The Yamashita Principle, or Why Are Donald Rumsfeld, George Tenet, et al still running around loose?

Redrum Rumsfeld not responsible for Abu Ghraib?
AG Alberto Gonzalez not responsible?
General Ricardo Sanchez not responsible?

Even though the current inquiry included this statement:

"Sanchez and his former top deputy, Maj. Gen. Walter Wojdakowski, were cited in the Kern-Fay-Jones report for failure to "ensure proper staff oversight of detention and interrogation operations" in Iraq, specifically at the Abu Ghraib prison."

Think about that statement as you read this blog I posted in August of 2004 explaining the Yamashita Principle -- and am re-posting today. First some background:

After WWII, Dugout Doug MacArthur ("I shall return ... after the fighting is over.") set up a Court Martial to try Japanese General Tomoyuki Yamashita for war crimes.

Yamashita's combat troops had violated an Open City agreement made for Manila, and Yamashita, left with only clerks and cooks, was unable to stop them from running amok -- and they did credit to that term, "running amok."(Perhaps their standard was "When in the Philippines, live up to the local customs." Not dissing Phillipinos -- the word "Amok" is from the Phillipine Insurrection.)

Cynics and realists believe the real crime was that MacArthur and his family owned property in Manila -- a great deal of property -- and Yamashita's soldiers damaged it. MacArthur put him on trial.

Hear ye, Hear ye:

CASE NO. 21
TRIAL OF GENERAL TOMOYUKI YAMASHITA
UNITED STATES MILITARY COMMISSION, MANILA,
(8TH OCTOBER-7TH DECEMBER, 1945),
AND THE SUPREME COURT OF THE UNITED STATES
(JUDGMENTS DELIVERED ON 4TH FEBRUARY, 1946).

Here's the official language:

Part I

Responsibility of a Military Commander for offences committed by his troops. The sources and nature of the authority to create military commissions to conduct War Crime Trials, Non-applicability in War Crime Trials of the United States Articles of War and of the provisions of the Geneva Convention relating to Judicial Proceedings. Extent of review permissible to the Supreme Court over War Crime Trials.

Tomoyuki Yamashita, formerly Commanding General of the Fourteenth Army Group of the Imperial Japanese Army in the Philippine Islands, was arraigned before a United States Military Commission and charged with unlawfully disregarding and failing to discharge his duty as commander to control the acts of members of his command by permitting them to commit war crimes.

The essence of the case for the Prosecution was that the accused knew or must have known of, and permitted, the widespread crimes committed in the Philippines by troops under his command (which included murder, plunder, devastation, rape, lack of provision for prisoners of war and shooting of guerrillas without trial), and/or that he did not take the steps required of him by international law to find out the state of discipline maintained by his men and the conditions prevailing in the prisoner-of-war and civilian internee camps under his command.

Let's check that charge out again:

...that he did not take the steps required of him by international law to find out the state of discipline maintained by his men and the conditions prevailing in the prisoner-of-war and civilian internee camps under his command.

(An aside -- eyewitnesses have made it clear that some of those POW Rapees were 100+ nurses who were removed from the evacuation vessels and left behind in order to put several valuable grand pianos belonging to the MacArthur family on those LSTs.)

The defense argued, inter alia, that what was alleged against Yamashita did not constitute a war crime, that the Commission was without jurisdiction to try the case, that there was no proof that the accused even knew of the offences which were being perpetrated and that no war crime could therefore be said to have been committed by him, that no kind of plan was discernible in the atrocities committed, and that the conditions under which Yamashita had had to work, caused in large part by the United States military offensive and by guerrilla activities, had prevented him from maintaining any adequate overall supervision even over the acts of such troops in the islands as were actually under his command.

In other words -- "No one told me. I didn't know." OK.

And the verdict? (Some legal language deleted below.)

The Commission sentenced Yamashita to death and its findings and sentence were confirmed by higher military authority. When the matter came before the Supreme Court of the United States ... the majority of that Court, in a judgment delivered by Chief Justice Stone, ruled ... that the offence of which Yamashita was charged constituted a violation of the laws of war, and that the procedural safeguards of the United States Articles of War and of the provisions of the Geneva Prisoners of War Convention relating to Judicial Proceedings had no application to war crime trials.

Yamashita was executed on 23rd February
1946.

***********************

So -- do RedRum Rumsfeld and his Wormtongue advisor AG Gonzalez fit that definition?

I would suggest that all that twisty legal language sent down from the High Place about how to get around the Geneva Convention would suggest they not only set the conditions for it, they also provided the perps with a defense argument in advance.

Here's an opinion from a more contemporary source in Tony Blair land:

The Yamashita Principle

The final topic for discussion is the Yamashita Principle or the Doctrine of Command Responsibility which was discussed on the SNCO and JNCO CLM packages.

This is a well-established principle of the Law of Armed Conflict. It creates the situation whereby an individual in a position of command is responsible for the actions of his subordinates.

From the first sentence we can see that any order given that results in a war-crime being committed renders the person giving the order criminally liable. The second sentence is perhaps not quite so well known. Failing to prevent crimes can also confer criminal liability on the Commander, if he/she knew or had information from which he/she should have concluded that the crime was going to be committed and also if no action was taken against the perpetrator of a war-crime.

Who Does It Apply To?

It applies to all commanders, even after their authority has been delegated. The delegation of command authority can not absolve the commander from his/her responsibility. The theory behind this is that the Commander is responsible for the delegation and the man/woman to whom he/she delegates. He/she should ensure that he/she only delegates to those who can be trusted to adhere to LOAC.

Education

The first thing that a CO must do is show that he/she has ensured that his/her troops are properly trained in the LOAC. The minimum standard is achieved by the completion of ITD(6). However, it is open to the CO to arrange further training to complement the ITD package.

Control and Monitoring

The CO must ensure that the subordinate chain of command is fully aware of the need to control and monitor the actions of their subordinates, and for the prompt, accurate reporting of all incidents that could lead to war-crimes investigations.

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So I say again, why are Rumsfeld and Tenet and Gonzalez and Sanchez still running around free?

Clint Eastwood for AG and Hang 'em High