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The Yamashita Standard
by Anne E. Mahle

The modern legal standard governing the doctrine of command responsibility in the United States rests upon the precedent established by the United States Supreme Court in the case of General Tomoyuki Yamashita. The Court's holding has become known as the "Yamashita Standard."

General Tomoyuki Yamashita was the Commanding General of the Fourteenth Army Group of the Japanese Imperial Army and the Military Governor on the Philippine Islands from October 1944 until full control of the Islands was assumed by United States forces in September 1945. In the waning days of World War II, numerous atrocities were committed by troops under General Yamashita's control against the civilian population of the Philippines. Pursuant to Japan's unconditional surrender to the United States at the end of the war, General Yamashita also surrendered to United States troops present in the Philippines and immediately became a prisoner of war. He was detained by the United States Army in the Commonwealth of the Philippines.

Upon his arrest as a prisoner of war, General Yamashita was charged by the Army's Judge Advocate General's Department with violations of the law of war. Included in this charge were allegations that forces under his command engaged in a "deliberate plan Í to massacre and exterminate a large part of the civilian population of Batangas Province Í as a result of which more than 25,000 men, women, and children all unarmed noncombatant civilians, were brutally mistreated and killed." General Yamashita was appointed six lawyers from within the JAG corps to serve as defense counsel, and was tried before a United States military commission of five United States Army Officers. General Yamashita pled not guilty to all charges. He asserted that he did not personally engage in the criminal acts committed by the Japanese troops, that he did not order these acts to be committed, and that he did not have control over the troops under his command. He was found guilty by the commission after it heard testimony from two hundred and eighty-six witnesses. Upon his conviction, General Yamashita filed a writ of habeas corpus with the Supreme Court of the Commonwealth of the Philippines. In his writ, General Yamashita challenged the jurisdiction of the military commission, asserted that he did not commit a violation of the law of war, and claimed that he was denied a fair trial under the United States Articles of War, the Geneva Convention, and the United States Constitution. The Supreme Court of the Commonwealth of the Philippines denied his writ in total. The General then appealed to the United States Supreme Court.

In the Supreme Court's decision, rendered in February 1946, the Court articulated a clear standard for military commanders with respect to the actions of their subordinates. In responding to General Yamashita's assertion that he did not personally participate in or order the commission of these offenses, the Court described the heart of the charge as being "an unlawful breach of duty by [General Yamashita] as an army commander to control the operations of members of his command by 'permitting them to commit' the extensive and widespread atrocities." The Court recognized that international law, through the law of war, "presupposes that [violations of the law of war] are to be avoided through the control of the operations of war by commanders who to some extent are responsible for their subordinates." The Court believed that absent such a duty upon commanders, nothing would prevent occupying forces from committing atrocities upon the civilian population. The Court held that General Yamashita was, by virtue of his position as commander of the Japanese forces in the Philippines, under an "affirmative duty to take such measures as were within his power and appropriate in the circumstances to protect prisoners of war and the civilian population." General Yamashita's writ was denied, and he was executed by hanging by the United States military.

Since the Supreme Court's decision in 1946, the United States Congress and federal courts throughout the country have relied on the Yamashita standard. Many important human rights cases cite directly from the Supreme Court decision, as does the legislative history of the Torture Victims Protection Act ("TVPA"). In citing to the Yamashita Standard for support in the interpretation of the TVPA, the United States Senate Committee stated, "under international law, responsibility for torture, summary execution, or disappearances extends beyond the person or persons who actually committed those acts -- anyone with higher authority who authorized, tolerated, or knowingly ignored those acts is liable for them." The Second and Ninth Circuits of the United States Court of Appeals affirmed this standard in their decisions Kadic v. Karadzic, 70 F.3d 232 (1995) and Hilao v. Estate of Marcos, 103 F.3d 767 (1996), and it has been repeatedly recognized as the standard in numerous human rights cases litigated under the TVPA and the Alien Tort Claims Act ("ACTA") in federal courts across the country.

Wide acceptance of the Yamashita Standard does not render it immune from critique. There have been a number of legal questions raised as to the reach of the Standard and the degree to which it imposes strict liability on a military commander for the actions of his or her subordinates. For example, the jurisprudence of the International Criminal Tribunal for the Former Yugoslavia ("ICTY") has rejected a strict liability standard for military commanders, in part as a response to the reality it faces: many of those charged under the doctrine of command responsibility under the jurisdiction of the ICTY were not commanders of armies of recognized states, as was Yamashita, instead they exerted military command over militarized troops of non-recognized entities such as the Republika Srpska and the Republic of Herzeg-Bosna. The Yamashita Standard, however, no doubt will arise in the trial of Slobodan Milo÷evic, and others who were in command positions in recognized nation states and will play a role in the jurisprudence of the International Criminal Court.

Text in quotes referring to the Supreme Court decision is taken from In re Yamashita, 327 U.S. 1 (1946).

Senate Report No. 249, 102nd Congress, 1st Session, page 9, 1991.

About the Author
Anne Mahle is an attorney at Faegre & Benson in Minneapolis, Minnesota. During law school she worked on Romagoza et. al. v. Garcia et. al. under the supervision of Carolyn Patty Blum at the International Human Rights Law Clinic at the University of California Berkeley (Boalt Hall).

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  • Universal Jurisdiction
  • Command Responsibility
  • Yamashita Case
  • Rwanda and Former Yugoslavia
  • Military Tribunals Versus Civil Trials
  • The International Criminal Court