The Tokyo Trial’s contribution to humanitarian jurisprudence was the concept of criminal liability for permitting, as distinct from intending, atrocities: this was the “command responsibility” theory.
—British Barrister Geoffrey Robertson
Holding leaders accountable for atrocities committed under their command was a leading argument used during the prosecution of what occurred in Nanjing. Count 55 of the charges at the IMTFE was “deliberately and recklessly disregarded their duty to take adequate steps to prevent atrocities.”
Two Class A defendants, Matsui Iwane and Hirota Koki, and their association with the Nanjing Atrocities were both charged with count 55. When Matsui and Hirota were convicted, Justice Radhabinod Pal was the sole dissenting justice. While Pal did not deny that soldiers had perpetrated crimes against civilians and noncombatants in Nanjing, he did argue that those men were not the men being tried in court, instead the defendants were more senior level officers. He believed the Class A defendants being prosecuted could not be held criminally responsible for what the soldiers had done. Pal also took issue with the idea that military leaders must be expected to always exercise effective control over troops in the field.
However, during the trial, Matsui Iwane, the commander of the Imperial forces occupying Nanjing, revealed knowledge about the atrocities as they were being committed and failure to effectively halt their escalation. He admits he was told of some degree of misbehavior of his Army by the Kempeitai
and by Consular Officials. In fact, daily reports of the atrocities were made to Japanese diplomatic representatives in Nanjing, who, in turn, reported them to Tokyo.
According to his diary entry the day after he entered Nanjing (December 17, 1937), Matsui recalls instructing the chiefs of staff from each division to tighten their military discipline and any soldier’s disdain for the Chinese people. During a memorial service for Chinese soldiers killed in February 1938, Matsui, in fact, emphasized the necessity of putting an end to various reports affecting the prestige of the Japanese troops.
Some have interpreted his remarks as knowledge of atrocities committed by his troops.
On November 24, 1947, prosecuting attorney Henry Nolan questioned Matsui about the responsibility of command:
Matsui: Ordinarily discipline and morals within an army was the responsibility of the Division Commander. The Commander of the Army around the Division Commanders supervised these Division Commanders and maintained the court martial under his jurisdiction. I was above them. I was the Commander then and my Area Army Headquarters had no legal organ nor any military police or gendarmerie under its direct control, and therefore reports were not made to my headquarters or to me directly. It would be more proper to say that the facts were brought to my attention or communicated to me for reference purposes....
Nolan: You said something a moment ago about discipline and morals being the responsibility of a subordinate commander to yourself.
Matsui: The responsibility of the division commander.
Nolan: You were the Commander-in-Chief of the Central China Area Army, were you not?
Nolan: Are you suggesting to this Tribunal that that power of command did not carry with it the power to enforce discipline on the troops under your command?
Matsui: As Commander-in-Chief of the Central China Area Army I was given the power to command operations of the two subordinate armies under my command, but I did not have the authority directly to handle the discipline and morals within these respective armies.
Nolan: No, but you had the power to see that discipline and morals were maintained in the units under your command?
Matsui: It would be better to say, and more correct to say, obligation rather than authority—obligation or duty.
Nolan: Yes. And that is the reason why you summoned your officers in Nanking after your entry and talked to them about disciplinary measures, is it not?
Nolan: So that you are not attempting to say that the power of discipline was not inherent in your command, are you?
Matsui: I do not—I am not trying, nor do I evade all responsibilities in connection with the capture of Nanking as area commander—area army commander—commanding my subordinates. However, I am only trying to tell you that I am not directly responsible for the discipline and morals of the troops under the respective armies under my command.
Nolan: And that is because there is an army commander in the units under your command, and you carry out disciplinary measures through your army commanders?
Matsui: I, myself, did not have the authority to take disciplinary measures, or to hold court-martial, such authority resided in the commander of the army or the division commander.
Nolan: But you could order a court-martial to be held either in the army or in the division?
Matsui: I had no legal right to issue such an order.
Nolan: Well, then, how do you explain your efforts to show that you ordered severe punishment meted out to the guilty of the outrages in Nanking, and that you did everything in your power as Commander of the Central China Area Army to give severe punishment to the guilty?
Matsui: I had no authority except to express my desires as over- all Commander-in-Chief to the commander of the army under my command and the divisional commanders thereunder.
Nolan: And I suppose a general officer commanding expresses his desires to those subordinate to him in the form of orders?
Matsui: No, that would be difficult in the light of law.
The following day Myron Cramer, the sole American judge to preside over the IMTFE, continued the cross-examination:
Acting President [Myron Cramer]: Before you proceed, Brigadier [Matsui], I have a question by a member of the Court. If you had no power to give orders relative to the maintenance of discipline, please explain the last sentence of your affidavit, which I will read to you:
“After entering Nanking on 17 December, I heard about it for the first time, from the commander of the Kempei unit [the Japanese military police organization], and I, at once, ordered every unit to investigate thoroughly and to punish the guilty men.”
How do you explain that statement?
Matsui: I gathered—by that passage I meant to say that I gathered together my subordinate Commanders and commanding officers of the various units and expressed to them my desires in regard to the maintenance of discipline and ordered them to take appropriate measures....
Acting President: But, I thought you testified yesterday that you had no power to give orders.
Matsui: At the time, being Area Commander, I was given authority and power to unify and control the strategy—the joint strategy of the two Armies....Therefore, I could not say that the maintenance of military discipline had no connection with military strategy, and therefore, in so far as the two were interconnected, I thought that I did have the power to interfere in matters relating to military discipline, but in the strict legal sense I did not conceive myself as having the power to give specific orders—orders in de- tail with regard to the maintenance of military discipline, and this remains my belief to the present day.
Matsui Iwane denied that he had “ordered, caused, or permitted” his troops to destroy the city or butcher its population. However, for his involvement with and probable knowledge of the atrocities committed in Nanjing, combined with his failure to act to prevent those atrocities, the Tribunal convicted Matsui of count 55, war crimes, and sentenced him to death by hanging. He was executed on December 23, 1948, at Sugamo Prison in Tokyo at the age of 70. His judgment read:
[Matsui Iwane] organized the wholesale murder of male civilians [that] was conducted with the apparent sanction of the commanders on the pretext that Chinese soldiers had removed their uniforms and were mingling with the population. Groups of Chinese civilians were formed, bound with their hands behind their backs, and marched outside the walls of the city where they were killed in groups by machine gun fire and with bayonets.
Historian Timothy Brook views the case and judgment of Matsui through the following angle:
As commanding officer at the time of the Rape of Nanking, Matsui was too closely associated with the incident, especially in Chinese eyes, to be excused for his part in the incident. Whatever the general had or hadn’t done, and whatever his counsel did or didn’t argue, was unlikely to deflect the IMTFE from holding him responsible for what happened in Nanking. The bench dismissed the first eight of the nine counts against Matsui, holding that he had not conspired to wage crimes against humanity or even to commit atrocities at Nanking (Count 54), but it judged that he was guilty of failing to act in such a way as to prevent their occurrence (Count 55). “The Tribunal is satisfied that Matsui knew what was happening” declared the judgment, showing that the defense of partial knowledge had not worked. But he “did nothing, or nothing effective to abate these horrors. He did issue orders before the capture of the City enjoining propriety of their conduct....These orders were of no effect as is now known, and as he must have known.” Matsui’s knowledge, combined with his failure to act commensurately with that knowledge, amounted to criminal negligence. On this count alone, Matsui was condemned.
Hirota Koki ultimately shared a similar fate with Matsui. He served as minister of foreign affairs from June 1937 to May 1938 and was the only civilian convicted at the Tokyo Trials. However, he was physically never in Nanjing. It was argued that his ministry received information from the Japanese consulate in Nanjing as the atrocities were unfolding and did not intervene strenuously enough with the Army Ministry to halt their escalation. Failing to get an adequate response from the Army Ministry, Hirota should have brought the matters to the higher authorities in the cabinet. He did not. As the verdict states in the final line, “inaction [that] amounted to criminal negligence” is a crime of omission, not of commission. He was never to have alleged to directly order atrocities are war crimes to be commit- ted. He was convicted under Counts 1, 27, and 55 and executed.
His judgment read:
The Tribunal is of the opinion that Hirota was derelict in his duty in not insisting before the Cabinet that immediate action be taken to put an end to the atrocities, failing any other action open to him to bring about the same result. He was content to rely on assurances which he knew were not being implemented while two hundred thousands of murders, violations of women, and other atrocities were being committed daily. His inaction amounted to criminal negligence.
- Justice Radhabinod Pal expressed strong objections to the charges brought against two of the Japanese leaders held responsible for the Nanjing Atrocity arguing that commanding officers should not be held criminally responsible for the actions of soldiers under their command. Do you agree or disagree with his position? If the commanding officer of a specific platoon is not held responsible for the actions of his troops, who should be held accountable?
- Consider what you know about the Nanjing Atrocities. How would you assign responsibility? Which individuals and groups do you hold most responsible? Is there a difference between moral and legal responsibility? What is it?
- Foreign Minister Hirota Koki had never been in Nanjing and yet was executed for failing to stop the atrocities from occurring, “inaction amounting to criminal negligence.” This is a crime of omission not commission. How do you explain why Hirota was singled out?
- Following orders of the commanding officer has been a defense used by soldiers fighting in other wars. On March 16, 1968 during the Vietnam War the My Lai Massacre occurred in My Lai, a small hamlet in the northern part of South Vietnam. Over 300 unarmed civilians, women, children and the elderly were murdered, women raped and the village burned. Word of the massacre did not reach the American public until journalist Seymour Hersh published a series of articles in November 1969 exposing the massacre and the army officers involved.
The 1st platoon leader, Lt. William Calley, was the only officer convicted for the massacre and charged with murder. His defense was that he was following the orders of his direct commanding officer, C Company Commander Ernest Medina, who denied giving orders to kill civilians. Medina was later acquitted of all charges. The prosecution’s theory of command responsibility, or the duty to supervise subordinates and liability to do so, failed. Months later after a perjury charge was no longer viable, Medina admitted he had suppressed evidence and lied to the brigade commander about the number of civilians killed. Who ultimately should be held responsible when war crimes are committed? The commanding officers giving orders or the soldiers following the orders?
- The first war crimes trial after the end of World War II occurred not in Germany, but in Manila five weeks after Japan surrendered in Tokyo. The officer accused of war crimes was General Tomoyuki Yamashita, Commanding General, Fourteenth Area Army, Philippines 1944-1945. One of the most accomplished military leaders in Japan, Yamashita was found guilty and executed for the crimes his soldiers committed. Law Professor Allan Ryan asks,“[C]an a commander be held accountable before the law for the crimes committed by his troops-crimes that inflict agonizing cruelty and death on innocent civilians, including women and children-and yet crimes that he has not ordered, not stood by to allow, and may well not even have known about or had the means to stop?”
Today the command responsibility or command accountability doctrine, sometimes referred to as the Yamashita standards or the Medina standard, states that a commanding officer, being aware of human rights violations or of war crimes committed by his subordinates, will be held criminally liable when he does not take action. Given this standard, what are possible effective actions for a commanding officer to take if soldiers under their command commit human rights abuses or war crimes? What preventative measures can the military take to prevent soldiers from ever committing such crimes? Other than the law, are there other deterrents?