Rethinking Yamashita: Holding Military Leaders Accountable for Wartime Rape

This note explores the current controversy over the proper international standard for punishing commanders whose subordinates have committed rape, and examines the interplay between the nature of rape, the underlying theories of command responsibility, and an international legal system that has failed to produce fruitful results. The note contends that the continued occurrence of rape in times of war results in large part from the international community’s reluctance to punish high-level military officials who neither physically perpetrated the crime, were not present at the crime scene, and did not necessarily order rape. The note proposes a slight expansion of the “knowledge presumption” standard used by early courts, whereby general, historical knowledge of rape would satisfy the mens rea requirement of command responsibility. Such a standard would make it easier to prosecute wartime military leaders. In addition, the note will propose a series of measures that military officials can use to both deter the commission of rape by subordinates and rebut the knowledge presumption. Finally, the note examines how the International Criminal Court could use such a standard to punish commanders for the atrocities currently under investigation in Darfur. The note is particularly relevant and timely because widespread mass rape has been reported in the region of Darfur and is currently under investigation by ICC prosecutors. It is likely that the ICC will hear many of the cases involved in this dispute in the near future. Many of these cases will force the Court to examine its standard for punishing commanders whose subordinates have engaged in rape crimes