Command Ability And Command Responsibility the "F Force" trials

European Journal of International Law, 2017

This article critically analyses a set of war crimes trials, conducted by the British colonial authorities in post-World War II Singapore, which dealt, among others, with the contentious issue of deserting British Indian Army soldiers. While seemingly obscure, these trials illuminate important lessons about rule of law dynamics in war crimes trials. Although these trials were intended by their organizers to facilitate the return of British colonial rule, they resulted in unexpected acquittals and conviction non-confirmations. On the one hand, by applying British military law as a backup source of law when prosecuting 'violations of the laws and usages of war', the British contravened the rule of law by retrospectively subjecting the Japanese defence to unfamiliar legal standards. On the other hand, by binding themselves to a pre-existing and relatively clear source of law, the British were constrained by the rule of law even as this empowered the Japanese defence. These findings speak to broader debates on the challenges of developing international criminal law, by provocatively suggesting that, from a rule of law perspective, what is most important in a body of law is its clarity, accessibility and comprehensiveness rather than its source or its purported 'universality'.

Law and History Review

Between 1870 and 1945, the Imperial Japanese Army and Navy provided uniquely broad legal protection to subordinates who perpetrated crimes under the orders of military superiors. Legal immunity was provided not only to soldiers who obeyed orders contrary to international law, but also to those who under orders violated domestic standing legislation of the Japanese Army. This gave rise to a so-called “paradox of obedience”: while disobedience among officers was rampant, their subordinates were expected to unquestionably obey their orders, even in rebellion against the Japanese government. This mix of blatant disobedience to the system at large on the one hand, and blind obedience to immediate superiors on the other, was a remarkable feature of the Imperial Japanese armed forces. Drawing on legal codes, court cases and juridic writings, we analyze how this “paradox of obedience” encouraged mutinies as well as atrocities, especially in the 1930s and during the Asia-Pacific War.

Asian Journal of International Law

By studying British Indian Army (BIA) desertions during the Second World War and British post-war trial responses, this article explores the complicated dimensions of desertion and draws attention to the need for a more explicit and comprehensive approach to desertion in international humanitarian law. This article focuses on less known British trials dealing with desertion, namely, war crimes trials conducted by the British in Singapore. It examines how these trials dealt with contested interpretations of desertion. Drawing on lessons from these trials, this article then highlights gaps in today’s international humanitarian law framework, specifically, the need to take into account the realities of desertion, its different permutations, and the difficulties of differentiating between POWs and deserters.

Michigan journal of international law, 2008

Military spokespeople and upper echelon commanders routinely maintain that wartime atrocities are the acts of a few "bad apples." Yet, while disclaimers of responsibility from higher-ups in the chain of command often beg credulity, the law provides safe harbor for those holding command positions since it is frequently powerless to ensnare anyone but the atrocity's immediate perpetrators. This Article spans international and domestic law, and it addresses one of the doctrinal constraints on holding commanders criminally liable: the doctrine of command responsibility as it applies where commanders fail adequately to investigate or punish atrocities of their troops.As a theoretical matter, there are two ways to respond to such failures: First, the commander may be held responsible solely for dereliction of duty; alternatively, she may be held criminally liable for her subordinates' atrocity. Currently, both domestic and international tribunals have adopted the former ...

1985

2015

This book explores a cross-section of war crimes trials that the Allied powers held against the Japanese in the aftermath of World War II. More than 2,240 trials against some 5,700 suspected war criminals were carried out at 51 separate locations across the Asia Pacific region. This book analyzes fourteen high-profile American, Australian, British, and Philippine trials, including the two subsequent proceedings at Tokyo and the Yamashita trial. By delving into a large body of hitherto underutilized oral and documentary history of the war as contained in the trial records, Yuma Totani illuminates diverse firsthand accounts of the war that were offered by former Japanese and Allied combatants, prisoners of war, and the civilian population. Furthermore, the author makes a systematic inquiry into select trials to shed light on a highly complex - and at times contradictory - legal and jurisprudential legacy of Allied war crimes prosecutions.

The Hidden Histories of War Crimes Trials, 2013

Th e convicted] are called war criminals, but they are not criminals at all. Th ey are all innocent. Th ey committed no crime. You need not feel ashamed. People in other parts of the world, too, are beginning to understand that war crimes trials were mistaken. Judge Radhabinod Pal to families of convicted 'B' and 'C' class war criminals, Fukuoka, 1952 1 Between 1945 and 1951, the Australian military services conducted 300 war crimes trials at Darwin and several island locations in the Asia-Pacifi c region. 2 Th ere were 952 Japanese tried, several appearing in more than one trial. Th e military courts, set up under the War Crimes Act 1945, were presided over by three to fi ve military men, none of them required to have any legal training. 3 A Judge-Advocate could be appointed to assist with legal advice but this was not mandatory. 4 Th e prosecuting offi cer tended to have been a solicitor or a barrister in civilian life subsequently recruited into the Australian Army Legal Corps (AALC). Th e defending offi cer, although sometimes from the AALC, could be Japanese, accustomed to a

University of New South Wales Law Journal

The recently released Brereton Inquiry Report found there was credible evidence to suggest a small number of members of the Australian Defence Force were involved in war crimes in Afghanistan. If the allegations are proven to be true at the required standard of proof, one important legal question is the extent, if any, to which those in command of those who committed the crimes are liable for them. This is the doctrine of command responsibility. The article charts development of the doctrine in international law, explores its controversial and uncertain legal basis, considers its compatibility with fundamental principles of criminal law, and offers some suggestions as to how the relevant statutory provision might be interpreted, in a way that is compatible with international law as well as fundamental aspects of Australian criminal law.

2008

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