Omission Liability for War Crime Charges in International Military Tribunal for The Far East

This essay is published at Issue 1 Vol 4 of International Journal of Law and Legal Jurisprudence Studies :ISSN:2348-8212, available at: Omission Liability for War Crime Charges in International Military Tribunal for The Far East

OmissionnLiability for War Crime Charges in International Military Tribunal for The FarnEast

Xiao Mao*

Abstract:n

This paper focusesnon omission liability for war crimes at International Military Tribunal for thenFar East. The author analyses the legal basis and constitutive elementsnof this forms of individual responsibility at the Tokyo tribunal and arguednthat it is wrong to disregard the contribution of Tokyo IMT in terms ofnomission liability on the grounds that it disrespects criminal principles suchnas principle of legality and personal culpability. Such a kind of individualnresponsibility theory may be considered as a precedent of contemporary superiornresponsibility by nature and also possesses some characteristics of jointncriminal enterprise, and the controversial issues as raised in Tokyo IMT shouldnhave informed contemporary discussions on principles of liability.

1. Introductionn

International Military Tribunal for thenFar East or 『Tokyo International Military Tribunal』 (Tokyo IMT) was establishednin 1946, composed of judges from 11 countries, for the purpose of 『meting outnstern justice』 to Japanese war criminals.[1]n28 defendants, including both military commanders and civilian officials, werenbrought to the tribunal based on charges of crimes against peace, murder,nconventional war crimes and crimes against humanity.[2]nPrevious research showed that the Allied Powers』 policy, which to some extentnshaped the focus of court sessions and following academic research, put toonmuch emphasis on crimes against peace, presently known as crimes of aggression,nwhile making little account of war crimes and related modes of liabilities.[3]nHowever, in terms of crimes against peace, Tokyo IMT followed the line ofnreasoning of the Nuremberg International Military Tribunal and did not makenmuch original development,[4]nwhile it made more creative illustration on the law in relation to principlesnof liability for war crimes. This paper aims to fill the gap in the studies of TokyonIMT by looking into the omission liability for war crime charges. [5]

The contribution of Tokyo IMT is largelynoverlooked by contemporary scholars partly because of the criticism that itndisrespected some basic principles of criminal law, especially principle ofnlegality and personal culpability.[6]nSome even argue that the post-WW II cases should not be taken intonconsideration when proving customary rules of international criminal law owingnto the court』s disrespect with the basic principles of criminal law.[7]nThis is right to some extent, especially with regards to the courts treatmentnof the crimes against peace. However, this essay argues that when it comes tonthe omission liability, Tokyo IMT did not violate the principle of nullum crimen sine lege (or principle ofnlegality) as there already existed such a principle of responsibility inninternational criminal law prior to WW II. Moreover, based on a close analysis ofnthe constitutive elements of the omission liability respectively for military commandersnand civilian governmental officials, it can be demonstrated that the courtnindeed treated seriously with the link between the accused and the physicalnperpetrators and therefore the principle of personal culpability was to a largenextent respected when Tokyo IMT dealt with the accused』s responsibility for warncrimes.

2. WarnCrime Charges and Modes of Individual Responsibility at Tokyo IMT

During World War II, Japanesentroops committed heinous atrocities in Asia-Pacific region, one of the mostnnotorious event being 『Nanking Massacre』 or 『Nanking Rape』, where, according tonthe Majority Judgement, approximately 20,000 cases of rape occurred within thencity during the first month of Japanese occupation and over 200,000 civiliansnand prisoners of war were found to be murdered during the first six weeks ofnoccupation.[8]nDespite of disputes around the exact numbers of victims during the horrible events,nthere was no doubt of the fact that Japanese indeed caused great sufferings toncivilians and prisoners of war during the warfare. Even Pal, the Indian Judge -nfamous for holding that all defendants were not guilty - agreed in hisndissenting opinion that 『the evidence is still overwhelming that atrocitiesnwere perpetrated by the members of Japanese armed forces against the civiliannpopulation of some of territories occupied by them as also against thenprisoners of war』.[9]

Commission of atrocitiesnby Japanese soldiers did not necessarily entail individual liability of thenaccused, who are high-level military and political leaders not present at thenscene of crimes, the judges still need to take consideration into the followingnquestions: whether the atrocities constitute a crime in international law and whethernin international law the accused are criminally liable for such offences,[10]nin other words, whether there was certain form of nexus between the accused andnthe perpetrators who physically carried out murders, rapes and other war crimesnto hold the former responsible for violation of rules of war.

None of the 28 defendants at Tokyo IMTnconducted atrocities personally, the court found some of them guilty for warncrimes based on two charges provided by the prosecution. The first was countn54, which accused those who 『ordered, authorized and permitted』 the commissionnof war crimes. [11]nBut this charge can at most convict denjure or de facto superiors whonhave the authority to order, authorize and permit commission of war crimes andncan be proved to do so. But it is found by historians that before thenoccupation of Japan by the Allied Powers, Japanese government had intentionallyndestroyed many military records which otherwise might be used to prove thenorder, authorization and permission of war crimes.[12]nThe challenges brought about by lack of military records that could be used tonprove issuance of orders and the desire to convict high-level perpetrators gavenrise to count 55, which was devised by the prosecution to charge the accusednfor their omission. Civilian officials such as Hirota and Shigemitsu, whonserved as foreign ministers when the crimes were committed, and some militaryncommanders such as Matsui, were found guilty by the court based on count 55 onnthe grounds that they 『deliberately and recklessly disregarded their legal dutynto take adequate steps to secure the observance and prevent breaches [of law ofnwar]』.[13]nThe principle of liability used in count 55, which resembles contemporaryndoctrine of superior responsibility was referred to as 『negative criminality』,n『negative responsibility』 or 『responsibility for omission』 by some commentators. [14]nDifferent from many contemporary authors who directly use the modern termn『command responsibility』, in this essay, I will use the term 『omissionnliability』 to refer to the principle of liability as envisaged in count 55 ofnthe Indictment, considering that the nature of it is not quite clear as it maynbe considered as a precedent of contemporary superior responsibility by nature,[15]nbut it also possesses some of the characteristics of a joint criminalnenterprise.[16]

However, some authorsncriticized that there existed no international law criminalizing superiors』 omissionsnat World War II and only positive offenses sufficed, and therefore Tokyo IMT』snconviction of officials, especially civilians, for their omissions constituted ex post facto law, violating thenprinciple of legality.[17]nThe following part of the essay will argue against this criticism by analyzingnthe legal basis of omission liability at Tokyo IMT.

3. LegalnBasis of Omission Liability for War Crimes at Tokyo IMT

Although the Charter ofnTokyo IMT is silent on the omission liability, it was agreed by the majoritynjudges that the applicable law of the tribunal is international (criminal) law.nEven the dissenting Judge Pal was willing to accept this.[18]nTherefore, the court must find that there existed a violation of law of war bynvirtue of a failure to prevent atrocities.[19]nThe sources of international criminal law in post-WW II cases were summarizednin the judgment of Hostage case asnfollows: (1) customs and practices accepted by civilized nations generally, (2)ntreaties, conventions and other forms of inter-state agreements, (3) thendecisions of international tribunals, (4) the decisions of national tribunalsndealing with international questions, (5) the opinions of qualified textnwriters, and (6) diplomatic papers.[20]

At the trial, thenprosecution listed a number of articles in the Fourth Hague Regulation of 1907nand 1929 Geneva Conventions on Prisoners of War as a legal basis to convictnboth military and civilian Japanese leaders for violations of law of war. Fornexample, Article 4 of 1907 Hague Regulation stipulates that 『prisoners of Warnare in the power of the hostile Government, but not of the individuals or corpsnwho capture them』. Article 7 provides that 『the Government into whose handsnprisoners of war have fallen is charged with their maintenance』.[21]n1929 Geneva Conventions on Prisoners of War contains similar articles. [22]nThe prosecution interpreted these articles as that the government as a whole isnprimarily responsible for prevention of breaches of these laws of war. Thusnevery member in the cabinet and their supervisors, and every high officer innthe chain of command have the duty to ensure their observance, the violation ofnwhich can lead to individual criminal responsibility.[23]

The defense contested thenapplicability of these two treaties, particularly the 1929 Geneva Convention,nwhich was not ratified by Japan. In relation to the Hague Convention, Japan wasnbound by it, but the defense argued that the 『all-participation clause』 in Articlen2 of the Hague Convention requires that the convention can be applicable onlynif all the belligerents are parties to the Convention. Considering that annumber of enemy states were not parties to it, the Hague Convention should not apply.[24]

The majority judgment followednthe prosecution』s line of reasoning, finding Japan should be bound by thenarticles because both the rules in Hague Convention and Geneva Convention werencustomary rules of international law. They found that:

Thenfact remains that under customary rules of law, acknowledged by all civilizednnations, all prisoners of war and civilian internees must be given humanentreatment. It is grossly inhume treatment by the Japanese military forces asnreferred to in this part of the judgment that is particularly reprehensible andncriminal.[25]

Like Nuremberg Tribunal』snjudgment, Tokyo tribunal also accepted that the relevant Hague rules werencustomary.[26]nThis holding is right and can be supported by a lot of state practice andndomestic cases before and during World War II.[27]nIt also proved to be highly influential, and was cited by many following cases.[28]

However, it remains anproblem whether the rules of customary law as codified by the Hague Regulationsnand the 1929 Geneva Convention, which were intended to impose statenresponsibility,could be appliednto hold individuals criminally responsible. [29]nIndividual criminal responsibility is not a function of state responsibilitynfor the breach of a treaty binding on that state. It arises from the violationnby an individual of an international legal obligation imposing upon him or her.[30]nTherefore, a better interpretation of the majority opinion would be that alongnwith the rules imposing state responsibility as codified in Hague Regulationsnand the Geneva Convention, there existed customary rules of individual criminalnresponsibility with similar contents on the duty to prevent war crimes. Thencustomary status of individual omission liability could be supported by some internationalninstruments and cases before World War II.

The moral ideas that ansuperior is responsible to prevent his subordinates from misbehaviors date backnto hundreds of years ago, as can be found in the writings of Sun-zi andnGrotius.[31]nBut as a matter of positive law, it is only until early 20th century that thenlegal doctrine emerged that superiors should be held criminally responsible ifnthey fail to ensure the obedience by their subordinates of rules of war.

The Commission on the Responsibility ofnthe Authors of War and on Enforcement of Penalties appointed at the Paris Peace Conference by the victorious allies in thenFirst World War, submitted a 『Report presented to the preliminarynpeace conference』, recommended prosecution of the following individuals:

All authorities,ncivil or military, belonging to enemy countries, however high their positionnmay have been, without distinction of rank, including the heads of state whonordered, or, with knowledge thereof and with power to intervene, abstained from preventing or taking measuresnto prevent, putting an end to, or repressing, violations of the laws or customsnof war.[32]

Although the recommendation was opposednby American and Japanese members of the Commission who argued for a strict applicationnof criminal principles and narrowing down the scope of responsibility,[33]nthe report nonetheless reflects the consensus by the majority of internationalncommunity to impose omission liability for war crimes on individuals.

Omission liabilitynalready existed in domestic cases enforcing international humanitarian lawnafter World War I. Emil Muller casenis such an example. During World War I, Captain Emil Muller was in chargenof a German Prisoners of War Camp at Flavy-le-Martel. In 1921, the GermannSupreme Court found Muller guilty on the ground that he saw the incident ofnprisoners of war being harshly rebuked by his subordinates but did nothing to stopnit. The tribunal held that 『it is to be assumed that the accused at leastntolerated and approved of this brutal treatment, even if it was not done on hisnorders』.[34]

It is also anwell-established principle in domestic criminal law that liability may arisenfrom omission as well as commission, as can be found in many domesticnlegislation and cases. French Ordinancenof 18 August 1944, for example, provides that superiors who tolerated thencriminal acts of their subordinates are equally responsible.[35]nCommon law also recognizes omission liability on the part of military superiors.nIn Franz Schonfield case, the JudgenAdvocate made the following remarks:

InnEnglish law, a person can be held responsible in law for the commission ofncriminal offences committed by others, if he employs them or orders them to actncontrary to law. He would, in such circumstances, be criminally responsible fornthe crimes of his employees whether he was present or not at their commission.nCriminal responsibility might also arise, in the case of a person occupying anposition of authority, through culpable negligence…[36]

The notion omissionnliability for war crimes can also be found in academic writings during World WarnII. Professor Glueck in his treaties on 『War Criminals, theirnProsecution and Punishment』 published in September 1944 defines 『war criminals』nas includes 『persons – regardless of military or political rank – who, … havingnknowledge that such acts [in violation of law of war] were about to bencommitted, and possessing the duty and power to prevent then, have failed to donso.」[37]

Therefore, although therenmaybe doubt about the exact scope of omission liability for war crimes, thenexistence of such a legal doctrine before Tokyo trial was by no meansnproblematical. In this sense, the principle of legality was respected innrelation to IMT』s treatment of omission liability .

4. Principlenof Personal Culpability and Constitutive Elements of Omission Liability at Tokyo IMT

Tokyo IMT, like variousnother international criminal courts and tribunals, lay great importance on prosecutingnleaders. Those who were charged at Tokyo IMT were tagged as 「Class A」 warncriminals, which denotes that they should be most responsible for internationalncrimes.[38]nThis is because that only by prosecuting leaders can the collective nature ofninternational crimes be fully captured.[39]nBut addressing the collective context is only half of the picture ofninternational criminal responsibility. There is also an emphasis by modernninternational criminal courts and tribunals on the principle of personalnculpability, a maximum of both international criminal law and domestic criminalnlaw which proposes that nobody may be heldncriminally responsible for acts in which he has not personally engaged.[40]

As is noted by somenscholars, there exists a tension between capturing the collective nature ofninternational crimes and focusing on individual responsibility.[41]nSuch a tension can also be found at Tokyo IMT, where the desire to capture thenwhole picture of atrocities committed by Japanese forces seems to outweigh thenneed to prove personal responsibility, which gives rise to much criticism. Thisncan be shown by the fact that only about 5% of the Majority Judgment deals withnindividual responsibilities of the accused while the rest is left forndescribing the acts of aggression and the atrocities.[42]nHowever, through analysis of the constitutive elements of omission liability as reflected in the Majority Judgment in lightnof the arguments of the prosecution and defence, as well as the minority judges』nopinions, it can be demonstrated that the conviction of the military commandersnfor war crimes was to a large extent consistent with the principle of personalnculpability. As for the conviction of civilian governmental officials for warncrimes, opinions among judges vary and a final conclusion cannot easily be drawnnon the legitimacy of the tribunal』s conviction of civilian officials, thenquestion of which remains highly controversial in contemporary courts andntribunals. This will be illustrated by studying cases against military commandersnand civilian officials respectively.

4.1 The Case AgainstnMilitary Superiors

The case against militarynsuperiors in Tokyo IMT is considered a precedent of modern superiornresponsibility. Contemporary jurisprudence listed three elements for superiornresponsibility, namely:

(i)nthe existence of a superior-subordinate relationship;

(ii)nthe superior knew or had reason to know that the criminal act was about to benor had been committed; and

(iii)nthe superior failed to take the necessary and reasonable measures to preventnthe criminal act or punish the perpetrator thereof.[43]

Considering that thenthird element is dependent on the first and second element,[44]nhere we will only focus on the analysis of the first and second element. As cannbe demonstrated by making a comparison between the law applied at Tokyo IMT andncontemporary jurisprudence, the nexus between superior and subordinate by thenformer is no less stringent than the latter, as both require de facto superior-subordinatenrelationship and an approach based on circumstantial evidence towards mens rea.

4.1.1Superior-subordinatenrelationship

It may be argued that Tokyo IMT cases attachednmuch importance to ade jure position rather than a de facto position of the accused, while thenlatter of which is the decisive factor in contemporary jurisprudence.[45]nSome argued that the superior-subordinate relationship is taken for grantednwhen the accused is a military officer in post-world II cases. Thus, thenofficial position in the state hierarchy was enough for the accused to havensuperior-subordinate relationship over those who physically committedninternational crimes.[46]

At a first glance, thenlaw applied by the judgment seems to only focus on the de jure position and takes it for granted that the responsibilitynfor prisoners shall be rested on:

(1)nMember of the government;

(2)nMilitary or naval officers in command of formation having prisoners in theirnpossession;

(3)nOfficials in these departments which were concerned with the well-being ofnprisoners;

(4)nOfficials, whether civilian, military or navel, having direct and immediatencontrol of prisoners.[47]

The judgment held thatnthe above positions shall have the duty to ensure proper treatment of prisonersnand to prevent ill-treatment, the violation of which would incur individualnresponsibility based on count 55.

However, it is argued innthis essay that the decisive factor in determination of superior-subordinatenrelationship in Tokyo IMT was not the denjure position, but rather the denfactor position, which in the words of the Majority Judgment is 『in anposition to influence policy』.[48]nThis can be demonstrated through the transcripts of proceedings, as well as bothnmajority and minority opinions at Tokyo IMT.

The requirement of a de facto authority can be found in thenconviction of Akira Muto, an officer on the Staff of Matsui from 1937 and Julyn1938 during which period the Nanking Massacre was committed. The de jure position as a military officernin the state hierarchy appears to make Muto responsible for war crimes innNanking. But in the opinion of the Majority Judgement, at that time Muto was inna subordinate position and could not take steps to stop the atrocities. Byncontrast, in 1944 when he became Chief-of-Staff to Yamashita in the Philippines,nhis position allows him to 『influence policy』. He shares responsibility for thengross breaches of the laws of war in Philippines.[49]nThe decisive factor here is not the denjure position held by Muto but whether he actually has the ability toninfluence policy, which is analogous to contemporary requirement of 「effectivencontrol」.[50]

The requirement of the de facto authority to prevent andnrepress atrocities can also be seen during the debate in the court sessions. Duringnthe court debate, both the prosecution and the defendant put much emphasis onnwhether General Matsui actually have the ability to prevent or repress thenatrocities committed in Nanking. General Matsui was the Commander-in-Chief ofnthe Central China Area Army which was responsible for the Nanking fall.[51]nHe was held criminally responsible for not taking effective measures to abatenthe atrocities committed by Japanese soldiers against civilians in Nanking andnwas sentenced to death solely based on this conviction.[52]

In the cross-examination,nthe prosecution focused on proving that Matsui actually had the power tonprevent and punish war crimes. Here are some excerpts from the transcripts ofnproceedings on the power of General Matsui to enforce discipline of the troops undernhis command:

Q:nYou were the Commander-in-Chief of the Central China Area Army, were you not?

A:Yes.

Q:nAre you suggesting to this Tribunal that power of command did not carry with itnthe power to enforce discipline on the troops under your command?

A:nAs Commander-in-Chief of the Central China Area Army I was given the power toncommand operations of the two subordinate armies under my command, but I didnnot have the authority directly to handle the discipline and morals withinnthese respective armies.

……

Q:nAnd that is because there is an army commander in the units under your command,nand you carry out disciplinary measures through your army commander?

A:nI, myself, did not have the authority to take disciplinary measures, or to holdncourt-martial, such authority resided in the commander of the army or thendivision commander.

Q:nBut you could order a court-martial to be held either in the army or in thendivision?

A:nI had no legal right to issue such an order.

Q:nWell, then, how do you explain your efforts to show that you ordered severenpunishment meted out to the guilty for the outrages in Nanking, and that youndid everything in your power as Commander of the Central China Area Army tongive severe punishment to the guilty.

A:nI had no authority except to express my desires as over-all Commander-in-Chiefnto the commander of the army under my command and the divisional commandersnthereunder.[53]

As can be demonstrated innthe transcripts, Matsui argued that his denjure position as commander-in-chief does not necessarily entail his de facto authority to ensure thenobedience of law of war by subordinates, the de facto authority of which resided in divisional commandersnthereunder. The defendant therefore argued that Matsui was not directlynresponsible for the maintenance of discipline and therefore shall not be heldnguilty for the war crimes committed by his subordinates.

It was also argued bynJudge Pal in his dissenting opinion that the superiors has the duty to take suchnmeasures as were within his power to control the troops under his command. Butnonly de jure position is not enoughnto hold the accused criminally responsible, he argued that:

Wenmust not forget the actual area of operation of the army and the normal machinerynprovided wherewith the commander or the commander-in-chief is expected tonexercise this control and on the proper functioning of which he is entitled tonrely in this respect.[54]

To conclude, despite ofnthe controversies on the factual determination as to whether Matsui actually hadnthe authority directly to prevent or punish the soldiers who physicallynperpetrated the war crimes, it is a consensus among prosecutors, defendants andnthe majority and minority judges that the denjure position held by the accused merely provides prima facie evidence with regards to the superior-subordinatenrelationship, what is more decisive is whether the accused actually have thenability to prevent or repress the crimes. Even under contemporary law onncommand responsibility, Matsui might still be held responsible based on commandnresponsibility, regardless of whether he has direct authority for thenmaintenance of discipline or not. Contemporary law on command responsibility asndeveloped by the jurisprudence of the adnhoc international criminal tribunals takes a broad interpretation of 『commission of a crime by subordinates』 which includes allnmodes of liability[55] and even includes failure to preventnor punish;[56]nit also takes a broad interpretation of 『subordinates』 which include those whonare not directly subordinate to the superior.[57]nAs was found by the Chinese domestic court dealing with the war crimesncommitted in Nanking, there existed a joint criminal enterprise amongndivisional commanders to commit atrocities against Chinese civilians.[58]nIf evaluated under contemporary law, General Matsui at least shall be heldnresponsible for failure to prevent or punish the divisional commanders fromncommitting the war crimes by participating the joint criminal enterprise.

4.1.2 Mentalnelements

The mental elements of omissionnliability applied by Tokyo IMT represents an improvement in terms of respectingnthe principle of personal culpability than that applied by its predecessor, Yamashita case, which is considered bynmany as the first case applying command responsibility.[59]nIn the latter case, the American military commission considered by many asnapplying a 『strict liability』 test, namely, the commanders knowledge of thencrimes was presumed from the official position held by General Yamashita.[60]nAs a comparison, the test applied at Tokyo IMT is that the superior knew ornshould have known the commission of the crimes, which were proved throughndirect or circumstantial evidence.

The 『should have known』ntest was considered by Tokyo IMT as to mean 『a duty to know』. The MajoritynJudgement imposed a duty on the accused to acquire the knowledge that crimesnwere being committed, and the accused may be held guilty if he is at fault innhaving failed to acquire such knowledge.[61]nThe accused shall not be excused solely based on the fact that he receivednassurances that the crimes won』t happen again, he still has a duty to makenfurther enquiry as to whether those assurances were true or not.[62]nThe superiors also have the duty to infer from prior crimes that such crimesnmight occur again.[63]nIn practice, Tokyo IMT usually inferred that the accused actually havenknowledge about the commission of war crimes through examining circumstantialnevidence. For example, the knowledge by General Matsui was proved by the factnthat he was in Nanking in 5 days when the crimes occurred and the crimesncommitted were in such a large scale, therefore he must have learned the warncrimes either through his personal observance or through reports of his staff.[64]

In short, at least fromnthe perspective of military superior』s omission liability, the TokyonIMT represents an improvement in terms of the principle of personalnculpability. The law applied by Tokyo IMT put particular emphasis on the nexusnbetween the accused and the lower-level perpetrators and require not only de jure position but also de facto ability on the part of thenaccused to prevent and repress the crimes. As to the mental elements, Tokyo IMTnrequires personal knowledge and duty of the accused to know the commission ofncrimes. Despite of some controversies on the factual determination, the lawnapplied by the Tokyo IMT is no less stringent than that of today.

4.2 The Case against Civilian Officials

ThenMajority Judgement of Tokyo IMT held seven defendants, of whom three werencivilian officials, responsible for failure to take adequate steps to securenthe observance of law of war in respect of prisoners of war and civilianninternees. The principle of liability applied by Tokyo IMT to link the civiliannofficials to war crimes was usually referred to as 『cabinet responsibility』.[65]nThe constitutive elements of this responsibility can be summarized as follows:

1) The person wasna member of cabinet, 『even though the department of which he has the charge isnnot directly concerned with the care of prisoners』.[66]

2) The person 『hadnknowledge that such crimes were being committed, and having such knowledge theynfailed to take such steps as were within their power to prevent the commissionnof such crimes in the future』, or he was 『at fault in having railed to acquirensuch knowledge』.[67]

3) The personnomitted or failed to 『secure the taking of measures to prevent the commissionnof such crimes in the future, he elects to continue as a member of thenCabinet』.[68]

Koki Hirota, who servednas Japanese foreign minister during 1937-8, was found responsible for failurento put an end to the atrocities at Nanking in December 1937 and January andnFebruary 1938. As Foreign Minister, he discussed the reports of thesenatrocities with War Ministry in early stages of this terrific massacre and gotnassurances from the War Ministry that the atrocities would be stopped. He knewnthat the assurances were not being implemented but he was still content to relynon them, and the atrocities continued for at least a month. Tokyo IMT opinednthat 『Hirota was derelict in his duty in not insisting before the Cabinet thatnimmediate action be taken to put an end to the atrocities, failing any othernaction open to him to bring about the same result.』[69]nHe was therefore sentenced to death.

Another case wasnconcerning Mamoru Shigemitsu, who was Foreign Minister from April 1943 to Apriln1945. He received protests after protests from Protecting Powers onnmistreatment of prisoners of war and other behaviors violating laws of war innrelation to protection of prisoners of war thus he was aware of the commissionnof war crimes. The tribunal was of the opinion that as a member of Cabinet, henwas responsible of the welfare of prisoners of war. He took no measures to haventhe matter investigated. The majority judgment held that 『he should havenpressed the matter, if necessary to the point of resigning, in order to quitnhimself of a responsibility which he suspected was not being discharged』.[70]nIn mitigation of sentence, the tribunal takes into account that 『the militaryncompletely controlled Japan while he was Foreign Minister, so that it wouldnhave required great resolution for any Japanese to condemn them』, and thereforenonly sentenced him to seven years,[71]nwhich is the lowest sentence given to the accused in Tokyo IMT.

The tribunal alsonacquitted some civilian officials for war crime charges, including TogonShigenori, Kido Koichi and Kaya Okinori. The tribunal found that Togo Shigenorinin his first term as Foreign Minister had taken appropriate measures to ensurenthe observance of law of war, as he passed on such protests as came to him forninvestigation, and in several instances remedial measures were taken.[72]nAs for Kido Koichi, during the war against the Western Powers in 1941 andnthereafter, his position (as Lord Keeper of the Privy Seal) was such that hencannot be held responsible for the atrocities committed.[73]nKaya Okinori, as Finance Minister, was acquitted from war crimes for becausenthere was no evidence.[74]

The cases againstncivilian officials were subject to much controversy in the minority opinions ofnjudges. The Indian Judge Pal was the only one among the 11 judges of Tokyo IMTnwho claimed that all of the defendants to be innocent. His dissenting opinionnwas more than 1,000 pages and was published soon after he came back to India.nHe did not deny the existence of the atrocities committed by Japanese,[75]nand accepted that liability might arise from omission as well as commission,[76]nbut he held that civilian cabinet members should not be found guilty for theirnomission. In his dissenting opinion, he argued that:

Asnmembers of the government, it was not their duty to control the troops in thenfield, nor was it within their power so to control them. The commanding officernwas a responsible personage of high rank. The members of the government werencertainly entitled to rely on the competency of such high-ranking officers innthis respect.[77]

Dutch Judge R?lingnbelieved that Tokyo IMT marked a big step forward in upholding omission liability,nand some provisions in 1907 Hague Regulations and 1929 Geneva Conventions cannserve as the legal basis for it, but he thought the tribunal went too far withnrespect to the cases of civilian officials.[78]nIn his separate opinion, R?ling held that the omission liability is a verynrestrictive one. To hold an official criminally responsible for certain actsnwhich he himself did not order or permit, following conditions should benfulfilled:

1. That he knew,nor should have known of the acts.

2. That he had thenpower to prevent the acts.

3. The he had thenduty to prevent these acts.[79]

R?ling admitted thatncabinet members can be held responsible for omission, but stressed that thenduty to prevent unlawful acts should not be extended to every member of thencabinet, especially the cases regarding foreign ministers. He held they couldnnot have done more than informing the Minister of Warfare. 『They could notncommunicate directly with the commanders in the field. Their possibility fornaction was restricted by the system in which they fulfilled their functions』[80],nthus they did not have the power to prevent the acts. R?ling also doubtednwhether these civilian officials had the duty to prevent violations of rules ofnwar. He held that there was a division of labor in Japanese government, andnonly very limited departments, such as War and Navy Ministers, Home Ministry,nMinistry of Overseas Affairs, had the duty to care prisoners of war and civilianndetainees, which implies that civilian officials such as Foreign Minister shouldnnot be held responsible for failure to prevent acts violating laws of war.

President Webb』s judgmentncan also help in illustrating the law applied in the cases against civiliannofficials. The well-known president opinion written by the Australian Judge wasnactually an outline of the full-version of his 『Judgment of the President』, butnthe latter was neither submitted or published. Professor Cohen wrote an articlento introduce this full version and Webb』s opinions on principles of liability.[81]nThe major difference between Webb』s full-version judgment and the Majority Judgmentnis that the latter was mainly about responsibility of state in relation tonaggression and only around 5% of it deals with individual liabilities, whilennearly 60% of Webb』s unpublished judgment is about responsibilities ofnindividuals. Had the 『Judgement of the President』 been published, the criticismnon that Tokyo IMT disrespects the principle of personal culpability might havenbeen abated.

Webb discussed his theorynof omission liability in detail in his draft judgment, which requires not only thenaccused』s official positions and their failure to take actions, but also thatnthe accused knew, or had information sufficient to put them on inquiry notice,nthe commission of war crimes. [82]nHe also mentioned, that in order to put an end to the atrocities, civiliannofficials such as Tojo Hideki or Koki Hirota should make protests or petitionsnto the emperor of Japan, and if necessary, trigger a crisis in the Japanesengovernment. They should be responsible for the war crimes as they knew ornshould have known the commission of war crimes but failed to take possiblenmeasures within their power to stop the crimes. Webb also insisted that thenemperor of Japan has the most supreme authority in Japan to make decisionsnregarding peace and war,[83] thus he believed that the civil officialsnhave the duty to report the atrocities to the cabinet or even to emperornHirohito for the purpose of preventing or repressing war crimes. He also agreednwith the strict duty of resign imposed by the majority opinion to cabinetnmembers like Shigemitsu.[84]

Generally speaking, the case againstncivilian officials is more controversial than that against military officials.nThe main problem lies in the factual determination of whether the civiliannofficials being charged actually have the denfacto authority to prevent or punish international crimes. Despite such controversies,nthe conviction of civilian officials was common in post-war cases.[85]nThe 『cabinet responsibility』 put more emphasis on horizontal relationshipnbetween cabinet members rather than vertical relationship between superiors andnsubordinates. Therefore, some argued that Tokyo IMT』s cabinet responsibilitynhad better be seen as a form of joint criminal enterprise.[86]nThe case against civilian superiors also demonstrates the difficulty inndetermining the superior-subordinate relationship with regards to superiorsnother than military commanders, which remains problematic today. The AppealsnChamber of International Military Tribunal for Rwanda has held that theneffective control that must be established in respect of a civilian superior isnnot necessarily the same as that exercised by a military commander.[87]nArticle 28 of Rome Statute also distinguishes the requirement ofnsuperior-subordinate for military superiors and civilian superior respectively.[88]nIt was not the purpose of this essay to give any great answers to the difficultnissues on responsibility of civilian officials. The point is more to show thatnthese problems are far from new: they were already present in the Tokyo IMT,nespecially in the separate and dissenting opinions. Had a greater degree ofninterest been shown in them after the event, the discussion could have startednfurther ahead than it did when the statutes of ICTY, ICTR and Rome Statute werenbeing drafted.[89]nThere was considerable discussions in the Tokyo IMT that should have informednlater discussion on command responsibility. Sadly, as can be seen, it did not.Conclusion

Thencontroversies on omission liability demonstrate the tension inherent inninternational criminal law as between the need to capture the collective naturenof international crimes and the focuses on individual criminality. The majoritynjudgment put more attention on the collective crimes while the discussion onnindividual criminality is relatively less. But this does not mean that the courtndoes not care much about the basic principles of criminal law. As is reflectednby the law applied by Tokyo IMT, its respect of the principle of legality andnpersonal culpability at Tokyo IMT is, if no better than, at least the same as manynother international criminal courts. However, Tokyo IMT』s contributions andndiscussions were overlooked when similar issues arose in ICTY, ICTR and ICC. Tonoverlook Tokyo IMT based on the ground that it disregards basic principles ofncriminal law was unfair given the fact that many other controversial cases suchnas Yamashita case, notorious fornfailure to respect personal culpability, are still cited frequently.[90]nTokyo IMT, established based on the proclamation of a joint organ of states, isnan international criminal court[91]nand therefore its judgment, by definition, represents internationallynauthoritative, albeit not necessarily conclusive statements as to the contentnand existence of omission liability for war crimes and should not be given less attention thanndecisions of municipal courts (such as Yamashita case, and those cases heard bynNuremberg Military Tribunal established under Control Council Law No. 10), thenlatter of which constitute no more than state practice and opinio juris on the part of the forum states.[92]nHistory repeats itself. The lessons learned from Tokyo IMT, good or bad, shouldnand should have informed latter discussion of international criminal law.

* LLM candidate at University College London, UKn[xiao.mao.16@ucl.ac.uk], LLB at KoGuan Law School of Shanghai Jiao TongnUniversity, China; Part-time researcher at Center for Tokyo Trial Studies ofnShanghai Jiao Tong University, China.

[1] 『Proclamation DefiningnTerms for Japanese Surrender, July 26, 1945』 (Potsdam Declaration), in NeilnBoister and Robert Cryer (eds), Documentsnon the Tokyo International Military Tribunal: Charter, Indictment and Judgmentsn(OUP, 2008) 1.

[2] 『Indictment,nInternational Military Tribunal for the Far East』 (Indictment), in Neil Boisternand Robert Cryer (eds), Documents on thenTokyo International Military Tribunal: Charter, Indictment and Judgments (OUP,n2008)16-33.

[3] Tuma Totani, The casenagainst the Accused, in Yuki Tanaka, Tim McCormack and Gerry Simpson (eds) Beyond Victors Justice? The Tokyo WarnCrimes Trial Revisited (Martinus Nijhoff, 2010) 147. See also Robert Cryer,nHakan Friman, Darryl Robinson et al.,nAn Introduction to International CriminalnLaw and Procedure (2

nd

edn, Cambridge University Press, 2010)n116.

[4] The majority judgmentnheld that 「In view of the fact that in all material respects the Charters ofnthis Tribunal and the Nuremberg Tribunal are identical, this Tribunal prefersnto express its unqualified adherence to the relevant opinions of the NurembergnTribunal rather than by reasoning the matters anew in somewhat differentnlanguage to open the door to controversy by way of conflicting interpretationsnof the two statements of opinions.」 See 『Majority Judgment』, in Neil Boisternand Robert Cryer (eds), Documents on thenTokyo International Military Tribunal: Charter, Indictment and Judgmentsn(OUP, 2008) 81.

[5] There have recentlynbeen some articles on modes of liabilities applied at Tokyo IMT. See fornexample, T. Totani (n 3) 147-61; Gideon Boas, 『Command Responsibility for thenFailure to Stop Atrocities: The Legacy of the Tokyo Trial』, in Yuki Tanaka, TimnMcCormack and Gerry Simpson (eds) BeyondnVictors Justice? The Tokyo War Crimes Trial Revisited (Martinus Nijhoff,n2010) 163-73; Neil Boister and Robert Cryer, The Tokyo International Military Tribunal: AnReappraisal (Oxford University Press, 2008) 206-37; Yuma Totani, The Tokyo War Crimes Trial: The Pursuit ofnJustice in the Wake of World War II (Harvard University Press, 2008) 105-50;nDaivdnCohen, 『The Draft 「Presidents Judgment」 of Sir William Webb at the IMTFE』, in東京審判研究中心Dongjing shen pan yannjiu zhong xin (ed), 東京審判再討論nDongjing shenpan zai tao lun (Shanghai Jiao Tong UniversitynPress, 2015) 100-12.

[6] Kenneth S. Gallant, The Principle of Legality in Internationalnand Comparative Criminal Law (Cambridge University Press 2009) 139.

[7] Barrie Sander, 『Unravelling the Confusion ConcerningnSuccessor Superior Responsibility in the ICTY Jurisprudence』 (2010) 23 Leiden Journal International Law 130.

[8] Majority Judgment (n 4)n536-7.

[9] Dissenting Opinion ofnthe Member from India (Justice Pal), in Neil Boister and Robert Cryer (eds), Documents on the Tokyo InternationalnMilitary Tribunal: Charter, Indictment and Judgments (OUP, 2008) 1343.

[10] Ibid, 1339-40.

[11] Indictment (n 2) 32.

[12] Y. Totani (n 3) 155.

[13] Indictment (n 2) 33.

[14] B.V. A R?lingnand Antonio Cassese, The Tokyo Trial and Beyond (Polity Press,n1993) 70; Richard H.nMinear, Victors Justice - The Tokyo War Crimes Trial (Princeton UniversitynPress, 1973) 67; IMTFE, 『Opinion of Mr. Justice R?ling Member for thenNetherlands』 (Opinion of Justice R?ling) 54, <Legal Tools record: Opinion of Mr. Justice Roling Member for the Netherlands (United States of America et al. v. Araki Sadao et al.)> accessed 27 Mayn2016.

[15] According tonCassese, the doctrine of superior responsibility emerged in its modern form asna discrete and important type of omission liability in the post-war case law. AntonionCassese, International Criminal Law(2ndnedn, Oxford University Press, 2003) 200.

[16]Neil Boister and RobertnCryer (n 5) 234.

[17] Richard H. Minear (nn14) 67, 72.

[18] Neil Boister and RobertnCryer (n 5) 233.

[19] Opinion of Justice R?ling (n 14) 58.

[20] 『II. The Source ofnInternational Criminal Law』,nUNWCC2.csv:1057, at 5 <Legal Tools record: II. The Source of International Criminal Law>naccessed 30 May 2016.

[21] Hague Conventions IVnRespecting The Laws And Customs Of War On Land ( adopted 18 Oct. 1907, enteredninto force 26 Jan. 1910) 36 Stat. 2277, 1 Bevans 631, 205 Consol. T.S. 277, 3nMartens Nouveau Recueil (ser. 3) 461, arts 4, 7, 10-12.

[22] Convention relative tonthe Treatment of Prisoners of War (adopted 27 July 1929, entered into force 19nJune 1931) 118 L.N.T.S. 343, arts 2, 4 and 77.

[23] IMTFE, Transcripts, pp.n40111-40113, <東京審判-庭審記錄庫 - 中國國家數字圖書館> accessed on 27 May 2016.

[24] IMTFE, Transcripts, pp.n42481, 40015-40016, <東京審判-庭審記錄庫 - 中國國家數字圖書館> accessed on 27 May 2016.

[25] 『Majority Judgment』,n49719-20, in Neil Boister and Robert Cryer (n 4) 578.

[26] 『Majority Judgment』,n48500-502, in Neil Boister and Robert Cryer (n 4) 105-6.

[27] See Ex partenQuirin, 317 U.S. 1 (1942); Trialnof Nazi Criminals, 『Their Accomplices and Abettors, No. 81, Verdict of thenMilitary Tribunal in the Case of Atrocities Committed by German-FascistnInvaders in the City of Kharkov and Kharkov Region During Their TemporarynOccupation』, 15-18 December 1943, <: Kharkov trial Dec 1943 ? Axis History Forum> accessed on 1 Junen2016; Arieh J. Kochavi, Prelude to Nuremberg: Allied War Crimes Policy and the Question ofnPunishment (University of NorthnCarolina Press, 1998), 71, 72–73,ncited in Kenneth S. Gallant, ThenPrinciple of Legality in International and Comparative Criminal Law, (CambridgenUniversity Press, 2009) 70.

[28]The Prosecutor v Delalic, Delic, Mucic and Land?o (Trial Judgment) IT-96–21-Tn(16 November 1998) para 315.

[29] Actually, it was notnuntil the 1993 Statute of International Military Tribunal for Yugoslavian(article 3) and 1998 Rome State (article 8(2)) that the international communitynformally codified the rules in Hague Regulations as rules applicable fornindividual criminality. See William A. Schabas, An Introduction to thenInternational Criminal Court (4

th

edn, Cambridge UniversitynPress, 2011) 2.

[30] Roger O』Keefe, International Criminal Law (Oxford UniversitynPress, 2015) 79.

[31] Sun Tzu, The Art of War, trans. S. Griffithn(1963), 125, cited in W. H. Parks, 『Command Responsibility for War Crimes』,n(1973) 62 Military Law Review 1, atn3: 『when troops flee, are insubordinate, distressed, collapse in disorder, ornare routed, it is the fault of the general. None of these disorders can benattributed to natural causes』; H. Grotius, DenJure Belli ac Pacis: Libri Tres (1625), cited in Gideon Boas, James L.nBischoff, and Natalie L. Reid., Forms ofnResponsibility in International Criminal Law (Cambridge University Press,n2007) 145: 『[C]ommunity, or its rulers, may be held responsible for the crimenof a subject if they know of it and do not prevent it when they could andnshould prevent it』.

[32] 『Commission on the Responsibility of the Authors of the War and onnEnforcement of Penalties』, 14 AmericannJournal of International Law 95 (1920) 121.

[33] ibid 152. The Americannmembers stressed that the responsibility for omission should only be appliednunder the satisfactions of the following conditions: knowledge of the facts,npower to act, and command responsibility.

[34] 『German War Trials:nJudgment in the Case of Emil Muller』, 30 May 1921, 16 The American Journal of International Law 14, (1922) 685, 691.

[35] See IliasnBantekas, Principles of Direct and Superior Responsibility innInternational Law (Manchester University Press, 2002) 96.

[36] Case No. 66 (Trial ofnFranz Schonfield and Nine Others) , United Nations War Crimes Commissionn(UNWCC), Vol. XI, pp. 70-71.

[37] Judge Pal, 168, in NeilnBoister and Robert Cryer (eds), Documentsnon the Tokyo International Military Tribunal: Charter, Indictment and Judgmentsn(OUP, 2008) 879.

[38] Cheng Zhaoqi,nRe-Evaluation of Iwane Matsuis War Guilt: Verification of Testimony on thenNanjing Massacre Given by Defendant at the Tokyo War Crimes Trials, 6 Modern Chinese History Studies 4 (2008)n9.

[39]Sliedregt (n 1) 1187.

[40]Prosecutor v. Tadi? (Judgment) ICTY-94-1 (15 July 1999) para. 186.

[41] Gerry Simpson, 『Men andnAbstract Entities: Individual Responsibility and Collective Guilt innInternational Criminal Law』 in Nolkaemper and van den Wilt (eds), System Criminality in International lawn(Cambridge University Press 2009) 71; James G. Stewart, 『The End of 「Modes of Liability」 for International Crimes』 (2012) 25 Leiden Journal Internal Law 165, 167.

[42] Cohen (n 5) 100-12

[43]The Prosecutor v. Muci? et al (Judgment) IT-96-21 (16 November 1998) 346.

[44] Beatrice I Bonafé, 『Finding a Proper Role for Command Responsibility』 (2007)n5 Journal of International Criminal Justice 599, 605

[45]The Prosecutor v. Muci? et al. (Appeal Chamber Judgment) IT-96-21n(8 Feb 2001), para 197; See also O』Keefe (n 29) 202.

[46] Bonafé (n 43) 608.

[47] Majority Judgment,n48444, in Neil Boister and Robert Cryer (n 4) 83.

[48] Majority Judgment,n49820, in Neil Boister and Robert Cryer (n 4) 614.

[49] Majority Judgment,n49820, in Neil Boister and Robert Cryer (n 4) 614.

[50]The Prosecutor v. Delalic et al (Appeal Judgment)nIT-96-21 (20 February 2001) para. 192.

[51] Majority Judgment, innNeil Boister and Robert Cryer (n 4) 1365.

[52] Majority Judgment,n49816, 49856, in Neil Boister and Robert Cryer (n 4). 612, 627.

[53] IMTFE, Transcriptn33873-5, 33,784 -n33,880, <https://www.legal-tools.org/uploads/tx_ltpdb/TR16-319-a_04.pdf>naccessed 12 January 2017.

[54] Judge Pal, 1113, innNeil Boister and Robert Cryer (n 4) 1365.

[55]Prosecutor v.Blagojevi? & Joki? (Judgment) IT-02-60-A (9 May 2007) paras 277-85; Prosecutornv. Ori? (Judgment) IT-03-68 (30 Jun 2006) para 20.

[56]Elies vannSliedregt, 『The Curious Case of International Criminal Liability』 (2012) 10 Journal of International Criminal Justice1181-2.

[57]Ori? (n 53) para 478.

[58] LIU Daqun, The Nanjing Trials-Victors Justice? Revisiting the Case ofnTani Hisao, in Daqun Liu and Binxin Zhang (eds.) Historical War Crimes Trials in Asia (FICHL 2016) 26.

[59]US vs. Yamashita, 327 U.S. 1 (1946), IV LRTWC 1.

[60] But some argued thatnthe mens rea of Yamashita was satisfied which can be proved throughncircumstantial evidence. William H. Parks, 「Command Responsibility for WarnCrimes」, Military Law Review, Vol.n62, 1973, pp. 25, 27-28, 87.

[61] Majority Judgment,n48445, in Neil Boister and Robert Cryer (n 4) 83.

[62] Majority Judgement,n48446, in Neil Boister and Robert Cryer (n 4) 83.

[63] Majority Judgmentn48447, in Neil Boister and Robert Cryer (n 4) 84.

[64] Majority Judgmentn49815, in Neil Boister and Robert Cryer (n 4) 612.

[65] E. van Sliedregt, The Criminal Responsibility of Individualsnfor Violations of International Humanitarian Law (T·M·C·Asser Press, 2003)n208.

[66] Majority Judgment,n48445-6, in Neil Boister and Robert Cryer (n 4) 83-4.

[67] Majority Judgment,n48445-6, in Neil Boister and Robert Cryer (n 4) 83.

[68] Majority Judgment,n48446, in Neil Boister and Robert Cryer (n 4) 84.

[69] Majority Judgment,n49791, in Neil Boister and Robert Cryer (n 4) 604.

[70] Majority Judgment, 49830-2,nin Neil Boister and Robert Cryer (n 4) 618-9.

[71] Ibid.

[72] Majority Judgment,n49842, in Neil Boister and Robert Cryer (n 4) 622.

[73]MajoritynJudgment, 49806, in Neil Boister and Robert Cryer (n 4) 609.

[74] Majority Judgment,n49802, in Neil Boister and Robert Cryer (n 4) 608

[75] Pal, InternationalnMilitary Tribunal for the Far East: Dissentient Judgment of Justice Pal (Kokusho-KankokainInc., 1999) 609.

[76] Ibid, 631.

[77] Ibid, 629.

[78] Antonio Cassese, GuidonAcquaviva, Mary Fan, and Alex Whiting (eds), International Criminal Law：Case&nCommentary (OxfordnUniversity Press, 2011) 432.

[79]IMTFE, Opinion of Mr.nJustice R?ling Member for the Netherlands, p. 59, <Legal Tools record: Opinion of Mr. Justice Roling Member for the Netherlands (United States of America et al. v. Araki Sadao et al.)> accessed 27 Mayn2016.

[80] B.V.A R?ling andnAntonio Cassese, The Tokyo Trial and Beyond (Polity Press, 1993)n74-75.

[81] Cohen (n 5) 100-10.

[82] Ibid, 107.

[83] Ibid, 108.

[84] Ibid, 108-9.

[85] Ibid, 109.

[86] Neil Boister and RobertnCryer (n 5) 234.

[87]The Prosecutor v. Ignance Bagilishema (Appeal Judgment) ICTR-95-1An(3 July 2002) paras 52 and 55; See also O』Keefe (n 30) 203.

[88] Rome Statute of thenInternational Criminal Court (adopted 17 July 1998, entered into force 1 Julyn2002) 2187 UNTS 90 (Rome Statute) art. 28.

[89] Robert Cryter, Commandnresponsibility, the Tokyo Tribunal and modern international criminal law,nin Kirsten Sellars (ed) Trials fornInternational Crimes in Asia (CUP, 2016) 74.

[90] Neil Boister and RobertnCryer (n 5) 3.

[91] O』Keefe (n 30) 89.

[92] Ibid, 110.