The trial of the Imperial Japanese Army General Tomoyuki Yamashita was the first of the Far East war crimes trials to follow from World War II and arguably the most contentious. Inherent constitutional, judicial and legal infringements have been focused upon in most subsequent critique and these will be discussed inter alia in this paper. However, those procedural and natural justice concerns, important though they be, distract from the far reaching command responsibility implications of the guilty verdict in the Yamashita case. Whether or not the Military Commission that tried Yamashita held to a doctrine of absolute command responsibility for the military behaviour of subordinates is debatable. What is not debatable is the elastic expansion of command responsibility for malfeasance and misfeasance the Commission determined. In his appeal dissent Murphy J. of the United States Supreme Court frighteningly argued that:

It is this issue of command responsibility, with its concomitant post-war implications, that will be the focus of this paper's argument.

Let's begin with the accused. Who was Tomoyuki Yamashita (1885-1946)? This parvenu, son of a village physician from Japan's smallest island, Shikoku, was to become the Rommel of Emperor Hirohito's group of generals.2 His rivalry with General Hideki Tojo's involvement in the 1936 attempted military coup and leading role in the 1940 Japanese military mission to Germany, background his rise to military eminence.3 Yamashita's blitzkrieg (actually bikekrieg) 25th Army push down the Malayan peninsula in late 1941 took Singapore, Britain's much vaunted citadel of the Far East on 15 February 1942, in fifty-four days that covered 965 kilometres.4 His victory demonstrated successful tactical excellence and command determination over British Imperial numerical superiority. Seventy thousand British Imperial troops were defeated by a Japanese army of 35,000.5

Yamashita's tactical opportunism, German style mix of air, infantry and armour assault, albeit against an enemy oceanically isolated and inferior in air power, secured him the epithet of "the Tiger of Malaya. His triumph was cut short by his personal enemy, Prime Minister Tojo, who sidelined him to a garrison command in Manchukuo (Manchuria), and who issued him with travel orders that prevented a hero's welcome in Japan and disallowed an imperial audience.6 When Tojo was sacked as premier in July 1944 Yamashita was recalled from oblivion, granted a belated Imperial audience, and given command of the 14th Area Army in the Philippines.7

He arrived in the Philippines on 5 October 1944 to take command from General Shigenari Kuroda, a bureaucrat already showing incapability of leadership against MacArthur's expected invasion of Leyte, an invasion that began on 20 October 1944. Yamashita inherited a mare's nest. In preparation for his return to the Philippines General Douglas MacArthur had encouraged Filipino guerrilla activity increasingly since the surrender of 6 May 1942. Immediately before the invasion of Leyte, and thereafter, guerrilla activity exploded, with ambushes, assassinations, bombings and blockade of roads.8 The Kempeitai (security police) were hard pressed to maintain control, especially in Manila.9

To add to Yamashita's immediate problems his superior, Field Marshal Count Hisaichi Terauchi, romantically and unrealistically believed that the United States invasion of the Philippines was "the providential moment" that would allow the destruction of America's land forces in an open battle.10 In addition, United States air dominance and continuous bombardment, Japanese loss of control of sea approaches, Japanese army - navy conflict over defence strategy, lack of an experienced general staff, insufficiency of troops in quantity and quality, food shortages, and command isolation from the front, posed grave difficulties for command and control.11 Yamashita of necessity decided upon a strategy of counter-attack and delay. He preferred attritional guerrilla warfare in the mountains to Terauchi's open battle in the plains.12

In December 1944 Yamashita gave up the defence of Leyte and concentrated his efforts on the defence of the main island of Luzon.13 He divided his army into three battle groups, each responsible for its own sector (and each sector soon to be isolated from the others by the effectiveness of the United States assault). Yamashita commanded the Shobu group (152,000 troops) in the mountains north of Manila; Lt.Gen. Shizuo Yokoyama commanded the Shimbu group (80,000 troops) in the mountains south and east of Manila. Maj.Gen. Rikichi Tsukada commanded the Kembu group (30,000) on the Bataan peninsula. Yokoyama's command included Manila.

Yamashita had no wish to defend Manila. Its only military value was its harbour installations and with their destruction he was content to declare Manila an open city. Unbeknown to Yamashita, Rear Admiral Sanji Iwabuchi, 31st Naval Special Base Force commander, interpreted the words in his orders 'operational control' to mean he would co-operate with the army while carrying out his own naval agenda. Iwabuchi began to build defences in Manila and when Yamashita discovered this and ordered him to retreat from the city Iwabuchi was unable to comply. By this time United States forces had cut off Manila and the admiral could not break out. In Iwabuchi's battle of desperation that followed his naval force engaged in an orgy of rape, torture and murder of a civilian population for which Yamashita would be held legally accountable. It is estimated that 8,000 civilians were killed and at least five hundred women raped during this period.14

MacArthur's superior forces increasingly isolated the Japanese defensive groups during early 1945. By July 1945 Yamashita and his headquarters staff were confined to 'hit and run' actions in the mountains. On 3 September 1945, on reception of orders implementing the 15 August surrender of Japan, Yamashita became a prisoner-of-war.15

Now, as the saying goes, 'the plot thickens'. To Yamashita's surprise and horror the general was served on 26 September 1945 with a generic charge of war crimes. General MacArthur, upon winning full control of the Philippines, had created a War Crimes Board to investigate allegations of military misconduct during the Japanese occupation and the allied counter invasion. Yamashita was to be tried before a Military Commission.16 Despite some argument to the contrary at Yamashita's trial it was agreed, later with the dissenting appeal judges (Murphy J. and Rutledge J.) in agreement, that an Act of Congress sanctioned the creation of military tribunals for the trial of offences against the laws of war committed by enemy combatants, although at issue during the trial and the consequential appeal was whether military justice should remain in place to allow a military trial after the cessation of hostilities.17

The charge facing General Yamashita was that

Five officers of general rank formed the commission. The five were Maj. Gen. Russell B. Reynolds, Maj. Gen. Clarence Sturdevant, Maj. Gen. James Lester, Brig. Gen. William Walker and Brig. Gen. Egbert Bullene, none of these being of the same rank as Yamashita who was a full general. (It is customary for officers to be tried by their peers and in this case Yamashita was not). Arraignment followed on 8 October whereon the petitioner pleaded not guilty. Yamashita was served with a bill of particulars alleging sixty-four crimes by troops under his command. A supplementary bill alleging fifty-nine war additional crimes by his troops was filed on the first day of trial with no continuance being allowed to the army appointed legally qualified defending officers.19

The prosecution attempted to convince the court that General Yamashita had responsibility for the actions of those who had committed violations of the law of war in the Philippines, and that he had failed to exercise his responsibility to discover who ordered and committed the crimes, or had failed to punish the perpetrators. During the hearing the prosecution presented over 423 exhibits for analysis and evaluation, amongst them official documents from both the United States and Japanese military, photographs, motion picture film, and newspaper accounts of atrocities. Over 280 people gave evidence in support of the prosecution case. The commission was left in no doubt that the crimes committed were both extensive and horrific. The execution of priests in their churches, machine gunning of communities, beheading or burning alive of prisoners of war, of torture, rape and necrophilia, were part of a grim recital.

Philip R. Piccigallo captures the horror and prosecution tactic of the trial:

Evidence was presented to show that the crimes were so extensive and widespread, both in time and in area, that Yamashita must have ordered them or had secretly ordered them to be committed. Communications were captured from subordinate officers to Yamashita and were presented as proof that they had ordered acts that had directly led to the extermination of civilians albeit under the guise of eliminating the activities of guerrillas.21 The prosecution also presented evidence supporting the claim of criminal neglect. This specifically related to a lack of food and medical supplies for civilian internees and prisoners of war.

Of the 123 offences in the bills of particular one case will suffice to indicate the problem relating to command responsibility, the case of massacre in Batangas Province. It was argued by the prosecution:

Here the issue is only actionable if an extreme high command responsibility is accepted. Batangas Province was under the jurisdiction of General Yokoyama's Shimbu group, and under the delegated command of a Colonel Fujishiga. In this province guerrilla activity was prolific and on his own authority Fujishiga decided that all Filipino must now be regarded as enemies, and ordered attacks upon the civilian population on the argument of his responsibility to maintain law and order. No evidence was brought of Yamashita's knowledge of this crime. Indeed, the prosecution's argument was that Yamashita's responsibility for each and every offence was not as a personal perpetrator, not as a planner and issuer of commands, but as the overall army commander responsible for his troops' good conduct.

It is a fundamental axiom of the judicial system that there is no crime without a law (Nullum crimen sine lege ). What laws were cited by the prosecution in the Yamashita case? The Hague Convention of 1907 (land warfare) and the Geneva Red Cross Convention of 1929, were the primary acts against which Yamashita was tried. The 1907 variant of the Hague convention insists that for an armed force to be lawful it must "be commanded by a person responsible for his subordinates", and article 48 requires the commander of occupied territory to "take all measures in his power to restore, to ensure, as far as possible, public order and safety while respecting, unless absolutely prevented, the laws in force in the country".23

Similarly, the Geneva Convention for the amelioration of the condition of the wounded and sick in armies in the field (1929) states that military authorities will be responsible for the application of the convention by their subordinates. This 1929 Geneva Convention also had particular application to the Yamashita case in that it stated that "sentence may be pronounced against a prisoner of war only by the same court and according to the same procedure as in the case of persons belonging to the armed forces of the detaining power".24

The defence rebuttal, with few exceptions, did not deny the atrocities evidenced. Its concern was one of linkage. The prosecution, it was claimed, must link Yamashita directly to the crime. He must at the least know of the crimes commission and if in knowledge he must be in a position to stop the crime and/or punish its perpetrators. It was vigorously contended that the very success of United States military operations in the Philippines prevented the general, by a breakdown of communication, command and control, from a knowledge of criminal behaviour by his subordinates, and even on those occasions wherein knowledge was in existence, he was in no position to act.25

The defence case was straight forward and was centred upon an insistence that the defendant was not legally responsible for those war crimes committed. Evidence was given by senior Japanese officer prisoners, including Lt.Gen. Akira Muto, his chief of staff, of Yamashita's orders for 'fairness' in occupation contact with the Filipinos.26

The defendant took the stand, and with dignity and eloquence, summarised his position:

Throughout the case the bench was badgered by MacArthur's headquarters to quicken its pace, follow a pattern of quick fire military justice by minimising court procedures, and allow hearsay evidence. Significantly, the court brought down its verdict of guilty on the anniversary of Pearl Harbour, 7 December 1945, and sentenced the accused to death.28 General Douglas MacArthur, as supreme commander, after a review by his judge advocates department, approved both the commission's findings and its sentence.29 A defence application, to the Philippines Supreme Court for habeas corpus was declined and application was thereafter made to the United States Supreme Court for review.30

Before the United States Supreme Court the appellant's attorneys argued that the military commission that had tried Yamashita was without jurisdiction: this being so because neither martial law, military government, nor active hostilities, were at the time of its sitting a reality in the Philippines. It was also contended that the accused, a surrendered Japanese general, was ipso facto a prisoner of war, and that the neutral protecting power, Switzerland, had not been informed of his arrest and trial - a neglect that nullified proceedings.31

The Supreme Court denied habeas corpus, by a vote of six to two, upholding the military commission's authority and procedures, and specifically holding that all military commanders were legally required to control their subordinates and that a breach of duty was a punishable violation of the laws of war.32 The Supreme Court did not consider the factual guilt or innocence of the accused, but considered the legal issue alone of the commission's authority.

Two of the learned appellant judges dissented. Infringement of a constitutional protection was basic to Murphy J's dissent. The learned judge denied that a military commission could prevent the fifth Constitution's amendment's guarantee of due process of law. Murphy J. opined:

Murphy J. went on to warn of victor's vengeance, of the need to understand the reality of war, to note the absence of any personal charge against the petitioner, and argued strongly that "to use the very inefficiency and disorganisation created by the victorious forces as the primary basis for condemning officers of the defeated army bears no resemblance to justice or to military reality".

Rutledge J. added to the argument that the petitioner had not received a fair trial; and regarded the charge of "failing to take action" as a legal novelty. Rutledge J. and Murphy J. acknowledged collusion in the creation of their dissents with Rutledge J. stating his confinement of issue to a denial of proper preparation of defence opportunity for the appellant and insufficiency of evidence for a true guilty verdict. Vagueness, perhaps vacuity, ran through the proceedings, Rutledge J. opined. His requirement of proof of knowledge of the crimes and proof of specification in the bills was not met and he argued that the process followed departed "from the whole British-American tradition of common law and the constitution".34 He concludes with Thomas Paine's admonition:

Since General Yamashita's execution there has been a humane and realistic move away from the acceptance of his judgement as precedent. Two cases provide clear evidence of this. The first is the United States military tribunal trial in Germany of General Field Marshal Wilhelm von Leebs in the "high command" case of 1948. General Field Marshal von Leebs, and others, were charged with the implementation of Hitler's "Commissar order", which instructed Wehrmacht forces to kill captured Soviet political officers. They were also charged with implementing the "Barbarossa order" that denied prisoner-of-war status to, and allowed the execution of, captured Soviet military.

Von Leebs was found guilty of one count of implementing the "Barbarossa order" and was sentenced to three years penal servitude.36 He was otherwise acquitted. The bench admitted the decentralised nature of modern warfare with its concomitant disallowal of high command knowledge of many subordinate actions. It was further held that the prosecution must accept the burden of proof of direct linkage of responsibility, that the "should have known" standard (imposed by the Yamashita trial commission "was unacceptable and not sufficient proof of actual knowledge. Crime must be evident".37

The second counter to the Yamashita precedent was provided by the United States itself. Murphy J. and Rutledge J. were justified by the notorious My Lai affair in their charge that United States military justice was not even handed. Captain Ernest Medina, commander of Charlie Company, First Division, Second Infantry, was placed on trial by court martial in 1971, on charges relating to inadequate control of his company in Vietnam in 1968. Lieutenant William Calley's platoon, in a raid on the hamlet of My Lai in Vietnam, slaughtered hundreds of civilians. Old women and children in a temple were murdered and eighty civilians were pulled from their homes to be executed.38 As Calley's company commander Medina was charged with responsibility in that he owed a "continuing duty to control the activities of his subordinates". Medina argued that he was unaware of the atrocities until it was too late to intervene.

Colonel Kenneth Howard, the military judge, gave instructions to the court that were pertinent. He required actual knowledge plus a wrongful failure to act, if the case was to be proved:

The High Command case and the Medina court martial disallow the Yamashita precedent, and set on record that mere imputation of knowledge is judicially unacceptable.

Given judicial dissatisfaction with the Yamashita precedent and ruling it is not surprising that in 1977 an international delegation commissioned to amend the 1949 Geneva Convention addressed specifically the doctrine of command responsibility. Surprisingly United States delegates attempted to opt for a "should have known" formula. They suggested as one amendment - "that superior commanders knew or should have known that he was committing or would commit such a breach and if they did not take measures within their power to prevent or repress the breach" that responsibility was proven. This reversion to the Yamashita decision was certainly at variance with the verdict on Medina. Finally, the delegates decided upon a compromise resolution:

Gaining a conviction under this new legislation would almost certainly be difficult. As one reviewer has recently suggested:

Certainly the commander is not going to admit the knowledge. Moreover, the only persons that would be in a position to know for certain whether the commander had knowledge are his immediate subordinates. Certainly, they will not be quick to implicate their commanding officer. All these factors make proving knowledge extremely difficult if not impossible.41

Subsequently, in June and July 1998, a United Nations Diplomatic Convention on the Creation of an International Criminal Court (ICC) was held in Rome. While the jurisdiction of this permanent court is dependent upon sovereign state acceptance of its authority at last a world judicial authority exists that will prevent the association of War Crimes trials with "Victor's Justice". Under Article 28 (Responsibility of commanders and other superiors) commanding officers "shall be criminally responsible for crimes committed by forces under his or her effective command and control". Knowledge of actual crime, or of intent, must be proved, and a responsibility to "take all necessary and reasonable measures to prevent or repress or to submit the matter to the competent authorities for investigation and prosecution" is basic to the determination of guilt. The repetition of the term "reasonable" allows for proved dislocation of command; a reality of modern warfare.

Conclusion

World War II war crimes charges are now mercifully coming to a close through natural attrition, but as long as there are wars, and alas, there always will be, atrocities will occur. Although the "imputation" reference in the 1977 protocol is still disadvantageous to those accused of war crimes, Yamashita may well have accomplished more for humanity by his trial and execution than by his military career. Rejection of "victor's justice" and totally imputed guilt has given birth to international tribunals composed of neutral judges and a more level legal playing field for both accused and accuser. With the expansion of command responsibility that began with the trial of Yamashita those accused of war crimes in Bosnia and Rwanda, if actually finally brought to trial, can be sure that war criminality is not a privilege of rank.

It has not been this paper's purpose to decide whether General Yamashita did or did not commit war crimes in the Philippines by deliberate act or by aquiescence. That question can remain at the bar of history. William H. Parks convincingly argues, on evidence, that Yamashita ordered two thousand executions.42 Richard Lael counters with the argument that the comparative few executions in Yamashita's sector demonstrates the general's correctness in his behaviour to Filipino civilians.43 It is, of course, possible that Yamashita's signature on two thousand execution orders would not evidence illegal killings. Nuremberg accepted Hague IV (1907) with its requirement that the inhabitants of occupied territories refrain from action against the occupier, and allowed hostage taking and execution for the murder of occupying troops.44 Historically, the case of MacArthur v. Yamashita can best be left to that old Scots law verdict of 'not proven'.

Historical actuality is not the issue. Throughout, the concerns have been twofold: the linking of senior command with subordinate war criminality and the burden of proof. With regard the former the novelty of the Yamashita case is that where previously command responsibility for subordinate misdoings stopped at field rank, here it was for the first time extended to a general. Should not, on this premise, the Australian demand for Emperor Hirohito's indictment have been speedy and proper.45 There is little doubt that the emperor knew, or should have known, of the Manchurian incident, of the rape of Nanking, the Burma railroad and the biological experiments in Manchuria.46 And had the allies lost the war could not General Curtis Lemay have been arraigned for the fire bombings of Japan's cities and "Bomber" Harris for his attacks on Dresden?47 And what of Hiroshima and Nagasaki?

In the best of all possible worlds where neutral judges in an international court weigh guilt and innocence, could not any President, Prime Minister, Admiral, General or Air Marshal, find him or herself in jeopardy for acts of war perpetrated by practitioners who have been taught the animal skills of battle? Until now the warlords of victorious states have been immune from trial, but what if the old Roman law maxim was enforced: Quod licet jovi non licet bovi (what is lawful for the victors is not unlawful for the vanquished).

The second issue, that of burden of proof, grows in urgency as the distance between the perpetrators and senior officers increases. What was at issue in the Philippines trial was whether it was the Military Commission's responsibility to prove Yamashita's knowing responsibility for the heinous crimes undoubtedly committed. Imputed knowledge was the king pin of the prosecution's case. 'He is the army commander. He must know what is happening in his army, and knowing he could punish and stop and prevent'.

The ordered propriety of the Philippines court room where the case was argued was at total variance with the chaotic, dislocated, disfunctional, command and control structures of Yamashita's army during the unrelenting aerial bombardments of only a few months before. Then, Yamashita's twenty-four hour a day priority was to bring some order out of chaos, to delay MacArthur's push to the Home Islands as long as he could. Realistically, he would have had neither time nor interest for anything else. It is remarkable, and to his credit, if he did, as his aide, General Muto witnessed, provide some ground rules for decent behaviour toward the civilian population. It is to his credit that he ordered a withdrawal of Japanese forces from Manila. But at the best these would be mitigating factors had he been precisely linked with actual war crimes.

The case proceedings, without variance, show that the prosecution did not make that link. Assumption, imputation, loose association, and unproven accusation, are the hallmarks of the prosecution case. At its worst the Yamashita trial demonstrates victor's vengeance with no credit to General Douglas MacArthur whose imperial triumph required, as it had in ancient Rome, the strangulation of the vanquished leader. At its best it is uneven justice, rough justice, and the best of Anglo Saxon fair play is absent. Murphy J.'s unpopular plea that the United Stated Fifth Amendment is there to give fair trial to all at the bench of United States justice was disregarded.

Proof of actual knowledge and proof of freedom of action to redress wrong were absent. Instead, a "should have known" basis for judgement became a "must have known", and the defendant's denial was rejected with contempt - for after all he was Japanese! Rutledge J. did not go too far when of the Yamashita trial he opined that it was "the worst in the Supreme CourtÕs history, not even barring Dred Scott".48

End Notes

1. 327 US.1; 66S.Ct.340; 1946 US Lexis 3090; 90L Ed.499 US66.

2. There are two popular published biographies of Yamashita: Barker, A; Yamashita (1973) and Potter, J; A Soldier Must Hang The Biography of an Oriental General (1963). See also "Tomoyuki Yamashita" in Edwin P. Hoyte, Three Military Leaders (1993).

3. Tojo, Hideki (1884-1948). Army Minister (1940-44) and Prime Minister of Japan (1941-44). In the army's factional struggles of the 1930s Tojo belonged to the control faction (Toseiha). See Shillony, A. Politics and Culture in Wartime Japan (1981).

4. Allen L; Singapore 1941-42 (1977) McIntyre, W; The Rise and Fall of the Singapore Naval Base, 1919-1944 (1979).

5. For an informative Japanese perspective see Tsuji, M; Singapore 1941-42; A Japanese Version (1960).

6. Dear I.C.B. (ed); The Oxford Companion to the Second World War (1995) 1292.

7. Ibid.

8. Connaughton, R; Pinlott, J. and Anderson, D; The Battle for Manila (1995) 46, 65-66.

9. See José, Ricardo T; The Japanese Occupation of the Philippines: Sources and Directions (1988); and Willoughby, C.A; The Guerrilla Resistance Movement in the Philippines 1941-1945 (1972).

10. Connaughton, R. et al; op.cit; 184.

11. This situation is acknowledged in United States battle reports used in evidence before the military commission.

12. Muto, Lt.Gen. Akira; "Muto Memoirs". G-2, GHQFEC, translations, II (Washington DC 1948).

13. Yamashita lost 80,000 troops in the defence of Leyte. See Breuer, W; Retaking the Philippines (1986).

14. Crowe, C.N; "Command responsibility in the former Yugoslavia: the chances of successful prosecution". 29 U Rich.L.Rev. 191, 113.

15. Report by XIV Corps (HQ 6th Army, 1 July 1945).

16. Lael, R.L; The Yamashita Precedent: War Crimes and Command Responsibility (1982).

17. The military commission was established by General MacArthurÕs special order 110 (1 October 1945, para. 24). Fairman, Charles; "The Supreme Court in military jurisdiction: martial rule in Hawaii and the Yamashita case". Harvard L. Rev; LIX, 833-1209. I am indebted to my student Tanya Lund for her unpublished manuscript on this issue.

18. Supra n 1.

19. Winer, F.B; "Comment: the years of MacArthur, vol. III: MacArthur unjustifiably accused of meeting out "victory justice" in war crimes cases". 149 Mil.L.Rev. 293.

20. 29 Picciagalo, PR; The Japanese in Truth: Allied War Crimes Operational, 1945-51, 51.

21. Supra n 19.

22. Hague Convention (IV) respecting the laws and customs of war on land. See Reisman, W.M. and Antoniou, T; The Laws of War (1994).

23. Geneva Convention relative to the treatment of prisoners of war (1929).

24. Landrum, Bruce D; "The Yamashita war crimes trial: command responsibility then and now", 149 MilL.Rev. 293, 64.

25. Muto, op.cit.

26. In re Yamashita 327 US 1 (1946). See Lael, op.cit., 94.

27. Ward I. The Killer they Called a God (1992) 131.

28. 327 US1 In re Yamashita, Supreme Court of the United States.

29. Ibid.

30. Ibid.

31. Ibid.

32. Ibid.

33. Ibid.

34. Ibid.

35. Taylor, Telford, The Anatomy of the Nuremberg Trials (1992), 17. At Park W.H; "Command responsibility for war crimes", 62 MilLRev.1, 25 (1973).

36. The "Barbarossa order" followed from Operation Barbarossa, Hitler's invasion of the USSR that began on 22 June 1940.

37. International Military Tribunal, Trial of the Major War Criminals Before the International Military Tribunal, Nuremberg, 14 November 1945 Ñ 1 October 1946, 42 vols. (Nuremberg, 1947) 7.

38. Goldstein, Joseph et al; The My Lai Massacre and its cover up: Beyond the Reach of Law? (1976) 29-395.

39. 29 U.Rich.L.Rev.191, 222,135.

40. Ibid, 137.

41. Ibid, 139.

42. Parks, W.H; "Command Responsibility for War Crimes". 62 Mil.L.Rev 1. 25 (1973).

It should be noted that the British wished to extradite Yamashita for trial in Malaya. See Montgomery, Brian, Shenton of Singapore: Governor Prisoner of War (Singapore 1964) and Kirby, W; Singapore: The Chain of Disaster (1971) 250.

43. Lael, R.L; The Yamashita Precedent: War Crimes and Command Responsibility (New York, 1982) 130-32.

44. Friedman, L. (ed); The Law of War II (New York, 1972).

45. Röling, B. VA; and Cassase, A; The Tokyo Trial and Beyond (Oxford, 1973) 40.

46. Gluck, et al; Showa: The Japan of Hirohito (New York, 1992) 15-16 and 37-38.

47. Lemay, Maj.Gen. Curtis E. (1906-90). Commander of USAAF's 21st Bomber Command, raiding Japan from the Marianas

Harris, Air Chief Marshal Sir Arthur (1892-1984) C-in-C. RAF Bomber Command from 1942-1945.

48. Re Yamashita, 327 US1 (1946). In the Dred Scott decision of March 1857 the US Supreme Court refused to allow an escaped Negro slave relief, holding he was not a citizen and was not entitled to justice in a federal court.

Bibliography

US Case Law

327 US.1; 66S.Ct.340; 1946 US Lexis 3090; 90L Ed.499 US66.

In re Yamashita 327 US 1 (1946).

Books

Allen, L., Singapore 1941-42 (1977)

Barker, A., Yamashita (1973).

Breuer, W; Retaking the Philippines (1986).

Connaughton, R., Pinlott, J. and Anderson, D., The Battle for Manila (1995).

Dear, I.C.B. (ed.), The Oxford Companion to the Second World War (1995).

Friedman, L. (ed); The Law of War II (New York, 1972).

Gluck, et al; Showa: The Japan of Hirohito (New York, 1992).

Goldstein, Joseph et al; The My Lai Massacre and its cover up: Beyond the Reach of Law? (1976)

Hoyte, Edwin P., "Tomoyuki Yamashita" Three Military Leaders (1993).

International Military Tribunal, Trial of the Major War Criminals Before the International Military Tribunal, Nuremberg, 14 November 1945 Ñ 1 October 1946, 42 vols. (Nuremberg, 1947).

José, Ricardo T; The Japanese Occupation of the Philippines: Sources and Directions (1988).

Kirby, W; Singapore: The Chain of Disaster (1971)

Lael, R.L; The Yamashita Precedent: War Crimes and Command Responsibility (New York, 1982).

McIntyre, W., The Rise and Fall of the Singapore Naval Base, 1919-1944 (1979).

Montgomery, Brian, Shenton of Singapore: Governor Prisoner of War (Singapore 1964)

Muto, Lt. Gen. Akira., "Muto Memoirs". G-2, GHQFEC, translations, II (Washington DC 1948).

Picciagalo, PR; The Japanese in Truth: Allied War Crimes Operational, 1945-51.

Potter, J., A Soldier Must Hang : The Biography of an Oriental General (1963).

Reisman, W.M. and Antoniou, T; The Laws of War (1994).

Röling, B. VA; and Cassase, A., The Tokyo Trial and Beyond (Oxford, 1973).

Shillony, A., Politics and Culture in Wartime Japan (1981).

Taylor, Telford, The Anatomy of the Nuremberg Trials (1992).

Tsuji, M., Singapore 1941-42; A Japanese Version (1960).

Ward I. The Killer they Called a God (1992).

Willoughby, C.A., The Guerrilla Resistance Movement in the Philippines 1941-1945 (1972).

Journal Articles

Crowe, C.N; "Command responsibility in the former Yugoslavia: the chances of successful prosecution". 29 U Rich.L.Rev.

Report by XIV Corps (HQ 6th Army, 1 July 1945).

Fairman, Charles; "The Supreme Court in military jurisdiction: martial rule in Hawaii and the Yamashita case". Harvard L. Rev; LIX.

Landrum, Bruce D; "The Yamashita war crimes trial: command responsibility then and now", 149 Mil.L.Rev..

Park W.H; "Command responsibility for war crimes", 62 Mil.L.Rev.1, (1973).

Winer, F.B; "Comment: the years of MacArthur, vol. III: MacArthur unjustifiably accused of meeting out "victory justice" in war crimes cases". 149 Mil.L.Rev. 293.

29 U.Rich.L.Rev. 191, 222,135.

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