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Fellows, Jamie --- "The Legacy of the US Army War Crimes Trials in the Philippines through the Just War Theory" [2021] JCULawRw 4; (2021) 27 James Cook University Law Review 57

The Legacy of the US Army War Crimes Trials in the Philippines through the ‘Just War’ Theory

Jamie Fellows[1]


The US Army war crimes trials conducted at Manila from 1945-1947 convicted hundreds of Japanese military personnel for war crimes committed during the Philippines campaign. The trials shone light on complex legal issues in the formative stages of international law at a critical juncture in modern history. This paper examines three areas of law that were repeatedly tested throughout the trials, namely, questions regarding command responsibility (both de jure and de facto command), and the defences of superior orders and military necessity. The paper outlines sentencing patterns and judicial pronouncements of the law as it was understood and applied in relation to these areas and offers a critique of the trials through the ‘just war’ theoretical lens.

I Introduction

In the aftermath of Japan’s surrender in the Philippines in 1945, the US Army undertook hundreds of trials of Japanese army personnel accused of committing war crimes against US military personnel and Filipino non-combatants. These trials, though relatively unexplored to date by legal historians, produced a wealth of archival material that provides a valuable opportunity to explore legal ambiguities and complex legal concepts for war crimes jurisprudence during the formative stage of international war crimes law.

Three areas of law that commonly arose during those trials were issues around command responsibility, superior orders and military necessity. Command responsibility refers to the legal criteria that is required to convict superiors for the unlawful acts of subordinates. Superior orders were commonly raised by the accused as an excuse for war crimes on the grounds that they were obeying superior orders. Similarly, the excuse of military necessity was often raised by the accused to justify killing for supposed military imperatives. The law surrounding these matters was far from settled at the time and the issue for the tribunals centred on how to interpret and apply the laws in relation to these complex matters.[1]

Examination of the US Army war crimes trials at Manila is warranted to understand better the substantive law regarding command responsibility, superior orders and military necessity and to ascertain whether that law and how it was applied during the trials, was ‘just’. That said, the purpose of this paper is twofold: First, to explore the jurisprudence that emanated from the trials in relation to command responsibility, superior orders and military necessity and, secondly, to ascertain whether that jurisprudence could be described as ‘just’ when viewed through the ‘just war’ theory.

There were some obvious deficiencies in the way that the law was interpreted and applied at Manila and this was borne out at times by the blunt interpretation and application of fundamental legal principles of criminal responsibility. There are, however, strong arguments that the US Army trials were ‘just’ when assessed through the ‘just war’ theory and have therefore enhanced international war crimes jurisprudence rather than detracted from it.

II Command Responsibility

As was the case with other war crimes trials throughout history, the Manila trials devised ways whereby superiors could be held criminally responsible for the acts of their subordinates. Such an approach is desirable to ensure that superiors at all levels take active steps to prevent their subordinates from committing atrocities against combatants and non-combatants.

Several cases from the Manila trials, however, illustrate problems with the application of command responsibility, including the fact that liability was often attributed to superiors merely because of the position they occupied, rather than because there was any meaningful connection between them and either the crimes and those who committed them. This situation can be described as ‘contingent liability’ since liability was contingent upon the position the accused occupied in relation to the perpetrator.

A Application of ‘contingent liability’

As a legal concept, contingent liability should be approached with great caution and applied sparingly, especially as it produces a situation whereby a person can be convicted despite having no direct involvement with, or, at times, even any knowledge of the crimes. Contingent liability provides legal uncertainty and is a form of strict liability whereby an accused can be convicted of offences merely because of the position he or she occupies.

There were a number of cases at Manila where this occurred. The joint trial of Lieutenant-Colonel Onishi Seiichi (‘Onishi’s case’) is one example.[2] In Onishi’s case, the Tribunal favoured circumstantial evidence on which they convicted the accused largely because of his position. In other words, the accused’s criminal responsibility was ‘contingent’ upon his position of superiority to the actual offender at the time of the alleged offences. His conviction was not, it seems, based on specific orders he gave, or knowledge he had, in relation to the offences.

It is a well-established principle under international criminal law that, to be liable for war crimes under the doctrine of command responsibility, a superior must have known ‘or had reason to know that the subordinate would commit such acts, or had done so, and that the superior failed to take necessary and reasonable measures to prevent such acts or to punish the perpetrators’.[3] Mitchell argues that one of the benefits of applying contingent liability in this way is that it forces those in positions of authority to ‘control their subordinates and to establish objective standards of diligence’.[4] There is merit in this suggestion. However, as Damaska points out, criminality for war crimes should be assigned to those who have clear responsibility for criminal wrongdoing.[5]

A further problem identified by Colonel Clarke in the Yamashita trial is that attributing liability to superiors simply based on the superior’s rank relative to the subordinate produces an ambiguous and, potentially, unlimited scope of liability.[6]

B Broad interpretation of mens rea (especially, ‘knowledge’)

There is a real danger in expanding or otherwise utilising a broad interpretation of mens rea to convict under the doctrine of command responsibility. The problem goes to the very essence of having to prove a ‘guilty mind’ as it becomes a construction of the subjective mind of the accused based on an indeterminate number of variables. The loosening of the requirement to prove a ‘guilty mind’ is an erosion of one of the most fundamental concepts in criminal law, something of which the military commissions in Manila would have been acutely aware’. Despite this, they adopted a broad interpretation of the fault element relating to ‘knowledge’. Often they presumed the accused would or should have known of war crimes being committed by subordinates. Onishi’s case was a prime example of this.[7] The conflation of ‘would’ and ‘should’ is problematic since ‘would’ is a determination of fact and ‘should’ is a normative assessment in the absence of evidence. Boister and Cryer have stated that for the ‘guilty mind’ or mens rea to be sufficiently proven for criminal responsibility, it is sufficient to prove that there is a ‘spectrum’ of knowledge.[8] Such a spectrum would range from complete knowledge of the actions of the perpetrators to ‘constructive knowledge’ so that the superior may still be held liable on the basis that they would or ought[9] to have formed a reasonable assumption that crimes were being committed by their subordinates.[10] Constructive knowledge was used in the Tokyo War Crimes Trials to convict senior Japanese military and civilians.[11] That was also the situation in Yamashita’s case.[12]

C Subjective bias with disputed fact evidence

Where disputes arose at Manila about witness testimony, even where the accused’s version of events was substantiated by it, the commissions tended to favour prosecution witnesses. There is insufficient information contained in the cases that shows clearly why tribunal members accepted the prosecution’s version of events where conflicting evidence was presented. Perhaps a common aspect of war crimes is the perception that the victors determine the outcome of trials. The real or perceived aspects of ‘Victor’s Justice’ in relation to Allied war crimes trials has been a constant source of criticism from those who claim the trials were biased on a number of levels[13] and, at Manila, the fact that there were such high conviction rates and so few acquittals could fuel speculation that there was such an underlying bias against the Japanese who were on trial.[14]

D Ambiguities regarding charges of ‘disregarding and failing to discharge’ duties

An oft-used charge centred on the commanders’ alleged failure to properly discharge their duty. However, nowhere was it apparent that the commission sought to delineate between what constituted ‘disregard’ of one’s duties and what constituted ‘failure to discharge’ them. Nor was there any real attempt to determine whether such duties varied according to rank and circumstances. The term ‘disregard’ was raised in the Yamashita trial when he was charged with ‘willful [sic] disregard and failure to discharge his duty...’.[15] Although he was ultimately convicted of the offence, very little discussion was provided on the meaning of the term and what specific actions would constitute ‘disregard’. The meaning of the term was also raised repeatedly after the Yamashita case, such as in the case of Lt-General Kono.[16]

Kono’s 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’.[17] The defence raised many arguments about the meaning of the term and put a series of questions to the prosecution about the meaning of ‘disregard’ and how such actions led to a failure to discharge his duties. These questions went largely unanswered. Similar concerns arose in the case of Lt-General Ko Shiyoku.[18] As with other cases, Ko was successfully convicted without the prosecution having to fully explain either the meaning of the term ‘disregard’ or precisely how Ko disregarded his duties in relation to the atrocities.

E Broadening of the meaning of the charge, ‘permit’ atrocities to occur

US Military commissions in the Philippines broadened the meaning of the term ‘permit’ to include a range of instances where the accused neither gave permission nor took any pro-active steps to inquire nor to punish perpetrators. The commissions interpreted the word ‘permit’ to mean ‘acquiescence’, although the term was never fully explained during the trials. Conviction patterns indicate that the meaning of ‘permit’ could apply in any situation where a person held a position of seniority, atrocities were committed and there was no clear indication that the person ordered cessation of the atrocities or took steps to punish the perpetrators.

General definitions of ‘permit’ were applied to show that the word meant ‘tolerate’ or give consent to or to authorise, or ‘to grant ...license or liberty’.[19] The trials made it clear that the act of ‘permitting’ something to happen included instances where permission was tacit or assumed to have been given, even where the person who was alleged to have given permission had no knowledge of the acts and there was no evidence of specific orders being given for commission of the atrocities. This expanded definition of ‘permission’ enabled the prosecution to successfully convict a greater number of people than might otherwise have been the case. Definition creep in relation to the term ‘permit’ was, therefore, another example of how the Manila trials sought to widen the scope of criminal responsibility.

F Application of intermediary liability

The commissions had a habit of making an intermediary person criminally responsible for the actions or failures of higher entities (civilian or military. The conviction of Lt-General Ko Shiyoku was largely predicated on the wrongdoing of the Japanese Government and senior military officers for their part in failing to enforce the Geneva Convention in relation to US and Allied POWs. Ko was effectively made liable for the actions, or inactions, of others more senior to him.[20]

Intermediary liability is problematic in law since its application lacks clarity as to where liability rests and therefore is indiscriminate in nature. This is particularly apparent during war when the lines of command are complex and become blurred. The conviction of Ko in March 1946 gave the appearance that the tribunal punished Ko for wrongdoings in which he had no involvement. Cases such as Ko’s gave the appearance that the tribunal transcended doctrinal legal discourse and moved into a broader political discussion on the conduct of the War by his superiors.

G Broad interpretation of ‘effective control’

The meaning of ‘effective control’ as interpreted at Manila was problematic. The commissions applied a broad definition of ‘control’, whereby the accused could be held liable even when not at the scene of war crimes or when otherwise separated from the atrocities that were committed. The broad definition of ‘effective control’ was a further example of the tribunal applying the law to suit the circumstances of the crime. Even if the accused was not present when the atrocities were committed, under the broad definition of the term, they could be held criminally liable for the actions of others unless there was evidence that they gave orders requiring standards of behaviour that were ignored or disobeyed by the subordinates who actually committed the crimes. These convictions tended to be in the context of atrocities committed against US POWs so it was likely that the tribunals’ decisions were based on crimes that involved a considerable degree of emotive influence.[21]

H Inconsistent sentencing due to ‘temporal disconnection’

Sentences varied substantially at times because military commissions applied inconsistent sentencing based on the date of the trial. Where the trial was held in the latter part of the trial program, the accused had a greater chance of receiving a more lenient sentence than they had if the trial was conducted in the beginning of the trials.

The primary concern with applying different sentences is that it leads to inconsistency for those convicted of similar offences depending on when each trial was conducted. It also indicates that different standards were applied during the early stages of the trials as opposed to the latter stages and that those unfortunate enough to be tried earlier were at a distinct disadvantage compared to others who were tried later. Sentencing should be applied consistently over any trial process. One can only speculate why sentences varied according to time and there may have been a variety of reasons why the tribunals appeared to show greater leniency in relation to the sentence in the later trials, including the political exigencies to finalise the trials as time went on.

I The application of the ‘temporal’ and ‘proximal’ principle

Where it was proven that a superior engaged in one (or more) instances of war crimes in a previous case, evidence from that conviction was sufficient to show that the same commander ordered other killings and could therefore be guilty under the doctrine of command responsibility for other war crimes committed by subordinates within a reasonable ‘temporal’ and ‘proximal’ space.

For example, 2nd Lieutenant Kato was found to have participated in some, but not all, of the killings of which he was accused. However, given the tribunal’s findings regarding his participation in some of the acts, he was also found guilty of other similar acts, even though there was insufficient evidence to place him at the scene at the time the acts took place. He was found guilty of all acts and was sentenced to death by hanging.

The fact that the tribunal attributed liability to him in this way shows that the members believed that there was a ‘temporal’ and ‘proximal’ relationship between the acts he initially committed and other similar acts. Such a finding lacks any basis in law and leads to convictions purely on similar fact evidence.

J The inability to prevent, punish or deter atrocities is not a valid reason to mitigate the sentence

Failure to prevent and punish subordinates for war crimes was held to be sufficient to constitute acquiescence by a mid-ranking officer.[22] This would be the case even though no evidence existed that the accused had actual knowledge of the scale or nature of atrocities committed by subordinates. The tribunals held that the ‘inability’ to prevent atrocities was not a valid excuse and not a mitigating factor in sentencing.

An apparent refusal to mitigate the sentences imposed on superiors who were purportedly unable to prevent their subordinates committing atrocities was a constant sentencing pattern throughout the trials. The defence produced evidence that Japanese command structures disintegrated in the latter stages of the Philippines campaign when Japan suffered huge losses in personnel and equipment. Such a situation would indicate that Japanese commanders were, in fact, unable to control their forces unless they were in close proximity to the locations in which the atrocities were committed. This evidence was still not sufficient to warrant mitigation of the sentences imposed on those charged with failing to prevent, punish or deter subordinates from committing war crimes.

There are few clues available in the records to suggest why the tribunals did not accept factual evidence that would indicate that the accused did, in fact, have little to no ability to prevent subordinates from committing atrocities in the field. In any event, the arbitrary application of such a refusal indicates a clear flaw in sentencing procedure at the trials.

III The Defence of Superior Orders
When it came to the matter of Japanese defendants raising superior orders as a defence to war crimes, the realities, supported by the outcomes, were that that pleawas rarely likely to succeed as an exculpatory defence. It was, however, at times accepted as a mitigating factor to reduce the harshness of the sentence. There were several reasons for this which are discussed below.

A Subjective bias due to the status/role of the accused

Consideration of the defence of superior orders was often dependent upon the nature/status of the accused as to whether military commissions would or would not accept superior orders to mitigate the sentence. For example, members of the Kenpeitai (the military police arm of the Japanese Army which, in occupied territories, also carried out atrocities against allied POWs and others it suspected of being anti-Japanese) or others accused of committing offences against US military personnel were less likely to be successful in having their sentence mitigated due to superior orders.[23]

B Reliance on the defence of superior orders is akin to an admission of guilt

An accused who seeks to rely on the defence of superior orders ipso facto makes admissions to part or all of the acts for which they are charged. Defendants who raised superior orders fared no better than if they had denied the acts for which they were charged and had not raised superior orders.

C Superior orders were, at times accepted as a point of mitigation

Some military commissions at Manila accepted that superior orders were relevant in so far as the sentence was concerned where there was clear evidence that such orders existed.[24] Where evidence clearly showed that the defendant was following orders from higher command, even where those orders were manifestly unlawful in the commissions’ view, the commissions were prepared to reduce the sentence (particularly for sentences involving the death penalty) but not relieve the accused of complete criminal responsibility.

Military commissions seemed to allow superior orders to mitigate the sentence where some or all of the following criteria existed:[25]

• where ambiguity existed regarding the lawfulness of orders; or

• where it was clear the accused was following orders; or

• where the accused did not wish to follow those orders, but did so out of legal compulsion; or

• where the accused derived no pleasure from and did not intend to commit such acts; or

• where disobedience to those orders would have resulted in severe punishment for the accused.

IV The Defence of Military Necessity
The doctrine of military necessity under international law has historically been, and remains, a legitimate way for belligerents to excuse conduct that would otherwise constitute war crimes.[26] The term ‘military necessity’ can generally be defined as those acts by a belligerent that serve to ‘legitimize destructive actions and to privilege military considerations at the cost of humanitarian values’.[27] The US military commissions were aware of the doctrine’s place in military law—the American use of two atomic weapons against Japan assured this point—but how did military necessity apply to Japanese military conduct when the crimes were committed against US military personnel and Filipino non-combatants?

The short answer is that the tribunals devised a malleable definition of military necessity in the sense that the definition they adopted relied upon three interdependent principles derived and interpreted from the US Field Manual:[28]

• the principle of military necessity [is] subject to the principles of humanity and chivalry;

• the principle of humanity, prohibits employment of any such kind or degree of violence as is not actually necessary for the purpose of the war; and

• the principle of chivalry, denounces and forbids resort to dishonourable means, expedients, or conduct.

The US military commissions, in applying this definition, seemed to struggle to some extent in their interpretation of the terms ‘chivalry’ and ‘dishonorable’ in a legal sense. The result was an ambiguous test to determine the elements of military necessity, particularly in relation to how the fault element (mens rea) should be interpreted.

V ‘Justice’ at the Manila Trials through the ‘Just War’ Lens

Now that the sentencing patterns in relation to command responsibility, superior orders and military necessity have been discussed, this paper now turns to an examination of how these points should be assessed in terms of their legacy for international law. The last part of this discussion will provide an examination of whether the law was ‘just’ when assessed through the ‘just war’ theory.

The previous section identified sentencing patterns with regards to law at the US Army military tribunals in the Philippines. How then, should these pronouncements be assessed and can it be said that the trials represented ‘justice’ for those who were on trial and who were ultimately convicted of war crimes despite the limitations identified in the previous discussion? To answer these questions, ‘just war’ theory becomes immensely important. When viewed through ‘just war’ theory, it can be argued that there is sufficient evidence to conclude that the Manila trials were ‘just’ and that they provided the Japanese defendants with an appropriate level of justice in accordance with the ‘just war’ theory. This bold assertion is predicated on the fact that the US Army trials at Manila:

• were created under legitimate authority;

• applied and developed law according to stare decisis by relying on and developing existing international criminal law doctrine; and

• applied the criminal standard that required the prosecution to prove the case against the defendants beyond reasonable doubt.

Importantly, there is very little evidence that the Manila trials engaged in disproportionate sentencing or indiscriminate prosecution.

The ‘just war’ theory is a useful framework to assess the conduct of belligerents at all levels throughout each phase of war because it can assist with identifying acceptable conduct in relation to war—before, during and after hostilities.[29] The ‘just war’ theory can be used to assess several important questions in relation to war: whether a war is justified in its conception;[30] whether it is ‘just’ in terms of how it is prosecuted once hostilities commence;[31] and whether the conduct post war is legitimate in terms of the conduct of the victors towards the vanquished.[32]

As such, the ‘just war’ theory comprises three limbs:

Jus ad bellum: legitimation of war based on initial justification for going to war;

Jus in bello: legitimate and lawful conduct ‘in’ or during war;

Jus post bellum: legitimate conduct after the cessation of war.

The Tokyo trials found that Japan embarked on a war of aggression and 27 senior Japanese military and civilian leaders were ultimately convicted for the planning and preparation of that war. In that regard, the Tokyo trials primarily examined the jus ad bellum or the justification for Japan embarking on war. In contrast, this paper is primarily concerned with the second and third limbs of the ‘just war’ theory.

There are those, who oppose the legitimacy of the ‘just war’ theory and these opponents can be cast into two camps: pacifists who strictly oppose war under any circumstances and ‘permissivists’, who believe that the state should have very few (if any) limits imposed upon it with regards to fulfilling its policy agenda, including the right to employ whatever force it deems necessary to promote its own interests.[33] The pacifists fail to appreciate that war, unfortunate as it is, is a reality and will occur irrespective of any ethical objections. Permissivists, on the other hand, while more reflective of the realities of the frailties of peace, fail to acknowledge the humanitarian consequences arising from unobstructed state action.[34] This paper adopts the centrist view of the ‘just war’ theory that presumes war is inevitable under certain circumstances but there are lawful limits on the conduct of the belligerents.

A Jus in bello and Japanese conduct during the occupation of the Philippines

In accordance with jus in bello, belligerents must at all times uphold certain standards of conduct whilst engaging in war and, if conduct falls below those standards, then the party whose conduct is substandard, is said to have engaged in an ‘unjust’ war. Thomas Nagel suggests that political and military strategists view the death of innocent civilians, while regrettable, as a necessity to achieve the military strategy and long-term outcomes.[35] In determining the requisite standard, in accordance with jus in bello there are several principles that need to be shown to determine whether a party is behaving or has behaved in a ‘just’ way. These are: ‘proportionality’, ‘discrimination’, ‘responsibility’ and ‘necessity’.[36]

Discrimination and proportionality operate to restrict the level of violence in war and the scope of those who are affected by it. These principles require the belligerents to direct only as much force against a legitimate target as is required to affect the legitimate military objective. The difficulty lies in determining what a legitimate target is, and the extent of force required to suppress that target. The practicalities of warfare make this problematic at times, as the Japanese defendants claimed. The killing of non-combatants, for example, is permissible under certain circumstances where the killing is done to achieve a legitimate military objective. The Manila trials commonly convicted those defendants who were believed to have violated the principles of discrimination and proportionality. For example, in Onishi’s case[37] the defendant was convicted of the murder of Filipino non-combatants after Japanese forces took revenge for guerrilla attacks. Other cases where defendants were convicted of the indiscriminate and disproportionate killing of Filipino non-combatants included Kono’s case,[38] Ko’s case,[39] Kato’s case,[40] and Nagahama’s case.[41]

The principle of ‘responsibility’ in jus in bello operates to hold persons responsible for certain acts committed during war, whether or not those acts were committed by the defendant. The purpose of the responsibility principle upholds the moral requirement that someone should be held responsible for war crimes under certain circumstances. The command responsibility and superior orders cases were an attempt by the tribunals to provide legal reasoning to pronounce guilt on the basis of responsibility.

Many of the command responsibility cases were tried against defendants who did not personally participate in the crimes but were, according to the tribunals, morally and legally responsible for the wrongdoing. The Manila trials found criminal responsibility on the basis that commanders failed to prevent crimes, failed to punish the perpetrators, had knowledge or suspicion of the crimes, incited subordinates into carrying out the crimes, or even failed to effectively control their subordinates.

Similarly the principle of responsibility was instrumental in attributing criminal wrongdoing to those defendants seeking to invoke the defence of superior orders. The Manila trials did not allow the defendants to escape a conviction for war crimes on the basis that the criminal acts were only committed because of criminal orders. In the event that clear evidence existed that a defendant acted because of superior orders, the tribunals enforced the responsibility principle by finding him guilty but allowed the sentence to be mitigated on the basis of superior orders. As such, the superior orders doctrine was only applied to reduce the sentence but not absolve the defendant from criminal responsibility. Cases that illustrate these points include Otsuka,[42] Shin,[43] Tanaka and Hayashi,[44] and Toyota.[45]

The necessity principle was strictly enforced in so far as the tribunals never acknowledged that the conduct of the Japanese defendants constituted a valid defence to war crimes against people or property because of military necessity. Cases such as Mikami[46] and Ogo illustrate this point also.[47]

B Jus Post Bellum

The jus post bellum limb of the ‘just war’ theory looks at how justice operates after war. The jus post bellum is an examination of, for example, the way in which the victors enforce terms associated with surrender, the nature of war crimes trials and prosecutions, whether compensation and reparations are applied, whether the rights of the vanquished are recognised and any other aspects associated with discerning the ‘nature of the peace’ after cessation of hostilities.[48] Orend argues that ‘proportionality’ and ‘discrimination’ are crucial elements needed to satisfy just post bellum.[49] In so far as proportionality relates to war crimes trials, he argues that the victors need to ensure that the number of defendants prosecuted and the nature of punishment is proportionate and reflective of the crimes committed during the conflict.[50] He also argues that those prosecuted should be held accountable only for the crimes for which they are responsible.[51]

An assessment of the number of trials carried out by the US at Manila indicates that there were similar conviction rates to other trials conducted by the US throughout the Asia-Pacific.[52] For instance, the conviction rate at Manila was 90% of all defendants tried, while the conviction rates at Yokohama was 85%, China 89%, and the Pacific Island trials was 91%. The total average conviction rate for all US trials was 87%, so there is not a strong indication that the Manila trails disproportionately convicted defendants.

The Manila trials did, however, have a relatively low acquittal rate (9%) when compared to the total average (13%). However, the differences between the Manila trials and other US trials were striking when comparing the rate of death sentences handed down and might give some cause for concern. At Manila 42% of those convicted received the death sentence. This was very high when compared to the Yokohama trials (5%), the China trials (13%), and the Pacific Island trials (8%). One explanation for this high variance is that the other trials, particularly in Yokohama, were concerned with a range of offences, including relatively minor assaults and property offences.

In contrast, the Manila trials dealt with what appear to be the most severe cases involving murder and torture of US POWs and non-combatants, and to a lesser extent, sexual assault and rape committed against Filipino women. Arguably, a further reason why the US Army trials at Manila had a high rate of death sentences may have had something to do with the ousting of US forces from the Philippines in the early stages of the War. The loss of the Philippines to the US was a humiliating loss and, coupled with enormous US casualties during that campaign and the subsequent Japanese occupation, the trials were a way to exact revenge against the Japanese. However, there is scant evidence to support such a proposition in the trial documents and it would be pure conjecture to argue that the US tribunals sought wide-scale vicarious revenge against Japanese soldiers for the military and foreign policy failings of their leaders.

In relation to the ‘discrimination’ principle of jus post bellum, the Manila trials did not appear to engage in indiscriminate prosecution of Japanese soldiers for war crimes. The cases reviewed showed that at most times there was a clear connection between those charged and the crimes with which they were charged. It must be said, however, that in some cases the connections were not always strong. For example, there were several cases involving superiors charged with and convicted of war crimes committed by subordinates where the superior argued he had no knowledge of his subordinate’s actions. In these cases, the tribunals appeared to accept a lower standard of proof and raised the required standard of responsibility, finding that it was incumbent upon a superior to know and control what his troops are doing at all times.[53]

VI Conclusion – The Legacy of the Trials

As to whether the trials were ‘just’, the answer to that question is that there is strong evidence that the trials did provide an appropriate level of justice to the Japanese defendants. Assessed against the jus post bellum limb of the ‘just war’ theory, the US Manila trials exercised proportionality in terms of the number of Japanese defendants tried in relation to the number of atrocities committed. Although death sentences were not uncommon, the severity of punishment was not disproportionate to the nature of the crimes committed and was not unlike punishment meted out at other Allied war crimes trials at the time.

The US Manila war crimes trials did provide the requisite level of justice for the defendants and went some way towards addressing the crimes committed against the victims of Japanese atrocities. The fact that the US Army conducted trials in the first place, and the lengths that were taken to ensure justice was seen to be done, provides further insight into the importance placed on the desire of the US to ensure justice was done.

Under international law it is clear that those in positions of command have certain responsibilities and will be held accountable for failing to uphold those responsibilities. Likewise, subordinates will be held to account and will not be able to rely on such excuses as merely ‘obeying superior orders’ or believing they needed to satisfy a military objective.

The problem becomes more complex, however, when the circumstances surrounding the accused’s conduct do not allow a straightforward application of facts to the law. There are a myriad of reasons that need to be considered when determining criminal responsibility. The clear and present threat of war crimes is an enduring phenomenon of the human project and decisions that bring nations to war and the conduct of that war once it commences must be held under tight scrutiny.

There is hardly a desire by our leaders to linger over past wars such as the Vietnam War and the more recent invasions of Iraq and Afghanistan. However, serious questions remain over the conduct of not only those involved in direct conflict, but the commanders (military and civilian) who were responsible for creating the conditions in which potential crimes were committed in the first place. If we are not prepared to examine the responsibility of our civilian leaders and military commanders for the possible commission of war crimes then the complex array of war crimes jurisprudence that came from the Manila trials and the thousands of trials throughout history may well be in vain and have little relevance for present and future military conduct.

The enduring question is whether we are now prepared to apply the law to past incidents of possible war crimes and dubious questions of criminal responsibility, in the same way as it was applied at Manila and in so many other contexts. The answer to that question is yet to be found.

&#6[1] Senior Lecturer in Law, College of Business, Law and Governance, James Cook University.

[1] It should be noted that in making a determination as to whether ‘justice’ was achieved through the ‘just war lens’ at the US Army trials in Manila, this paper explores ‘substantive’ matters of law in relation to command responsibility, superior orders and military necessity. This is to be contrasted with ‘procedural’ justice that looks at whether justice was achieved in terms of process and procedure. While procedural justice is a very important concept for determining whether the trials were ‘just’ in terms of process, to do so is beyond the scope of this work and would require a thorough examination of procedural rules as opposed to the substantive law regarding command responsibility, superior orders and military necessity.

[2] RG331 UD1321 290/12/12/1 – Onishi Seichi, Box 1570 Vol I–VII.

[3] Secretary-General’s Report on Aspects of Establishing an International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia, U.N. SCOR, 48th Sess., Annex, Article 7(3) para 56, U.N. Doc. S/25704 (1993). See also Mark Osiel, ‘Obeying Orders: Atrocity, Military Discipline, and the Law of War’ (1998) 86 California Law Review 946, 1040.

[4] Andrew Mitchell, ‘Failure to Halt, Prevent or Punish: The Doctrine of Command Responsibility for War Crimes’ [2000] SydLawRw 18; (2000) 22 Sydney Law Review 381, 381. See also Mark Osiel (n 4) 1040–41.

[5] Mirjan Damaska, ‘The Shadow Side of Command Responsibility’ (2001) 49(3) The American Journal of Comparative Law 455, 455–6.

[6] AG 000.5 (9-24-45) JA, “Before the Military Commission Convened by the Commanding General United States Army Forces, Western Pacific: Yamashita, Tomoyuki” page 31, as cited in Richard L Lael, The Yamashita Precedent: War Crimes and Command Responsibility (Scholarly Resources, 1982) 82–3.

[7] See Section RG331 UD1321 290/12/12/1 – Onishi Seichi, Box 1570 Vol I–VII for a detailed discussion of Onishi’s case discussing, among other things, the concept of an expanded mens rea. In other contexts, see also Case Number 8, Trial of Erich Heyer and Six Others, “The Essen Lynching Case,” British Military Court (18–22 Dec 1945) 1 LRTWC 88which went into substantial discussion over the issue of ‘constructive knowledge’ and its applicability in command responsibility trials.

[8] Neil Boister and Robert Cryer, The Tokyo International Military Tribunal: A Reappraisal (Oxford University Press, 2008) 228.

[9] Ibid.

[10] Mitchell (n 3) 385.

[11] ‘International Military Tribunal for the Far East’, The Indictment.

[12] William H Parks, ‘Command Responsibility for War Crimes’ (1973) 62 Military Law Review 1, 32 as cited in M Cherif Bassiouni, Crimes Against Humanity in International Criminal Law (2nd ed, Kluwer Law International, 1999) 423 regarding the same point.

[13] For example, see, Richard Minear, Victors Justice’ (Princeton, 1971); Dayle Smith, Judicial Murder? Macarthur and the Tokyo War Crimes Trial (CreateSpace, 2013); and Dayle Smith, MacArthur’s Kangaroo Court (Envale Press, 1999).

[14] For statistics in relation to the number of cases, acquittals, convictions and death sentences, see, Philip R Piccigallo, Japanese on Trial (University of Texas Press, 1979) 95.

[15] Yuma Totani, Justice in Asia and the Pacficic Region, 1945–1952: Allied War Crimes Prosecutions (Cambridge University Press, 2015) 12, 33.

[16] See Arraignment and Public Trial – United States of America vs 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.

[17] General Headquarters, Supreme Commander for the Allied Power, ‘Charge’, United States of America v Takeshi Kono page 8.

[18] 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, volumes 1 and 2).

[19] For example, see, United States of America vs 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, pages 76–83 (Answer to the Bill of particulars).

[20] Ko’s case (n 18).

[21] Ibid.

[22] See, f0r example, Ko’s case (n 18) and United States of America vs Takeshi Kono (n 19).

[23] Trial of Warrant Officer Shin Fusataro Imperial Japanese Army (Kenpeitai), Manila, 16–18 July 1946 RG331 UD1321 290/12/12/1 Box 1566 Vol I–III, folder 82.

[24] The Trial of Suguwara Isaburo, RG331 UD1321 290/12/12/1. Suguwara’s case is an example where the plea of superior orders was accepted upon an application for review of the original trial decision that sentenced the accused to death for his seemingly hapless role in the execution of US POWs. Although Suguwara carried out the execution, and was duly sentenced to death for this act, the reviewing authority overturned the decision on the basis that the accused did not display the requisite mens rea.

[25] See, for example, Suguwara’s case (n 24).

[26] For a detailed overview of the history and philosophy underlying ‘military necessity’ as a doctrine, see, Nobuo Hayashi, ‘Requirements of Military Necessity in International Humanitarian Law and International Criminal Law’ (2010) 28(39) Boston University International Law Journal 39–140.

[27] Craig J S Forrest, ‘The Doctrine of Military Necessity and the Protection of Cultural Property during Armed Conflicts’ (2007) 37(2) California Western International Law Journal 177, 219.

[28] United States Field Manual 27-10, cited in ‘Memorandum of Law – Military Necessity, the content and limitations of the doctrine’, memo from Lieutenant Walther H Robinson to Lieutenant Fishman, 24 October 1945. RG331 UD290/12/2/2 Box 1389 Folders 14, 26, page 2. This was expressed also, for example, in C C Hyde, International Law Chiefly as Interpreted and Applied by the United States (2nd ed, 1945) as cited in Robinson’s memo, page 3.

[29] For a detailed description and application of the ‘just war’ theory by leading scholars, see, Jean Bethke Elshtain, Just War Theory (Blackwell Publishing, 1992) and Michael Wazer, Just and Unjust Wars: A moral argument with historical illustrations (Basic Books, 1977).

[30] Carsten Stahn, ‘‘Jus ad bellum’, ‘just in bello’ ... ‘jus post bellum’? – Rethinking the Conception of Laws of Armed Force’ (2006) 17(5) European Journal of International Law 921, 921–43; Lindsay Moir, Reappraising the resort to force at international law, jus ad bellum and the War on Terror (Hart Publishers, 2010) especially chapter 4.

[31] Steven R Ratner, ‘Jus ad Bellum and Jus in Bello after September 11’ (2002) 96(4) The American Journal of International Law 905, 911–12.

[32] Brian Orend, ‘Jus Post Bellum’ (2000) 31(1) Journal of Social Philosophy 117, 119.

[33] David D Corey and J Daryl Charles, Just War Tradition: An Introduction (ISI Books, 2012) 3–7. It should also be noted that modern permissivists are often not state actors, but instead are guerrilla forces such as the Taliban, al-Qaeda, Daesh, and the Viet Cong.

[34] Ibid. See also, Kristopher Norris, ‘Never again war: Recent shifts in the Roman Catholic Just War Tradition and the Question of “Functional Pacifism”’ (2014) 46(2) The Journal of Religious Ethics 289 for a discussion on the Roman Catholic Church’s position on ‘functional pacifism’.

[35] Thomas Nagel, ‘War and Massacre’ in Marshall Cohen, Thomas Nagel and Thomas Scanlon (eds) War and Moral Responsibility (1974) 3, 7–8.

[36] Raphael van Steenberghe, ‘Proportionality under Jus ad Bellum and Jus in Bello: clarifying their relationship’ (2012) 45(1) Israel Law Review 107, 107.

[37] United States of America vs Seiichi Ohnishi, Hajime Kawara, Tsugiharu Ogata (Review, 25 January 1947) RG331 UD290/12/12/1 Box 1570.

[38] Trial documents for Kono’s case are located at NARA, RG331 UD1321 290/12/12/1 Box 1563.

[39] Trial documents for United States of America v Shiyoku Ko are located at NARA, RG331 UD1321 290/12/12/1 Boxes 1559–60, volumes 1 and 2.

[40] ‘Review of the record of trial by a Military Commission of Second Lieutenant Minoru Kato, ISN 51J-41070 of the Imperial Japanese Army’, RG331 UD1243 290/11/31/05 Box 1276, page 1.

[41] JA 201-Nagahama, Akira (Col), ‘Trial by Military Commission’, Review by Colonel Franklin P Shaw, Judge Advocate RG331 290/11/31/05 UD1243 Box 1276.

[42] RG 331, 290/12/12/1, Box 1570 Vol I–VII.

[43] Unless indicated otherwise, archival material in relation to the trial and review of Shin Fusataro is located in RG331 UD1321 290/12/12/1 Box 1566 Vol I–III, folder 82.

[44] Judge Advocate Section War Crimes Decisions, RG331, UD1865 290/23/06/02, Box 9781, Folder 34.

[45] Arraignment, United States of America v Chiyomi Toyota, Military Commission convened by the Commanding General, United States Army Forces Western Pacific, Volume I, pages 1–17; see also ‘Trial of Chiyomi Toyota’, Headquarters Philippines-Ryukyus Command, Major General J G Christiansen, US Army Deputy Commander and Chief of Staff, 6 January 1947. Both documents located in United States of America v Chiyomi Toyota RG331 UD1321 290/12/12/1 Box 1567 Vol I–X, folder 86.

[46] RG331 UD 290/12/2/2 Box 1389 Folders 14 and 26.

[47] Trial of Corporal Ogo Yokio, Imperial Japanese Army, Manila, 27 February 1947, Opinion of the Board, Colonel Shaw, JA, JAGD, 24 November 1947, RG331 290/11/31/05 UD1243 Box 1276, ‘Reviews by SCAP, 1947’.

[48] Davida E Kellogg, ‘Jus Post Bellum: The importance of War Crimes Trials’ (2002) 32(3) Parameters 87, 89–97; see also, Larry May and Andrew Forcehimes, Morality, Jus Post Bellum and International Law (Cambridge University Press, 2012).

[49] Brian Orend, ‘Justice After War’ (2002) 16(1) Ethics and International Affairs 43, 52–55.

[50] Ibid 54–5.

[51] Ibid.

[52] For statistics in relation to the number of cases, acquittals convictions and death sentences, see, Philip R Piccigallo (n 14). 95.

[53] See, eg, Trial of Kei Yuri (1st Lieutenant IJA, Camp Commander of Prisoner of War Camp 17-B Omuta, Fukuoka, Kyushu) (RG331, UD1321 290/12/12/1, Box 1557); Kaneko Takeo (Camp Commander, Prisoner of War Camp Number 5, Fukuoka, Kyushu) and Uchida Teshiharu (RG331, UD1321 290/23/6/2, Box 1581); Mizukoshi Saburo (Camp Commander, Sumidagawa Prisoner of War Camp) (RG331, UD1321 290/12/12/1, Box 1587); Hirate Kaichi (1st Lieutenant and later Captain and Commander of Prisoner of War Camp, Hakodate) (RG331, UD1321 290/12/2/2, Box 1389).

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