The Charge of Command Responsibility: an Examination of Command Responsibility in the Post-World War Ii War Crime Trials of Axis Powers

Abstract

Following the Second World War, the Allied Powers conducted a series of ground-breaking war crime trials to seek justice for atrocities committed by Imperial Japan and Nazi Germany. These trials produced the legal doctrine of command responsibility; a principle that addresses a military commander’s accountability for the crimes of their troops, even if they did not order or authorize the commission of the crimes. The legacy of how command responsibility was implemented is significant not only for its first problematic precedent but because of the lessons it holds for current international war crime courts.

This work examines the first Japanese war crime trials that dealt with command responsibility (that of General Yamashita and Lt. General Homma) and contrasts them with two later but comparable German trials (the High Command and Hostage Cases). While scholarship on Japanese war crimes trials has recently burgeoned in the last decade, no close comparison has ever been made between German and Japanese command responsibility cases. Contrasting differences in the trials’ procedures, conviction criteria, and final judgments are vital to achieving a better understanding of the evolution of command responsibility. The present study utilizes trial records, military reports, and war-era accounts to analyze these four trials and examines the possible outcomes of placing the Japanese defendants on trial while applying the conviction criteria used during the German Cases.