02.05.2016 ( Last modified: 07.06.2016 )
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Tomoyuki Yamashita was born on 8 November 1885 in the little village of Osugi Mura on the island of Shikoku. After adopting a military career, he worked for the War Ministry and became military attaché in Germany, Hungary and Austria.
After playing a minor role in the attempted coup d’état of 26 February 1936 (during which army officers assassinated several ministers and tried to overthrow the government), he fell out of favour and was sent to Korea. From 1938 to 1940, he commanded the Army’s 4th Infantry Division in the north of China.
In December 1940, he was part of a secret military delegation which went for talks to Germany and to Italy.
On 6 November 1941, he was made Commander of the 25th Japanese Army.
After Pearl Harbour, he led a lightening campaign that seized control over Malaysia and Singapore in 70 days, capturing some 130’000 troops. However, his successes aroused the jealousy of Prime Minister Tojo (see “related cases”) and so, on 17 July 1942, he was sent to Manchuria.
Nevertheless, Yamashita was summoned back in early October 1944 to take command of the 14th Area Army in charge of defending the Philippines. American soldiers made landfall on 20 October 1944 on the island of Leyte and made rapid progress. In January 1945, Yamashita was forced to retreat into the mountains with his troops. Admiral Iwabuchi, however, who was under Yamashita’s orders, remained in Manila, which Yamashita had declared an “open city” (a term used in war, when a government declares it has abandoned all efforts to defend a town, thus trying to prevent the attackers from destroying it) – together with 17’000 of his troops. These troops massacred thousands of Philippine civilians (some estimates were as high as 100’000 dead) during the battle they waged against the Americans for the control of the capital.
On 3 September 1945, Yamashita surrendered to the Americans with the remainder of his army.
Tomoyuki Yamashita surrendered to the American armed forces on 3 September 1945.
Yamashita was tried for war crimes by an American Military Commission sitting in Manila in the Philippines.
The bill of indictment stated that General Tomoyuki Yamashita “between 9 October 1944 and 2 September 1945, in the Philippine Islands, while commander of armed forces of Japan at war with the United States of America and its allies, he 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 the people of the United States and of its allies and dependencies, particularly the Philippines; and thereby violated the law of war.”
The most serious accusation to which Yamashita had to respond was that of the Manila Massacre. His defence lawyers pleaded that Yamashita could not be held responsible for the crimes committed by the forces of Admiral Iwabuchi, since the latter had disobeyed Yamashita’s orders which had declared Manila an “open city” and had also ordered the evacuation of all Japanese army units.
The judges rejected this argument and invoked the concept of command responsibility in order to prove Yamashita’s guilt. According to this concept, Yamashita was guilty since, in his position as hierarchical superior, he had the responsibility and the power to put an end to the exactions and to punish the perpetrators.
As a result, Yamashita was found guilty of war crimes.
On 7 December 1945, he was condemned to death.
Despite many requests coming from several sources which had followed the trial and which considered that there were certain irregularities, General MacArthur refused to review the trial.
An appeal was lodged with the United States Supreme Court against the verdict of the Military Commission, but was rejected (by a vote of 7 to 2) on 4 February 1946.
Tomoyuki Yamashita was executed by hanging on 23 February 1946.
The Yamashita trial is the first one in which the concept of command responsibility was invoked.
It was applied in a particularly merciless manner.
The criteria for the application of command responsibility have evolved somewhat since.
In the Rome Statute of the International Criminal Court, the definition is as follows (Art.28):
Responsibility of commanders and other superiors
In addition to other grounds of criminal responsibility under this Statute for crimes within the jurisdiction of the Court:
(a) A military commander or person effectively acting as a military commander shall be criminally responsible for crimes within the jurisdiction of the Court committed by forces under his or her effective command and control, or effective authority and control as the case may be, as a result of his or her failure to exercise control properly over such forces, where:
(i) That military commander or person either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes; and
(ii) That military commander or person failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.
(b) With respect to superior and subordinate relationships not described in paragraph (a), a superior shall be criminally responsible for crimes within the jurisdiction of the Court committed by subordinates under his or her effective authority and control, as a result of his or her failure to exercise control properly over such subordinates, where:
(i) The superior either knew, or consciously disregarded information which clearly indicated, that the subordinates were committing or about to commit such crimes;
(ii) The crimes concerned activities that were within the effective responsibility and control of the superior; and
(iii) The superior failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.
THE INTERNATIONAL MILITARY TRIBUNAL FOR THE FAR EAST (IMTFE)
After Japan’s surrender in World War II, the victorious powers decided to a institute an International Tribunal aimed at trying those members of the Japanese establishment who were most responsible for the war of aggression waged by Japan and for other crimes perpetrated during the war. The Tribunal was established by means of a decree of the Supreme Commander of Allied Forces in the Far East, US General Douglas MacArthur, on 19 January 1946, amended on the following 25 April.
The IMTFE Charter reproduced almost verbatim the Charter of the Nuremberg Tribunal. The Tribunal had jurisdiction over allegations of crimes against peace, war crimes and crimes against humanity. Judges and prosecutors were chosen among the nationals of States who were in war against Japan (United States, Great Britain, Soviet Union, Australia, New Zealand, the Netherlands, France, the Philippines and China). The Tokyo Tribunal received the same criticisms moved to its German counterpart, concerning in particular the modality of its creation, the composition of the judiciary and the respect for the principle of legality. The public prosecution was lead by the American Joseph B. Keenan.
The proceedings at the Tribunal took place between 29 April 1946 and 12 November 1948. In total, 28 former Japanese generals and politicians were indicted. Remarkably, no proceedings were instituted against the then Emperor of Japan, Hirohito. Most accused were charged on counts of crimes against peace, concerning the aggressive policy implemented by Japan before and during the World War. All the defendants were convicted. Seven of them were sentenced to death, most of the others to life imprisonment.
PROCEEDINGS OTHER THAN THOSE AT THE IMTFE
A number of other proceedings were held against Japanese war criminals before courts-martial or military commissions run by each of the victorious Powers. Overall, more than 5600 Japanese nationals were prosecuted, in more than 2200 trials. About 4400 people were convicted, and about 1000 of them were subsequently executed.