THE YAMASHITA WAR CRIMES TRIAL: COMMAND RESPONSIBILITY THEN AND
NOW
Major Bruce D. Landrum *
* Major, United States Marine Corps. Written while assigned as a student in the 44th Judge
Advocate Officer Graduate Course. B.S., 1982, University of Florida; J.D., 1989, University of
Florida. LL. M. candidate, 1996, The Judge Advocate General's School, United States Army.
Formerly assigned as Instructor, Division Director, Evidence Division, Naval Justice School,
Newport, Rhode Island 1992-95; Trial Counsel, Camp Pendleton, California, 1991-92; Defense
Counsel, Camp Pendleton, California, 1989-91; Marine Corps Funded Legal Education Program,
1986-89; Series Commander, Marine Corps Recruit Depot, Parris Island, South Carolina, 198586; Platoon Commander/Battalion Staff/Company Executive Officer, 2d Battalion, 8th Marines,
Camp Lejeune, North Carolina, 1983-85.
I. Introduction
General Tomoyuki Yamashita was a man at the wrong place at the wrong time. Toward the
end of World War II, as United States forces were slicing through the Pacific, the Japanese high
command knew that an attack on the Philippines was likely. n1 But Field Marshal Terauchi, the
Japanese Southern Army Commander, had lost confidence in his man on the scene in the
Philippines, Lieutenant General Kuroda. n2 On 26 September 1944, Kuroda was relieved as
14th Area Army Commander and General Yamashita was appointed to replace him. n3
Arriving from his prior command in Manchuria and assuming command of the 14th Area Army
on 9 October 1944, Yamashita had a mere eleven days before the American invasion of Leyte
began on 20 October. n4 He received little or no turnover from Kuroda or his staff, inherited an
army with a number of new and untrained soldiers, and was immediately tasked with supporting
the defense of Leyte. n5 General Yamashita barely had time to put together a staff, n6 learn
the situation, and make basic defensive plans. He undoubtedly was not thinking about "law of
war" training.
General Yamashita had no way of knowing that he would be judged against the strictest
standard ever devised to hold a commander responsible for the actions of his subordinates. Not
only was he at the wrong place and time when he took command of the 14th Area Army, he also
was at the wrong place and time when he was captured and tried as a war criminal the following
year.
II. The War Crimes
By December of 1944, General Yamashita had given up on trying to support the defense of
Leyte and decided to concentrate on defending Luzon. n7 To do this, he divided his army into
three groups, each of which would be responsible for a different sector of the island. Yamashita's
"Shobu" Group would occupy the northern sector, while Lieutenant General Yokoyama's
"Shimbu" Group would have the sector that included Manila. n8 As it turned out, the vast
majority of Japanese atrocities were committed in Yokoyama's sector, during the time after
Yamashita had departed Manila to go north.
The greatest numbers of civilians were killed in the Batangas Province, an area under the
control of Colonel Fujishige, a Yokoyama subordinate. The total was estimated at 25,000 killed.
n9 Because Fujishige's forces (known as the Fuji Force) were far removed from Yokoyama's
main force, the general gave mission-oriented guidance to his colonel, but left the details of
execution to his discretion. Filipino guerrilla resistance was the main problem for the Fuji Force,
so Colonel Fujishige decided, on his own authority, to declare war on the civilian population.
n10 Fujishige reportedly told his subordinates that "all the civilians have now turned into
guerrillas; therefore, kill all of them." n11 With orders like this, it is easy to see why such
astounding numbers of civilians were murdered in Batangas.
The next highest number of atrocities occurred in Manila, during the defense of that city by
the remaining Japanese naval forces, technically attached to Yamashita's army but acting
contrary to his orders. General Yamashita had no intention of defending Manila, but wanted to
keep it as long as possible to remove as many of his supplies as he could from the city. n12
Apparently, Rear Admiral Iwabuchi, Commander of the Manila Naval Defense Force was either
unable to withdraw in time, or had decided to defend the city with his 20,000 men. n13 By the
time that General Yamashita found out that the naval forces were still in Manila and issued a
specific order to Yokoyama to evacuate them, it was too late. Iwabuchi's forces were trapped in
the city by MacArthur's encircling divisions. n14 The Japanese defenders killed over 8000
civilians in Manila during a two-week period. n15 Almost 500 civilians were raped n16 and
thousands of others were mistreated or wounded. n17
Aside from the Japanese atrocities in Batangas Province and Manila, the Japanese forces
committed similar crimes in smaller numbers elsewhere on Luzon, all within the area of General
Yamashita's command. Almost 8000 civilians were murdered in Laguna Province, and several
hundred in other provinces. n18 But virtually all of these war crimes occurred in Southern
Luzon, outside of General Yamashita's "Shobu" sector. n19
III. General Yamashita's Responsibility
General Yamashita surrendered his remaining forces in the Philippines on 3 September 1945.
n20 Within a month, he was served with a generic charge alleging that he had "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 . . .
." n21 Two bills of particulars later supplemented this charge with 123 specifications, all
alleging specific war crimes committed by members of Yamashita's command. Combined, the
specifications alleged the murder and mistreatment of over 36,500 Filipino civilians and captured
Americans, hundred of rapes, and the arbitrary destruction of private property. They did not
allege, however, that the accused ordered, or even knew about, any of these crimes. n22
At trial, the defense strategy was to deny any knowledge of the crimes and to discredit any
evidence directly linking Yamashita with any of them. The defense argued that the general
should not be punished for his "status" as the commander of the perpetrators without any
showing of "fault" on his part. n23 The prosecution argued that the atrocities were so
widespread and numerous that Yamashita must have known of them, unless he was affirmatively
avoiding knowledge. Either way, the prosecution argued, the commander had failed in his duty
to control his troops. n24
On 7 December 1945, after hearing all the evidence, the military commission, composed of
five general officers, convicted General Yamashita and sentenced him to hang. n25 According
to the commission's written findings, Yamashita's guilt was indicated by the widespread nature
of the offenses. Although isolated acts of subordinates would not bring criminal liability to their
commander, "the crimes were so extensive and widespread . . . they must either have been
wilfully permitted by the accused, or secretly ordered by the accused." n26 In other words, the
commission did not accept Yamashita's claim of ignorance.
Before the commission had even announced this verdict, the defense team already had sought
habeas corpus relief from the United States Supreme Court. n27 The Court ultimately denied
any relief, upholding the authority and procedures of the military commission, and specifically
holding that military commanders have an affirmative duty to control their subordinates. n28
The Court held that breaching that duty was a punishable violation of the law of war. The Court
did not evaluate the factual guilt or innocence of the accused, but merely held that the military
commission that tried him had the authority to do so. n29 General Yamashita was executed on
23 February 1946, nineteen days after the Supreme Court issued its decision. n30
Opinions vary widely on General Yamashita's personal responsibility for the war crimes on
Luzon. Some writers have called him a victim, an "honourable Japanese general" tried and
executed on "trumped-up charges," n31 the subject of a "legalized lynching." n32 Perhaps
Supreme Court Justice Murphy's dissenting opinion in the case best summarizes the argument
that Yamashita was a scapegoat. In Justice Murphy's view, the victors in the battle had done
everything possible to disrupt Yamashita's command, control, and communications, and now
they were charging him with having committed a war crime for not having effectively controlled
his troops. n33
On the other hand, in a well-researched and persuasively written article, William H. Parks
points out evidence in the record that General Yamashita personally ordered or authorized at
least 2000 summary executions. n34 Other evidence, although perhaps more questionable in
reliability, indicated that Yamashita had ordered an extermination campaign against all Filipinos.
n35 This seems unlikely considering that most of the atrocities occurred in sectors physically
distant from Yamashita. As Richard Lael observes in his book, The Yamashita Precedent: War
Crimes and Command Responsibility, if Yamashita had ordered the atrocities, there probably
would have been more offenses in his sector. n36 Of course, the Manila sector was the most
densely populated area, so inevitably more atrocities occurred there.
In any case, Parks takes the view that Yamashita was not held to a standard of commander's
strict liability, as many have claimed, but had participated personally in the war crimes. n37
Lael, on the other hand, believes that Yamashita was held to "strict accountability," but agrees
that the case has been misinterpreted. n38 That the Supreme Court upheld the verdict of the
military commission has been misinterpreted by many to mean that the Court approved the strict
standard that the commission applied to Yamashita. n39 To the contrary, the Supreme Court
merely held that a commander has a duty to protect prisoners and civilians, but did not hold that
Yamashita had violated the duty under the facts of that case. n40
The actual impact of Yamashita seems to be somewhere in the middle. Because the military
commission made no specific finding that Yamashita actually knew of any of the atrocities, the
case is cited for the proposition that a commander is responsible for doing everything possible to
prevent war crimes. In a case like this, where the atrocities were so widespread, the commission
was willing to find that the commander "must have known" what was going on, and to hold him
criminally responsible for failing to act to prevent further violations and to punish violators.
IV. Command Responsibility Refined
Yamashita marked the high point for a commander's criminal responsibility for subordinates'
actions. In 1948, two cases tried before the Nuremberg Military Tribunals adopted more limited
liability standards for commanders. n41 In The Hostage Case, n42 the command responsibility
concept was primarily refined from a "must have known" standard to more of a "should have
known" standard. In other words, a commander's knowledge of widespread atrocities within the
command area was rebuttably presumed rather than irrebuttably presumed. n43
In The High Command Case, n44 another Nuremberg tribunal espoused a standard
apparently giving commanders the benefit of the doubt on the knowledge issue. Noting that
modern warfare is highly decentralized, this court held that a commander cannot know
everything that happens within the command, so the prosecution must prove knowledge. Beyond
that, this court held that the prosecution must prove wanton criminal neglect (amounting to
acquiescence) in supervising subordinates to hold the commander criminally responsible for the
subordinates' actions. n45
With these refinements and limitations of the command responsibility standard, the stage was
set, twenty years later, for the trial of Captain Ernest Medina, the immediate superior commander
of Lieutenant William Calley and the troops responsible for the My Lai, Vietnam, massacre in
1969. In formulating instructions for the court-martial members to apply to the facts of the case,
the military judge closely followed the High Command rationale. n46 He instructed that, to find
Medina guilty, the members had to find actual knowledge plus a wrongful failure to act.
Furthermore, the wrongful failure to act had to amount to culpable (gross) negligence. n47
While this formulation may have little precedential value, it clearly rejected any supposed
Yamashita-type strict liability standard in favor of a standard based on personal culpability. n48
In 1977, international delegates agreed on Protocol I to the 1949 Geneva conventions. In
Article 86, this protocol also adopted a standard of liability resembling the High Command
formulation. n49 Although the United States has not ratified Protocol I, the delegates' rejection
of the "should have known" standard proposed by the United States signals that the Yamashita
precedent may not carry any weight in the international community. n50
V. Command Responsibility in the Former Yugoslavia
The debate over the appropriate standard of command responsibility has taken on a fresh
significance in light of the recent indictment of Radovan Karadzic and Ratko Mladic, the
political and military leaders of the Bosnian Serbs. n51 Whether these cases ever will be tried is
unknown and may ultimately be a political, rather than a legal, question. n52 However, if these
cases are tried, the prosecutors must be wary of relying on Yamashita's supposed strict liability
standard.
Even in United States courts, Yamashita has lost favor. If it ever stood for a strict liability
standard, that strict standard never has been enforced again. n53 The Protocol I standard is
probably the best indication of what the international community would find acceptable, and that
standard rejects any strict liability. n54 Comparing the Protocol I standard with that established
by the United Nations Security Council in creating the International Criminal Tribunal for the
Former Yugoslavia, the two appear to be quite similar. n55
The recent indictment alternatively alleges both direct participation and command
responsibility theories of liability. The language alleging command responsibility follows
verbatim the wording of the Security Council's standard. n56 If direct participation in the
crimes is proven, the command responsibility allegation will be unnecessary. But if prosecutors
must prove command responsibility, they will be unable to use a "must have known" or "should
have known" standard. Instead they will have to prove that the accused "knew or had reason to
know" of the violations and then wrongfully failed to act. In this context, "had reason to know"
appears to mean "had the information from which to conclude" much like the more stringent
standard of proof embodied in Protocol I. n57
Holding the prosecution to this higher standard of proof is appropriate. The evidence required
to prove actual knowledge in this conflict probably will be abundant because most reports have
indicated that atrocities and other war crimes have been a deliberate tool of war, either by the
order of the leaders or at least with their knowing approval. n58 Given the number of times that
these accused have been confronted with these allegations by reporters, their claims of ignorance
certainly will be less credible than General Yamashita's was. n59 If the prosecution fails to
prove the required knowledge, any conviction obtained without such proof would only martyr
the accused and likely would not "meet the judgment of history." n60 Such are the lessons of
Yamashita.
FOOTNOTES:
n1 RICHARD L. LAEL, THE YAMASHITA PRECEDENT: WAR CRIMES AND
COMMAND RESPONSIBILITY 3 (1982).
n2 Id. at 5.
n3 Id. at 6.
n4 Id. at 8.
n5 Id. at 3, 8-10.
n6 Yamashita's chosen chief of staff did not even arrive on the scene from his prior command
until 20 October, the day of the American invasion of Leyte. Id. at 8.
n7 Id. at 12.
n8 Id. at 13. The third group was the "Kembu" group commanded by Major General Tsukada
in the Bataan Peninsula. Few, if any, war crimes were alleged to have occurred in this sector. Id.
at 13, 140.
n9 In re Yamashita, 327 U.S. 1, 14 (1946); LAEL, supra note 1, at 34-35.
n10 LAEL, supra note 1, at 34-35.
n11 Id.
n12 Id. at 23.
n13 Id. at 26-31. See also Jeffrey F. Addicott & William A. Hudson, Jr., The Twenty-Fifth
Anniversary of My Lai: A Time to Inculcate the Lessons, 139 MIL. L. REV. 153, 169 n.66 (1993);
Robert H. Reid, Manila to Mark Anniversary of Its Wartime Destruction, AP, Feb. 2, 1995,
available in LEXIS, World Library, AP File.
n14 LAEL, supra note 1, at 31-32.
n15 William H. Parks, Command Responsibility for War Crimes, 62 MIL. L. REV. 1, 25
(1973); Lieutenant Commander Weston D. Burnett, Command Responsibility and a Case Study
of the Criminal Responsibility of Israeli Military Commanders for the Pogram at Shatila and
Sabra, 107 MIL. L. REV. 71, 88 (1985).
n16 LAEL, supra note 1, at 140.
n17 Parks, supra note 15, at 25; Burnett, supra note 15, at 88.
n18 LAEL, supra note 1, at 140.
n19 Id. at 139.
n20 Parks, supra note 15, at 22; Burnett, supra note 15, at 88.
n21 Id.; See also In re Yamashita, 327 U.S. 1, 13-14 (1946); DEP'T OF ARMY,
PAMPHLET 27-161-2, INTERNATIONAL LAW, VOLUME II 241 (23 Oct. 1962) [hereinafter
DA PAM. 27-161-2].
n22 LAEL, supra note 1, at 80-82; Parks, supra note 15, at 23-24; Burnett, supra note 15, at
88.
n23 LAEL, supra note 1, at 82-83.
n24 Id. at 83.
n25 Id. at 95; Burnett, supra note 15, at 91.
n26 Burnett, supra note 15, at 92 (quoting the military commission findings).
n27 LAEL, supra note 1, at 94; In re Yamashita, 327 U.S. 1 (1946).
n28 Yamashita, 327 U.S. at 15-17, 25-26.
n29 Id. at 17.
n30 LAEL, supra note 1, at 119; Parks, supra note 15, at 37.
n31 Geoffrey Wheatcroft, Face the Truth About War Crimes, SUNDAY TELEGRAPH, Feb.
12, 1989, at 24.
n32 Jim McInerney, Fil-Am Defenders Were Hoodwinked By Roosevelt, ETHNIC
NEWSWATCH FILIPINO REP., Dec. 5, 1991, available in, LEXIS, World Library, ALLWLD
File (attributing this description of Yamashita's execution to Justices Rutledge and Murphy); see
also Memories of a Painful Journey to Fulfillment, HERALD (Glasgow), Aug. 12, 1995,
available in LEXIS, World Library, ALLWLD File (alleging that Yamashita was really executed
because his army beat the British "fairly and squarely in battle in Malaya").
n33 Yamashita, 327 U.S. at 34-35.
n34 Parks, supra note 15, at 27 n.92.
n35 Id. at 29-30.
n36 LAEL, supra note 1, at 139-40.
n37 Parks, supra note 15, at 37; see also Burnett, supra note 15, at 92-93. Parks suggests that
much of the misinterpretation of Yamashita has been caused by the unartfully drafted
commission decision and the biased history of the case written by one of the defense counsel.
See Parks, supra note 15, at 22, 27 n.92.
n38 LAEL, supra note 1, at 123, 127.
n39 Id. at 123.
n40 In re Yamashita, 327 U.S. 1, 15-17 (1946).
n41 LAEL, supra note 1, at 123-27; see also Robinson O. Everett & Scott L. Silliman,
Forums for Punishing Offenses Against the Law of Nations, 29 WAKE FOREST L. REV. 509
(1994) (stating that Yamashita was punished for nonfeasance while the Nuremberg tribunals
apparently imposed a more lenient malfeasance standard); but see Parks, supra note 15, at 63-64
(stating that Yamashita took a "broad brush" approach and the Nuremberg cases merely filled in
the details). Other trials in the Far East also limited the commander's liability, for example, the
trial of Admiral Toyoda in 1949. See id. at 72-73.
n42 Also known as United States v. Wilhelm List. Parks, supra note 15, at 58; DA Pam. 27161-2, supra note 21, at 232.
n43 LAEL, supra note 1, at 124. In this case, absent exceptional circumstances, commanders
were presumed to know the contents of reports that reached their headquarters. Id. For example,
defendant Wilhelm List's headquarters received reports of thousands of unlawful killings, but
List did nothing to stop or condemn the killings and, therefore, was held criminally responsible.
Parks, supra note 15, at 61 (quoting the decision of the tribunal).
n44 Also know as United States v. Wilhelm von Leeb. Parks, supra note 15, at 38; DA PAM.
27-161-2, supra note 21, at 231.
n45 LAEL, supra note 1, at 125-26 (including quotations from the tribunal's decision); see
also Parks, supra note 15, at 42-43; DA PAM. 27-161-2, supra note 21, at 242 (both quoting
some of the same language).
n46 LAEL, supra note 1, at 130-32.
n47 Id. at 130-31.
n48 Id. at 132.
n49 Id. at 133-34.
n50 Id. at 134-35.
n51 See Indictment (Prosecutor v. Karadzic & Mladic), 1995 International Criminal Tribunal
(Former Yugoslavia) Pleadings (July 1995).
n52 I a footnote, Parks relates that 34 alleged war criminals had to be released at the end of
the Korean conflict due to the terms of the armistice. He says that "Only where there is a clear
'winner' and 'loser' is there likelihood of international war crimes trials." Parks, supra note 15, at
3 n.5. The question of amnesty for war criminals already has arisen in the current peace talks
among the Balkan factions, but the chief prosecutor of the International Criminal Tribunal and
the United States State Department have said that there will be none. David Wood, U.N. War
Crimes Charges Complicate Peace Talks Among Balkan Factions, SACRAMENTO BEE, Sept.
29, 1995, at B9. Only time will tell which view will prevail.
n53 See supra section IV. The case of General Masaharu Homma applied essentially the
same standard as Yamashita, but this trial ran virtually simultaneously with that of General
Yamashita. Parks, supra note 15, at 75. See also In re Homma, 327 U.S. 759 (1946).
n54 See supra text accompanying notes 49-50.
n55 The Protocol I standard imposes liability if commanders "knew, or had information
which should have enabled them to conclude in the circumstances at the time" that subordinates
were committing war crimes and "they did not take all feasible measures within their power to
prevent or repress" the crimes. LAEL, supra note 1, at 134 (quoting Article 86 of Protocol I); see
also DEP'T OF ARMY, PAMPHLET 27-1-1, PROTOCOLS TO THE GENEVA
CONVENTIONS OF 12 AUGUST 1949 65 (1 Sept. 1979).
The United Nations statute standard imposes liability if commanders "knew or had reason to
know" that subordinates were committing war crimes and "failed to take the necessary and
reasonable measures to prevent such acts or to punish the perpetrators thereof." UNITED
NATIONS, SECURITY COUNCIL; REPORT OF THE SECRETARY-GENERAL
PURSUANT TO PARAGRAPH 2 OF SECURITY COUNCIL RESOLUTION 808, U.N. Doc.
S/25704 (1993) (proposing Article 7 of the statute that ultimately was adopted).
n56 See, e.g., paragraph 33 of the indictment.
n57 See supra note 55.
n58 See, e.g., United States Dep't of State, Bosnia in Light of the Holocaust: War Crimes
Tribunals, 5 DISPATCH 209, 210 (Apr. 18, 1994) (stating that "Bosnian Serb leaders have
sought a 'final solution' of extermination or expulsion to the problem of non-Serb populations
under their control"); Warren Zimmerman, The Last Ambassador; A Memoir of the Collapse of
Yugoslavia, FOREIGN AFF., Mar.-Apr. 1995, at 1; Charles G. Boyd, Making Peace with the
Guilty; The Truth About Bosnia, FOREIGN AFF., Sept.-Oct. 1995, at 22; David M. Kresock,
Note, "Ethnic Cleansing" in the Balkans: The Legal Foundations of Foreign Intervention, 27
CORNELL INT'L L.J. 203 (1994).
n59 See Kresock, supra note 58, at 221-25.
n60 This was the rationale proposed by Secretary of War Stimson for having war crimes trials at
the conclusion of World War II, instead of summary executions as advocated by Winston
Churchill and others. "Punishment is essential, not as retribution, but as an expression of
civilization's condemnation of the Nazi philosophy and aggression. . . . That condemnation must
be achieved in a fair manner which will meet the judgment of history." LAEL, supra note 1, at
47 (quoting a letter from Stimson to Secretary of State Hull, dated 27 October 1944).