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Double Standards on War Crimes

Command Responsibility and the Ghost of General Yamashita

by TOM McNAMARA

Rennes, France.

World War II was the most violent conflict of the 20th century, if not in all human history. And nowhere was the fighting more fierce than in the Pacific Theatre. After recovering from a devastating surprise attack on Pearl Harbour, Hawaii, on December 7th, 1941, the Americans went on to beat the Japanese at the decisive Battle of Midway in June of 1942. This set the stage for an offensive campaign whereby the Americans would reclaim territory from the Japanese, island by island, until they could get close enough to set up airbases that would allow for the sustained bombing of Japan proper, and hopefully end the war.

One of the most ferocious, and for the Americans, deadly, campaigns of the war was the battle of Leyte Gulf, in the Philippines. At first glance it would appear that the Japanese were at a disadvantage, having installed a new commanding officer responsible for the area just 11 days before the Americans launched their attack.

On October 9th, 1944, General Tomoyuki Yamashita was put in charge of the 14th Area Army, and it was upon his shoulders that ultimate responsibility for the defence of the Philippines would fall. Little did General Yamashita know that from that day forward he would go on to be judged against the strictest military code of justice ever devised to hold a commanding officer accountable for the actions of subordinates under his command.

The American attack was devastating, and the Japanese were soon forced to give up their defensive positions. This is when the situation took a turn for the worse, with large scale atrocities reportedly being committed by Japanese defenders against the local population. An estimated 25,000 people were killed in Batangas Province and about 8,000 killed, along with 500 raped, in Manila. In both cases, officers under the command General Yamashita had carried out the atrocities, but had received no orders to do so.

On September 3rd, 1945, General Yamashita surrendered to American forces in the Philippines, and shortly thereafter was put on trial by a military commission for war crimes. The General’s defense was that he was unaware of the atrocities being committed, and even if he were, there was little that he could have done to stop them in light of the breakdown in communication and control that occurred in the face of the American attack. His defense team was so sure of his innocence that they took their case to the US Supreme Court (Yamashita v. Styer, Supreme Court, 4 February 1946).

The military commission, however, was not impressed. They argued that while individual acts of insubordination would not automatically result in criminal liability, the said atrocities were so wide spread and extensive that the General must have known about them. And even if he didn’t, as commander, he was still ultimately responsible for them. This ruling would become known as “Command Responsibility.” The Supreme Court, for their part, ruled that General Yamashita had a duty to protect prisoners and civilians, but did not expressly rule that he had violated that duty. It was to no avail. Nineteen days after the Supreme Court issued its ruling, on February 23rd, 1946, General Yamashita was hanged as a war criminal.

On the evening of March 10-11, 2012, it is alleged that US Army Staff Sgt. Robert Bales left his base in Kandahar Province, fully armed and unmolested by base security, and murdered 16 innocent civilians in a nearby village. At a pretrial hearing, Lt. Col. Joseph Morse argued that Sgt. Bales went from house to house, firing his weapon with apparent intent to kill. Children were shot through the thighs or in the head. At one point 11 bodies, mostly women and children, were “put in a pile and put on fire.” The prosecutor said that when Sgt. Bales finally returned to base, the blood of his victims had seeped all the way through to his underwear. The shootings are the worst case of civilian slaughter blamed on an individual U.S. soldier since the Vietnam War. The prosecution is seeking the death penalty.

Witnesses from the camp said that Sgt. Bales, who was serving his fourth combat tour, had been upset over an incident that occurred 2 days earlier in which an improvised explosive device (IED) exploded, causing one U.S. soldier to lose the lower part of a leg.

The murder of the 16 Afghan civilians in March came on the heels of another incident back in February, when several copies of the Koran were mistakenly burned by American troops on Bagram airbase. When word of the desecration leaked, the local population became furious. In the rioting that ensued, six NATO soldiers were killed. Two of them were American.

Commenting on the death of the two soldiers, General John Allen, the US army’s top commander in Afghanistan (and commander of NATO forces in Afghanistan), reminded the troops that “now is not the time for revenge for the deaths of two US soldiers killed in Thursday’s riots.” They should “resist whatever urge they might have to strike back” after the two Americans were killed by an Afghan soldier. General Allen went on to say that, “There will be moments like this when you’re searching for the meaning of this loss. There will be moments like this, when your emotions are governed by anger and a desire to strike back. Now is not the time for revenge, now is the time to look deep inside your souls, remember your mission, remember your discipline, remember who you are.”

Almost two weeks later, 16 Afghan civilians would be murdered in what appears to have been a retaliatory strike (a war crime). The fact that the commander of US and NATO forces in Afghanistan felt the need to warn troops against carrying out retaliatory attacks could only mean that General Allen was:

A) Fully aware of the possibility of retaliatory strikes

and

B) Fully concerned about the possibility of retaliatory strikes being carried out

This then begs the question, “Did General Allan do everything in his power, or at the very least, take some minimal action, besides giving a speech or making a statement, to prevent retaliatory strikes from being carried out on the civilian population of Afghanistan?”

Unfortunately, that is a question that the prosecution doesn’t seem too concerned with. Presently, only Sgt. Bales is facing a trial and being held responsible for one of the worst war crimes in recent American history (two other soldiers on base at the time are testifying for the government under immunity).

Recently, new details have emerged regarding the behaviour of General Allen. It would appear that the General has gotten himself caught up in the lurid “Petraeus Affair.” The Pentagon announced that General Allen was under investigation for what a senior government official said was “inappropriate communication” with Ms. Jill Kelley, the woman who had contacted the F.B.I. about threatening e-mails from an anonymous sender who later turned out to be Ms. Paula Broadwell, General Petraeus’s lover. General Petraeus was the former commander of NATO and US forces in Afghanistan.

General Allan was in line for an impressive promotion, expecting to be named commander of United States European Command and Supreme Allied Commander Europe. Due to the unfolding scandal, this has now been put on hold.

The case of General Yamashita has been cited for the proposition it put forth that a military commander is responsible for doing everything possible to prevent war crimes by troops under his or her command. Even though General Yamashita didn’t necessarily fail to uphold that duty, as commander, he was held ultimately responsible for the war crimes committed by soldiers under his command and those operating in his sector. As a result, he was executed.

16 civilians (including 9 children) were murdered in cold blood in Afghanistan. For that, Sgt. Bales is facing the possible loss of his life. His ultimate commanding officer, General Allen, on the other hand, is facing the loss of a promotion and possible early retirement.

It would appear that when it comes to war crimes, the United Sates has varying standards.

One for the war crimes of frontline soldiers, one for the war crimes of senior military officers.

One for the war crimes of our enemies, one for the war crimes of ourselves.

Tom McNamara is an Assistant Professor at the ESC Rennes School of Business, France, and a Visiting Lecturer at the French National Military Academy at Saint-Cyr Coëtquidan, France.

Sources.

“Afghan Protests Over the Burning of Korans at a U.S. Base Escalate” by Alissa J. Rubin, February 22, 2012, The New York Times. Accessed at:

http://www.nytimes.com/2012/02/23/world/asia/koran-burning-in-afghanistan-prompts-second-day-of-protests.html

 

“Army Seeks Death Penalty in Afghan Massacre” by Kirk Johnson, November 13, 2012, The New York Times. Accessed at:

http://www.nytimes.com/2012/11/14/us/army-seeks-death-penalty-for-robert-bales-in-massacre.html

 

“CIA scandal: General Allen’s Nato nomination on hold” November 13, 2012, The Telegraph. Accessed at:

http://www.telegraph.co.uk/news/worldnews/northamerica/usa/9675571/CIA-scandal-General-Allens-Nato-nomination-on-hold.html

 

“Panetta Praises General Linked to Petraeus Scandal” by Elisabeth Bumiller and Eric Schmitt, November 14, 2012, The New York Times. Accessed at:

http://www.nytimes.com/2012/11/15/us/panetta-praises-general-linked-to-petraeus-scandal.html?_r=0

 

“Pretrial Hearing Starts for Soldier Accused of Murdering 16 Afghan Civilians” by Kirk Johnson, November 5, 2012, The New York Times. Accessed at:

http://www.nytimes.com/2012/11/06/us/hearing-begins-for-robert-bales-accused-in-afghan-murders.html?_r=0

 

“Prosecutors seek death for U.S. soldier charged in Afghan rampage” by Bill Rigby, November  5, 2012, Reuters. Accessed at:

http://www.reuters.com/article/2012/11/06/us-usa-afghanistan-trial-idUSBRE8A407T20121106

 

“Prosecution Cites Revenge as Motive for Afghan Massacre” by Neal Karlinsky and Luis Martinez, November 5, 2012, ABC News. Accessed at:

http://abcnews.go.com/US/prosecution-cites-revenge-motive-afghan-massacre/story?id=17646561#.UKY5j4aoEsc

 

“Robert Fisk: Madness is not the reason for this massacre” by Robert Frisk, March 17, 2012, The Independent. Accessed at:

http://www.independent.co.uk/voices/commentators/fisk/robert-fisk-madness-is-not-the-reason-for-this-massacre-7575737.html

 

“The Nuremberg Principles, Command Responsibility, and the Defense of Captain Rockwood” by Major Edward J. O’Brien The Military Law Review, Vol. 149, Summer 1995. Accessed at:

http://www.loc.gov/rr/frd/Military_Law/Military_Law_Review/pdf-files/277875~1.pdf

 

“The Yamashita War Crimes Trial: Command responsibility Then and Now” by Major Bruce D. Landrum, The Military Law Review, Vol. 149, Summer 1995. Accessed at:

http://www.loc.gov/rr/frd/Military_Law/Military_Law_Review/pdf-files/277875~1.pdf

 

“Yamashita v. Styer, Supreme Court, 4 February 1946” Yamashita, No 61, Misc., Supreme Court of the United States, 317 U.S. 1; 66 S. 340, 4 February 1946 (1946 U.S. LEXIS 3090 ; 90 L. Ed. 499) Accessed at:

http://www.icrc.org/ihl-nat.nsf/46707c419d6bdfa24125673e00508145/1d4c8a391cc93c38c1256d1700575bb2!OpenDocument