All ranks should be aware about what’s coming

BEN Fernencz, the last Nuremberg War Crimes trials prosecutor died on April 7, aged 103.

Fernencz successfully prosecuted dozens of Nazis accused of committing war crimes and then advocated for decades for the creation of an international criminal court.

The International Crime Commission, to which Australia subscribes, now sits in Den Haag, The Netherlands.

The Nuremberg Trials set a precedent defining what was allowable as a defence to war crimes.

Under Nuremberg Principle IV, a plea of obeying “superior orders” was not an acceptable defence for war crimes.

That a person might claim to have acted pursuant to the orders of his Government or of a superior did not relieve him from responsibility under international law.

A subsequent codification of the so-called Nuremberg defence declared orders to commit genocide or crimes against humanity were manifestly unlawful.

Also this week Australia’s CDF-for-life General Angus Campbell warned Australians to expect more charges against Defence personnel over alleged war crimes.

Speaking on Tuesday to the Lowy Institute in Sydney General Campbell, no doubt with a straight face, cautioned there could be some “very, very uncomfortable” days ahead.

There could, although more than just junior ranks should be concerned about any further Australian prosecution of alleged war crimes.

Concurrently with the European war crimes trials, alleged Japanese war criminals faced justice for atrocities committed in several campaigns to establish The Greater East Asia Co-Prosperity Sphere.

From Prime Minister General Hideki Tojo to the lowest private, identified war criminals faced justice and execution.

Only Emperor Hirohito, whose deity status to his subjects made him useful for governing post-war Japan was exempted.

Those trials also established legal precedents.

The International Military Tribunal for the Far East established the Yamashita Standard of criminal liability, whereby “if vengeful actions are widespread offences, and there is no effective attempt by a commander to discover and control the criminal acts, [then] such a commander may be held responsible, even criminally liable.”

Simply put, the Yamashita Standard established that operational commanders cannot cede operational command to a subordinate officer; and must fully exercise their authority to prevent the commission of war crimes — neither failure to supervise subordinates nor ambiguous orders exculpated the commander.

Since General Campbell held senior in-theatre commands when some offences were alleged to have occurred, he would be advised to keep his pyjamas, a pannikin and toothbrush packed in the event there’s a knock on his door.

© Ross Eastgate MMXXIII