War Crimes: Who Arre Accuntable?

War Crimes: Who Is Accountable?

By Murray Polner

In October 1944, General Tomoyuki Yamashita was assigned to lead the Japanese forces in the Philippines. Ten days later U.S. army units began landing in Luzon and Leyte to open the campaign to liberate the Philippines. Before and after Yamashita’s arrival the Japanese had carried out the identical brutality they had too often meted out to civilians and POWs throughout Asia and elsewhere.  Filipinos and foreigners living in the islands were singled out, especially in Manila where a bloodbath had been carried out,

It was called the Manila Massacre, which Yamashita insisted he never ordered. He was arrested soon after the Japanese surrendered. In the first war crimes trial of the Pacific war, he was tried by five generals, found guilty, and executed by hanging. His chief counsel, the American Col. Harry Clarke objected, saying he was not found guilty for having done something specific but rather “solely with having been something,” in this instance  commander of troops who had committed war crimes. When the case was appealed to the U.S. Supreme Court and judgment denied, two justices, Frank Murphy and Wiley Rutledge, described the verdict as unjust.

What is most significant is that the Supreme Court has never rejected this principle, which holds that a military commander can be blamed for murder, rape and other horrible crimes carried out by troops under his command even if he had not ordered them to do so. Since then the “Yamashita Standard” as it is known, has been upheld as the law of the land.

Allan A. Ryan relates the entire story in Yamashita’s Ghost: War Crimes, MacArthur’s Justice and Command Accountability (Kansas 2012). He once clerked for Supreme Court Justice Byron White, was a U.S. Marine Corps judge advocate, as well as chief prosecutor of Nazis who fled to the U.S. and lied about their criminal past, has written an impressive and important book about the case in which he is unashamedly sympathetic to Yamashita and critical of the military judges and their superior, the imperious Douglas MacArthur.

Ryan’s sums up the case this way:

 “But Yamashita’s ghost lingers in the law. Born in an unprecedented and ambiguous

charge by a vindictive American general, nurtured by a misbegotten trial by his subordinates, deferentially upheld by America’s highest court, shaped by two panels of American judges at Nuremberg, and incorporated into official American policy and international tribunals, it has loomed over the international law of war for too long.”          

Yamashita’s Ghost notes that the general was the conqueror of Malaya and Singapore in 1942. Somehow, he alienated the hawkish Hideki Tojo and his war party who exiled him to northern China, by then hardly a war zone. After the fall of Tojo he was sent by the successor military regime in Tokyo to the Philippines, by then virtually a lost cause as American forces had destroyed the Japanese navy and was on the brink of a land invasion.

To Ryan, Yamashita “was a dignified and thoughtful man” respected by the American military lawyers who defended him in court. Yamashita, he agreed, never ordered the “Manila Massacre” and instead had ordered his officers to leave the city when invading American forces approached. The breakdown of communications and an aggressive Japanese naval command allowed the slaughters and rapes to proceed. Why, then, did MacArthur insist that Yamashita be tried? “What motivated MacArthur” asks Ryan? Admittedly no-one knows, not even his biographers. The chief prosecutor speculated that MacArthur wanted people to learn about the atrocious crimes committed by the Japanese. MacArthur explained the execution of Yamashita this way: He “failed his duty to his troops, to his country, to his enemy, to mankind; has failed entirely his soldier faith.”

We can only guess that MacArthur’s domineering personality and the fact that he was the son of the early 20^th Century American commander of the Islands may have played a role. Or perhaps it was the earlier loss of the Philippines in 1942, one of the greatest single defeats in American military history. What we do know is that MacArthur wanted Yamashita (and General Masaharu Homma, the man who defeated him in ’42) executed as quickly as possible.

The military judges he selected were answerable to him. They were without legal experience and during the trial accepted hearsay and even double hearsay as evidence. When Frank Reel, a defense lawyer, protested the court’s acceptance of a suspected Japanese collaborator’s testimony that he heard another collaborator, Artemio Ricarte, claim he had personally heard Yamashita's order to kill, General Russell Reynolds, the presiding judge, asked Reel to explain “if all hearsay is excluded in court testimony.” Reynolds’ lack of legal knowledge astounded all the lawyers present. “Imagine the judge asking the defense counsel what the law is,” later wrote Lt.George Mountz, a defense lawyer. In any event all their objections were rejected. Robert Trumbull of the New York Times who covered the trial could only conclude “the rule of evidence set forth in General MacArthur’s directive can be boiled  down to two words: anything goes.”

A prosecution witness stated that the late Artemio Ricarte’s grandson, fluent in Japanese, had actually interpreted Yamashita’s remarks ordering the carnage, a statement contradicted by the 14-year-old grandson who was reared in Japan and testified in Japanese. Time and again the boy vehemently denied ever having heard such a remark. “I know that any talk that my grandfather and General Yamashita talked together  [hearing the orders being given] is a lie, and I came here today hoping to prove that.” His testimony stunned the court though it never altered the ultimate unanimous verdict. “In ten minutes,” Ryan comments, “the defense had obliterated the only evidence so far that, however dubiously, had actually linked Yamashita personally to the horrors that Japanese soldiers had committed.” The case, Robert Trumbull wrote in one of his reports, was “entirely in MacArthur’s hands.”  No-one in Washington objected.

Ryan also poses a very difficult question: To what extent can the Yamashita Standard be used to prosecute those who instigated and led the U.S. invasions of Vietnam, Iraq and Afghanistan, where there may well have been war crimes?  Had the Yamashita Standard been used in these wars, what high ranking generals and political leaders might have been held responsible for My Lai, Abu Ghraib and torture? Is no-one at the top ever accountable?

In the midst of the My Lai investigation General Telford Taylor, who had been a chief counsel at Nuremberg, published  his book Nuremberg and Vietnam—An American Tragedy,, which raised the implications of  the Yamashita ruling.   Punishing only junior officers and enlisted men was hardly the point.  According to Taylor, the chain of command from generals in the field up to the Joint Chiefs of Staff should be accountable for the behavior of troops in Vietnam. Of course, no American general or politician will ever be convicted because troops may have tortured and killed enemy prisoners. “The United States,” Ryan angrily concludes, “devised the Yamashita precedent, but it has never lifted the chalice to its own lips”

A quarter of a century after he argued Yamashita’s case before the  Supreme  Court, Frank Reel, a Yamashita defense lawyer, wrote a letter to the New York Times quoting Taylor that “Under the Yamashita rule as set down by the United States Supreme Court, [Vietnam War General] Westmoreland would be convicted.” Now he was absolutely not urging that American generals or presidents be tried under the Yamashita Standard [because] “the concept of punishing a man, not for anything he has done but because of a position he has held is abhorrent. It smacks of totalitarian tyranny rather than Anglo-Saxon law.” In affect, he was reminding Americans of the injustice of Yamashita’s trial and punishment.

Ryan’s challenging and brilliant book cites Dick Camp’s 2008 Talking with the Enemy,” published in Leatherneck in 2008, in which Marine Major Harry Pratt, the Yamashita trial’s chief interpreter, described the experience as “very worrisome. War crimes trials are a function of the victors. I could then and still find, that this law of command responsibility might well be charged against our own commanders under circumstances beyond their control.”

Before he was hung, Yamashita thanked his captors and lawyers “for their tolerance and rightful judgment,” adding, “I don’t blame my executioners. I will pray God bless them.” MacArthur sent three generals to observe the hanging.

And before Homma, a general held responsible for the Bataan Death March –which he denied--was killed, he told the officer in charge of his firing squad, “I’m being shot tonight because we lost the war.”