Yamashita's Ghost

War Crimes, MacArthur's Justice, and Command Accountability

Allan A. Ryan

• Publisher: University Press of Kansas
• Year: 2014
• ISBN:
  9780700620555
• Topic: Historia
• Subtopic: Segunda Guerra Mundial

"I don't blame my executioners. I will pray God bless them." So said General Tomoyuki Yamashita, Japan's most accomplished military commander, as he stood on the scaffold in Manila in 1946. His stoic dignity typified the man his U.S. Army defense lawyers had come to deeply respect in the first war crimes trial of World War II. Moments later, he was dead. But had justice been served? Allan A. Ryan reopens the case against Yamashita to illuminate crucial questions and controversies that have surrounded his trial and conviction, but also to deepen our understanding of broader contemporary issues—especially the limits of command accountability.The atrocities of 1944 and 1945 in the Philippines—rape, murder, torture, beheadings, and starvation, the victims often women and children—were horrific. They were committed by Japanese troops as General Douglas MacArthur's army tried to recapture the islands. Yamashita commanded Japan's dispersed and besieged Philippine forces in that final year of the war. But the prosecution conceded that he had neither ordered nor committed these crimes. MacArthur charged him, instead, with the crime—if it was one—of having "failed to control" his troops, and convened a military commission of five American generals, none of them trained in the law. It was the first prosecution in history of a military commander on such a charge. In a turbulent and disturbing trial marked by disregard of the Army's own rules, the generals delivered the verdict they knew MacArthur wanted. Yamashita's lawyers appealed to the U.S. Supreme Court, whose controversial decision upheld the conviction over the passionate dissents of two justices who invoked, for the first time in U.S. legal history, the concept of international human rights.Drawing from the tribunal's transcripts, Ryan vividly chronicles this tragic tale and its personalities. His trenchant analysis of the case's lingering question—should a commander be held accountable for the crimes of his troops, even if he has no knowledge of them—has profound implications for all military commanders.

1

Law and War

The marriage of war and law has always been uneasy. The essence of war, after all, is killing people. War is everywhere accompanied by violence, some necessary to the accomplishment of the objective, some not. Yet war is not supposed to be mere gratuitous violence; it has always been an act of state, a decision made and implemented by political authority to accomplish a public purpose. Sometimes that decision seeks to aggressively control weaker adversaries; sometimes it seeks to defend against such imposition. But whether the decision is wise or unwise, whether we deem the war just or unjust, the distinction between war and violent outlawry lies in the political nature of the decision, the undertaking by the state to wage war using its citizens and public funds. The tension between war and the law arises from what many see as the unnatural union of lethal violence and legal restraint. A “law of war” seems an oxymoron, an ill-suited and perhaps even hypocritical attempt to distinguish among murderous acts.

Telford Taylor, the American deputy prosecutor at the International Military Tribunal at Nuremberg, explained the distinction:

War consists largely of acts that would be criminal if performed in time of peace—killing, wounding, kidnapping, destroying or carrying off other peoples’ property. Such conduct is not regarded as criminal if it takes place in the course of war, because the state of war lays a blanket of immunity over the warriors.

But the area of immunity is not unlimited, and its boundaries are marked by the laws of war. Unless the conduct in question falls within those boundaries, it does not lose the criminal character it would have should it occur in peaceful circumstances. In a literal sense, therefore, the expression “war crime” is a misnomer, for it means an act that remains criminal even though committed in the course of war, because it lies outside the area of immunity prescribed by the laws of war.

But this concept—this rationalization, perhaps—is of relatively recent origin. The Roman Empire and the city-states of ancient Greece, both deeply acquainted with military conquest, gave little thought to war as a subject of secular law. Greece had certain military customs—respecting the sanctity of temples, halting combat during the (Olympic) games, allowing the vanquished to claim their dead from the battleground—and Rome had certain expectations for the conduct of professional soldiers and their generals, but the source of these customs and expectations was tradition, honor, religion, or the expectation of reciprocity, not law as given by secular or political authority. “Inter arma enim silent leges,” wrote Cicero: “In times of war, the law falls silent.”

The idea that war should be subject to law did not emerge in the Western tradition until the late Middle Ages in Europe, and its roots were in both the church and the crown. Here a distinction must be made between two concepts that are often commingled. One is whether a war is indeed “just”—that is, undertaken for a righteous purpose, and only when other means of diplomacy or persuasion have failed. The other is the lawfulness of the combat itself—that is, whether the war is carried out according to accepted standards of behavior, limiting as much as possible the collateral damage to noncombatants: civilians, the wounded, and the soldiers who surrender.

The two are conceptually distinct, even distant. The question of the just war occupied Cicero and other ancients, but in the Middle Ages it became firmly a theological doctrine—what medieval scholars called “jus ad bellum.” God favored only the righteous warriors, and for God to be on one’s side, the war had to be lawfully declared, carried on by the lawful authority of a sovereign prince or king, and, most importantly, dedicated to a rightful purpose—the defense of one’s own lands or the reclamation of lands or a crown wrongfully held by the adversary. Given the confluence of secular and religious authority wielded by sovereigns, it was easy—indeed, inevitable—to cast the justness of going to war as a legal issue.

Nowhere is this more dramatically illustrated than in Shakespeare’s Henry the Fifth, a remarkably accurate portrayal of the tension between law and war in the fifteenth century. The young and restive English king, coveting France, fixates on the denial of the crown to his great-grandmother, a French princess. But he fears that the law in France denies any right of succession through the line of the female, which if true would preclude his claim to recover the crown and strip his ambition of its righteousness. He summons the Archbishop of Canterbury, who, in an elaborate and masterful display of legal analysis, proclaims that the law is invalid—indeed, it has been disregarded repeatedly by French kings, who themselves have inherited the crown from female ancestors.

Shakespeare’s Henry is steely-eyed. “May I with right and conscience make this claim?”

The archbishop, himself covetous of extending his churchly realm, assures Henry that he can, thus giving him a divine cover for his ambitions. “Now are we well resolv’d, and by God’s help / . . . France being ours, we’ll bend it to our awe or break it all to pieces.” Victory, he is sure, “lies all within the will of God, to whom I do appeal and in whose name . . . I am coming on, / To venge me as I may and to put forth / My rightful hand in a well-hallow’d cause.”

This doctrine of the just war is distinct from what became known as jus in bello—the idea that law should restrain the actions of soldiers on the battlefield, restricting their killing to enemy soldiers, leaving the populace undisturbed. That has always been a political doctrine, not an especially theological one. Although it is evident as early as the eleventh century, in a decree that the clergy should be spared the vicissitudes of war, it was not yet fully developed even up to the late Middle Ages. Knights made much of the concept of chivalry, including fair combat when they fought each other for their respective princes in England or France or Germany, but no chivalrous concepts restrained their conduct when they beheaded infidels in the Crusades or pillaged their own countrysides, hiring themselves out to warlords and oligarchs when no prince had need of their services.

As Henry’s army marched through France toward the climactic battle at Agincourt, in Shakespeare’s telling, Henry presides over the hanging of a soldier who stole a chalice from a church, then tells his assembled army, “We would have all such offenders so cut off. And we give express charge that in our marches through the country there be nothing compell’d from the villages, nothing taken but paid for, none of the French upbraided or abused in disdainful language.” Henry’s motivation is not spiritual, but secular, even tactical: “For when lenity and cruelty play for a kingdom,” he advises his troops, “the gentler gamester is the soonest winner.”

And when, in the battle, French soldiers slip behind the English lines and kill the boys who are guarding the army’s supplies, Henry’s lieutenant is outraged: “’Tis expressly against the law of arms,” he cries. Henry too: “I was not angry since I came to France / Until this instant.” Yet this gentle gamester could, and in fact did at Agincourt, order that French prisoners be slain in cold blood, and he sends a warning to the French that if they continue the battle, he will take more prisoners, warning, “We’ll cut the throats of those we have, / And not a man of them that we shall take / Shall taste our mercy.” The slaughter of non-combatants, it seems, was wrong when the other side did it.

In 1648, the Treaties of Westphalia ordained a Europe of nations that gradually displaced a plethora of duchies and kingdoms, and this fostered the growth of the “law of nations,” which we now call international law. By that was meant not a regime of law that transcended national boundaries—that idea of transnational law was still struggling for acceptance in the twentieth century—but rather the law of nations, the law among nations, a means by which nations could deal profitably with each other as equals, adopting common expectations and customs and rules to advance each nation’s parochial and often competitive interests. By agreeing on the sovereignty of the high seas, the safety of neutral nations’ vessels during war, the exchange of ambassadors, and the benefits of trade and commerce among nations, “customary international law”—the unwritten but important practices and expectations that nations voluntarily follow in their dealings with each other—became a way of advancing national interests.

International law never held war to be illegal. It hardly could, given war’s prevalence. It accepted war as a legitimate if sometimes regrettable form of intercourse among nations. In the famous words of Carl von Clausewitz, war is diplomacy—or politics, or policy—carried on through other means.

In this context, the medieval jus in bello—the behavior expected of soldiers in combat—became an important part of customary international law. Two guiding principles emerged. The rule known as distinction reflected a belief that wars should be fought between armies, not between peoples, and required that soldiers distinguish between military objectives and civilian lives and property and confine their arms to the former to the extent possible. But recognizing that war inevitably causes disruption, harm, and death to civilians too, the rule of proportionality required that such collateral damage not exceed the value of the military objective: no widespread destruction in pursuit of a military objective of little value.

In practice these rules were quite elastic, leaving much to the discretion of military commanders. Because they arose from behavior and expectations rather than from positive law, they came to be known as the “customs of war.” They developed gradually and on the battlefield were often ignored. Not until the middle of the nineteenth century did treaties—formal and binding agreements among states—emerge as explicit rules of humanitarian constraints in warfare and take their place with the customs of war to form the international law of war.

The original Geneva Convention in 1864 laid down rules more specific than anything seen so far: In war on land, those who were wounded in action and those taken prisoner were to be treated humanely; and those on the battlefield tending to the wounded were to be immune from hostile action. To signify their protected status, medical attendants were to wear the emblem of a red cross on a white field. The body created to oversee compliance was called the International Committee of the Red Cross. A second Geneva Convention later extended the same principles to warfare at sea.

These Geneva Conventions were among the first multilateral international treaties, and each nation, by ratifying the treaties, took upon itself the obligation to enforce their terms. But there was no semblance of any international means for doing so. Each nation was sovereign; as in all international matters, other nations could ask or plead or bargain or pressure or threaten or even go to war, but no nation could bring another’s soldiers, much less its king, into its courts to answer for violations of the treaties. Instead, each nation pledged in the conventions to make violations crimes under its own laws and to hold accountable, in its own courts, any of its citizens who violated them.

That did not work out very well. Once in a while a government might put its own soldiers on trial for mistreatment of prisoners, for depredations against civilians, or for other crimes in war, but such cases were rare. In 1863, President Abraham Lincoln issued “Instructions for the Government of Armies of the United States in the Field,” known as the Lieber Code after its author Franz Lieber, a German-born professor of law at Columbia University. It was the first actual code of the laws of war meant to govern an army, and it was influential in shaping thought on the subject for decades afterward, but no one was ever actually tried for violating it.

Very occasionally, nations victorious in war, including the United States, haled before its courts the defeated enemy and put them on trial for violations of the law of war. The law that was invoked was not the formal language of the treaties but the customary law of war, those precepts of humane treatment but uncertain boundaries. In 1865, for example, Henry Wirz, the commandant of the Confederacy’s prisoner-of-war camp at Andersonville, Georgia, was tried by the United States for gross mistreatment of U.S. soldiers captured and held there. He was convicted and hanged. But those cases were exceptional (and anyway, the United States considered the Confederacy a rebellion, not a nation). The law of war, though well understood in principle by scholars and sovereigns, rarely found its way into court.

While the Geneva Conventions addressed the treatment of noncombatants, in the latter part of the nineteenth century, there were any number of international conferences designed to go one step further: to regulate the tactics and weapons by which warfare itself could be waged. Several treaties emerged, culminating in the Fourth Hague Convention of 1907, which proclaimed that “the right of belligerents to adopt means of injuring the enemy is not unlimited” and outlawed tactics intended to “kill or wound treacherously,” such as poisoned weapons and “arms, projectiles or material calculated to cause unnecessary suffering.” The Fourth Hague Convention also prohibited the pillaging or other destruction of property not “imperatively demanded by the necessities of war” and the targeting of historical, cultural, or educational sites.

Other treaties followed, on all manner of wartime subjects—treaties banning the dropping of weapons from balloons; treaties requiring that submarines give fair warning to their targets before letting loose the torpedoes. Many of them were ineffectual; others did not survive World War I. But it was only after that Great War, in the proceedings at Paris leading to the Treaty of Versailles, that the international community—the “civilized world” or “league of nations,” as it called itself—seriously discussed what would have been a significant advance: a means by which those who had violated the treaties or the customary laws of war could be called to account in a court of law.

In June 1918, a German submarine had torpedoed the Llandovery Castle, a British hospital ship, off the Irish coast, killing 234 people. The vessel bore a prominent red cross, and there is little doubt that the attack was deliberate. There was common understanding among the victors’ delegates in Paris that such a crime should be punished and that the submarine’s captain should be held accountable. Many also urged that responsibility for these and other wartime misdeeds be carried up the chain of command, even to Kaiser Wilhelm, and that the case go to court.

But just what court was a problem. Proposals for a permanent international court were successfully opposed by the United States, whose embrace of the sovereignty of nations was far too strong to countenance a true international court. Nor would the United States delegation endorse the idea that a victorious nation could bring before its courts the military or political leaders, much less the heads of state, of the vanquished ones.

The conclusion in Paris, therefore, was that the Germans themselves must put on trial those responsible for the sinking of the Llandovery Castle. The resulting proceedings in German courts were, to put it gently, ineffective. The captain of the submarine escaped before trial, and two of his lieutenants, convicted and sentenced to four years’ imprisonment, escaped soon afterward.

The failure of international law at this important juncture was surely due in part to the aversion of German judges to punishing German military officers for acts carried out in a war against Germany’s enemies. But in part it was due to a fundamental difficulty. From the time of its inception in the seventeenth century, international law had been a regime to regulate the conduct of nations, not of men.

The laws that governed war, to the extent they did so at all, were like the laws that governed trade or diplomacy or the high seas: understandings among nations as to how they would conduct their affairs with each other. Even when these understandings were codified and formalized in treaties, as they were at Geneva and The Hague, no one seriously suggested that the treaties were an international criminal code. The idea first broached in Paris—that individuals should be tried and punished in a criminal trial—was a failure, as the Llandovery Castle case showed. Soldiers were accountable only to their own governments, if indeed they were accountable at all.

There was thus a considerable abyss between the international regime of law that had emerged over hundreds of years, the result sometimes of custom and sometimes of treaties, and any actual enforcement of that law. There matters stood when World War II began in 1939, with Germany’s invasion of Poland and its blitzkrieg through Europe, and Japan’s simultaneous attacks two years later on the United States at Pearl Harbor, on Great Britain in Malaya, and on the American commonwealth of the Philippine Islands.

2

Tomoyuki Yamashita

Japan’s war began long before December 7, 1941, the day that it simultaneously attacked Pearl Harbor, Hong Kong, the Philippines, and Malaya. The 1930s were a decade of increasing nationalism, expansionism, and militarism in Japan. It solidified its hold on Manchuria on the Chinese mainland, setting up a puppet government subservient to the Japanese army, while at home a cabal of young military officers attempted to overthrow Japan’s civilian government, setting off a prolonged power struggle between two factions of the army—the Imperial Way movement and the Control movement—each seeking influ...