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At the end of the Second World War, Tomoyuki Yamashita was a Commander in the Japanese Army serving in the Philippines. His troops were allegedly responsible for killing, torturing and raping thousands of civilians.

On 3 September 1945, Yamashita surrendered to the United States army. A US military commission tried him for violations of the laws of war. Yamashita was charged with having failed to perform his duties as an army commander to control the operations of his troops, thus “permitting them to commit” atrocities. He was convicted and sentenced to death by hanging.

Yamashita appealed at the US Supreme Court, because the military commission had lacked many procedural and evidential protections. The Supreme Court denied this appeal. The Supreme Court ruled that even if Yamashita did not know about the crimes committed by his subordinates, because of his position as a superior, he should have known. Yamashita was executed on 23 February 1946.

The outcome of this case has been much debated and criticised, because of the claimed lack of evidence and the ‘should have known’ criteria as described by the Supreme Court. 

The principle of non-refoulement prohibits deportation of a person if there is a significant risk of that person being subjected to torture in the country of arrival. The principle has been repeatedly in the spotlights since 2001, as states came under increasing obligation to deny safe havens to terrorists. However, as this case proves, the principle was an issue even before September 11, 2001.

Manickavasagam Suresh fled from Sri Lanka to Canada, was granted a refugee status there, but was ultimately denied a permanent status as it was alleged that he supported the Tamil Tigers. Since Canada considered the Tamil Tigers to be a terrorist organisation, it started the procedure to deport Suresh to Sri Lanka. Suresh went to court, stating, among other things, that deportation would violate the principle of non-refoulement. The Court disagreed, stating, most importantly, that the Minister was allowed to enter into a balancing act between national security and Suresh’s individual rights. The Court did not consider the result of this balancing act to be unreasonable, given the evidence of the Tamil Tigers’ activities and Suresh role therein. Also, the Court stated that Suresh had not established ‘substantial grounds’ that he would be subjected to torture. 

Wadih El-Hage, 40, is a naturalised American citizen who was born in Lebanon. He has admitted being Osama bin Laden's personal secretary. He was accused of being the key organiser of the Kenya cell and of setting up front companies in Kenya for Al-Qaeda. He left Kenya almost a year before the bombings, after being questioned by the FBI in Africa. At the time of the bombings, he was living in Arlington, Texas, with his wife, April, and seven children. El Hage claimed he only worked for bin Laden in legitimate businesses and had no contact with him since 1994. El Hage was charged with conspiracy to murder Americans.

On 29 May 2001, El Hage was convicted for conspiracy to kill United States officers and employees engaging in official duties and conspiracy to destroy buildings and property of the United States. In addition, he was found guilty of giving false statements to a federal jury (perjury). On the basis of this conviction, El Hage was sentenced to life in prison without the possibility of being released.

In 1990, several Mexican nationals, executing an assignment from the United States Drug Enforcement Agency, abducted one of the persons suspected of involvement in the murder of a DEA official. He was eventually acquitted of all charges by an American Court and returned to Mexico. Alvarez-Machain attempted to take legal action against the Mexican nationals involved in his arrest, and against the United States. In first instance, the Court rejected the action against the United States, but established Sosa’s liability. The three-judge panel of the Court of Appeals confirmed Sosa’s liability, establishing that his involvement in the arbitrary arrest and detention of Alvarez-Machain constituted a breach of the ‘law of nations’. Concerning the liability of the United States, the Court found that the issue was of such important nature that it remanded the question and initiated an en banc (full court) hearing to decide on it.

After the referendum on the independence of East Timor from Indonesia, violence erupted between pro-independence and pro-integration groups. On September 6, 1999 the Ave Maria church in Suai, in the Kovalima regency, in which civilians were taking refuge, was attacked by pro-integration militias Laksaur and Mahidi. The militias entered the church with homemade firearms and sharp weapons, killing 27 people.

At the time of the attack on the church in Suai, Herman Sedyono, an Indonesian Army Officer, was the regent or Chief of Kovalima regency and as such the head of government and the head of the regional authorities.

Before the attack a meeting took place at the official residence of Herman Sedyono. Herman Sedyono and the four other accused, Lilik Kushardianto,  Ahmad Syamsuddin, Sugito (Indonesian military officials) and Gatot Subyakto (a police officer) were all present at the incident at the Suai Church.

The Court found that grave human rights violations, in the form of murder as a crime against humanity, had taken place at the Suai Church. The crimes against humanity were committed by militia groups Laksaur and Mahidi. The Court found insufficient proof that the accused were responsible for the attacks on the basis of command responsibility. With regard to Herman Sedyono and Gatot Subyakto, the Court found that they were not military commanders or persons that effectively act as military commanders, as Sedyono was in function of head of the government and Subyakto was a police officer. The Court concluded that there was no organisational relation between the militias and the accused and that the accused had no effective control over the militias, so that the accused could not be held responsible for their actions.