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THE “RULES-BASED ORDER” FOR SOLDIERS WHO KILL CIVILIANS – THE US RULE FOR JAPANESE; THE AUSTRALIAN RULE FOR AFGHANS; THE DUTCH RULE FOR RUSSIANS

by John Helmer, Moscow 
  @bears_with [1]

It requires unusual degrees of self-confidence, political power, and lawlessness for the generals commanding the winning side in war to hold themselves innocent of the killing which the troops under their command committed against the losing side or suspected sympathisers.   

In Washington, in February of 1946, Associate Justice of the US Supreme Court Frank Murphy warned that if the law of war requires the most senior commander of soldiers running amok with blood lust to be responsible with his own life for what his men have done – even if the commander didn’t know and had no effective means of controlling the troops – the precedent might one day reach to the US commander-in-chief, the President.  “No one in a position of command in an army, from sergeant to general,” said Murphy, “can escape those implications. Indeed, the fate of some future President of the United States and his chiefs of staff and military advisers may well have been sealed by this decision.”

That decision has come to be known as the Yamashita Standard after Japanese General Tomoyuki Yamashita (lead image, top, 1st left).  But when Australian soldiers killed more than 39 Afghan civilians between 2007 and 2016,  in a judgement publicly released a few days ago, their commanders – Generals Angus Campbell (2nd left), Paul Kenny (3rd left), Adam Findlay (4th left), and Richard Burr (right) — have been cleared of command duty and personal responsibility.

They have been judged by the Army, the Government in Canberra, and the entire Australian press to be innocent. From their time as special forces’ commanders in Afghanistan, they have been promoted to general rank; appointed to advise the prime minister and his ministers on fresh battlefield operations, including the plan to invade  eastern Ukraine after the downing of Malaysia Airlines Flight MH17 on July 17, 2014.

That was a crime, the guilt for which the Dutch Government aims to convict the Russian chain of command all the way to the President. The Dutch government says it is applying its version of the Yamashita Standard, with evidence of chain of command communications fabricated by the Ukrainian secret service, the SBU; by a NATO propaganda unit; and by a cartoon of Moscow’s command responsibility presented to the press  by a Dutch policeman named Wilbert Paulissen (lead image, bottom ).

The American, Australian and Dutch commands have not yet won their war against Russia, so the MH17 war crime trial is premature. It is also contradicted by their own policy for the Afghan war. “Such circumstances,” declared the Russian Foreign Ministry spokesman last Friday, “cast doubt on the genuine willingness of the Australian authorities to bring to justice all military personnel responsible for crimes, as well as on the seriousness of the stated intentions of the armed forces command to reform army special forces units. The massive, systemic and grave crimes committed over the years by fighters of Australian elite units against the inhabitants of Afghanistan make a new assessment of the meaning of the relentlessly proclaimed commitment of official Canberra to a ‘rules-based world order.’ What are these rules?”

Yamashita was commander of the Fourteenth Army Group of the Japanese Army in the Philippines when 123 killings were committed by soldiers at the bottom of his chain of command. Those murdered were Filipino civilians and prisoners of war of various nationalities. The time period identified by the US Army prosecution was between October 9, 1944, to September 2, 1945, when the US forces were attacking Yamashita’s forces by air, sea,  and land.

According to Justice Murphy (right), the military facts on the ground were that   “organized [Japanese Army] resistance around Manila ceased on February 23 [1945]. Repeated land and air assaults pulverized the enemy and within a few months there was little left of petitioner’s [Yamashita] command except a few remnants which had gathered for a last stand among the precipitous mountains.” Murphy and Associate Justice Wiley Rutledge voted against the majority led by Chief Justice Harlan Stone. One of the court’s nine judges did not participate.

Read the full text of the majority and minority judgements of the Supreme Court on the application of Yamashita, issued on February 4, 1946 [2].  Following the court’s vote to reject his petition by a vote of 6 to 2, Yamashita was rushed to the hangman; he was executed on February 26, 1946.

Source: https://caselaw.findlaw.com/ [2]

Murphy noted that under the allied forces’ attack, Yamashita was unable to control his troops.  “As the military commission here noted, ‘the Defense [for Yamashita] established the difficulties faced by the Accused [Yamashita] with respect not only to the swift and overpowering advance of American forces, but also to the errors of his predecessors, weaknesses in organization, equipment, supply with especial reference to food and gasoline, training, communication, discipline and morale of his troops. It was alleged that the sudden assignment of Naval and Air Forces to his tactical command presented almost insurmountable difficulties. This situation was followed, the Defense contended, by failure to obey his orders to withdraw troops from Manila, and the subsequent massacre of unarmed civilians, particularly by Naval forces. Prior to the Luzon Campaign, Naval forces had reported to a separate ministry in the Japanese Government and Naval Commanders may not have been receptive or experienced in this instance with respect to a joint land operation under a single commander who was designated from the Army Service.’”

The capital charge against Yamashita, Murphy pointed out, was not that he had ordered, allowed, or even knew of the war crimes of his troops, but that he was guilty of the omission of uncovering what his forces had done and punishing them.

This was the wording of the indictment: “While commander of armed forces of Japan at war with the United States of America and its allies, unlawfully disregarded and failed to discharge his duty as commander to control the operations of the members of his command, permitting them to commit brutal atrocities and other high crimes against people of the United States and of its allies and dependencies, particularly the Philippines; and he … thereby violated the laws of war.”  

According to the Supreme Court, the question for the initial trial by military tribunal in Manila and for review by the court,  was “whether the law of war imposes on an army commander a duty to take such appropriate measures as are within his power to control the troops under his command for the prevention of the specified acts which are violations of the law of war and which are likely to attend the occupation of hostile territory by an uncontrolled soldiery, and whether he may be charged with personal responsibility for his failure to take such measures when violations result.”

Yamashita’s conviction was upheld by the Supreme Court on the opinion he had been culpable in his “affirmative duty to take such measures as were within his power and appropriate in the circumstances to protect prisoners of war and the civilian population.” Chief Justice Stone added that this was also the US law to be applied to American soldiers and their commanders up the line. “This duty of a commanding officer has heretofore been recognized, and its breach penalized by our own military tribunals.  A like principle has been applied so as to impose liability on the United States in international arbitrations.”

Stone’s claim was disputed by Murphy and Rutledge.  “…read against the background of military events in the Philippines subsequent to October 9, 1944, these charges amount to this: ‘We, the victorious American forces, have done everything possible to destroy and disorganize your lines of communication, your effective control of your personnel, your ability to wage war. In those respects we have succeeded. We have defeated and crushed your forces. And now we charge and condemn you for having been inefficient in maintaining control of your troops during the period when we were so effectively beseiging and eliminating your forces and blocking your ability to maintain effective control. Many terrible atrocities were committed by your disorganized troops. Because these atrocities were so widespread we will not bother to charge or prove that you committed, ordered or    condoned any of them. We will assume that they must have resulted from your inefficiency and negligence as a commander. In short, we charge you with the crime of inefficiency in controlling your troops. We will judge the discharge of your duties by the disorganization which we ourselves created in large part. Our standards of judgment are whatever we wish to make them.’”

Murphy replied that if the Yamashita standard applied — as Stone said it did to the US chain of command — “such a procedure is unworthy of the traditions of our people or of the immense sacrifices that they have made to advance the common ideals of mankind. The high feelings of the moment doubtless will be satisfied. But in the sober afterglow will come the realization of the boundless and dangerous implications of the procedure sanctioned today. No one in a position of command in an army, from sergeant to general, can escape those implications.  Indeed, the fate of some future President of the United States and his chiefs of staff and military advisers may well have been sealed by this decision. But even more significant will be the hatred and ill-will growing out of the application of this unprecedented procedure. That has been the inevitable effect of every method of punishment disregarding the element of personal culpability. The effect in this instance, unfortunately, will be magnified infinitely for here we are dealing with the rights of man on an international level. To subject an enemy belligerent to an unfair trial, to charge him with an unrecognized crime, or to vent on him our retributive emotions only antagonizes the enemy nation and hinders the reconciliation necessary to a peaceful world.”

“Nothing in all history or in international law, at least as far as I am aware, justifies such a charge against a fallen commander of a defeated force. To use the very inefficiency and disorganization created by the victorious forces as the primary basis for condemning officers of the defeated armies bears no resemblance to justice or to military reality.”

Last month in Canberra it was decided that Australian Army’s killings of Afghan civilians and prisoners must not be judged by the US Supreme Court’s standard for hanging Yamashita. This is the ruling of Paul Brereton, a provincial Australian judge, army major general, and inspector-general responsible for investigating Australian war crimes in Afghanistan between 2007 and 2016.

Brereton’s report runs to 465 pages. It was released in a heavily redacted version on November 19, four and a half years after Brereton’s investigation had commenced.  The official reason for the investigation, according to the Army, was that its spetsnaz command had requested it. “On 09 March 2016, Special Operations Commander Australia (SOCAUST) wrote to CA [Chief of Army] regarding rumours concerning the culture and behaviour of or concerning Special Operations Command (SOCOMD), including second- or third-hand narratives relating to Special Operations Task Group deployments in Afghanistan during the period 2007 to 2016. These stories came to the attention of SOCAUST from a variety of sources. The rumours relate to the military justice system and include allegations of criminal, unlawful or inappropriate conduct including deviance from professional standards, existence of a culture of silence, the deliberate undermining of individuals, activities outside or contrary to those prescribed in the approved Rules of Engagement, and systemic failures by the SOCOMD chain of command.  The rumours remain unsubstantiated and there is insufficient information to commence criminal or disciplinary investigations, or administrative inquiries.”

The real reason was that by 2012 the killing had become an established code among the special forces, a well-known initiation rite, and a method of bonding between the soldiers in which the Australian  chain of command was directly involved. The Australian war crimes followed after the Wikileaks disclosure of US Army war crimes in Afghanistan between 2004 and 2010; the Wikileaks disclosures were first published in July 2010 [3].   The Australian Army was undeterred by the prospect of disclosure in the press or judicial accountability. This lasted for seven more years.

The first Australian media publication of war crimes in Afghanistan occurred on July 10, 2017 [4]. It was based on documents leaked from Brereton’s files. The leaking appears to have been motivated by infighting between officers of the spetsnaz units — the First and Second Commando Regiments and the Special Air Service Regiment —   who believed they were being scapegoated by rival units and the high command.  

The leaks [5]were also aimed at the generals – Campbell, Kenny, Findlay and Burr – who had been promoted, putting spetsnaz in control of the army and the defence ministry for the first time.    The pride of the spetsnaz units does not extend to publicly listing their commanding officers by date and tour of operation.

The insignia of the Australian Army’s spetsnaz, left to right – 1st Commando Regiment; 2nd Commando Regiment; Special Air Service Regiment. The Latin motto of 2nd Commando is translated as “Without Warning”.  

For the redacted version of the Brereton report, click to open [6].  The extent of the redactions is unusual. Every incident which has been investigated has been concealed, not only to protect the names of the soldiers involved, but also to prevent public readers from knowing what exactly had happened during the killing sprees. Altogether, sixty incident reports, elaborated over five volumes of “Incidents and Issues of Interest”,  have been published in the report but concealed in public. Press leaks indicate that at least 39 unlawful killings have been identified by Brereton for criminal prosecution.

Also blacked out in the report is the section listing the names of all the officers in the command chain who were in charge of the killers and their units when the sixty incidents and 39 killings occurred.  

Source: IGADF-Afghanistan-Inquiry-Public-Release-Version.pdf (defence.gov.au) [6]

Brereton (photograph, top) reports an effort by the Australian commanders to evade the Yamashita doctrine, first by levelling blame at the lowest unit level, and then by suggesting the Anglo-American command in Afghanistan had been responsible for the rules of battlefield conduct. “The idea that [Australia] Special Forces are a strategic asset that sit outside normal chains of command is well-entrenched. That they are a strategic asset is not questioned. However, since 1917 Australia has consistently espoused the position that it maintains command and control of its deployed Armed Forces…While the complexities of coalition warfare, and the need for flexible command and control arrangements, are acknowledged, the devolution of operational command to the extent that the national command has no real oversight of the conduct of SF operations not only has the potential to result in the national interest and mission being overlooked or subordinated, but deprives national command of oversight of those operations. Australia should retain operational command over its deployed forces rather than delegating command to other entities.”

“Command responsibility,” according to Brereton, “is both a legal and a moral concept. In the narrow sense, command responsibility is a legal doctrine by which commanders may be held legally responsible for the misdeeds of their subordinates. But the concept has a much wider scope. At its core is responsibility for the effects and outcomes delivered by the unit or formation under command. Commanders are both recognised and accountable for what happens ‘on their watch’, regardless of their personal knowledge, contribution or fault. Just as commanders are recognised for the achievements of their units, and bear responsibility for their failures, so there is a collective recognition and commensurate responsibility on the part of members of a unit.”

At page 470 Brereton cancelled the Yamashita Standard in order to protect the chain of command, including himself.

“It was at the patrol commander level that the criminal behaviour was conceived, committed, continued and concealed. It is overwhelmingly at that level that responsibility resides. The Inquiry has found no evidence that there was knowledge of, or reckless indifference to, the commission of war crimes, on the part of commanders at troop/platoon, squadron/company or Task Group Headquarters level, let alone at higher levels such as Commander Joint Task Force (CJTF) 633, Joint Operations Command, or Australian Defence Headquarters. Nor is the Inquiry of the view that there was a failure at any of those levels to take reasonable and practical steps that would have prevented or detected the commission of war crimes.”

The Dutch rule in the MH17 trial, which began in March and adjourned last week until next February, restores the Yamashita Standard. The purpose of the trial is to convict three Russian Army officers and a Ukrainian under their command for firing a BUK missile they allegedly obtained from  a Russian anti-aircraft defence unit across the border. In the murder for which the four are to be convicted next year, the Dutch prosecution has argued, and the judge will agree, that the chain of Russian command runs through the Army to the General Staff and Defence Ministry in Moscow, and the Kremlin; all are culpable. According to Wilbert Paulissen in a press briefing of June 19, 2019, the prosecution is aiming at “the entire chain of responsible parties… together they formed a chain linking the so-called Donetsk People’s Republic to the Russian Federation. It was through this chain that the suspects were able to get heavy military equipment.” Paulissen was chief of the Dutch police criminal investigation service at the time; he has since been promoted to command a regional police force.

For the book of the trial and the fabrication of evidence required to produce guilty verdicts, click to read [7].  

Last Friday, Maria Zakharova, spokesman for the Russian Foreign Ministry, said [8]the Brereton report was “shocking”… Such crimes have become part of the system due to the practice of concealing them, the lack of proper command control and the suppression of dissent entrenched in the Australian special forces.”

“Such circumstances cast doubt on the genuine willingness of the Australian authorities to bring to justice all military personnel responsible for crimes, as well as on the seriousness of the stated intentions of the armed forces command to reform army special forces units. The massive, systemic and grave crimes committed over the years by fighters of Australian elite units against the inhabitants of Afghanistan make a new assessment of the meaning of the relentlessly proclaimed commitment of official Canberra to a ‘rules-based world order.’ What are these rules?”

The Australian Broadcasting Commission (ABC), a state propaganda organ,  responded   [9]to Zakharova yesterday. It had “uncovered [sic] recent comments by the Russian Foreign Ministry in which it claimed Australian soldiers accused of murdering civilians and prisoners would not be ‘held accountable’.”  The ABC missed the significance of Zakharova’s phrase, “all military personnel responsible for crimes”.  

The ABC also quoted a think-tank figure financed  by the Australian Defence Ministry as saying: “This is the Russia that was responsible for the shootdown of MH17 over Ukraine, the invasion of Crimea, support to [President Bashar al-] Assad in Syria in murderous ways. To hear these comments from the Russian Foreign Ministry just tells me the height of hypocrisy that the Russians are prepared to go to in their sustained attack on the Western democracies.”