David Crowe presents on war crimes and command responsibility
Elon Law Professor of Legal History David M. Crowe examined the question of how far up the chain of command responsibility for war crimes go, in a presentation at the German Studies Association annual conference in Wisconsin on October 5.
Crowe’s presentation, "The Nurnberg/Tokyo IMT Trials and the Question of 'Command Responsibility,'" dealt with the concept of "superior responsibility."
“Though one can trace hints of this legal concept to the 16th century, it really became a key legal issue during the trials of two Japanese generals, Yamashita and Homma in 1945,” Crowe said. “Yamashita, Tomoyuki commanded the 14th Japanese army in the Philippines in 1944-1945, which committed horrible atrocities against civilians and American POWs in the last year of the war. General Douglas MacArthur, the Supreme Commander for the Allied Powers in the Southwest Pacific Area, and the essential ruler of postwar Japan, ordered Yamashita tried by a U.S. military commission of five generals with no legal background in late 1945. Yamashita was charged with unlawful disregard and failure to ‘control the operations of members of his command,’ thus permitting them to commit ‘brutal atrocities and other high crimes,’ thereby violating the ‘law of war.’ There was no legal precedent for such charges because Yamashita never gave any orders for the commitment of such crimes. His alleged criminality was simply that he was in command when such crimes took place. Yamashita's highly criticized trial, which took place in a circus-like atmosphere in Manila, resulted in a conviction that was appealed to the U.S. Supreme Court. Though the court upheld Yamashita's conviction, two justices, Wiley Rutledge and Frank Murphy, wrote dissenting opinions that pointed out that the structure and haste of the trials robbed Yamashita of the most elemental rights of due process guaranteed by the Fifth Amendment. They wrote similar dissenting opinions on the appeal of Japanese army general Homma, Masaharu for similar crimes committed during the Bataan Death March in 1942.”
“Though both decisions had little impact on the Nurnberg IMT trial, a number of U.S. prosecutors at the German trial were shocked by the verdict, saying that German generals were evidently held in much higher esteem than their Japanese counterparts when it came to the question of ‘command responsibility,’” Crowe said. “On the other hand, several of the 55 counts in the Tokyo IMT trial dealt specifically with this question, and were also linked to the question of conspiracy. In fact, in reaching its judgment on these counts, the majority of the Tokyo judges quoted directly from the Yamashita decision. Several of the Tokyo judges wrote strong, dissenting opinions about this decision, while a number of U.S. Supreme Court judges decided in the summer of 1946 that if similar new cases came before the court, it was possible that a majority of justices would vote quite differently on the matter.”
Crowe also provided commentary at the conference for a panel titled, “The German Reception of Confucius, Occidental East, and Chinese Arts, 1894–1920s.”
Crowe is the author of Crimes of State, Past and Present: Government-Sponsored Atrocities and International Legal Responses (Routledge, 2010).