of antonyms to the term ‘permit’, such as to ‘forbid’ or ‘prohibit’ something. In other words, Kono was criminally responsible because he failed to ‘forbid’ or ‘prohibit’, thereby ‘permitting’ his troops to commit atrocities. The prosecution went on to state that because Kono was under a positive obligation to control the conduct of his troops and failed to do so, he made himself a party to the unlawful conduct.76 Despite the defence’s request in the Bill of Particulars, the prosecution would not be drawn on stipulating whether it asserted that to ‘permit’ something was akin to a ‘commission’ or an ‘omission’.77 Unfortunately, the prosecution did not elaborate why it did not need to argue whether Kono’s liability rested upon a specific act in ‘permitting’ his troops to commit atrocities, or on an omission by him to prevent his troops from committing atrocities. One can only speculate that the argument for not distinguishing between an act (or commission of the offence) and failing to control (or the omission to control) was simply that to do so would invite a legal debate on the jurisprudential merits of the offence for which Kono was charged. Perhaps the prosecution feared that the more they were drawn into defining the offence for which Kono was charged, the more challenges they would face in distinguishing it from a charge akin to the common law tort of negligence—a charge which would have been non-existent under international criminal law. As such, the prosecution strongly resisted the request by the defence to more fully define the charge and its requisite elements.78 The prosecution had strongly argued that Kono’s conviction should rest upon a factual determination of the scale of atrocities committed by his troops while he was present and in command of his forces on the island of Panay as they carried out ‘punitive expeditions’ against civilians in response to the acts of Filipino guerrilla forces.79 Kono pled not guilty to the charge and denied all knowledge of the acts listed in the 49 specifications. The Commission, however, was satisfied with the factual evidence submitted by the prosecution and was, therefore, of the opinion that Kono was criminally responsible for ‘permitting’ atrocities to be committed by forces he commanded. The Commission sentenced Kono to death by hanging on 1 May 1946. The Kono case raised some interesting and important points for future trials in Manila and, no doubt, beyond. Of primary interest here is that the Commission seemed to accept the wording of a charge that operated to make a superior criminally responsible for ‘permitting’ others to carry out unlawful acts irrespective of whether the superior knew of the acts in question. It was clear that the Commission aided and thereby advanced the understanding of the way in which this aspect of command responsibility would apply to the accused. In essence, the meaning of ‘permit’, as adjudged by the Commission in Kono’s case, amounted to, inter alia, a failure to ‘control’. The Commission was willing to accept a broad definition of ‘permit’ whereby a senior officer, such as a Lieutenant-General, could be held accountable for the actions of his subordinates even when he was neither present during the commission of those acts nor knew of them. Moreover, the Commission’s ruling that even a person physically far removed from atrocities committed could still be held criminally responsible also had severe consequences for findings of guilt for subsequent trials of lesser-ranked Japanese soldiers, as will be shown below. C. The Trial of Lieutenant-General Ko Shiyoku, Imperial Japanese Army, Manila, 15 March 1946 Lt-General Ko Shiyoku’s case illustrates the principle of ‘intermediate liability’ in war crimes trials whereby an intermediate is held criminally responsible for the actions, or failures to act, of a higher entity (in this case, the Japanese Government for failing to enforce the Geneva Convention that led to atrocities). Ko’s case further indicates that criminal responsibility can ensue where the accused is physically removed from the scene of the atrocities and is even unable to exercise ‘effective control’ over subordinates who commit atrocities. While Lt-General Kono was prosecuted for the unlawful killing of Filipino civilians, Lt-General Ko80 was charged and convicted for the mistreatment and unlawful killing of United States POWs and dozens of United States non-combatant internees while these were being held captive by the Japanese in various places throughout the Philippines and whilst en route to POW facilities in Japan.81 Similar to the circumstances of Kono’s criminal responsibility for the actions of his subordinates, Ko was physically removed (sometimes thousands of kilometres) from the actual brutality and killings meted out by his subordinates against their victims in the camps and elsewhere. For the most part, Ko was at his headquarters at various places in the Philippines and thus away from the camps. One particularly unique feature about Ko’s trial was that he was of Korean, not Japanese, heritage. Ko Shiyoku was born in a small village outside of Seoul in 1889 and as a young man attended the Korean Military Academy. He later studied in Japan at the Japanese Central Military Preparatory School and the Imperial Japanese Army Academy, before Japan annexed Korea in 1910.82 He rose quickly through the ranks of the Imperial Japanese Army. Ko’s Korean background was noted at his trial, because his defence team attempted to argue that he should not be held criminally responsible in accordance with the doctrine of command responsibility, since his authority was largely undermined by his subordinates’ contempt towards him due to his Korean heritage. This, they argued, negated the very meaning of command responsibility. From March 1944 until January 1945, Lt-General Ko was part of General Yamashita’s 14th Area Army in the Philippines and was the commanding general for all POW and civilian internees. During this time, he had oversight of, and was responsible for, the supervision, supply, transportation, welfare and administration of all detainees held captive by the IJA. Given this level of responsibility, the prosecution alleged that his failure to properly exercise his duty in relation to the welfare of thousands of detainees rendered him criminally liable for the mistreatment and brutality meted out by his subordinates. Specifically, Ko was charged as follows: [That he did u]nlawfully and wilfully disregard, neglect and fail to discharge his duties of command by permitting and sanctioning the commission of brutal atrocities and other high crimes against … prisoners of war and noncombatant civilian internees; and … thereby violated the laws of war.83 Accompanying the charge were twelve specifications detailing hundreds of allegations of incidents involving inhumane and cruel treatment committed by IJA forces against United States POWs and civilian internees. The incidents outlined by the prosecution occurred in numerous places during Ko’s incumbency as the commanding general of POWs and civilian internees.84 The types of incidents alleged by the prosecution consisted of treatment by IJA NCOs and Commissioned Officers (CO) that included deliberate starvation, failure and refusal to provide medical treatment and adequate medical facilities, failure to provide adequate housing and clothing, pilfering and confiscation of food packages from the American Red Cross, brutal treatment (such as beatings, solitary confinement, torture and murder) of named United States servicemen and civilian internees, forced labour (including of those who were sick and wounded), and infliction of brutal, unlawful and arbitrary disciplinary punishment.85 Of particular note was the cruel and inhumane treatment of United States POWs and internees whilst on board various Japanese ships en route to POW camps in Japan.86 The prosecution went to great lengths to argue that such treatment of United States POWs and civilian internees was in direct breach of the various international conventions and treaties, namely the Hague Convention of 1907 and the Geneva Convention of 1929. The prosecution outlined article after article of the respective conventions, describing how Japan had breached its international obligations with respect to its treatment of POWs and civilian internees and, importantly, alleged that Ko knew or at least suspected what was occurring within the camps. Lt-General Ko’s defence team did not appear to challenge the veracity and strength of the evidence regarding the extent, nature and scale of mistreatment meted out against United States POWs and civilian internees. Nor did they directly challenge that Ko had some knowledge about the conditions in the camps.87 Eyewitness testimony was overwhelming. Although the defence might arguably have subjected some specifics to closer scrutiny,88 on the whole, they could see no reason to challenge the witnesses’ veracity. Instead, the defence, rightly or wrongly, challenged that Lt-General Ko should be held accountable pursuant to the doctrine of command responsibility. Lieutenant Weston for the defence raised several points on this front. Firstly, Lt Weston stated that Ko’s case was the first of its kind for the Manila trials (and no doubt elsewhere), since the trial involved a Korean national who had made it to the senior ranks of the Japanese military and was now charged with ‘command responsibility’.89 Lt Weston stated that due to Ko’s heritage, the Commission should consider him differently to his Japanese counterparts, purely on the basis that Ko was ‘for many years suppressed by the Japanese and … a Korean in the Japanese Army would have very little weight in any command position’.90 He went on to state that ‘it is my contention that [Lt-General Ko] had very little influence in the Japanese Army. He was resented by his subordinates, he was looked down upon by the officers over him’.91 If Lt-General Ko’s subordinates and superiors had indeed regarded him with as little respect as the defence maintained, then there is some merit in the argument that Ko would have struggled to reign in the excesses of his subordinates. The defence tried to paint a picture of Lt-General Ko as in effect impotent as a commander, thereby inviting doubt as to whether he was in a position to do anything at all to remediate the conditions within the camps. A second point the defence raised in support of the argument that Lt-General Ko was, at least to some extent, powerless in his duties to change the plight of POWs and civilian internees was that Japan never intended to abide by the Geneva Convention, especially when it came to POWs and other internees. Lt Weston stated that: The War Ministry in Tokyo had no intention whatsoever of following or abiding by the Geneva Convention, yet here you have an accused, a middle man, furthermore a Korean, who is charged with violating the Geneva Convention. One man in the middle could not on his own follow the Geneva Convention. His superior officers, the headquarters in Tokyo, ignored the Geneva Convention. His subordinates knew nothing, practically, about the Geneva Convention. I ask you as members of this Commission, how could this Accused abide by the Geneva Convention under those circumstances. … Now, if anyone is to be held responsible for the violation of the Geneva Convention it is not the Accused. The responsibility lies in the Imperial Headquarters in Tokyo, the War Ministry.92 Lieutenant Weston’s point is well made. By emphasising the chain of command in relation to Ko’s circumstances, the defence argued that Ko was not solely responsible for the way in which POWs and internees were treated by Japan. Rather, the fate of the tens of thousands of people who were unfortunate enough to be taken prisoner by the Japanese during the Pacific War was sealed long before Lt-General Ko took command of the POW camps in the Philippines. A third point raised by the defence was the success of the United States military campaign to reclaim the Philippine islands from the Japanese93 and the incessant Filipino guerrilla insurgency that was wreaking havoc among the stranded Japanese forces.94 The defence argued that such conditions, and the Japanese’ resulting expectation that their defeat in the Philippines was only a matter of time, would have played heavily on Ko’s mind. In relation to the prosecution’s allegation that Lt-General Ko deliberately starved those held captive by the Japanese, Lt Weston made the following observation: Now, we all know that at that time [November to December 1944] Japanese shipping was practically non-existent. Our planes were raiding the mainland, they were raiding all shipping, and the majority of the Japanese ships were sunk. Now, how could they actually supply their camps and their own army under those conditions? The havoc and chaos created by our own armed forces was responsible for a good deal that went on.95 The efficiency of the advancing United States and local guerrilla forces left Japanese forces depleted and vulnerable. The Japanese were striving to maintain their own survival, which in turn had a deleterious effect POWs and internees. Japanese forces were virtually cut off from supplies and reinforcements and in these circumstances, there was little chance that POWs and internees would have been able to receive better rations. Despite the defence’s best efforts, however, the Commission did not agree with the defence’s arguments in relation to the minimal level of control that Lt-General Ko had been able to exert over the dire conditions in the camps. The Commission ruled that Ko had a form of control over his subordinates, and that it had been his responsibility to exercise that control to ensure his subordinates were adhering to international laws and customs regarding the treatment of internees and POWs. Essentially, the Commission applied a broad definition of ‘effective control’ in Ko’s circumstances. Its findings seemed to indicate that a superior could still exercise ‘effective control’ even in the face of plausible arguments to suggest the accused did not have ‘actual control’, such as when he was physically removed or isolated from his area of delegation. This expanded understanding of ‘effective control’ made it nearly impossible for a senior officer to avoid liability. Ko’s circumstances were deemed insufficient to have severed his control. For his part in the mistreatment, starvation, torture and murder of thousands of United States POWs and civilian internees, he was found guilty of the charge and sentenced to death. He was executed on 26 September 1946. Ko was the most senior person on the ground in the Philippines whose responsibility it was to administer the supervision, welfare and transportation of thousands of detainees. He failed in this role and paid the ultimate price. Given that, as the Commission found, Ko did have actual knowledge of the widespread appalling privations and cruel treatment committed by guards in POW and internment camps under his command, and the scale of actual fatalities, it would have been extremely difficult for the Commission to consider any finding other than a guilty verdict. Retribution for the mistreatment and deaths of United States POWs and civilian internees is an overriding feature of Ko’s case. Someone needed to pay for the death and brutality that had taken place in Japanese POW and internment camps. By finding Ko guilty, the Commission sent a clear message for other trials as to how it viewed the imperative of commanders to control subordinates, particularly when it came to the very sensitive matter of POWs. Very little credence was given by the Commission in this case to the intervening events that made Lt-General Ko’s command virtually impossible. The Commission found Ko guilty on the basis of command responsibility despite the fact, as it was argued by his defence, that his command was compromised to such an extent that he was ineffectual as a commander. This was not simply because of the contempt exhibited towards him by his subordinates and superiors, but also due to the dire circumstances in which Japan found itself at this juncture of the war. The same level of ineffectualness would likely have been experienced by anyone occupying that role at that time. Crucially, the precedent established in Ko’s case could render commanding officers liable simply by virtue of the position they occupied, and even if they had taken steps to rectify or alleviate the malfeasance for which they were charged. The commander’s guilt is one of strict liability. That Ko took up the matter of rations directly with General Yamashita should have warranted greater attention. However, the strict liability approach that was applied in Ko’s case by virtue of him being a commander was not uniformly applied in other cases. As the next example highlights, the Commission was at times willing to give the benefit of doubt to an accused commander. Where evidence was unclear as to whether the defendant had played a specific role in the commission of war crimes, he was sometimes able to escape the gallows—though not necessarily criminal responsibility. D. The Trial of Vice Admiral Osugi Morikazu, Imperial Japanese Navy, Manila, 22 January 1947 Vice Admiral Osugi Morikazu of the 23rd Naval Base Area, Imperial Japanese Navy (IJN) was charged and convicted of war crimes committed by his subordinates during his command at Makassar, Celebes, Netherlands East India (as it was then known).96 Though of similar rank to Lieutenant-Generals Ko and Kono, and despite the similarities regarding the rationale and application of the doctrine of command responsibility in these cases, Vice Admiral Osugi managed to escape the executioner and received only life imprisonment for his part in the commission of war crimes against downed United States airmen. Osugi was simply charged with violating the ‘laws of war’.97 Specifically, the charge related to the execution on Celebes of 13 United States airmen whose planes were shot down during United States bombing raids that occurred over Indonesian islands in the latter part of 1944. The airmen were held prisoner for approximately 40 days before they were taken to two separate locations—four were taken to Maros Airfield, Makassar and the remaining nine were taken to Kendari—and beheaded by individual members of the IJN. The specifications to the charge asserted that Osugi unlawfully permitted, consented to or ‘ratified’, and failed to prevent and take corrective and punitive action against the executions of the United States airmen.98 Osugi pled not guilty to the charge, but the Commission found (as did the approving authority)99 that he was criminally responsible for the deaths of the 13 airmen. On that basis, he was sentenced to life imprisonment.100 As in the trials of other senior Japanese military figures, there was no direct evidence that Osugi personally ordered, knew about, participated in or witnessed the killings, nor did the prosecution claim that there was. There was therefore much factual conjecture on the parts of both the prosecution and defence as to whether Osugi gave direct orders for the executions, or at least had prior knowledge of them. The prosecution introduced several witnesses who claimed to have been present in the same room as Osugi when the matter of executions was being discussed and the decision to execute the men was made. The defence presented eyewitness testimony that suggested the opposite: that Osugi had had no knowledge of the executions. Chief among defence witnesses was Osugi himself. He claimed to have had no knowledge of the downed airmen, because he was at the time struck down with dengue fever and was some three kilometres from where the United States airmen were being held. Osugi claimed that when he learned about the executions he was ‘flabbergasted’101 and that upon hearing of the unauthorised executions, he had planned to investigate and, if necessary, punish those who had executed the aviators without orders.102 However, due to the daily United States bombing raids, he was unable to follow through with his planned investigation and punitive measures against his subordinates.103 Despite Osugi’s protestations to the contrary, the Commission favoured the evidence of the prosecution’s witnesses. The issue remains as to whether the apparent favourable treatment of the prosecution’s version of events is a direct result of ‘subjective fact bias’. The Commission found that the prosecution’s evidence—namely, eyewitness testimony of IJN personnel who were close to the Vice Admiral at the time the offences occurred—indicated that, although he did not order the executions, Osugi was aware the killings were going to take place and failed to prevent them. On this basis, the Commission found that Osugi had ‘acquiesced’ by failing in his duty to prevent the unlawful killings. Due to this acquiescence and the fact that Osugi had been in a position of authority, Osugi was found criminally responsible. One qualification that the Commission did acknowledge, however, was that all of those who gave evidence against Osugi were currently awaiting trial themselves. As a result of their personal interest in these matters, all of the prosecution witnesses ‘related their stories in words and meanings as they pleased to establish an atmosphere of innocence as far as they were personally concerned. Instances of this were numerous in the case and the writer of this opinion has kept this fact in mind’.104 Despite the fact that the prosecution’s evidence may have been tainted by self-interest on the part of the witnesses, the Commission still favoured the prosecution’s version of events concerning Osugi’s knowledge of the executions.105 The Commission acknowledged that letters received on his behalf maintained that Osugi was not a ‘bad or vicious person at heart’. However, it argued that the effect of his tolerance alone is enough to convict him of major crime. He ‘let’ his subordinates kill 13 American airmen and the evidence shows that several of these airmen were passed around to various units for execution. They seemed to make quite an occasion of it when the … men were executed.106 Viewing acquiescence as a basis on which to hold a person criminally responsible places a positive obligation on superiors to ensure their subordinates are held to an appropriate standard of behaviour in accordance with the relevant laws. Failure to do so, as in Osugi’s case, could be held sufficient under international law to render a person criminally responsible. Having known of the executions and done nothing to prevent them, Osugi failed in his duty as a commander and thereby breached international law. The prosecution made the point in their opening address that: Commanders of troops who fail to prevent the commission of wrongs in violation of laws of war are themselves, war criminals. Justice Jackson, in his report to the President on June 7, 1945, stated, ‘We do not accept as the paradox that legal responsibility should be the least where the power is the greatest.’107 That Osugi would be deemed responsible for the executions is neither surprising nor out of step with the other cases examined above, particularly as the Commission ruled that he had had actual knowledge of the executions, which rendered any legal debate regarding a commander’s criminal responsibility for acts committed by subordinates that occur unbeknownst to him unnecessary. Noteworthy about this case is that Osugi received a sentence of life imprisonment, a lenient punishment that contrasted with the death sentences handed down to Yamashita, Kono and Ko. There are several possible explanations for why Osugi received life imprisonment for knowingly allowing the unlawful executions of 13 United States airmen when in other cases death was the likely sentence. One explanation, as macabre as it may be, is the relatively low number of victims, as opposed to the large-scale wanton murder and destruction committed under the commands of General Yamashita and Lt-Generals Ko and Kono. A further reason that cannot be ignored is that Osugi was prosecuted in 1947. By this time, the Manila trials had been going since the Yamashita trial in late 1945, and there is some argument that sentences had relaxed, albeit slightly, over time. That the United States wanted to expedite the trials to make way for the Philippine courts to take over the running of the trials may also have played a part. A further explanation relates to the fact that perhaps the Commission simply could not dismiss the charge—as sought by the defence—in the face of the unlawful executions of 13 United States airmen. Someone in a senior position needed to be held accountable for these deaths, and the Commission was not prepared to allow Osugi to walk free. However, given the questions surrounding the veracity of the prosecution’s evidence, it was not prepared to condemn him to death, either. E. Trial of 2nd Lieutenant Kato Minoru, High Commissioner’s Residence, Manila, 8–21 August 1946 In the case of 2nd Lieutenant Kato Minoru108 of the IJA, the Military Commission found that when a superior officer personally engaged in one (or more) instance of war crimes, it is sufficient to show that the same commander ordered other killings and is likewise guilty by the doctrine of command responsibility for other war crimes committed by subordinates within a reasonable proximal and temporal space. Kato was charged with ‘violation of the Laws of War’ for ordering and participating in the torture and murder of named and unnamed Filipino non-combatants on Cebu Island in 1944. The crimes were particularly gruesome and involved the beating, burning and eventual murder of approximately 26 individuals. On evidence provided at the trial, Kato was personally found to have participated in some but not all of the killings. He was found guilty of war crimes and sentenced to death by hanging. The Reviewing Authority confirmed the original sentence. Kato’s case is thus of interest because the Commission found that where a superior engages in war crimes himself, he has provided the necessary authority to his subordinates to carry out similar acts.109 On that basis, a commander may be deemed guilty of both the unlawful conduct he had personally committed, and of providing the necessary command or orders to his subordinates. The core of the defence’s argument was that Kato should not be liable for all the acts committed by his subordinates, because he did not specifically order each act for which he was charged. The Commission found that there was sufficient eyewitness testimony by survivors of the massacres who could identify Kato at least in a number of instances as present at the locations where the atrocities occurred and as the person ‘who was exercising authority over the Japanese soldiers who tortured and killed others’.110 The defence tried, unsuccessfully, to claim that others had provided the necessary orders to subordinates that had resulted in the unlawful killings and that Kato was not in command at the time. Reviewing the original verdict, Colonel Shaw JA stated: What the defense offered amounted at most to evidence that another than the accused was in command of the garrison and company on paper when these incidents occurred. If the facts were as contended by the defense, this circumstance would neither exculpate the accused nor in any way mitigate his guilt.111 Unfortunately, Shaw JA did not elaborate on this statement. One can speculate, however, that he—like the original Commission who heard the initial evidence—considered that personal participation in criminal offences which are later replicated by subordinates, even if these were not under direct orders, is sufficient to render a superior criminally responsible also for the latter criminal acts. That is, given that the superior personally authorised, participated in and observed initial unlawful conduct, this fact alone is sufficient to indicate to his subordinates that similar future acts will likewise be acceptable and perhaps even desirable under certain circumstances. By doing so, the superior has set a precedent to which his subordinates were to adhere. Subsequent unlawful conduct committed by subordinates under these circumstances is therefore sufficient to attract criminal sanction to the superior in absence of direct orders to his subordinates to refrain from engaging in such conduct or where no evidence exists that the superior purported to punish subordinates for committing the said atrocities. Colonel Shaw made it clear that Kato was unable to rely or seek mitigation on the basis that he did not order all the unlawful acts against Filipino non-combatants. What is one to make of the legal principle stemming from such a finding? The original Commission who heard Kato’s case, whether intentionally or inadvertently, provided a very interesting summation of the law as it relates to the ‘temporal’ and ‘proximal’ connection of the accused to the commission of the unlawful conduct. In finding Kato guilty not purely for the acts he personally committed against non-combatants, but also for acts committed by his subordinates posits a ‘temporal’ and ‘proximal’ relationship regarding the commission of the first and the latter offences. In other words, the accused does not have to be present when the offences are committed as long as he is perceived as having previously ordered or permitted similar act. Applying this line of argument, it was reasonable to conclude that Kato was sufficiently responsible for similar acts committed at a later date. The chain of Kato’s ‘temporal’ and ‘proximal’ connection between the first and subsequent unlawful conduct was not sufficiently broken. IV. The Legacy of the Manila Trials The many cases tried at Manila show an unfolding patchwork of jurisprudence that, as Major Guy alluded to during the Yamashita trial, was not only new legal territory for the USA, but also for the other Allied nations faced with difficult legal decisions regarding the fate of those Japanese military personnel accused of having committed war crimes during the Asia-Pacific War. The Manila trials provide a significant opportunity to delve into the myriad of complex legal and moral questions arising from the Allies’ decision to prosecute alleged Japanese war crimes committed during that conflict. Did the Allies fully comprehend the law in all its complexity prior to undertaking the trials? The answer would have to be a resounding ‘no’! Clearly, many aspects of the law as it stood prior to the trials were largely untested. However, the Manila trials in relation to command responsibility leave a mixed legacy. On the one hand, much could be gleaned in terms of how this doctrine was applied in various circumstances during the trials, while on the other hand, questions remain as to whether justice was served on all occasions. In relation to command responsibility, the Manila trials clearly contributed to an understanding of the principle that those in positions of authority (no matter how junior or senior) can and will be held criminally responsible for the criminal acts of subordinates. Very little leeway was given to those in positions of authority whose subordinates committed crimes against United States POWs or Filipino non-combatants, even if the alleged crimes occurred without their knowledge. As demonstrated at various times throughout the trials, the application of criminal responsibility was not necessarily a sophisticated enterprise. The officers accused of war crimes could be held criminally responsible merely on the basis of having been in a position of authority rather than because of any wrongdoing they may have committed themselves or ordered whilst in command, as we saw in the case of Lt-General Kono. At other times, however, as in the Onishi case, the application of law in determining whether an accused should be criminally responsible for the actions of subordinates was afforded the due care and attention it deserved. The Manila trials also dealt with key aspects of the fault element (mens rea) in cases of murder. The fact that an accused either knew, suspected, or later found out about unlawful killings committed by a subordinate and did nothing to prevent or punish such conduct often rendered him guilty in the eyes of the Commission and the reviewing authority on the basis that he had ‘acquiesced’, that is, allowed or facilitated the crime. The trial of Lt-Colonel Onishi illustrated this point very well. Likewise, in the case of Lt-General Kono, the Commission found that an accused ‘intended’ to unlawfully kill on a wide scale if he occupied a senior position and failed to prevent or punish subordinates, even if the latter had never been in direct contact with the accused. This was termed ‘contingent liability’—that is, the commanding officer’s criminal liability was ‘contingent’ upon the position he occupied. This outcome could also be described as being one of ‘strict liability’. As exemplified by the case of Lt-General Ko, the Manila trials also highlighted the concept known as ‘intermediary liability’, whereby an officer is held criminally responsible for the actions or failures of a higher entity (in Ko’s case, the Japanese Government for failing to enforce the Geneva Convention). There is some question in this case as to whether justice was truly served because the Commission appeared to punish the defendant for his government’s failure to provide sufficient care for United States and Allied POWs. The trial of Vice-Admiral Osugi illustrated the existence of ‘subjective fact bias’, whereby the Commission tended to favour the evidence and version of events against the accused where the offence involved criminal conduct against United States personnel, even when there was strong evidence to the contrary. In this regard, the Onishi case illustrates the broad way in which the military commissions in Manila tended to interpret the fault element (mens rea) of the offence. Finally, this paper examined the case of 2nd Lt Kato and illustrated clearly the position that where a superior engages in one count of unlawful killing, they may also be liable for other, unrelated crimes. The willingness to extend criminal liability in this regard also raises questions as to whether justice is best served given the notion that an accused should only be convicted for a crime for which evidence exists to prove liability. Footnotes " 1 See Richard H Minear, Victors’ Justice: The Tokyo War Crimes Trial (Princeton UP 1972). " 2 For this paper, to the term ‘Allied nations’ refers to Australia, Canada, China, France, Great Britain, the Netherlands, the United States of America, New Zealand, the Philippines, and the Soviet Union. These were the nations that were directly involved in the prosecution of Japanese war criminals after World War II. " 3 The concept of criminal responsibility, as understood within the common law context, has evolved over centuries. To be criminally responsible, a person must satisfy a set of conditions or criteria which have been shaped by a range of normative influences over time. See, for example, a discussion on the various influences that have shaped law over the millennia: Suri Ratnapala, Jurisprudence (CUP 2009); Marett Lieboff and Mark Thomas, Legal Theories: Contexts and Practices (Lawbook Co 2009) especially chs 5, 7, 10–15; H Patrick Glenn, Legal Traditions of the World: Sustainable Diversity in Law (4th edn, OUP 2010). " 4 In re Yamashita 327 US 1, 27 (1946) 640. Yamashita, the commander of the Imperial Japanese 14th Area Army in the Philippines, was indicted, convicted and later executed on allegations of war crimes committed by his forces against Philippine civilians. For a detailed description of Yamashita’s case, see Adolf Frank Reel, The Case of General Yamashita (Chicago UP 1949); Michael L Smidt, ‘Yamashita, Medina, and Beyond: Command Responsibility in Contemporary Military Operations’ (2000) 164 Mil L Rev 155; Ilias Bantekas, ‘The Contemporary Law of Superior Responsibility’ (1999) 93 AJIL 573, 585; Richard L Lael, The Yamashita Precedent: War Crimes and Command Responsibility (Scholarly Resources 1982). " 5 Selection criteria included the individual’s rank and the function/role he performed. During archival research, patterns of the types of individuals charged began to emerge and it was these patterns that enabled the formation of natural groupings for the selection of cases. " 6 George F Guy, ‘The Defense of General Yamashita’ (1950) (4) Wyo LJ 153, 161–63. " 7 At the time of the trials following World War II in Asia and Europe, there was no fixed definition of a ‘war crime’. Rather, war crimes were captured in a series of treaties and conventions such as the Hague Conventions of 1899 and 1907, and the Geneva Conventions of 1864 and 1929, including the Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field, and the Convention relative to the Treatment of Prisoners of War, which outlawed certain conduct during time of war. The 1949 revisions of the Geneva Conventions and the subsequent protocols provided additional codification of the laws of war and of war crimes. Even before these codifications, customary international law for centuries had banned conduct such as the murder or mistreatment of captured military personnel. Examples of the types of crimes with which the accused were charged during the US Army trials in the Philippines—which will form the basis of investigation for this paper—included the mistreatment and abuse of Allied personnel and non-combatants by beating or placing in solitary confinement, their extra-judicial murder, as well as superior officers ordering, permitting, or willfully and unlawfully failing in their duty to prevent the commission of such atrocities by their subordinates against Allied POWs and Philippine non-combatants. " 8 For a firsthand account of Japan’s invasion and harsh occupation of the Philippine Islands, see Teodoro A Agoncillo, The Fateful Years: Japan’s Adventure in the Philippines, 1941–45, vol 2 (R P Garcia Publishing Company 1965). " 9 ‘Potsdam Declaration' (26 July 1945): Annex A-1, Judgment International Military Tribunal for the Far East. " 10 For example, see Reel (n 4). " 11 One of the most vocal critics of the Allied war crimes programmes is Richard Minear. His 1971 text (see n 1) remains one of the most cited. Other critics of the conduct of war crimes trials, particularly of the International Military Tribunal in the Far East (IMTFE) and General Douglas MacArthur’s role in it, include Dayle Smith, Judicial Murder? MacArthur and the Tokyo War Crimes Trial (Createspace 2013); Dayle Smith, MacArthur’s Kangaroo Court (Envale Press 1999). In recent years, scholars have tried to move beyond the common narrative of ‘victors’ justice’ at the IMTFE and looked for other ways in which to assess legal questions arising from the Tokyo and other Allied trials of the Asia–Pacific War. See, for example, Yuki Tanaka, Tim McCormack and Gerry Simpson (eds), Beyond Victor’s Justice? The Tokyo War Crimes Trial Revisited (Martinus Nijhoff 2011); Neil Boister and Robert Cryer, The Tokyo International Military Tribunal: A Reappraisal (OUP 2008). " 12 Greg Bradsher, ‘Japanese War Crimes and Related Topics: A Guide to Records at the National Archives’, US National Archives and Records Administration at College Park (NARA) (date unspecified) 188. " 13 ibid. The trials took place in the ballroom of the High Commissioner’s residence on Dewey Boulevard in Manila. During the War, the residence was the Headquarters of Lieutenant-General Honma who, at the time of the Japanese occupation of Manila, was the Japanese Commander-in-Chief – for a firsthand account of the Yamashita trial, see Guy (n 6) 157. " 14 Bradsher (n 12). See, also, Philip R Piccigallo, The Japanese on Trial: Allied War Crimes Operations in the East (University of Texas Press 1979) 67. Piccigallo’s figures differ from those of Bradsher. Piccigallo claims that the US held 97 cases comprising 215 individuals, of which 195 were convicted, citing a newspaper report in the China Press dated 10 June 1947, and John A Appleman, Military Tribunals and International Crimes (Bobbs-Merrill Co. 1954) 267. Bradsher claims that 87 cases were tried. " 15 In re Yamashita 327 US 1, 27, 640 (1946). " 16 Piccigallo (n 14) 95, at note 72. As the source of these figures, Piccigallo cites research obtained by Appleman (n 14) 267. Piccigallo claims Appleman’s figures were derived from official estimates from “SCAP, Trial of Class ‘B’ and ‘C’ War Criminals, 202–204”, and from the US Department of the Navy, “Final Report, vol 1, 103–110”. " 17 ibid. " 18 For a firsthand account of Japan’s invasion and occupation of the Philippine Islands, see Agoncillo (n 8). " 19 Guy (n 6) 157. " 20 ibid 158. " 21 One only needs to take a cursory glance at the number of anti-Japanese and anti-German films made during World War II in the United States and elsewhere in the Anglophone world to gain an understanding of the use of propaganda in prosecuting the war. Racial vilification of Germans and especially Japanese can also be seen in many posters produced at the time. For example, see, Shannon Quinn, 10 Anti-Japanese Propaganda Films From WWII Filled with Racist Messages (undated) History Collection <https://historycollection.co/10-anti-japanese-propaganda-films-from-wwii-filled-with-racist-messages/>, last accessed 15 January 2020. " 22 Nicholas Rengger, ‘Jus in Bello in Historical and Philosophical Perspectives’ in Larry May (ed) War: Essays in Political Philosophy (CUP 2008) 43–46. Rengger asserts that the laws of war are in a constant state of ‘catchup’, and that this is reflected in the ‘juridicalization’ of law once something new develops. The same can be said about regarding the Allies’ formulation of new laws to deal with criminal responsibility. " 23 Minear (n 1). " 24 ibid, opening page. " 25 Reel (n 4). " 26 Guy (n 6) 156. " 27 ibid 165. Major Guy eloquently described the dire situation the Japanese faced: ‘Devastation was everywhere. The city had been under effective American air and artillery attack for weeks and its untenability by the enemy was readily apparent. Dead Japanese lay in the streets and all about were smashed and strafed Japanese staff cars, trucks, cassions, wagons and other vehicles, all giving mute testimony to the power and fury of the American air attacks which had been such an important factor in driving Yamashita from lair to lair. Later that afternoon, I stood on the high Cathedrala Hill in Baguio and saw our P-38s bomb and strafe Jap positions on the ridge to the north of the city and then watched as the American artillery opened up a terrific fire on the Japanese emplacements. The artillery fire was so intense that within a short time, the top of the ridge was ablaze from the underbrush ignited by the 105s and 155s. In all that smoke and flame, I could see the flashes of additional shells as they exploded on the target, adding further to the holocaust already raging. I was witnessing then, although not realising it, another step on the long road that was driving Yamashita, step by backward step, to surrender-and-to [sic] trial for “failure to control his troops” and to the final end on the gallows at Los Banos’. " 28 ibid 166. " 29 Agoncillo (n 8), esp. 384, 645–777. " 30 See, for example, the trials of Kei Yuri (1st Lieutenant IJA, Camp Commander of Prisoner of War Camp 17-B Omuta, Fukuoka, Kyushu) NARA RG331 UD1321 290/12/12/1 Box 1557; Kaneko Takeo (Camp Commander, Prisoner of War Camp Number 5, Fukuoka, Kyushu) and Uchida Teshiharu NARA RG331, UD1321 290/23/6/2 Box 1581; Mizukoshi Saburo (Camp Commander, Sumidagawa Prisoner of War Camp) NARA RG331, UD1321 290/12/12/1, Box 1587; Hirate Kaichi (1st Lieutenant and later Captain and Commander of Prisoner of War Camp, Hakodate) NARA RG331 UD1321 290/12/2/2 Box 1389. " 31 The Trial of Nanjo Masao, NARA RG331 UD1321 290/12/12/1 Box 1573. " 32 It should be noted that the trials will not necessarily be discussed in chronological order, because this article’s main purpose is to trace the development of particular legal principles. " 33 United States of America v Seiichi Ohnishi, Hajime Kawara, Tsugiharu Ogata (Review, 25 January 1947), NARA RG331 UD290/12/12/1 Box 1570. " 34 This case also provides some indication as to how US military commissions dealt with cases that involved reprisal killings by IJA forces against Filipino civilians. In a broad sense, the US authorities’ approach to convicting and sentencing in such cases was similar to that used in those involving atrocities committed against US military and civilian personnel. For instance, see The Trial of Colonel Nagahama Akira Imperial Japanese Military Police (Kenpeitai), 25 February – 11 March 1946, Manila (JA 201-Nagahama, Akira (Col)), ‘Trial by Military Commission’, Review by Colonel Franklin P Shaw, Judge Advocate, NARA RG331 UD1243 290/11/31/05 Box 1276; and The Trial of Lieutenant-General Ko Shiyoku,Imperial Japanese Army, Manila, 15 March 1946 (United States of America v Shiyoku Ko are located at, NARA RG331 UD1321 290/12/12/1 Boxes 1559–60, vol 1 and 2). " 35 United States of America v Seiichi Ohnishi, Hajime Kawara, Tsugiharu Ogata (Review, 25 January 1947) RG331 UD290/12/12/1 Box 1570, 1–3. " 36 ibid 4. " 37 ibid 4, (R-17). Other witnesses also claimed that a blackboard was placed near Fuertes whilst he was hanging from the tree, which read, ‘I’m a guerilla. Don’t do bad things like I did’, ibid 12 witness testimony of 2nd Lt Kato Minoro. " 38 ibid 8, (R-117) " 39 ibid. " 40 ibid 12. " 41 ibid 9, ‘Exhibit 4’, (R-131-132). " 42 ibid 13, see witness testimony of Sergeant Major Sue Tadashi (R-290-291). " 43 ibid 14. " 44 ibid 17. " 45 ibid. " 46 ibid 18. " 47 ibid. " 48 ibid 19. In reaching its verdict, the Commission concluded that it was following the most recent precedent of United States of America v Koe Mikami et al tried at Manila 4 June 1946 – see General Headquarters Far East Command, Office of the Judge Advocate, ‘Review of the Record of Trial by a Military Commission of Major Koe Mikami, ISN 150380, Imperial Japanese Army’, 27 March 1947, (NARA RG331 UD 290/12/2/2 Box 1389 Folders 14&26). " 49 ibid. In the Mikami case, a Military Commission in Manila in 1946 found that ‘he … did wilfully and unlawfully kill unarmed, non-combatant Filipino civilians’ and therefore sentenced him to death, even though the actual killing was carried out by his subordinates. Importantly, the killings were determined to have been carried out on Mikami’s orders, and this alone was sufficient to render a guilty verdict. " 50 ibid 20. " 51 ibid. " 52 ibid, Review documents, ‘Head Quarters Ryukyus Command’ 19 February 1947, Specification 1. " 53 The review authority made reference to the common law when Assistant to the Staff Judge Advocate James R Freemas stated that ‘the best rules of the Common law and of the law of the states and nations can be used as guides to achieve justice’, ibid 18. " 54 Gavino Fuertes was reported to have been beaten over several days whilst hanging by his hands from a tree. He was also subjected to public humiliation and likely beatings by his own people. " 55 Christopher Chant, Operation Victor I (2018) Codenames: Operations of World War 2 <https://codenames.info/operation/victor-p-i/> accessed 15 January 2020. " 56 Trial documents for the Kono case are located at NARA RG331 UD1321 290/12/12/1 Box 1563. Unless specified otherwise, all archival documents referred to in this chapter relating to the trial of Lt-General Kono are taken from this series. " 57 The prosecution made this point abundantly clear at the beginning of the trial. See document entitled ‘Answer to Defense Motions for a Bill of Particulars to the Charge, for further particulars as to certain Specifications and additional Specifications and to strike certain Specifications and additional Specifications’, United States of America v Takeshi Kono (Headquarters, United States Army Forces, Western Pacific War Crimes Commission) 78, undated. " 58 For a detailed account of the scale and nature of Filipino resistance and the actions of the IJA in response to guerilla activities on the island of Panay during the three years prior to the Japanese surrender of the Philippines, see eyewitness testimony of Tozuka Ryoichi, Commander of the 37th Independent Security Battalion stationed in Iloilo City, Iloilo Province, vol II, trial document, 16–194. " 59 See Arraignment and Public Trial – United States of America v Takeshi Kono, ‘Before the Military Commission convened by the Commanding General, United States Army Forces, Western Pacific’, Court No. 2-B, High Commissioner’s Residence, Manila, 15 April 1946. " 60 General Headquarters, Supreme Commander for the Allied Power, ‘Charge’, United States of America v Takeshi Kono, 8. " 61 ibid 9–21. " 62 ibid. " 63 For example, Specification 1:‘Takeshi Kono, in the month of September 1943 … did, at or near barrio Ticongeahoy, Sara Iloilo, Philippines, unlawfully permit members of the Imperial Japanese Army then under his command to kill about 14 unarmed, noncombatant Filipino civilians, including Buenvenido Azuilo in violation of the laws of war.’ " 64 For example, Specification 34: ‘Takeshi Kono, in the month of October 1943 … did, at or near Banga, Capiz, Philippines, unlawfully permit members of the Imperial Japanese Army then under his command to kill about 300 unarmed, noncombatant civilians, in violation of the laws of war.’ " 65 For example, Specification 35: ‘Takeshi Kono, in October and November 1943 … did, at or near Libacao, Capiz, Philippines, unlawfully permit members of the Imperial Japanese Army then under his command to kill an unascertained number of unarmed, noncombatant civilians, in violation of the laws of war.’ " 66 ibid 23, as per Lieutenant McCullough for the defence, see United States of America v Takeshi Kono, ‘Motions for a Bill of Particulars to the charge, for further particulars as to certain specifications and additional specifications and to strike certain specifications and additional specifications’, Headquarters, United States Army Forces, Western Pacific War Crimes Commission, 24–76 (Bill of particulars). " 67 ibid 24. " 68 ibid 24–5. " 69 United States of America v Takeshi Kono, ‘Answer to Defense Motions for a Bill of Particulars to the charge, for further particulars as to certain specifications and additional specifications and to strike certain specifications and additional specifications’, Headquarters, United States Army Forces, Western Pacific War Crimes Commission, 76–83 (Answer to the Bill of particulars) (emphasis added). " 70 ibid 78. In relation to the term ‘gist’, one cannot help but be drawn to the 1997 Australian film, The Castle in which a bumbling lawyer, struggling to explain to a District Court judge why his client’s property should not be compulsorily acquired by the State to make way for a new airport runway, attempted to argue that his client’s rights were within the ‘vibe’ of the law. See, The Castle (directed by Rob Sitch, Working Dog Productions, 1997). " 71 ibid 79. " 72 ibid. " 73 ibid 80. " 74 ibid. " 75 ibid, prosecution reference to Webster’s Collegiate Dictionary (1943). " 76 ibid 81. " 77 ibid. " 78 In relation to the defence’s request to provide more details surrounding the specifics of, for example, those members of the IJA who actually committed the acts, and the dates and places where the acts were committed, the prosecution simply stated that they believed the defence’s requests were unreasonable and that they had provided sufficient detail to enable the defence to prepare their case. Evidently, the Commission agreed with the prosecution as the specifications were largely left intact, albeit with minor amendments to downgrade some of the initial estimates of atrocities by several hundred overall. Unsurprisingly, the adjustments ordered by the Commission did nothing to reduce the overall culpability of Kono, because the scale of the atrocities clearly showed a widespread pattern of behaviour. For the reduced numbers of victims, see Findings 8–9, Specifications 10, 19, 21, 22, 27, 31, 34, 39, 43, 44, 45, 47. " 79 ibid 86. The term ‘punitive’ is used throughout the Manila trials by the prosecution to indicate the retributive nature of the acts in which Japanese forces engaged in their attempts to subjugate civilian insurgency. " 80 Trial documents for United States of America v Shiyoku Ko are located at NARA RG331 UD1321 290/12/12/1 Boxes 1559–60, vol 1 and 2. Unless specified otherwise, all archival documents referred to in relation to Ko Shiyoku are taken from this series. " 81 Many of the brutalities committed by Japanese forces against civilian and military POWs throughout the Asia–Pacific region where Japanese forces operated POW camps, have been extensively highlighted since the Pacific War in film, television and books – for example, see Unbroken (Angelina Jolie, Legendary Pictures, Jolie Pas, 3 Arts Entertainment, 2014); Empire of the Sun (Steven Spielberg, Amblin Entertainment, Warner Brothers, 1987); Merry Christmas Mr Lawrence (Nagisa Oshima, National Film Trustee Company, Cineventure Productions, Recorded Picture Company, 1983); Tenko (Pennant Roberts et al, BBC Television, 1981). Many of the atrocities committed by Japanese forces during the operation of Japanese POW camps depicted in these films reflect the nature of the crimes for which Ko was charged. " 82 Tadashi Saito, The Loyalty of Lt Gen. Ko Shiyoku (22 August 2013) Japan Institute for National Fundamentals <https://en.jinf.jp/weekly/archives/2428> accessed 15 January 2020. " 83 Box 1559, vol 1, 18, General Headquarters, Supreme Commander for the Allied Powers, ‘Before the Military Commission convened by the Commanding General United States Army Forces, Western Pacific, United States of America v Shiyoku Ko, ‘Charge’. " 84 ibid 48–49. " 85 ibid 19–42. " 86 ibid 35–41. The prosecution alleged that the mistreatment of prisoners whilst en route to Japan consisted of detainees being placed below decks for extended periods of time in extremely hot and overcrowded conditions without adequate water supply and sanitary conditions. The prosecution further alleged that the conditions below decks became so bad that COs ceased going below for roll call. The sanitary conditions also became intolerable to the extent that buckets were lowered by ropes each day in the morning and raised again in the afternoon to remove human waste – often the waste would spill over people (usually deliberate) as it was removed from a small hole. " 87 That Ko had at least some knowledge of the appalling conditions in the camps is apparent in the testimony of General Muto, highlighted by the defence, who admitted under cross-examination that Lt-General Ko had ‘protested to General Yamashita concerning the food situation in the prisoner of war camps and civilian internment camps.’ (Box 1560, 1415). " 88 For instance, the details accompanying the twelve specifications often omitted even general indications regarding the dates when certain incidents were supposed to have occurred. " 89 Box 1560, 1414. " 90 ibid. " 91 ibid. " 92 ibid 1415. " 93 For an excellent account of the Philippines campaign, see John Costello, The Pacific War (William Collins Sons & Co 1981) 505–21. " 94 Ienaga Saburo, The Pacific War (Pantheon Books 1978) 147. According to Ienaga, the guerilla attacks on Japanese forces (with the assistance of advancing United States forces once they landed on Leyte in October 1944 and Luzon in January 1945) caused Japanese units to be ‘cut to pieces and stragglers scattered to the hills. They were driven deeper and deeper into the jungle by relentless enemy attacks and exhausted from lack of food. The privation and suffering was worse than [during the battle of] Guadalcanal’. " 95 Box 1560, 1416. " 96 For all documents referred to in the discussion of the Trial of Vice Admiral Osugi Morikazu, see NARA RG331 UD1321 290/12/12/1 Boxes 1571–73, vol I–XXII. " 97 Box 1571, vol I, ‘Charge’. " 98 ibid. " 99 See Box 1572, Recommendation of the Approval Authority, 24–28, William D Shain, Civilian Attorney, Assistant to the Staff Judge Advocate, concurred by Major Enrie N Webster, Acting Staff Judge Advocate. " 100 Box 1571, ‘Findings’ and ‘Sentence’, dated 31 October 1946. " 101 Box 1571, Osugi’s witness testimony, 21–22. " 102 ibid. " 103 ibid. " 104 Ibid, Box 1571. " 105 ibid. " 106 ibid. " 107 Box 1572, vol XV, Folder 1, 31. " 108 Lt Kato Minoru, NARA RG331 UD1243 290/11/31/05 Box 1276. " 109 The cases tried at Manila raised similar points of law. These involved the question whether an accused would be liable for specific acts which he had neither ordered nor committed if he had at some point committed the same acts and thus signalled to his subordinates that he condoned such acts. For example, the case of Sgt Major Yoshida involved, inter alia, the offence of rape. Yoshida had previously, in company with some of his men, raped and murdered several Filipino women. His subordinates later committed similar acts without his knowledge. Yoshida was charged for the acts committed by his subordinates and was convicted for failing in his duty as their superior to prevent them. The Commission adjudged him as liable as the perpetrators, and he received the death penalty. It would seem that in such cases, the Commission in Manila was consistent in its findings of guilt irrespective of whether the charges concerned murder or rape. See the trial of Yoshida Tadashi and Ishisaka Iwao, NARA RG331 UD1243 290/11/31/05 Box 1276. " 110 Discussion Colonel Franklin P Shaw, JAGD, Judge Advocate, NARA RG331 UD1243 290/11/31/05 Box 1276, 3. " 111 ibid. © The Author(s) 2020. Published by Oxford University Press. All rights reserved. For permissions, please email: journals.permissions@oup.com This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/open_access/funder_policies/chorus/standard_publication_model)
TI - Law at a Critical Juncture: The US Army’s Command Responsibility Trials at Manila 1945–1947
JF - American Journal of Legal History
DO - 10.1093/ajlh/njaa005
DA - 2020-06-01
UR - https://www.deepdyve.com/lp/oxford-university-press/law-at-a-critical-juncture-the-us-army-s-command-responsibility-trials-QdLSu9Gqdh
SP - 1
VL - Advance Article
IS - 
DP - DeepDyve
ER -