THE FIX IS IN, THE YAMASHITA STANDARD IS OUT!
I just wasted most of a day skimming through the Brereton Travesty when I could have been doing something useful, like removing nose hairs or chewing my ear wax. If this report is what you get from four years of investigations by a former judge and modern Major-General, then Australia is doomed.
Two things struck me as I frustratingly searched for substance, evidence and laser-like focus describing incidents.
- The repetitiveness of statements, as if repeating them validates and gives substance to the previously vague iteration; and
- The ability of Brereton to reinterpret ‘black-letter’ law to produce a more acceptable result.
Briefly, the following appears several times, possibly as a means of imprinting on the reader’s mind where the guilt lies:
‘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.’
Got that? It was rogue soldiers whodunit – while their senior officers knew nothing.
What is of more concern is how our modern Major-General and legal eagle has been able to reinterpret the law, because as it stands, and as it is written, it would have serious adverse effects on a whole series of senior officers. Much better and far more acceptable to throw junior officers up to the rank of LtCol under the bus. This process has already been previously tried and tested in the travesty of the ‘Jedi Council’ affair, so we know it works.
Brereton recognises the existence of ‘The Yamashita Standard’ and covers its precepts and implications in broad terms. He actually mentions in plain language the concept that applies (and that cost Yamashita his life) then, like the good lawyer he is, he is able to contort the ‘black letter’ law to produce something more acceptable. This is a shamefully dishonest reinterpretation that has, of course, been accepted with enthusiasm by Prime Minister Morrison and LtGen Campbell.
The Yamashita standard is quite explicit. Once again, here is the actual black-letter for the reader to interpret:
“The highest ranking officer is accountable for, and should be prosecuted and convicted of the crimes of every officer and soldier under his command, even if he/she is unaware of that the crime, or was aware and actually gave orders to stop it. Ignorance of the actions of his/her subordinates and failed attempts to stop them are not a defence.”
Brereton strains his reputation in the following paragraph from his Report:
“Although the legal concept of command responsibility for the crimes of subordinates has been discussed above,
1 it is worth revisiting at this stage some key points, because they also inform wider notions of command responsibility. The idea that commanders can be held responsible for the misdeeds of their subordinates is founded on their positions of trust and authority, and in particular their ability to control the behaviour of their subordinates. It extends to ‘[where] there is no effective attempt by a commander to discover and control the criminal acts, such a commander maybe held responsible, even criminally liable, for the lawless acts of his troops,’
2 and where the commander ought to have known of the crimes, and failed to take steps to prevent them,
3 although it requires personal dereliction [I must have failed to read the Yamashita Standard properly as I cannot find the requirement for ‘personal dereliction’ – a behaviour that did not apply to Yamashita. No, Paul, the YS does not require any dereliction of duty for it to be applied!]‘where the act is directly traceable to him or where his failure to properly supervise his subordinates constitutes criminal negligence on his part’. Absolute fiction, and a disgrace to professional legal standards and four years of witch.hunting.
“5 As has been explained earlier, essentially, there are three elements to establishing criminal responsibility: …” This is new and would have been of great assistance to Yamashita. What a pity you discovered this ‘truth’ 75 years after he was executed. The three elements you refer to are nowhere to be found in the Standard, but good try.
6a. the existence of a superior-subordinate relationship, involving actual control, whether director indirect; …” & “Commanders are both recognised and accountable for what happens ‘on their watch’, regardless of their personal contribution or fault. Thus commanders are given credit for the achievements of their commands, notwithstanding that those achievements might be more directly attributable to the contributions of some or all of their subordinates. Commensurately, commanders are regarded as responsible for the failures of their commands and their subordinates, regardless of personal fault.
How pray tell, can Brereton reconcile ‘regardless of personal fault’ and ‘Ignorance of the actions of his/her subordinates and failed attempts to stop them are not a defence’ with the requirement that ‘… there are three elements to establishing criminal responsibility: …’?
With new truths replacing actual written truths, one thing we can be sure of: the fix is in with the junior officers, NCO’s and soldiers being sacrificed.
Fortunately, we have some good news to finish. The Taliban are already using our self-proclaimed presumption of guilt as part of their recruiting drive to join them and avenge the ‘victims’.
Secondly, to assist in removing the ‘warrior culture’ our ‘Woke Napoleons’ have gone straight to the heart of the Defence of Australia issues by appointing a Gender Affairs Officer:
One has to stand in absolute wonder and ask how Patton managed to fight his battles without a Gender Affairs Officer, a Climate Change Assessor or a warlock to read the tealeaves on his 3rd Army HQ.
References
Pages 473-474
INTRODUCTION
- Major General Paul Cullen, who had commanded the 2/2ndAustralian Infantry Battalion in New Guinea in World War 2, is reported to have said that there are no bad soldiers, only bad officers. However, while it would have been much easier to report that it was poor command and leadership that was primarily to blame for the events disclosed in this Report, that would be a gross distortion. While, as will appear, commanders at troop, squadron and Special Operations Task Group (SOTG) level must bear some responsibility for the events that happened ‘on their watch’, the criminal behaviour of a few was commenced, committed, continued and concealed at the patrol commander level. Command responsibility
- Command responsibility 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.
- Although the legal concept of command responsibility for the crimes of subordinates has been discussed above,
1 it is worth revisiting at this stage some key points, because they also inform wider notions of command responsibility. The idea that commanders can be held responsible for the misdeeds of their subordinates is founded on their positions of trust and authority, and in particular their ability to control the behaviour of their subordinates. It extends to ‘[where] there is no effective attempt by a commander to discover and control the criminal acts, such a commander maybe held responsible, even criminally liable, for the lawless acts of his troops,’
2 and where the commander ought to have known of the crimes, and failed to take steps to prevent them,
3 although it requires personal dereliction ‘where the act is directly traceable to him or where his failure to properly supervise his subordinates constitutes criminal negligence on his part’.
4 It includes failing to make proper enquiries to see whether offences were being committed, or to cause there to be a proper investigation after the event.
5 As has been explained earlier, essentially, there are three elements to establishing criminal responsibility:
6a. the existence of a superior-subordinate relationship, involving actual control, whether director indirect;
7b.knowledge, or reckless indifference, of the actual or imminent commission of the offences; and
1 Reference 1 – Chapter 1.10, Applicable Law of Armed Conflict.
2 Reference 2 – 4 Law Reports of Trials of War Criminals, trial of General Tomoyuki Yamashita, United Nations War Crimes Commission (1948) 1 at 35.
3 Reference 3 – 8 Law Reports of Trials of War Criminals, US v List 34 (1949); 11 Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law No 10 757 (1950).
4 Reference 4 – United States v Von Lee b (High Command Case), 11 Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law No 10 (1951) 462 543-544.
5 Reference 5 – Prosecutor v Strugar ICTY IT- 01-42-T.
6 Reference 6 – “Failure to Halt, Prevent or Punish: the Doctrine for Command Responsibility for War Crimes,” Andrew Mitchel, p384.
7 Reference 7 – Bemba Case ICC 01/05-01/08. OFFICIAL (redacted for security, privacy and legal reasons) 473OFFICIAL (redacted for security, privacy and legal reasons)
- failure to act to prevent the crimes, which may be satisfied by failing to make proper inquiries, or to cause there to be a proper investigation after the event. 84. Insofar as it relates to individual incidents and issues of interest, potential legal liability on the basis of command responsibility has been addressed in the various Chapters in Part 2. This Chapter is concerned with its application at a more general and higher level, and with the moral and other aspects of command responsibility.
- Responsibility means answerability, or accountability. At the core of the notion of command responsibility 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 contribution or fault. Thus commanders are given credit for the achievements of their commands, notwithstanding that those achievements might be more directly attributable to the contributions of some or all of their subordinates. Commensurately, commanders are regarded as responsible for the failures of their commands and their subordinates, regardless of personal fault.
- The fundamental reason for this is that, ultimately, commanders have direction and control of what is done under their command. Another reason is that commanders set the conditions in which their units may flourish or wither. This includes the culture which promotes, permits or prohibits certain behaviours.7.One domain in which this is apparent is that of honours and awards. Commanders are often decorated for their performance in command, on account of the commendable performance of the unit under their command
Page 499
- … it was at the patrol commander level that the criminal behaviour was conceived, committed, continued, and concealed. But for a small number of patrol commanders, and their protégées, it would not have been thought of, it would not have begun, it would not have continued, and, in any event, it would have been discovered. It is overwhelmingly at that level that responsibility resides.
Page 500
- Although that observation applies to SOTG Commanding Officers, it does so not because of personal fault, but because they are responsible for what happened ‘on their watch’. The observation applies much more strongly to the Commanding Officers of SASR during the period under which the ‘warrior culture’ which enabled the criminal conduct flourished, because unlike the SOTG Commanding Officers they were in a position to influence and shape the culture of their commands. The evidence does not support a similar conclusion in respect of either Commando Regiment.
- The Inquiry sees the command responsibility of Commander JTF 633 in a different light to that of Commanding Officer SOTG, for a number of reasons. First, JTF 633 was not positioned, organisationally or geographically, to influence and control SOTG operations: its ‘national command’ function did not include operational command. While those who had operational command are rightly held responsible and accountable for the deeds of their subordinates, the principle that informs that is that ultimately they command and control what happens under their command. Without operational command, JTF 633 did not have the degree of command and control over SOTG on which command responsibility depends. THE FIX IS IN!
Secondly, commanders and headquarters at … JTF 633, JOC and ADFHQ appear to have responded appropriately and diligently when relevant information and allegations came to their attention, and to have made persistent and genuine endeavours to find the facts through QAs, following up with further queries, and Inquiry Officer Inquiries. Their attempts were frustrated by outright deceit by those who knew the truth, and, not infrequently, misguided resistance to inquiries and investigations by their superiors.
Page 501
- 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 JTF 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 steps that would have prevented or detected the commission of war crimes.
Page 502
There is no credible information that any troop/platoon, squadron/company or SOTG commander knew that,or was recklessly indifferent as to whether, subordinates were committing war crimes.
- There is no credible information of a failure by any troop/platoon, squadron/company or SOTG commander to take reasonable steps that would have prevented or discovered the commission of the war crimes referred to in this Report.
- However, SOTG troop, squadron and task group Commanders bear moral command responsibility and accountability for what happened under their command and control.
- That responsibility and accountability does not extend to higher headquarters, including in particular HQ JTF633 and HQ Joint Operations Command, because they did not have a sufficient degree of command and control to attract the principle of command responsibility, and within the constraints on their authority acted appropriately when relevant information and allegations came to their attention, were frustrated by outright deceit by those who knew the truth, and, not infrequently, misguided resistance to inquiries and investigations by their superiors.
- Commanding Officers of SASR during the relevant period bear significant responsibility for contributing to the environment in which war crimes were committed, most notably those in SASR who embraced or fostered the ‘warrior culture’ and empowered, or did not restrain, the clique of non-commissioned officer who propagated it.
- That responsibility is to some extent shared by those who, in misconceived loyalty to their Regiment, or their mates, have not been prepared to ‘call out’ criminal conduct or, even to this day, decline to accept that it occurred in the face of incontrovertible evidence, or seek to offer obscure justifications and mitigations for it