War Crimes During The Second World War

World War 2 saw a range of atrocities committed by the Japanese military, ranging from the mistreatment of prisoner of wars to cold blooded execution of civilians. To bring justice to the victims and to set a precedent for future conflicts, trials were held in various countries, including China, Australia, and the Philippines. A common plea used by the soldiers charged with war crimes was the superior orders plea, where they claimed they were not culpable for their actions because it was an order given by their superior and it is their duty to be obedient. This produces a dilemma because each extreme produces undesirable result. If the plea was accepted as a valid defence, then all soldiers will claim they were following orders and all culpability can lie with the head of the military only. On the contrary, if the plea was outright rejected, then soldiers who were under extreme duress and did everything in their ability to prevent the war crime will be punished more severely than justified. Of course, there is no perfect stance for this issue, however, to maximize the justice served and to set an appropriate precedent, the defendant should be held culpable for their actions and the superior orders plea should be rejected as a defence in the case of the Japanese war crimes. Nevertheless, the plea may be used to mitigate the punishment if specific conditions are met.

Firstly, the defendant is culpable for their action because, in general, the mens rea element of the crime can be established. The claim that the defendant did not know that the order was unlawful is invalid because the crimes charged in the trials, such as mistreatment of POWs or extrajudicial killing, are definite and are outlined in various military manuals, since only obvious acts of war crimes are generally brought to trial due to logistical constraints. For example, the mistreatment of POWs leading to multiple deaths is clearly unlawful and is outlined in various military manuals including The Hague Conventions, and since Japan was included as a signatory, it is subjected to its laws. The awareness of the criminal nature of mistreating POWs is epitomized in the Tokunaga Trial, in which the superior order plea was also used. In a sworn statement by Captain Barnett, the POWs were not permitted to speak to the International Committee of the Red Cross (ICRC) representative and in an incident where Barnett told the representative that the POWs did not get enough food, the representative was immediately escorted away and Barnett received a week of beatings.

Another example that exemplifies the awareness of what constitutes as a war crime is General Numata admitting, “If they are law-abiding people such things would not have been authorized by the Japanese Military Law; it is taught in the Japanese Army that you must treat civilians very kindly.” This demonstrates that the defendants charged with mistreatment of civilians, such as in the trial of Furukawa Ichiji and Matsushita Koichi where they were charged with extrajudicial killing of a civilian caught stealing, are culpable for their actions since it is stated in the Japanese military law itself that the action is considered a war crime. Since the defendants can be expected to know whether an action is a war crime or not, it can be assumed that they knew the order was unlawful and this invalidates the superior orders plea because this means that the defendant knowingly committed a crime, thus making them culpable for their action.

Despite the fact that the mens rea element has been established, the defence may still raise the superior orders plea through the argument that even though the defendant knows that he is committing a war crime, he cannot disobey the order due to the severe punishment he may face. Firstly, the severity of the punishment must be established, since for duress to be successfully used as a defence, the crime must be lesser in severity than the threat faced. If the severity of the crime is more than the threat, such as torture against demotion, then the plea cannot be used as the defence since it is unjustified from all perspectives, such as utilitarianism, for the defendant to cause more harm to the victim than he would receive. Assuming that the defendant honestly believed that the repercussion of disobeying will result in the highest threat, execution, the severity of the crime that the defendant is charged with is most likely still higher. For a crime to be brought to trial, it must be reach a certain level of atrocity and in general, the defendant is charged with causing the deaths of at least one person, and in many cases multiple deaths. Since the preservation of self is in human nature and cannot be measured, this becomes a deontological problem that is analogous to the transplant problem. The surgeon in this case is the defendant and he needs to decide whether to save his life or the lives that will be lost due to his crime. By deciding to follow the order and commit the crime, the defendant has decided to “use” the lives of the victims to save his own, thus violating the sanctity of life and the victim’s right to not be used. Therefore, even assuming that the threat to the defendant is of the highest level, the claim to duress cannot be used as a defence since the defendant is unjustified in using the lives of others to save his own. This fact combined with the mens rea element of the action makes the defendant culpable for the crime, thus ruling out the use of the superior orders plea as a defence. However, if certain elements are present, the superior orders plea due to the threat may be able to mitigate the punishment. Of course, assuming the defendant was under extreme duress to follow the unlawful order, it can be argued that they were unwillingly put under the circumstance and that they cannot be expected to sacrifice their life.