U.S.

Supreme Court
In re Yamashita, 327 U.S. 1 (1946)
In re Yamashita
No. 61, Misc.
Argued January 7, 8, 1946
Decided February 4, 1946*
327 U.S. 1
APPLICATION FOR LEAVE TO FILE PETITION
FOR WRIT OF
HABEAS CORPUS AND WRIT OF PROHIBITION
Syllabus
Prior to September 3, 1945, petitioner was
the Commanding General of the Fourteenth
Army Group of the Imperial Japanese Army in
the Philippine Islands. On that day, he
surrendered to the United States Army and
became a prisoner of war. Respondent was
the Commanding General of the United
States Army Forces, Western Pacific, whose
command embraced the Philippine Islands.
Respondent appointed a military commission
to try the petitioner on a charge of violation
of the law of war. The gist of the charge was
that petitioner had failed in his duty as an
army commander to control the operations of
his troops, "permitting them to commit"
specified atrocities against the civilian
population and prisoners of war. Petitioner
was found guilty, and sentenced to death.
Held:
1. The military commission appointed to try
the petitioner was lawfully created. P. 327 U.
S. 9.
(a) Nature of the authority to create military
commissions for the trial of enemy
combatants for offenses against the law of
war, and principles governing the exercise of
jurisdiction by such commissions, considered.
Citing Ex parte Quirin, 317 U. S. 1, and other
cases. Pp. 327 U. S. 7-9.
(b) A military commission may be appointed
by any field commander, or by any
commander competent to appoint a general
court-martial, as was respondent by order of
the President. P. 327 U. S. 10.
(c) The order creating the military
commission was in conformity with the Act of
Congress (10 U.S.C. 1471-1593)
sanctioning
Page 327 U. S. 2
the creation of such tribunals for the trial of
offenses against the law of war committed by
enemy combatants. P. 327 U. S. 11.
2. Trial of the petitioner by the military
commission was lawful, although hostilities
had ceased. P. 327 U. S. 12.
(a) A violation of the law of war, committed
before the cessation of hostilities, may
lawfully be tried by a military commission
after hostilities have ceased -- at least until
peace has been officially recognized by
treaty or proclamation by the political branch
of the Government. P. 327 U. S. 12.
(b) Trial of the petitioner by the military
commission was authorized by the political
branch of the Government, by military

command, by international law and usage,

and by the terms of the surrender of the
Japanese government. P. 327 U. S. 13.
3. The charge preferred against the petitioner
was of a violation of the law of war. P. 327 U.
S. 13.
(a) 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 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 he may be charged
with personal responsibility for his failure to
take such measures when violations result.
Pp. 327 U. S. 14, 327 U. S. 16.
(b) What measures, if any, petitioner took to
prevent the alleged violations of the law of
war, and whether such measures as he may
have taken were appropriate and sufficient to
discharge the duty imposed upon him, were
questions within the peculiar competence of
the military officers composing the
commission, and were for it to decide. P. 327
U. S. 16.
(c) Charges of violations of the law of war
triable before a military tribunal need not be
stated with the precision of a common law
indictment. P. 327 U. S. 17.
(d) The allegations of the charge here, tested
by any reasonable standard, sufficiently set
forth a violation of the law of war, and the
military commission had authority to try and
to decide the issue which it raised. P. 327 U.
S. 17.
4. In admitting on behalf of the prosecution a
deposition and hearsay and opinion
evidence, the military commission did not
violate any Act of Congress, treaty, or
military command defining the commission's
authority. Pp. 327 U. S. 18, 327 U. S. 23.
(a) The Articles of War, including Articles 25
and 38, are not applicable to the trial of an
enemy combatant by a military commission
Page 327 U. S. 3
for violations of the law of war, and imposed
no restrictions upon the procedure to be
followed in such trial. Pp. 327 U. S. 19-20.
(b) Article 63 of the Geneva Convention of
1929, which provides that
"Sentence may be pronounced against a
prisoner of war only by the same courts and
according to the same procedure as in the
case of persons belonging to the armed
forces of the detaining Power,"
does not require that Articles 25 and 38 of
the Articles of War be applied in the trial of
the petitioner. Article 63 refers to sentence
"pronounced against a prisoner of war" for an
offense committed while a prisoner of war,
and not for a violation of the law of war
committed while a combatant. P. 327 U. S.
20.
(c) The Court expresses no opinion on the
question of the wisdom of considering such

evidence as was received in this proceeding,

nor on the question whether the action of a
military tribunal in admitting evidence which
Congress or controlling military command
has directed to be excluded may be drawn in
question by petition for habeas corpus or
prohibition. P. 327 U. S. 23.
5. On an application for habeas corpus, the
Court is not concerned with the guilt or
innocence of the petitioner. P. 327 U. S. 8.
6. By sanctioning trials of enemy aliens by
military commission for offenses against the
law of war, Congress recognized the right of
the accused to make a defense, and did not
foreclose their right to contend that the
Constitution or laws of the United States
withhold authority to proceed with the trial.
P. 327 U. S. 9.
7. The Court does not appraise the evidence
on which the petitioner here was convicted.
P. 327 U. S. 17.
8. The military commission's rulings on
evidence and on the mode of conducting the
proceedings against the petitioner are not
reviewable by the courts, but only by the
reviewing military authorities. From this
viewpoint, it is unnecessary to consider what,
in other situations, the Fifth Amendment
might require. Pp. 327 U. S. 8, 327 U. S. 23.
9. Article 60 of the Geneva Convention of
1929, which provides that,
"At the opening of a judicial proceeding
directed against a prisoner of war, the
detaining Power shall advise the
representative of the protecting Power
thereof as soon as possible, and always
before the date set for the opening of the
trial,"
applies only to persons who are subjected to
judicial proceedings for offenses committed
while prisoners of war. P. 327 U. S. 23.
10. The detention of the petitioner for trial,
and his detention upon his conviction, subject
to the prescribed review by the military
authorities, were lawful. P. 327 U. S. 25.
Leave and petition denied.
Page 328 U. S. 4
No. 61, Misc. Application for leave to file a
petition for writs of habeas corpus and
prohibition in this Court challenging the
jurisdiction and legal authority of a military
commission which convicted applicant of a
violation of the law of war and sentenced him
to be hanged.Denied.
No. 672. Petition for certiorari to review an
order of the Supreme Court of the
Commonwealth of the Philippines, 42 Off.Gaz.
664, denying an application for writs of
habeas corpus and prohibition likewise
challenging the jurisdiction and legal
authority of the military commission which
tried and convicted petitioner. Denied.
MR. CHIEF JUSTICE STONE delivered the
opinion of the Court.
No. 61 Miscellaneous is an application for
leave to file a petition for writs of habeas

corpus and prohibition in this Court. No. 672

is a petition for certiorari to review an order
of the Supreme Court of the the Philippines
(28 U.S.C. 349) denying petitioner's
application to that court for writs of habeas
corpus and prohibition. As both applications
raise substantially like questions, and
because of the importance and novelty of
some of those presented, we set the two
applications down for oral argument as one
case.
Page 327 U. S. 5
From the petitions and supporting papers, it
appears that, prior to September 3, 1945,
petitioner was the Commanding General of
the Fourteenth Army Group of the Imperial
Japanese Army in the Philippine Islands. On
that date, he surrendered to and became a
prisoner of war of the United States Army
Forces in Baguio, Philippine Islands. On
September 25th, by order of respondent,
Lieutenant General Wilhelm D. Styer,
Commanding General of the United States
Army Forces, Western Pacific, which
command embraces the Philippine Islands,
petitioner was served with a charge prepared
by the Judge Advocate General's Department
of the Army, purporting to charge petitioner
with a violation of the law of war. On October
8, 1945, petitioner, after pleading not guilty
to the charge, was held for trial before a
military commission of five Army officers
appointed by order of General Styer. The
order appointed six Army officers, all lawyers,
as defense counsel. Throughout the
proceedings which followed, including those
before this Court, defense counsel have
demonstrated their professional skill and
resourcefulness and their proper zeal for the
defense with which they were charged.
On the same date, a bill of particulars was
filed by the prosecution, and the commission
heard a motion made in petitioner's behalf to
dismiss the charge on the ground that it
failed to state a violation of the law of war.
On October 29th, the commission was
reconvened, a supplemental bill of particulars
was filed, and the motion to dismiss was
denied. The trial then proceeded until its
conclusion on December 7, 1945, the
commission hearing two hundred and eightysix witnesses, who gave over three thousand
pages of testimony. On that date, petitioner
was found guilty of the offense as charged,
and sentenced to death by hanging.
The petitions for habeas corpus set up that
the detention of petitioner for the purpose of
the trial was unlawful for
Page 327 U. S. 6
reasons which are now urged as showing that
the military commission was without lawful
authority or jurisdiction to place petitioner on
trial, as follows:
(a) That the military commission which tried
and convicted petitioner was not lawfully
created, and that no military commission to

try petitioner for violations of the law of war

could lawfully be convened after the
cessation of hostilities between the armed
forces of the United States and Japan;
(b) that the charge preferred against
petitioner fails to charge him with a violation
of the law of war;
(c) that the commission was without
authority and jurisdiction to try and convict
petitioner, because the order governing the
procedure of the commission permitted the
admission in evidence of depositions,
affidavits, and hearsay and opinion evidence,
and because the commission's rulings
admitting such evidence were in violation of
the 25th and 38th Articles of War (10 U.S.C.
1496, 1509) and the Geneva Convention
(47 Stat. 2021), and deprived petitioner of a
fair trial in violation of the due process clause
of the Fifth Amendment;
(d) that the commission was without
authority and jurisdiction in the premises
because of the failure to give advance notice
of petitioner's trial to the neutral power
representing the interests of Japan as a
belligerent as required by Article 60 of the
Geneva Convention, 47 Stat. 2021, 2051.
On the same grounds, the petitions for writs
of prohibition set up that the commission is
without authority to proceed with the trial.
The Supreme Court of the Philippine Islands,
after hearing argument, denied the petition
for habeas corpus presented to it on the
ground, among others, that its jurisdiction
was limited to an inquiry as to the jurisdiction
of the commission to place petitioner on trial
for the offense charged, and that the
commission, being validly constituted
Page 327 U. S. 7
by the order of General Styer, had jurisdiction
over the person of petitioner and over the
trial for the offense charged.
In Ex parte Quirin, 317 U. S. 1, we had
occasion to consider at length the sources
and nature of the authority to create military
commissions for the trial of enemy
combatants for offenses against the law of
war. We there pointed out that Congress, in
the exercise of the power conferred upon it
by Article I, 8, Cl. 10, of the Constitution to
"define and punish . . . Offenses against the
Law of Nations . . . " of which the law of war
is a part, had, by the Articles of War (10
U.S.C. 1471-1593), recognized the
"military commission" appointed by military
command, as it had previously existed in
United States Army practice, as an
appropriate tribunal for the trial and
punishment of offenses against the law of
war. Article 15 declares that
"the provisions of these articles conferring
jurisdiction upon courts-martial shall not be
construed as depriving military commissions .
. . or other military tribunals of concurrent
jurisdiction in respect of offenders of offenses
that, by statute or by the law of war, may be

triable by such military commissions . . . or

other military tribunals."
See a similar provision of the Espionage Act
of 1917, 50 U.S.C. 38. Article 2 includes
among those persons subject to the Articles
of War the personnel of our own military
establishment. But this, as Article 12
indicates, does not exclude from the class of
persons subject to trial by military
commissions "any other person who, by the
law of war, is subject to trial by military
tribunals" and who, under Article 12, may be
tried by court martial, or, under Article 15, by
military commission.
We further pointed out that Congress, by
sanctioning trial of enemy combatants for
violations of the law of war by military
commission, had not attempted to codify the
law of war or to mark its precise boundaries.
Instead, by Article 15, it had incorporated, by
reference, as within the
Page 327 U. S. 8
preexisting jurisdiction of military
commissions created by appropriate military
command, all offenses which are defined as
such by the law of war and which may
constitutionally be included within that
jurisdiction. It thus adopted the system of
military common law applied by military
tribunals so far as it should be recognized
and deemed applicable by the courts, and as
further defined and supplemented by the
Hague Convention, to which the United
States and the Axis powers were parties.
We also emphasized in Ex parte Quirin, as we
do here, that, on application for habeas
corpus, we are not concerned with the guilt
or innocence of the petitioners. We consider
here only the lawful power of the commission
to try the petitioner for the offense charged.
In the present cases, it must be recognized
throughout that the military tribunals which
Congress has sanctioned by the Articles of
War are not courts whose rulings and
judgments are made subject to review by this
Court. See Ex parte Vallandingham, 1 Wall.
243; In re Vidal,179 U. S. 126; cf. Ex parte
Quirin, supra, 317 U. S. 39. They are tribunals
whose determinations are reviewable by the
military authorities either as provided in the
military orders constituting such tribunals or
as provided by the Articles of War. Congress
conferred on the courts no power to review
their determinations save only as it has
granted judicial power "to grant writs of
habeas corpus for the purpose of an inquiry
into the cause of the restraint of liberty." 28
U.S.C. 451, 452. The courts may inquire
whether the detention complained of is
within the authority of those detaining the
petitioner. If the military tribunals have lawful
authority to hear, decide, and condemn, their
action is not subject to judicial review merely
because they have made a wrong decision on
disputed facts. Correction of their errors of
decision is not for the courts, but for the

military authorities, which are alone

authorized to review their
decisions. SeeDynes v. Hoover, 20 How. 5, 61
U. S. 81; Runkle v. United States, 122
Page 327 U. S. 9
U.S. 543, 122 U. S. 555-556; Carter v.
McClaughry, 183 U. S. 365; Collins v.
McDonald, 258 U. S. 416. Cf. Matter of
Moran, 203 U. S. 96, 203 U. S. 105.
Finally, we held in Ex parte Quirin, supra, 317
U. S. 24-25, as we hold now, that Congress,
by sanctioning trials of enemy aliens by
military commission for offenses against the
law of war, had recognized the right of the
accused to make a defense. Cf. Ex parte
Kawato,317 U. S. 69. It has not foreclosed
their right to contend that the Constitution or
laws of the United States withhold authority
to proceed with the trial. It has not
withdrawn, and the Executive branch of the
government could not, unless there was
suspension of the writ, withdraw from the
courts the duty and power to make such
inquiry into the authority of the commission
as may be made by habeas corpus.
With these governing principles in mind, we
turn to the consideration of the several
contentions urged to establish want of
authority in the commission. We are not here
concerned with the power of military
commissions to try civilians. See Ex parte
Milligan, 4 Wall. 2, 71 U. S. 132; Sterling v.
Constantin, 287 U. S. 378; Ex parte Quirin,
supra, 317 U. S. 45. The Government's
contention is that General Styer's order
creating the commission conferred authority
on it only to try the purported charge of
violation of the law of war committed by
petitioner, an enemy belligerent, while in
command of a hostile army occupying United
States territory during time of war. Our first
inquiry must therefore be whether the
present commission was created by lawful
military command, and, if so, whether
authority could thus be conferred on the
commission to place petitioner on trial after
the cessation of hostilities between the
armed forces of the United States and Japan.
The authority to create the
Commission. General Styer's order for the
appointment of the commission was made by
him as Commander of the United States
Armed Forces, Western Pacific. His command
includes, as part
Page 327 U. S. 10
of a vastly greater area, the Philippine
Islands, where the alleged offenses were
committed, where petitioner surrender as a
prisoner of war, and where, at the time of the
order convening the commission, he was
detained as a prisoner in custody of the
United States Army. The Congressional
recognition of military commissions and its
sanction of their use in trying offenses
against the law of war to which we have
referred sanctioned their creation by military

command in conformity to long established

American precedents. Such a commission
may be appointed by any field commander,
or by any commander competent to appoint
a general court martial, as was General
Styer, who had been vested with that power
by order of the President. 2 Winthrop, Military
Law and Precedents,2d Ed., *1302; cf. Article
of War 8.
Here, the commission was not only created
by a commander competent to appoint it, but
his order conformed to the established policy
of the Government and to higher military
commands authorizing his action. In a
proclamation of July 2, 1942 (56 Stat. 1964),
the President proclaimed that enemy
belligerents who, during time of war, enter
the United States, or any territory possession
thereof, and who violate the law of war,
should be subject to the law of war and to the
jurisdiction of military tribunals. Paragraph 10
of the Declaration of Potsdam of July 6, 1945,
declared that " . . . stern justice shall be
meted out to all war criminals, including
those who have visited cruelties upon
prisoners." U.S. Dept. of State Bull., Vol. XIII,
No. 318, pp. 137, 138. This Declaration was
accepted by the Japanese government by its
note of August 10, 1945. U.S. Dept. of State
Bull., Vol. XIII, No. 320, p. 205.
By direction of the President, the Joint Chiefs
of Staff of the American Military Forces, on
September 12, 1945, instructed General
MacArthur, Commander in Chief, United
States Army Forces, Pacific, to proceed with
the trial, before
Page 327 U. S. 11
appropriate military tribunals, of such
Japanese war criminals "as have been or may
be apprehended." By order of General
MacArthur of September 24, 1945, General
Styer was specifically directed to proceed
with the trial of petitioner upon the charge
here involved. This order was accompanied
by detailed rules and regulations which
General MacArthur prescribed for the trial of
war criminals. These regulations directed,
among other things, that review of the
sentence imposed by the commission should
be by the officer convening it, with "authority
to approve, mitigate, remit, commute,
suspend, reduce, or otherwise alter the
sentence imposed," and directed that no
sentence of death should be carried into
effect until confirmed by the Commander in
Chief, United States Army Forces, Pacific.
It thus appears that the order creating the
commission for the trial of petitioner was
authorized by military command, and was in
complete conformity to the Act of Congress
sanctioning the creation of such tribunals for
the trial of offenses against the law of war
committed by enemy combatants. And we
turn to the question whether the authority to
create the commission and direct the trial by

military order continued after the cessation

of hostilities.
An important incident to the conduct of war is
the adoption of measures by the military
commander not only to repel and defeat the
enemy, but to seize and subject to
disciplinary measures those enemies who, in
their attempt to thwart or impede our
military effort, have violated the law of
war. Ex parte Quirin, supra, 317 U. S. 28. The
trial and punishment of enemy combatants
who have committed violations of the law of
war is thus not only a part of the conduct of
war operating as a preventive measure
against such violations, but is an exercise of
the authority sanctioned by Congress to
administer the system of military justice
recognized by the law of war. That sanction is
without qualification as to the exercise of this
authority so
Page 327 U. S. 12
long as a state of war exists -- from its
declaration until peace is
proclaimed. See United States v. Anderson, 9
Wall. 56, 76 U. S. 70;The Protector, 12 Wall.
700, 79 U. S. 702; McElrath v. United
States, 102 U. S. 426, 102 U. S. 438; Kahn v.
Anderson, 255 U. S. 1,255 U. S. 9-10. The war
power, from which the commission derives its
existence, is not limited to victories in the
field, but carries with it the inherent power to
guard against the immediate renewal of the
conflict, and to remedy, at least in ways
Congress has recognized, the evils which the
military operations have
produced. See Stewart v. Kahn, 11 Wall.
493, 78 U. S. 507.
We cannot say that there is no authority to
convene a commission after hostilities have
ended to try violations of the law of war
committed before their cessation, at least
until peace has been officially recognized by
treaty or proclamation of the political branch
of the Government. In fact, in most instances,
the practical administration of the system of
military justice under the law of war would
fail if such authority were thought to end with
the cessation of hostilities. For only after their
cessation could the greater number of
offenders and the principal ones be
apprehended and subjected to trial.
No writer on international law appears to
have regarded the power of military
tribunals, otherwise competent to try
violations of the law of war, as terminating
before the formal state of war has ended.
[Footnote 1] In our own military history,
Page 327 U. S. 13
there have been numerous instances in
which offenders were tried by military
commission after the cessation of hostilities
and before the proclamation of peace, for
offenses against the law of war committed
before the cessation of hostilities. [Footnote
2]

The extent to which the power to prosecute

violations of the law of war shall be exercised
before peace is declared rests not with the
courts, but with the political branch of the
Government, and may itself be governed by
the terms of an armistice or the treaty of
peace. Here, peace has not been agreed
upon or proclaimed. Japan, by her
acceptance of the Potsdam Declaration and
her surrender, has acquiesced in the trials of
those guilty of violations of the law of war.
The conduct of the trial by the military
commission has been authorized by the
political branch of the Government, by
military command, by international law and
usage, and by the terms of the surrender of
the Japanese government.
The Charge. Neither Congressional action nor
the military orders constituting the
commission authorized it to place petitioner
on trial unless the charge preferred against
him is of a violation of the law of war. The
charge, so far as now relevant, is that
petitioner, between October 9, 1944, and
September 2, 1945, in the Philippine Islands,
"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
Page 327 U. S. 14
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."
Bills of particulars, filed by the prosecution by
order of the commission, allege a a series of
acts, one hundred and twenty-three in
number, committed by members of the
forces under petitioner's command during
the period mentioned. The first item specifies
the execution of a
"a deliberate plan and purpose to massacre
and exterminate a large part of the civilian
population of Batangas Province, and to
devastate and destroy public, private, and
religious property therein, as a result of which
more than 25,000 men, women and children,
all unarmed noncombatant civilians, were
brutally mistreated and killed, without cause
or trial, and entire settlements were
devastated and destroyed wantonly and
without military necessity."
Other items specify acts of violence, cruelty,
and homicide inflicted upon the civilian
population and prisoners of war, acts of
wholesale pillage, and the wanton
destruction of religious monuments.
It is not denied that such acts directed
against the civilian population of an occupied
country and against prisoners of war are
recognized in international law as violations
of the law of war. Articles 4, 28, 46, and 47,
Annex to Fourth Hague Convention, 1907, 36

Stat. 2277, 2296, 2303, 2306, 2307. But it is

urged that the charge does not allege that
petitioner has either committed or directed
the commission of such acts, and
consequently that no violation is charged as
against him. But this overlooks the fact that
the gist of the charge is an unlawful breach of
duty by petitioner as an army commander to
control the operations of the members of his
command by "permitting them to commit"
the extensive and widespread atrocities
specified. The question, then, is whether the
law of war imposes
Page 327 U. S. 15
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. That this
was the precise issue to be tried was made
clear by the statement of the prosecution at
the opening of the trial.
It is evident that the conduct of military
operations by troops whose excesses are
unrestrained by the orders or efforts of their
commander would almost certainly result in
violations which it is the purpose of the law of
war to prevent. Its purpose to protect civilian
populations and prisoners of war from
brutality would largely be defeated if the
commander of an invading army could, with
impunity, neglect to take reasonable
measures for their protection. Hence, the law
of war presupposes that its violation is to be
avoided through the control of the operations
of war by commanders who are to some
extent responsible for their subordinates.
This is recognized by the Annex to Fourth
Hague Convention of 1907, respecting the
laws and customs of war on land. Article I
lays down, as a condition which an armed
force must fulfill in order to be accorded the
rights of lawful belligerents, that it must be
"commanded by a person responsible for his
subordinates." 36 Stat. 2295. Similarly,
Article 19 of the Tenth Hague Convention,
relating to bombardment by naval vessels,
provides that commanders in chief of the
belligerent vessels "must see that the above
Articles are properly carried out." 36 Stat.
2389. And Article 26 of the Geneva Red Cross
Convention of 1929, 47 Stat. 2074, 2092, for
the amelioration of the condition of the
wounded and sick in armies in the field,
makes it
"the duty of the commanders in chief of the
belligerent
Page 327 U. S. 16
armies to provide for the details of execution
of the foregoing articles [of the convention],
as well as for unforeseen cases."

And, finally, Article 43 of the Annex of the

Fourth Hague Convention, 36 Stat. 2306,
requires that the commander of a force
occupying enemy territory, as was petitioner,
"shall take all the measures in his power to
restore and ensure, as far as possible, public
order and safety, while respecting, unless
absolutely prevented, the laws in force in the
country."
These provisions plainly imposed on
petitioner, who at the time specified was
military governor of the Philippines as well as
commander of the Japanese forces, an
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. This duty of a
commanding officer has heretofore been
recognized, and its breach penalized by our
own military tribunals. [Footnote 3] A like
principle has been applied so as to impose
liability on the United States in international
arbitrations. Case of Jenaud, 3 Moore,
International Arbitrations 3000; Case of "The
Zafiro," 5 Hackworth, Digest of International
Law 707.
We do not make the laws of war, but we
respect them so far as they do not conflict
with the commands of Congress or the
Constitution. There is no contention that the
present charge, thus read, is without the
support of evidence, or that the commission
held petitioner responsible for failing to take
measures which were beyond his control or
inappropriate for a commanding officer to
take in the circumstances. [Footnote 4]
Page 327 U. S. 17
We do not here appraise the evidence on
which petitioner was convicted. We do not
consider what measures, if any, petitioner
took to prevent the commission, by the
troops under his command, of the plain
violations of the law of war detailed in the bill
of particulars, or whether such measures as
he may have taken were appropriate and
sufficient to discharge the duty imposed upon
him. These are questions within the peculiar
competence of the military officers
composing the commission, and were for it to
decide. See Smith v. Whitney, 116 U. S.
167, 116 U. S. 178. It is plain that the charge
on which petitioner was tried charged him
with a breach of his duty to control the
operations of the members of his command,
by permitting them to commit the specified
atrocities. This was enough to require the
commission to hear evidence tending to
establish the culpable failure of petitioner to
perform the duty imposed on him by the law
of war, and to pass upon its sufficiency to
establish guilt.
Obviously, charges of violations of the law of
war triable before a military tribunal need not
be stated with the precision of a common law
indictment. Cf. Collins v. McDonald,
supra, 258 U. S. 420. But we conclude that

the allegations of the charge, tested by any

reasonable standard, adequately allege a
violation of the law of war, and that the
Page 327 U. S. 18
commission had authority to try and decide
the issue which it raised. Cf. Dealy v. United
States, 152 U. S. 539; Williamson v. United
States, 207 U. S. 425, 207 U. S. 447; Glasser
v. United States, 315 U. S. 60, 315 U. S. 66,
and cases cited.
The Proceedings before the Commission. The
regulations prescribed by General MacArthur
governing the procedure for the trial of
petitioner by the commission directed that
the commission should admit such evidence
"as, in its opinion, would be of assistance in
proving or disproving the charge, or such as,
in the commission's opinion, would have
probative value in the mind of a reasonable
man,"
and that, in particular, it might admit
affidavits, depositions, or other statements
taken by officers detailed for that purpose by
military authority. The petitions in this case
charged that, in the course of the trial, the
commission received, over objection by
petitioner's counsel, the deposition of a
witness taken pursuant to military authority
by a United States Army captain. It also, over
like objection, admitted hearsay and opinion
evidence tendered by the prosecution.
Petitioner argues, as ground for the writ of
habeas corpus, that Article 25 [Footnote 5] of
the Articles of War prohibited the reception in
evidence by the commission of depositions
on behalf of the prosecution in a capital case,
and that Article 38 [Footnote 6] prohibited
the reception of hearsay and of opinion
evidence.
Page 327 U. S. 19
We think that neither Article 25 nor Article 38
is applicable to the trial of an enemy
combatant by a military commission for
violations of the law of war. Article 2 of the
Articles of War enumerates "the persons . . .
subject to these articles," who are
denominated, for purposes of the Articles, as
"persons subject to military law." In general,
the persons so enumerated are members of
our own Army and of the personnel
accompanying the Army. Enemy combatants
are not included among them. Articles 12, 13,
and 14, before the adoption of Article 15 in
1916, 39 Stat. 653, made all "persons subject
to military law" amenable to trial by courtsmartial for any offense made punishable by
the Articles of War. Article 12 makes triable
by general court martial "any other person
who, by the law of war, is [triable] by military
tribunals." Since Article 2, in its 1916 form,
39 Stat. 651, includes some persons who, by
the law of war, were, prior to 1916, triable by
military commission, it was feared by the
proponents of the 1916 legislation that, in
the absence of a saving provision, the
authority given by Articles 12, 13, and 14 to

try such persons before courts-martial might

be construed to deprive the nonstatutory
military commission of a portion of what was
considered to be its traditional jurisdiction. To
avoid this, and to preserve that jurisdiction
intact, Article 15 was added to the Articles.
[Footnote 7] It declared that
"The provisions of these articles
Page 327 U. S. 20
conferring jurisdiction upon courts-martial
shall not be construed as depriving military
commissions . . . of concurrent jurisdiction in
respect of offenders or offenses that, by the
law of war, may be lawfully triable by such
military commissions."
By thus recognizing military commissions in
order to preserve their traditional jurisdiction
over enemy combatants unimpaired by the
Articles, Congress gave sanction, as we held
in Ex parte Quirin, to any use of the military
commission contemplated by the common
law of war. But it did not thereby make
subject to the Articles of War persons other
than those defined by Article 2 as being
subject to the Articles, nor did it confer the
benefits of the Articles upon such persons.
The Articles recognized but one kind of
military commission, not two. But they
sanctioned the use of that one for the trial of
two classes of persons, to one of which the
Articles do, and to the other of which they do
not, apply in such trials. Being of this latter
class, petitioner cannot claim the benefits of
the Articles, which are applicable only to the
members of the other class. Petitioner, an
enemy combatant, is therefore not a person
made subject to the Articles of War by Article
2, and the military commission before which
he was tried, though sanctioned, and its
jurisdiction saved, by Article 15, was not
convened by virtue of the Articles of War, but
pursuant to the common law of war. It follows
that the Articles of War, including Articles 25
and 38, were not applicable to petitioner's
trial, and imposed no restrictions upon the
procedure to be followed. The Articles left the
control over the procedure in such a case
where it had previously been -- with the
military command.
Petitioner further urges that, by virtue of
Article 63 of the Geneva Convention of 1929,
47 Stat. 2052, he is entitled to the benefits
afforded by the 25th and 38th Articles of War
to members of our own forces. Article 63
provides:
"Sentence may be pronounced against a
prisoner of war
Page 327 U. S. 21
only by the same courts and according to the
same procedure as in the case of persons
belonging to the armed forces of the
detaining Power."
Since petitioner is a prisoner of war, and as
the 25th and 38th Articles of War apply to the
trial of any person in our own armed forces, it
is said that Article 63 requires them to be

applied in the trial of petitioner. But we think

examination of Article 63 in its setting in the
Convention plainly shows that it refers to
sentence "pronounced against a prisoner of
war" for an offense committed while a
prisoner of war, and not for a violation of the
law of war committed while a combatant.
Article 63 of the Convention appears in part
3, entitled "Judicial Suits," of Chapter 3,
"Penalties Applicable to Prisoners of War," of
V, "Prisoners' Relations with the
Authorities," one of the sections of Title III,
"Captivity." All taken together relate only to
the conduct and control of prisoners of war
while in captivity as such. Chapter 1 of
Section V, Article 42, deals with complaints of
prisoners of war because of the conditions of
captivity. Chapter 2, Articles 43 and 44,
relates to those of their number chosen by
prisoners of war to represent them.
Chapter 3 of Section V, Articles 45 through
67, is entitled "Penalties Applicable to
Prisoners of War." Part 1 of that chapter,
Articles 45 through 53, indicates what acts of
prisoners of war committed while prisoners
shall be considered offenses, and defines to
some extent the punishment which the
detaining power may impose on account of
such offenses. [Footnote 8] Punishment is of
two kinds -- "disciplinary" and
Page 327 U. S. 22
"judicial," the latter being the more severe.
Article 52 requires that leniency be exercised
in deciding whether an offense requires
disciplinary or judicial punishment. Part 2 of
Chapter 3 is entitled "Disciplinary
Punishments," and further defines the extent
of such punishment and the mode in which it
may be imposed. Part 3, entitled "Judicial
Suits," in which Article 63 is found, describes
the procedure by which "judicial" punishment
may be imposed. The three parts of Chapter
3, taken together, are thus a comprehensive
description of the substantive offenses which
prisoners of war may commit during their
imprisonment, of the penalties which may be
imposed on account of such offenses, and of
the procedure by which guilt may be
adjudged and sentence pronounced.
We think it clear, from the context of these
recited provisions, that part 3, and Article 63
which it contains, apply only to judicial
proceedings directed against a prisoner of
war for offenses committed while a prisoner
of war. Section
Page 327 U. S. 23
V gives no indication that this part was
designed to deal with offenses other than
those referred to in parts 1 and 2 of chapter
3.
We cannot say that the commission, in
admitting evidence to which objection is now
made, violated any act of Congress, treaty, or
military command defining the commission's
authority. For reasons already stated, we hold
that the commission's rulings on evidence

and on the mode of conducting these

proceedings against petitioner are not
reviewable by the courts, but only by the
reviewing military authorities. From this
viewpoint, it is unnecessary to consider what,
in other situations, the Fifth Amendment
might require, and as to that, no intimation
one way or the other is to be implied. Nothing
we have said is to be taken as indicating any
opinion on the question of the wisdom of
considering such evidence, or whether the
action of a military tribunal in admitting
evidence which Congress or controlling
military command has directed to be
excluded may be drawn in question by
petition for habeas corpus or prohibition.
Effect of failure to give notice of the trial to
the protecting power. Article 60 of the
Geneva Convention of July 27, 1929, 47 Stat.
2051, to which the United States and Japan
were signatories, provides that,
"At the opening of a judicial proceeding
directed against a prisoner of war, the
detaining Power shall advise the
representative of the protecting Power
thereof as soon as possible, and always
before the date set for the opening of the
trial."
Petitioner relies on the failure to give the
prescribed notice to the protecting power
[Footnote 9] to establish want of authority in
the commission to proceed with the trial.
Page 327 U. S. 24
For reasons already stated, we conclude that
Article 60 of the Geneva Convention, which
appears in part 3, Chapter 3, Section V, Title
III of the Geneva Convention, applies only to
persons who are subjected to judicial
proceedings for offenses committed while
prisoners of war. [Footnote 10]
Page 327 U. S. 25
It thus appears that the order convening the
commission was a lawful order, that the
commission was lawfully constituted, that
petitioner was charged with violation of the
law of war, and that the commission had
authority to proceed with the trial, and, in
doing so, did not violate any military,
statutory, or constitutional command. We
have considered, but find it unnecessary to
discuss, other contentions which we find to
be without merit. We therefore conclude that
the detention of petitioner for trial and his
detention upon his conviction, subject to the
prescribed review by the military authorities,
were lawful, and that the petition for
certiorari, and leave to file in this Court
Page 327 U. S. 26
petitions for writs of habeas corpus and
prohibition should be, and they are
Denied.
MR. JUSTICE JACKSON took no part in the
consideration or decision of these cases.
* Together with No. 672, Yamashita v. Styer,
Commanding General, on petition for writ of
certiorari to the Supreme Court of the the

Philippines. For earlier orders in these

cases, see 326 U.S. 693-694.
[Footnote 1]
The Commission on the Responsibility of the
Authors of the War and on the Enforcement
of Penalties of the Versailles Peace
Conference, which met after cessation of
hostilities in the First World War, were of the
view that violators of the law of war could be
tried by military tribunals. See Report of the
Commission, March 9, 1919, 14 Am.J.Int.L.
95, 121. See also memorandum of American
commissioners concurring on this point, id. at
p. 141. The treaties of peace concluded after
World War I recognized the right of the Allies
and of the United States to try such offenders
before military tribunals. See Art. 228 of
Treaty of Versailles, June 28, 1919; Art. 173 of
Treaty of St. Germain, Sept. 10, 1919; Art.
157 of Treaty of Trianon, June 4, 1920.
The terms of the agreement which ended
hostilities in the Boer War reserved the right
to try, before military tribunals, enemy
combatants who had violated the law of war.
95 British and Foreign State Papers (19011902) 160. See also trials cited in Colby, War
Crimes, 23 Michigan Law Rev. 482, 496-497.
[Footnote 2]
See cases mentioned in Ex parte Quirin,
supra, 317 U. S. 32, note 10, and in 2
Winthrop, supra, *1310-1311, n. 5; 14
Op.Atty.Gen. 249 (Modoc Indian Prisoners).
[Footnote 3]
Failure of an officer to take measures to
prevent murder of an inhabitant of an
occupied country committed in his presence.
Gen.Orders No. 221, Hq.Div. of the
Philippines, August 17, 1901. And, in
Gen.Orders No. 264, Hq.Div. of the
Philippines, September 9, 1901, it was held
that an officer could not be found guilty for
failure to prevent a murder unless it
appeared that the accused had "the power to
prevent" it.
[Footnote 4]
In its findings, the commission took account
of the difficulties
"faced by the accused with respect not only
to the swift and overpowering advance of
American forces, but also to errors of his
predecessors, weakness in organization,
equipment, supply . . . , training,
communication, discipline, and morale of his
troops,"
and
"the tactical situation, the character, training
and capacity of staff officers and subordinate
commanders, as well as the traits of
character of his troops."
It nonetheless found that petitioner had not
taken such measures to control his troops as
were "required by the circumstances." We do
not weigh the evidence. We merely hold that
the charge sufficiently states a violation
against the law of war, and that the
commission, upon the facts found, could

properly find petitioner guilty of such a

violation.
[Footnote 5]
Article 25 provides:
"A duly authenticated deposition taken upon
reasonable notice to the opposite party may
be read in evidence before any military court
or commission in any case not capital, or in
any proceeding before a court of inquiry or a
military board, . . . Provided, That testimony
by deposition may be adduced for the
defense in capital cases."
[Footnote 6]
Article 38 provides:
"The President may, by regulations, which he
may modify from time to time, prescribe the
procedure, including modes of proof, in cases
before courts-martial, courts of inquiry,
military commissions, and other military
tribunals, which regulations shall, insofar as
he shall deem practicable, apply the rules of
evidence generally recognized in the trial of
criminal cases in the district courts of the
United States:Provided, That nothing contrary
to or inconsistent with these articles shall be
so prescribed. . . ."
[Footnote 7]
General Crowder, the Judge Advocate
General, who appeared before Congress as
sponsor for the adoption of Article 15 and the
accompanying amendment of Article 25, in
explaining the purpose of Article 15, said:
"Article 15 is new. We have included in article
2, as subject to military law, a number of
persons who are also subject to trial by
military commission. A military commission is
our common law war court. It has no
statutory existence, though it is recognized
by statute law. As long as the articles
embraced them in the designation 'persons
subject to military law,' and provided that
they might be tried by court-martial, I was
afraid that, having made a special provision
for their trial by court-martial [Arts. 12, 13,
and 14], it might be held that the provision
operated to exclude trials by military
commission and other war courts; so this new
article was introduced. . . ."
Sen.R. 130, 64th Cong., 1st Sess., p. 40.
[Footnote 8]
Part 1 of Chapter 3, "General Provisions,"
provides in Articles 45 and 46 that prisoners
of war are subject to the regulations in force
in the armies of the detaining power, that
punishments other than those provided "for
the same acts for soldiers of the national
armies" may not be imposed on prisoners of
war, and that "collective punishment for
individual acts" is forbidden. Article 47
provides that
"Acts constituting an offense against
discipline, and particularly attempted escape,
shall be verified immediately; for all prisoners
of war, commissioned or not, preventive
arrest shall be reduced to the absolute
minimum. Judicial proceedings against

prisoners of war shall be conducted as

rapidly as the circumstances permit. . . . In all
cases, the duration of preventive
imprisonment shall be deducted from the
disciplinary or the judicial punishment
inflicted."
Article 48 provides that prisoners of war,
after having suffered "the judicial of
disciplinary punishment which has been
imposed on them," are not to be treated
differently from other prisoners, but provides
that "prisoners punished as a result of
attempted escape may be subjected to
special surveillance." Article 49 recites that
prisoners "given disciplinary punishment may
not be deprived of the prerogatives attached
to their rank." Articles 50 and 51 deal with
escaped prisoners who have been retaken or
prisoners who have attempted to escape.
Article 52 provides:
"Belligerents shall see that the competent
authorities exercise the greatest leniency in
deciding the question of whether an
infraction committed by a prisoner of war
should be punished more than once because
of the same act or the same count."
[Footnote 9]
Switzerland, at the time of the trial, was the
power designated by Japan for the protection
of Japanese prisoners of war detained by the
United States, except in Hawaii. U.S.Dept. of
State Bull. Vol. XIII, No. 317, p. 125.
[Footnote 10]
One of the items of the bill of particulars in
support of the charge against petitioner
specifies that he permitted members of the
armed forces under his command to try and
execute three named and other prisoners of
war,
"subjecting to trial without prior notice to a
representative of the protecting power,
without opportunity to defend, and without
counsel; denying opportunity to appeal from
the sentence rendered; failing to notify the
protecting power of the sentence
pronounced, and executing a death sentence
without communicating to the representative
of the protecting power the nature and
circumstances of the offense charged."
It might be suggested that, if Article 60 is
inapplicable to petitioner, it is inapplicable in
the cases specified, and that, hence, he could
not be lawfully held or convicted on a charge
of failing to require the notice provided for in
Article 60 to be given.
As the Government insists, it does not appear
from the charge and specifications that the
prisoners in question were not charged with
offenses committed by them as prisoners,
rather than with offenses against the law of
war committed by them as enemy
combatants. But, apart from this
consideration, independently of the notice
requirements of the Geneva Convention, it is
a violation of the law of war, on which there
could be a conviction if supported by

evidence, to inflict capital punishment on

prisoners of war without affording to them
opportunity to make a defense. 2
Winthrop, supra, *434, 435, 1241; Article 84,
Oxford Manual; U.S. War Dept., Basic Field
Manual, Rules of Land Warfare (1940) par.
356; Lieber's Code, G.O. No. 100 (1863)
Instructions for the Government of Armies of
the United States in the Field, par. 12;
Spaight, War Rights on Land, 462, n.
Further, the commission, in making its
findings, summarized as follows the charges
on which it acted in three classes, any one of
which, independently of the others if
supported by evidence, would be sufficient to
support the conviction: (1) execution or
massacre without trial and maladministration
generally of civilian internees and prisoners
of war; (2) brutalities committed upon the
civilian population, and (3) burning and
demolition, without adequate military
necessity, of a large number of homes,
places of business, places of religious
worship, hospitals, public buildings, and
educational institutions.
The commission concluded: "(1) that a series
of atrocities and other high crimes have been
committed by members of the Japanese
armed forces" under command of petitioner
"against people of the United States, their
allies and dependencies; . . . that they were
not sporadic in nature, but in many cases
were methodically supervised by Japanese
officers and noncommissioned officers;"
(2) that, during the period in question,
petitioner "failed to provide effective control
of [his] troops, as was required by the
circumstances." The commission said:
"Where murder and rape and vicious,
revengeful actions are widespread offenses,
and there is no effective attempt by a
commander to discover and control the
criminal acts, such a commander may be
held responsible, even criminally liable, for
the lawless acts of his troops, depending
upon their nature and the circumstances
surrounding them."
The commission made no finding of
noncompliance with the Geneva Convention.
Nothing has been brought to our attention
from which we could conclude that the
alleged noncompliance with Article 60 of the
Geneva Convention had any relation to the
commission's finding of a series of atrocities
committed by members of the forces under
petitioner's command, and that he failed to
provide effective control of his troops, as was
required by the circumstances, or which
could support the petitions for habeas corpus
on the ground that petitioner had been
charged with or convicted for failure to
require the notice prescribed by Article 60 to
be given.
MR. JUSTICE MURPHY, dissenting.
The significance of the issue facing the Court
today cannot be overemphasized. An

10

American military commission has been

established to try a fallen military
commander of a conquered nation for an
alleged war crime. The authority for such
action grows out of the exercise of the power
conferred upon Congress by Article I, 8, Cl.
10 of the Constitution to "define and
punish . . . Offenses against the Law of
Nations. . . ." The grave issue raised by this
case is whether a military commission so
established and so authorized may disregard
the procedural rights of an accused person as
guaranteed by the Constitution, especially by
the due process clause of the Fifth
Amendment.
The answer is plain. The Fifth Amendment
guarantee of due process of law applies to
"any person" who is accused of a crime by
the Federal Government or any of its
agencies. No exception is made as to those
who are accused of war crimes or as to those
who possess the status of an enemy
belligerent. Indeed, such an exception would
be contrary to the whole philosophy of
human rights which makes the Constitution
the great living document that it is. The
immutable rights of the individual, including
those secured by the due process clause of
the Fifth Amendment, belong not alone to the
members of those nations that excel on the
battlefield or that subscribe to the
democratic ideology. They belong to every
person in the world, victor or vanquished,
whatever may be his race, color, or beliefs.
They rise above any status of belligerency or
outlawry. They survive any popular passion or
frenzy of the moment. No court or legislature
or executive, not even the mightiest
Page 327 U. S. 27
army in the world, can ever destroy them.
Such is the universal and indestructible
nature of the rights which the due process
clause of the Fifth Amendment recognizes
and protects when life or liberty is threatened
by virtue of the authority of the United
States.
The existence of these rights, unfortunately,
is not always respected. They are often
trampled under by those who are motivated
by hatred, aggression, or fear. But, in this
nation, individual rights are recognized and
protected, at least in regard to governmental
action. They cannot be ignored by any
branch of the Government, even the military,
except under the most extreme and urgent
circumstances.
The failure of the military commission to
obey the dictates of the due process
requirements of the Fifth Amendment is
apparent in this case. The petitioner was the
commander of an army totally destroyed by
the superior power of this nation. While under
heavy and destructive attack by our forces,
his troops committed many brutal atrocities
and other high crimes. Hostilities ceased, and
he voluntarily surrendered. At that point, he

was entitled, as an individual protected by

the due process clause of the Fifth
amendment, to be treated fairly and justly
according to the accepted rules of law and
procedure. He was also entitled to a fair trial
as to any alleged crimes, and to be free from
charges of legally unrecognized crimes that
would serve only to permit his accusers to
satisfy their desires for revenge.
A military commission was appointed to try
the petitioner for an alleged war crime. The
trial was ordered to be held in territory over
which the United States has complete
sovereignty. No military necessity or other
emergency demanded the suspension of the
safeguards of due process. Yet petitioner was
rushed to trial under an improper charge,
given insufficient time to prepare an
adequate defense, deprived of the benefits of
some of the most
Page 327 U. S. 28
elementary rules of evidence, and summarily
sentenced to be hanged. In all this needless
and unseemly haste, there was no serious
attempt to charge or to prove that he
committed a recognized violation of the laws
of war. He was not charged with personally
participating in the acts of atrocity, or with
ordering or condoning their commission. Not
even knowledge of these crimes was
attributed to him. It was simply alleged that
he unlawfully disregarded and failed to
discharge his duty as commander to control
the operations of the members of his
command, permitting them to commit the
acts of atrocity. The recorded annals of
warfare and the established principles of
international law afford not the slightest
precedent for such a charge. This indictment,
in effect, permitted the military commission
to make the crime whatever it willed,
dependent upon its biased view as to
petitioner's duties and his disregard thereof,
a practice reminiscent of that pursued in
certain less respected nations in recent
years.
In my opinion, 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

11

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
Page 327 U. S. 29
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.
That there were brutal atrocities inflicted
upon the helpless Filipino people, to whom
tyranny is no stranger, by Japanese armed
forces under the petitioner's command is
undeniable. Starvation, execution, or
massacre without trial, torture, rape, murder,
and wanton destruction of property were
foremost among the outright violations of the
laws of war and of the conscience of a
civilized world. That just punishment should
be meted out to all those responsible for
criminal acts of this nature is also beyond
dispute. But these factors do not answer the
problem in this case. They do not justify the
abandonment of our devotion to justice in
dealing with a fallen enemy commander. To
conclude otherwise is to admit that the
enemy has lost the battle, but has destroyed
our ideals.
War breeds atrocities. From the earliest
conflicts of recorded history to the global
struggles of modern times, inhumanities,
lust, and pillage have been the inevitable
byproducts of man's resort to force and arms.
Unfortunately, such despicable acts have a
dangerous tendency to call forth primitive
impulses of vengeance and retaliation among
the victimized peoples. The satisfaction of
such impulses, in turn, breeds resentment
and fresh tension. Thus does the spiral of
cruelty and hatred grow.
If we are ever to develop an orderly
international community based upon a
recognition of human dignity, it is of the
utmost importance that the necessary
punishment of those guilty of atrocities be as
free as possible from the ugly stigma of
revenge and vindictiveness. Justice must be
tempered by compassion, rather than by
vengeance. In this, the first case involving
this momentous problem ever to reach this
Court, our responsibility is both lofty and
difficult. We must insist, within the confines
of our proper
Page 327 U. S. 30
jurisdiction, that the highest standards of
justice be applied in this trial of an enemy
commander conducted under the authority of
the United States. Otherwise, stark
retribution will be free to masquerade in a
cloak of false legalism. And the hatred and
cynicism engendered by that retribution will
supplant the great ideals to which this nation
is dedicated.

This Court, fortunately, has taken the first

and most important step toward insuring the
supremacy of law and justice in the
treatment of an enemy belligerent accused of
violating the laws of war. Jurisdiction properly
has been asserted to inquire "into the cause
of restraint of liberty" of such a person. 28
U.S.C. 452. Thus, the obnoxious doctrine
asserted by the Government in this case -- to
the effect that restraints of liberty resulting
from military trials of war criminals are
political matters completely outside the
arena of judicial review -- has been rejected
fully and unquestionably. This does not mean,
of course, that the foreign affairs and policies
of the nation are proper subjects of judicial
inquiry. But, when the liberty of any person is
restrained by reason of the authority of the
United States, the writ of habeas corpus is
available to test the legality of that restraint,
even though direct court review of the
restraint is prohibited. The conclusive
presumption must be made, in this country at
least, that illegal restraints are unauthorized
and unjustified by any foreign policy of the
Government, and that commonly accepted
juridical standards are to be recognized and
enforced. On that basis, judicial inquiry into
these matters may proceed within its proper
sphere.
The determination of the extent of review of
war trials calls for judicial statesmanship of
the highest order. The ultimate nature and
scope of the writ of habeas corpus are within
the discretion of the judiciary unless validly
circumscribed by Congress. Here, we are
confronted with a use of the writ under
circumstances novel in the history of the
Page 327 U. S. 31
Court. For my own part, I do not feel that we
should be confined by the traditional lines of
review drawn in connection with the use of
the writ by ordinary criminals who have direct
access to the judiciary in the first instance.
Those held by the military lack any such
access; consequently the judicial review
available by habeas corpus must be wider
than usual in order that proper standards of
justice may be enforceable.
But, for the purposes of this case, I accept
the scope of review recognized by the Court
at this time. As I understand it, the following
issues in connection with war criminal trials
are reviewable through the use of the writ of
habeas corpus: (1) whether the military
commission was lawfully created and had
authority to try and to convict the accused of
a war crime; (2) whether the charge against
the accused stated a violation of the laws of
war; (3) whether the commission, in
admitting certain evidence, violated any law
or military command defining the
commission's authority in that respect, and
(4) whether the commission lacked
jurisdiction because of a failure to give

12

advance notice to the protecting power as

required by treaty or convention.
The Court, in my judgment, demonstrates
conclusively that the military commission
was lawfully created in this instance, and that
petitioner could not object to its power to try
him for a recognized war crime. Without
pausing here to discuss the third and fourth
issues, however, I find it impossible to agree
that the charge against the petitioner stated
a recognized violation of the laws of war.
It is important, in the first place, to
appreciate the background of events
preceding this trial. From October 9, 1944, to
September 2, 1945, the petitioner was the
Commanding General of the 14th Army
Group of the Imperial Japanese Army, with
headquarters in the Philippines. The
reconquest of the Philippines by the armed
forces of the United States began
approximately at the time when
Page 327 U. S. 32
the petitioner assumed this command.
Combined with a great and decisive sea
battle, an invasion was made on the island of
Leyte on October 20, 1944.
"In the six days of the great naval action, the
Japanese position in the Philippines had
become extremely critical. Most of the
serviceable elements of the Japanese Navy
had become committed to the battle, with
disastrous results. The strike had miscarried,
and General MacArthur's land wedge was
firmly implanted in the vulnerable flank of the
enemy. . . . There were 260,000 Japanese
troops scattered over the Philippines, but
most of them might as well have been on the
other side of the world so far as the enemy's
ability to shift them to meet the American
thrusts was concerned. If General MacArthur
succeeded in establishing himself in the
Visayas, where he could stage, exploit, and
spread under cover of overwhelming naval
and air superiority, nothing could prevent him
from overrunning the Philippines."
Biennial Report of the Chief of Staff of the
United States Army, July 1, 1943, to June 30,
1945, to the Secretary of War, p. 74.
By the end of 1944, the island of Leyte was
largely in American hands. And on January 9,
1945, the island of Luzon was invaded.
"Yamashita's inability to cope with General
MacArthur's swift moves, his desired reaction
to the deception measures, the guerrillas,
and General Kenney's aircraft, combined to
place the Japanese in an impossible situation.
The enemy was forced into a piecemeal
commitment of his troops."
Ibid., p. 78. It was at this time and place that
most of the alleged atrocities took place.
Organized resistance around Manila ceased
on February 23. Repeated land and air
assaults pulverized the enemy, and, within a
few months, there was little left of
petitioner's command except a few remnants

which had gathered for a last stand among

the precipitous mountains.
As the military commission here noted,
"The Defense established the difficulties
faced by the Accused with respect
Page 327 U. S. 33
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 day of final reckoning for the enemy
arrived in August, 1945. On September 3, the
petitioner surrendered to the United States
Army at Baguio, Luzon. He immediately
became a prisoner of war, and was interned
in prison in conformity with the rules of
international law. On September 25,
approximately three weeks after
surrendering, he was served with the charge
in issue in this case. Upon service of the
charge, he was removed from the status of a
prisoner of war and placed in confinement as
an accused war criminal. Arraignment
followed on October 8 before a military
commission specially appointed for the case.
Petitioner pleaded not guilty. He was also
served on that day with a bill of particulars
alleging 64 crimes by troops under his
command. A supplemental bill alleging 59
more crimes by his troops was filed on
October 29, the same day that the trial
began. No continuance was allowed for
preparation of a defense as to the
supplemental bill. The trial continued
uninterrupted until December 5, 1945. On
December 7 petitioner was found guilty as
charged, and was sentenced to be hanged.
Page 327 U. S. 34
The petitioner was accused of having
"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."
The bills of particular further alleged that
specific acts of atrocity were committed by
"members of the armed forces of Japan under
the command of the accused." Nowhere was

13

it alleged that the petitioner personally

committed any of the atrocities, or that he
ordered their commission, or that he had any
knowledge of the commission thereof by
members of his command.
The findings of the military commission bear
out this absence of any direct personal
charge against the petitioner. The
commission merely found that atrocities and
other high crimes
"have been committed by members of the
Japanese armed forces under your
command . . . ; that they were not sporadic in
nature, but, in many cases, were
methodically supervised by Japanese officers
and noncommissioned officers . . . ; that,
during the period in question, you failed to
provide effective control of your troops, as
was required by the circumstances."
In other words, 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
Page 327 U. S. 35
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."
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.
International law makes no attempt to define
the duties of a commander of an army under
constant and overwhelming assault, nor does
it impose liability under such circumstances
for failure to meet the ordinary
responsibilities of command. The omission is
understandable. Duties, as well as ability to
control troops, vary according to the nature

and intensity of the particular battle. To find

an unlawful deviation from duty under battle
conditions requires difficult and speculative
calculations. Such calculations become highly
untrustworthy when they are made by the
victor in relation to the actions of a
vanquished commander. Objective and
realistic norms of conduct are then extremely
unlikely to be used in forming a judgment as
to deviations from duty. The probability that
vengeance will form the major part of the
victor's judgment is an unfortunate but
inescapable fact. So great is that probability
that international law refuses to recognize
such a judgment as a basis for a war crime,
however fair the judgment may be in a
particular instance. It is this consideration
that undermines the charge against the
petitioner in this case. The indictment
permits -- indeed compels -- the military
commission of a victorious nation to
Page 327 U. S. 36
sit in judgment upon the military strategy
and actions of the defeated enemy, and to
use its conclusions to determine the criminal
liability of an enemy commander. Life and
liberty are made to depend upon the biased
will of the victor, rather than upon objective
standards of conduct.
The Court's reliance upon vague and
indefinite references in certain of the Hague
Conventions and the Geneva Red Cross
Convention is misplaced. Thus, the statement
in Article 1 of the Annex to Hague Convention
No. IV of October 18, 1907, 36 Stat. 2277,
2295, to the effect that the laws, rights and
duties of war apply to military and volunteer
corps only if they are "commanded by a
person responsible for his subordinates," has
no bearing upon the problem in this case.
Even if it has, the clause "responsible for his
subordinates" fails to state to whom the
responsibility is owed, or to indicate the type
of responsibility contemplated. The phrase
has received differing interpretations by
authorities on international law. In
Oppenheim, International Law (6th ed., rev.
by Lauterpacht, 1940, vol. 2, p. 204, fn. 3) it
is stated that
"The meaning of the word 'responsible' . . . is
not clear. It probably means 'responsible to
some higher authority,' whether the person is
appointed from above or elected from
below. . . ."
Another authority has stated that the word
"responsible" in this particular context means
"presumably to a higher authority," or
"possibly it merely means one who controls
his subordinates, and who therefore can be
called to account for their acts." Wheaton,
International Law (14th ed., by Keith, 1944, p.
172, fn. 30). Still another authority, Westlake,
International Law (1907, Part II, p. 61), states
that "probably the responsibility intended is
nothing more than a capacity of exercising
effective control." Finally, Edwards and

14

Oppenheim, Land Warfare (1912, p. 19, par.

22) state that it is enough "if the commander
of the corps is regularly or temporarily
commissioned as an officer or is a person of
Page 327 U. S. 37
position and authority." It seems apparent
beyond dispute that the word "responsible"
was not used in this particular Hague
Convention to hold the commander of a
defeated army to any high standard of
efficiency when he is under destructive
attack; nor was it used to impute to him any
criminal responsibility for war crimes
committed by troops under his command
under such circumstances.
The provisions of the other conventions
referred to by the Court are, on their face,
equally devoid of relevance or significance to
the situation here in issue. Neither Article 19
of Hague Convention No. X, 36 Stat. 2371,
2389, nor Article 26 of the Geneva Red Cross
Convention of 1929, 47 Stat. 2074, 2092,
refers to circumstances where the troops of a
commander commit atrocities while under
heavily adverse battle conditions. Reference
is also made to the requirement of Article 43
of the Annex to Hague Convention No. IV, 36
Stat. 2295, 2306, that the commander of a
force occupying enemy territory
"shall take all the measures in his power to
restore, and ensure, as far as possible, public
order and safety, while respecting, unless
absolutely prevented, the laws in force in the
country."
But the petitioner was more than a
commander of a force occupying enemy
territory. He was the leader of an army under
constant and devastating attacks by a
superior reinvading force. This provision is
silent as to the responsibilities of a
commander under such conditions as that.
Even the laws of war heretofore recognized
by this nation fail to impute responsibility to
a fallen commander for excesses committed
by his disorganized troops while under
attack. Paragraph 347 of the War Department
publication, Basic Field Manual, Rules of Land
Warfare, FM 27-10 (1940), states the
principal offenses under the laws of war
recognized by the United States. This
includes all of the atrocities which the
Japanese troops were alleged to have
committed in this instance. Originally,
Page 327 U. S. 38
this paragraph concluded with the statement
that
"The commanders ordering the commission
of such acts, or under whose authority they
are committed by their troops, may be
punished by the belligerent into whose hands
they may fall."
The meaning of the phrase "under whose
authority they are committed" was not clear.
On November 15, 1944, however, this
sentence was deleted and a new paragraph
was added relating to the personal liability of

those who violate the laws of war. Change 1,

FM 27-10. The new paragraph 345.1 states
that
"Individuals and organizations who violate
the accepted laws and customs of war may
be punished therefor. However, the fact that
the acts complained of were done pursuant
to order of a superior or government sanction
may be taken into consideration in
determining culpability, either by way of
defense or in mitigation of punishment. The
person giving such orders may also be
punished."
From this, the conclusion seems inescapable
that the United States recognizes individual
criminal responsibility for violations of the
laws of war only as to those who commit the
offenses or who order or direct their
commission. Such was not the allegation
here. Cf. Article 67 of the Articles of War, 10
U.S.C. 1539.
There are numerous instances, especially
with reference to the Philippine Insurrection
in 1900 and 1901, where commanding
officers were found to have violated the laws
of war by specifically ordering members of
their command to commit atrocities and
other war crimes. Francisco Frani, G.O. 143,
Dec. 13, 1900, Hq. Div. Phil.; Eugenio
Fernandez and Juan Soriano, G.O. 28, Feb. 6,
1901, Hq.Div.Phil.; Ciriaco Cabungal, G.O.
188, Jul. 22, 1901, Hq.Div.Phil.; Natalio
Valencia, G.O. 221, Aug. 17, 1901,
Hq.Div.Phil.; Aniceta Angeles, G.O. 246, Sept.
2, 1901, Hq.Div.Phil.; Francisco Braganza,
G.O. 291, Sept. 26, 1901, Hq.Div.Phil.;
Lorenzo Andaya, G.O. 328, Oct. 25, 1901,
Hq.Div.Phil. And, in other cases, officers have
been held
Page 327 U. S. 39
liable where they knew that a crime was to
be committed, had the power to prevent it,
and failed to exercise that power. Pedro Abad
Santos, G.O. 130, June 19, 1901,
Hq.Div.Phil. Cf. Pedro A. Cruz, G.O. 264, Sept.
9, 1901, Hq.Div.Phil. In no recorded instance,
however, has the mere inability to control
troops under fire or attack by superior forces
been made the basis of a charge of violating
the laws of war.
The Government claims that the principle
that commanders in the field are bound to
control their troops has been applied so as to
impose liability on the United States in
international arbitrations. Case of Jeannaud,
1880, 3 Moore, International Arbitrations
(1898) 3000; Case of The Zafiro, 1910, 5
Hackworth, Digest of International Law
(1943) 707. The difference between
arbitrating property rights and charging an
individual with a crime against the laws of
war is too obvious to require elaboration. But
even more significant is the fact that even
these arbitration cases fail to establish any
principle of liability where troops are under
constant assault and demoralizing influences

15

by attacking forces. The same observation

applies to the common law and statutory
doctrine, referred to by the Government, that
one who is under a legal duty to take
protective or preventive action is guilty of
criminal homicide if he willfully or negligently
omits to act and death is proximately
caused. State v. Harrison, 107 N.J.L. 213, 152
A. 867; State v. Irvine, 126 La. 434, 52 So.
567; Holmes, The Common Law, p. 278. No
one denies that inaction or negligence may
give rise to liability, civil or criminal. But it is
quite another thing to say that the inability to
control troops under highly competitive and
disastrous battle conditions renders one
guilty of a war crime in the absence of
personal culpability. Had there been some
element of knowledge or direct connection
with the atrocities, the problem would be
entirely different. Moreover, it must be
remembered that we are not dealing
Page 327 U. S. 40
here with an ordinary tort or criminal action;
precedents in those fields are of little if any
value. Rather, we are concerned with a
proceeding involving an international crime,
the treatment of which may have untold
effects upon the future peace of the world.
That fact must be kept uppermost in our
search for precedent.
The only conclusion I can draw is that the
charge made against the petitioner is clearly
without precedent in international law or in
the annals of recorded military history. This is
not to say that enemy commanders may
escape punishment for clear and unlawful
failures to prevent atrocities. But that
punishment should be based upon charges
fairly drawn in light of established rules of
international law and recognized concepts of
justice.
But the charge in this case, as previously
noted, was speedily drawn and filed but three
weeks after the petitioner surrendered. The
trial proceeded with great dispatch, without
allowing the defense time to prepare an
adequate case. Petitioner's rights under the
due process clause of the Fifth Amendment
were grossly and openly violated without any
justification. All of this was done without any
thorough investigation and prosecution of
those immediately responsible for the
atrocities, out of which might have come
some proof or indication of personal
culpability on petitioner's part. Instead the
loose charge was made that great numbers
of atrocities had been committed and that
petitioner was the commanding officer;
hence he must have been guilty of disregard
of duty. Under that charge the commission
was free to establish whatever standard of
duty on petitioner's part that it desired. By
this flexible method a victorious nation may
convict and execute any or all leaders of a
vanquished foe, depending upon the

prevailing degree of vengeance and the

absence of any objective judicial review.
At a time like this when emotions are
understandably high it is difficult to adopt a
dispassionate attitude toward
Page 327 U. S. 41
a case of this nature. Yet now is precisely the
time when that attitude is most essential.
While peoples in other lands may not share
our beliefs as to due process and the dignity
of the individual, we are not free to give
effect to our emotions in reckless disregard of
the rights of others. We live under the
Constitution, which is the embodiment of all
the high hopes and aspirations of the new
world. And it is applicable in both war and
peace. We must act accordingly. Indeed, an
uncurbed spirt of revenge and retribution,
masked in formal legal procedure for
purposes of dealing with a fallen enemy
commander, can do more lasting harm than
all of the atrocities giving rise to that spirit.
The people's faith in the fairness and
objectiveness of the law can be seriously
undercut by that spirit. The fires of
nationalism can be further kindled. And the
hearts of all mankind can be embittered and
filled with hatred, leaving forlorn and
impoverished the noble ideal of malice
toward none and charity to all. These are the
reasons that lead me to dissent in these
terms.
MR. JUSTICE RUTLEDGE, dissenting.
Not with ease does one find his views at odds
with the Court's in a matter of this character
and gravity. Only the most deeply felt
convictions could force one to differ. That
reason alone leads me to do so now, against
strong considerations for withholding dissent.
More is at stake than General Yamashita's
fate. There could be no possible sympathy for
him if he is guilty of the atrocities for which
his death is sought. But there can be and
should be justice administered according to
law. In this stage of war's aftermath, it is too
early for Lincoln's great spirit, best lighted in
the Second Inaugural, to have wide hold for
the treatment of foes. It is not too early -- it is
never too early -- for the nation steadfastly to
follow its great constitutional traditions, none
older or more universally protective against
unbridled power than due process
Page 327 U. S. 42
of law in the trial and punishment of men -that is, of all men, whether citizens, aliens,
alien enemies, or enemy belligerents. It can
become too late.
This long held attachment marks the great
divide between our enemies and ourselves.
Theirs was a philosophy of universal force.
Ours is one of universal law, albeit
imperfectly made flesh of our system and so
dwelling among us. Every departure weakens
the tradition, whether it touches the high or
the low, the powerful or the weak, the
triumphant or the conquered. If we need not

16

or cannot be magnanimous, we can keep our

own law on the plane from which it has not
descended hitherto and to which the
defeated foes' never rose.
With all deference to the opposing views of
my brethren, whose attachment to that
tradition needless to say is no less than my
own, I cannot believe in the face of this
record that the petitioner has had the fair
trial our Constitution and laws command.
Because I cannot reconcile what has occurred
with their measure, I am forced to speak. At
bottom, my concern is that we shall not
forsake in any case, whether Yamashita's or
another's, the basic standards of trial which,
among other guaranties, the nation fought to
keep; that our system of military justice shall
not, alone among all our forms of judging, be
above or beyond the fundamental law or the
control of Congress within its orbit of
authority, and that this Court shall not fail in
its part under the Constitution to see that
these things do not happen.
This trial is unprecedented in our history.
Never before have we tried and convicted an
enemy general for action taken during
hostilities or otherwise in the course of
military operations or duty. Much less have
we condemned one for failing to take action.
The novelty is not lessened by the trial's
having taken place after hostilities ended and
the enemy, including the accused, had
surrendered. Moreover, so far as the time
permitted for our
Page 327 U. S. 43
consideration has given opportunity, I have
not been able to find precedent for the
proceeding in the system of any nation
founded in the basic principles of our
constitutional democracy, in the laws of war,
or in other internationally binding authority or
usage.
The novelty is legal, as well as historical. We
are on strange ground. Precedent is not allcontrolling in law. There must be room for
growth, since every precedent has an origin.
But it is the essence of our tradition for
judges, when they stand at the end of the
marked way, to go forward with caution
keeping sight, so far as they are able, upon
the great landmarks left behind and the
direction they point ahead. If, as may be
hoped, we are now to enter upon a new era
of law in the world, it becomes more
important than ever before for the nations
creating that system to observe their
greatest traditions of administering justice,
including this one, both in their own judging
and in their new creation. The proceedings in
this case veer so far from some of our timetested road signs that I cannot take the large
strides validating them would demand.
I
It is not in our tradition for anyone to be
charged with crime which is defined after his
conduct, alleged to be criminal, has taken

place, [Footnote 2/1] or in language not

sufficient to inform him of the nature of the
offense or to enable him to make defense.
[Footnote 2/2] Mass guilt we do not impute to
individuals, perhaps in any case, but certainly
in none where the person is not charged or
shown actively to have participated in or
knowingly to have failed in taking action to
Page 327 U. S. 44
prevent the wrongs done by others, having
both the duty and the power to do so.
It is outside our basic scheme to condemn
men without giving reasonable opportunity
for preparing defense; [Footnote 2/3] in
capital or other serious crimes, to convict on
"official documents . . . ; affidavits; . . .
documents or translations thereof; diaries . .
photographs, motion picture films, and . . .
newspapers" [Footnote 2/4] or on hearsay,
once, twice or thrice removed, [Footnote 2/5]
more particularly when the documentary
evidence or some of it is prepared ex
parte by the prosecuting authority and
includes not only opinion but conclusions of
guilt. Nor in such cases do we deny the rights
of confrontation of witnesses and crossexamination. [Footnote 2/6]
Our tradition does not allow conviction by
tribunals both authorized and bound
[Footnote 2/7] by the instrument of their
creation to receive and consider evidence
which is expressly excluded by Act of
Congress or by treaty obligation; nor is it in
accord with our basic concepts to make the
tribunal, specially constituted for the
particular trial, regardless of those
prohibitions, the sole and exclusive judge of
the credibility,
Page 327 U. S. 45
probative value, and admissibility of
whatever may be tendered as evidence.
The matter is not one merely of the character
and admissibility of evidence. It goes to the
very competency of the tribunal to try and
punish consistently with the Constitution, the
laws of the United States made in pursuance
thereof, and treaties made under the nation's
authority.
All these deviations from the fundamental
law, and others, occurred in the course of
constituting the commission, the preparation
for trial and defense, the trial itself, and
therefore, in effect, in the sentence imposed.
Whether taken singly in some instances as
departures from specific constitutional
mandates or in totality as in violation of the
Fifth Amendment's command that no person
shall be deprived of life, liberty or property
without due process of law, a trial so vitiated
cannot withstand constitutional scrutiny.
One basis protection of our system, and one
only, petitioner has had. He has been
represented by able counsel, officers of the
army he fought. Their difficult assignment
has been done with extraordinary fidelity not
only to the accused, but to their high

17

conception of military justice, always to be

administered in subordination to the
Constitution and consistent Acts of Congress
and treaties. But, as will appear, even this
conceded shield was taken away in much of
its value by denial of reasonable opportunity
for them to perform their function.
On this denial and the commission's invalid
constitution specifically, but also more
generally upon the totality of departures from
constitutional norms inherent in the idea of a
fair trial, I rest my judgment that the
commission was without jurisdiction from the
beginning to try or punish the petitioner, and
that, if it had acquired jurisdiction then, its
power to proceed was lost in the course of
what was done before and during trial.
Only on one view, in my opinion, could either
of these conclusions be avoided. This would
be that an enemy
Page 327 U. S. 46
belligerent in petitioner's position is
altogether beyond the pale of constitutional
protection, regardless of the fact that
hostilities had ended and he had surrendered
with his country. The Government has so
argued, urging that we are still at war with
Japan, and all the power of the military
effective during active hostilities in theaters
of combat continues in full force, unaffected
by the events of August 14, 1945, and after.
In this view, the action taken here is one of
military necessity, exclusively within the
authority of the President as Commander-inChief and his military subordinates to take in
warding off military danger and subject to no
judicial restraint on any account, although,
somewhat inconsistently, it is said this Court
may "examine" the proceedings generally.
As I understand the Court, this is in
substance the effect of what has been done.
For I cannot conceive any instance of
departure from our basic concepts of fair trial
if the failures here are not sufficient to
produce that effect.
We are technically still at war, because peace
has not been negotiated finally or declared.
But there is no longer the danger which
always exists before surrender and armistice.
Military necessity does not demand the same
measures. The nation may be more secure
now than at any time after peace is officially
concluded. In these facts is one great
difference from Ex parte Quirin, 317 U. S. 1.
Punitive action taken now can be effective
only for the next war, for purposes of military
security. And enemy aliens, including
belligerents, need the attenuated protections
our system extends to them more now than
before hostilities ceased or than they may
after a treaty of peace is signed. Ample
power there is to punish them or others for
crimes, whether under the laws of war during
its course or later during occupation. There
can be no question of that. The only question
is how it shall be done, consistently

Page 327 U. S. 47
with universal constitutional commands or
outside their restricting effects. In this sense,
I think the Constitution follows the flag.
The other thing to be mentioned in order to
be put aside is that we have no question here
of what the military might have done in a
field of combat. There, the maxim about the
law becoming silent in the noise of arms
applies. The purpose of battle is to kill. But it
does not follow that this would justify killing
by trial after capture or surrender, without
compliance with laws or treaties made to
apply in such cases, whether trial is before or
after hostilities end.
I turn now to discuss some of the details of
what has taken place. My basic difference is
with the Court's view that provisions of the
Articles of War and of treaties are not made
applicable to this proceeding, and with its
ruling that, absent such applicable
provisions, none of the things done so
vitiated the trial and sentence as to deprive
the commission of jurisdiction.
My Brother MURPHY has discussed the
charge with respect to the substance of the
crime. With his conclusions in this respect, I
agree. My own primary concern will be with
the constitution of the commission and other
matters taking place in the course of the
proceedings, relating chiefly to the denial of
reasonable opportunity to prepare
petitioner's defense and the sufficiency of the
evidence, together with serious questions of
admissibility, to prove on offense, all going,
as I think, to the commission's jurisdiction.
Necessarily, only a short sketch can be given
concerning each matter. And it may be stated
at the start that, although it was ruled in Ex
parte Quirin, supra, that this Court had no
function to review the evidence, it was not
there or elsewhere determined that it could
not ascertain whether conviction is founded
upon evidence expressly excluded by
Congress or treaty; nor does the Court
purport to do so now.
Page 327 U. S. 48
II
Invalidity of the Commission's Constitution
The fountainhead of the commission's
authority was General MacArthur's directive
by which General Styer was ordered to and
pursuant to which he did proceed with
constituting the commission. [Footnote 2/8]
The directive was accompanied by elaborate
and detailed rules and regulations prescribing
the procedure and rules of evidence to be
followed, of which, for present purposes,
Section 16, set forth below, [Footnote 2/9] is
crucial.
Page 327 U. S. 49
Section 16, as will be noted, permits
reception of documents, reports, affidavits,
depositions, diaries, letters, copies of
documents or other secondary evidence of
their contents, hearsay, opinion evidence and

18

conclusions -- in fact, of anything which, in

the commission's opinion, "would be of
assistance in proving or disproving the
charge," without any of the usual modes of
authentication.
A more complete abrogation of customary
safeguards relating to the proof, whether in
the usual rules of evidence or any reasonable
substitute and whether for use in the trial of
crime in the civil courts or military tribunals,
hardly could have been made. So far as the
admissibility and probative value of evidence
was concerned, the directive made the
commission a law unto itself.
It acted accordingly. As against insistent and
persistent objection to the reception of all
kinds of "evidence," oral, documentary and
photographic, for nearly every kind of defect
under any of the usual prevailing standards
for admissibility and probative value, the
commission not only consistently ruled
against the defense, but repeatedly stated it
was bound by the directive to receive the
kinds of evidence it specified, [Footnote 2/10]
reprimanded counsel for continuing to make
objection, declined to hear further objections,
and, in more than one instance during the
course of the proceedings, reversed its
rulings favorable to the defense where
initially it had declined to receive what the
prosecution offered. Every conceivable kind
of statement, rumor, report at first, second,
third or further hand, written, printed, or oral,
and one "propaganda" film were allowed to
come in, most of this relating to atrocities
committed
Page 327 U. S. 50
by troops under petitioner's command
throughout the several thousand islands of
the Philippine Archipelago during the period
of active hostilities covered by the American
forces' return to and recapture of the
Philippines. [Footnote 2/11]
The findings reflect the character of the proof
and the charge. The statement quoted above
[Footnote 2/12] gives only a numerical idea
of the instances in which ordinary safeguards
in reception of written evidence were
ignored. In addition to these 423 "exhibits,"
the findings state the commission "has heard
286 persons during the course of this trial,
most of whom have given eye-witness
accounts of what they endured or what they
saw."
But there is not a suggestion in the findings
that petitioner personally participated in, was
present at the occurrence of, or ordered any
of these incidents, with the exception of the
wholly inferential suggestion noted below.
Nor is there any express finding that he knew
of any one of the incidents in particular or of
all taken together. The only inferential
findings that he had knowledge, or that the
commission so found, are in the statement
that "the crimes alleged to have been
permitted by the accused in violation of the

laws of war may be grouped into three

categories" set out below, [Footnote 2/13] in
the further statement that
"the prosecution
Page 327 U. S. 51
presented evidence to show that the crimes
were so extensive and so widespread, both
as to time and area, [Footnote 2/14] that they
must either have been willfully permitted by
the accused or secretly ordered by"
him, and in the conclusion of guilt and the
sentence. [Footnote 2/15] (Emphasis added.)
Indeed, the commission's ultimate findings
[Footnote 2/16] draw no express conclusion
of knowledge, but state only two things: (1)
the fact of widespread atrocities and crimes;
(2) that petitioner "failed to provide effective
control . . . as required by the
circumstances."
This vagueness, if not vacuity, in the findings
runs throughout the proceedings, from the
charge itself, through the proof and the
findings, to the conclusion. It affects
Page 327 U. S. 52
the very gist of the offense -- whether that
was willful, informed, and intentional
omission to restrain and control troops known
by petitioner to be committing crimes, or was
only a negligent failure on his part to
discover this and take whatever measures he
then could to stop the conduct.
Although it is impossible to determine from
what is before us whether petitioner in fact
has been convicted of one or the other or of
both these things, [Footnote 2/17] the case
has been
Page 327 U. S. 53
presented on the former basis and, unless, as
is noted below, there is fatal duplicity, it must
be taken that the crime charged and sought
to be proved was only the failure, with
knowledge, to perform the commander's
function of control, although the Court's
opinion nowhere expressly declares that
knowledge was essential to guilt or necessary
to be set forth in the charge.
It is in respect to this feature especially, quite
apart from the reception of unverified rumor,
report, etc., that perhaps the greatest
prejudice arose from the admission of
untrustworthy, unverified, unauthenticated
evidence which could not be probed by crossexamination or other means of testing
credibility, probative value, or authenticity.
Counsel for the defense have informed us in
the brief and at the argument that the sole
proof of knowledge introduced at the trial
was in the form of ex parte affidavits and
depositions. Apart from what has been
excerpted from the record in the applications
and the briefs and such portions of the record
as I have been able to examine, it has been
impossible for me fully to verify counsel's
statement in this respect. But the
Government has not disputed it, and it has
maintained that we have no right to examine

19

the record upon any question "of evidence."

Accordingly, without concession to that view,
the statement of counsel is taken for the
fact . And, in that state of things, petitioner
has been convicted of a crime in which
knowledge is an essential element, with no
proof of knowledge other than what would be
inadmissible in any other capital case or
proceeding under our system, civil or
military, and which, furthermore, Congress
has expressly commanded shall not be
received in such cases tried by military
commissions and other military tribunals.
[Footnote 2/18]
Moreover, counsel assert in the brief, and this
also is not denied, that the sole proof made
of certain of the specifications
Page 327 U. S. 54
in the bills of particulars was by ex
parte affidavits. It was in relation to this also
vital phase of the proof that there occurred
one of the commission's reversals of its
earlier rulings in favor of the defense
[Footnote 2/19] -- a fact, in itself, conclusive
demonstration of the necessity to the
prosecution's case of the prohibited type of
evidence and of its prejudicial effects upon
the defense.
These two basic elements in the proof -namely, proof of knowledge of the crimes and
proof of the specifications in the bills, that is,
of the atrocities themselves -- constitute the
most important instances, perhaps, if not the
most flagrant, [Footnote 2/20]
Page 327 U. S. 55
of departure not only from the express
command of Congress against receiving such
proof, but from the whole British-American
tradition of the common law and the
Constitution. Many others occurred which
there is neither time nor space to mention.
[Footnote 2/21]
Petitioner asserts, and there can be no
reason to doubt, that, by the use of all this
forbidden evidence, he was deprived of the
right of cross-examination and other means
to establish the credibility of the deponents
or affiants, not to speak of the authors of
reports, letters, documents, and newspaper
articles; of opportunity to determine whether
the multitudinous crimes specified in the bills
were committed in fact by troops under his
command or by naval or air force troops not
under his command at the time alleged; to
ascertain whether the crimes attested were
isolated acts of individual soldiers or were
military acts committed by troop units acting
under supervision of officers; and, finally,
whether, "in short, there was such a pattern'
of conduct as the prosecution alleged and its
whole theory of the crime and the evidence
required to be made out."
He points out in this connection that the
commission based its decision on a finding as
to the extent and number
Page 327 U. S. 56

of the atrocities, and that this, of itself,

establishes the prejudicial effect of the
affidavits, etc., and of the denial resulting
from their reception of any means of probing
the evidence they contained, including all
opportunity for cross-examination. Yet it is
said there is no sufficient showing of
prejudice. The effect could not have been
other than highly prejudicial. The matter is
not one merely of "rules of evidence." It goes,
as will appear more fully later, to the basic
right of defense, including some fair
opportunity to test probative value.
Insufficient as this recital is to give a fair
impression of what was done, it is enough to
show that this was no trial in the traditions of
the common law and the Constitution. If the
tribunal itself was not strange to them
otherwise, it was in its forms and modes of
procedure, in the character and substance of
the evidence it received, in the denial of all
means to the accused and his counsel for
testing the evidence, in the brevity and
ambiguity of its findings made upon such a
mass of material, and, as will appear, in the
denial of any reasonable opportunity for
preparation of the defense. Because this last
deprivation not only is important in itself, but
is closely related to the departures from all
limitations upon the character of and modes
of making the proof, it will be considered
before turning to the important legal
questions relating to whether all these
violations of our traditions can be brushed
aside as not forbidden by the valid Acts of
Congress, treaties, and the Constitution, in
that order. If all these traditions can be so put
away, then indeed will we have entered upon
a new but foreboding era of law.
III
Denial of Opportunity to Prepare Defense
Petitioner surrendered September 3, 1945,
and was interned as a prisoner of war in
conformity with Article 9
Page 327 U. S. 57
of the Geneva Convention of July 27, 1929.
[Footnote 2/22] He was served with the
charge on September 25, and put in
confinement as an accused war criminal. On
October 8, he was arraigned, and pleaded not
guilty. On October 29, the trial began, and it
continued until December 7, when sentence
was pronounced, exactly four years, almost
to the hour, from the attack on Pearl Harbor.
On the day of arraignment, October 8, three
weeks before the trial began, petitioner was
served with a bill of particulars specifying 64
items setting forth a vast number of
atrocities and crimes allegedly committed by
troops under his command. [Footnote 2/23]
The six officers appointed as defense counsel
thus had three weeks -- it is true, at the
prosecution's suggestion, a week longer than
they sought at first -- to investigate and
prepare to meet all these items and the large
number of incidents they embodied, many of

20

which had occurred in distant islands of the

archipelago. There is some question whether
they then anticipated the full scope and
character of the charge or the evidence they
would have to meet. But, as will appear, they
worked night and day at the task. Even so, it
would have been impossible to do thoroughly
had nothing more occurred.
But there was more. On the first day of the
trial, October 29, the prosecution filed a
supplemental bill of particulars
Page 327 U. S. 58
containing 59 more specifications of the
same general character, involving perhaps as
many incidents occurring over an equally
wide area. [Footnote 2/24] A copy had been
given the defense three days earlier. One
item, No. 89, charged that American soldiers,
prisoners of war, had been tried and
executed without notice having been given to
the protecting power of the United States in
accordance with the requirements of the
Geneva Convention, which it is now argued,
strangely, the United States was not required
to observe as to petitioner's trial. [Footnote
2/25]
But what is more important is that defense
counsel, as they felt was their duty, at once
moved for a continuance. [Footnote 2/26]
The application was denied. However the
commission indicated that if, at the end of
the prosecution's presentation
Page 327 U. S. 59
concerning the original bill, counsel should
"believe they require additional time . . . , the
Commission will consider such a motion at
that time," before taking up the items of the
supplemental bill. Counsel again indicated,
without other result, that time was desired at
once "as much, if not more" to prepare for
cross-examination "as the Prosecutor's case
goes in" as to prepare affirmative defense.
On the next day, October 30, the commission
interrupted the prosecutor to say it would not
then listen to testimony or discussion upon
the supplemental bill. After colloquy, it
adhered to its prior ruling and, in response to
inquiry from the prosecution, the defense
indicated it would require two weeks before it
could proceed on the supplemental bill. On
November 1, the commission ruled it would
not receive affidavits without corroboration
by witnesses on any specification, a ruling
reversed four days later.
On November 2, after the commission had
received an affirmative answer to its inquiry
whether the defense was prepared to
proceed with an item in the supplemental bill
which the prosecution proposed to prove, it
announced:
"Hereafter, then, unless there is no [sic]
objection by the Defense, the Commission
will assume that you are prepared to proceed
with any items in the Supplemental Bill."
On November 8, the question arose again
upon the prosecution's inquiry as to when the

defense would be ready to proceed on the

supplemental bill, the prosecutor adding:
"Frankly, sir, it took the War Crimes
Commission some three months to
investigate these matters, and I cannot
conceive of the Defense undertaking a
similar investigation with any less period of
time."
Stating it realized "the tremendous burden
which we have placed on the Defense" and
its "determination to give them the time they
require," the commission again adhered to its
ruling of October 29.
Page 327 U. S. 60
Four days later, the commission announced it
would grant a continuance "only for the most
urgent and unavoidable reasons." [Footnote
2/27]
On November 20, when the prosecution
rested, senior defense counsel moved for a
reasonable continuance, recalling the
commission's indication that it would then
consider such a motion and stating that,
since October 29, the defense had been
"working night and day," with "no time
whatsoever to prepare any affirmative
defense," since counsel had been fully
occupied trying "to keep up with the new Bill
of Particulars."
The commission thereupon retired for
deliberation and, on resuming its sessions
shortly, denied the motion. Counsel then
asked for "a short recess of a day." The
commission suggested a recess until 1:30 in
the afternoon. Counsel responded this would
not suffice. The commission stated it felt
"that the Defense should be prepared, at
least on its opening statement," to which
senior counsel answered: "We haven't had
time to do that, sir." The commission then
recessed until 8:30 the following morning.
Further comment is hardly required.
Obviously the burden placed upon the
defense, in the short time allowed for
preparation on the original bill, was not only
"tremendous." In view of all the facts, it was
an impossible one, even though the time
allowed was a week longer than asked. But
the grosser vice was later, when the burden
was more than doubled by service of the
supplemental bill on the eve of trial, a
procedure which, taken in connection with
the consistent denials of continuance and the
commission's later reversal of its rulings
favorable to the defense
Page 327 U. S. 61
was wholly arbitrary, cutting off the last
vestige of adequate chance to prepare
defense and imposing a burden the most
able counsel could not bear. This sort of thing
has no place in our system of justice, civil or
military. Without more, this wide departure
from the most elementary principles of
fairness vitiated the proceeding. When added
to the other denials of fundamental right
sketched above, it deprived the proceeding

21

of any semblance of trial as we know that

institution.
IV
Applicability of the Articles of War
The Court's opinion puts the proceeding and
the petitioner, insofar as any rights relating
to his trial and conviction are concerned,
wholly outside the Articles of War. In view of
what has taken place, I think the decision's
necessary effect is also to place them
entirely beyond limitation and protection,
respectively, by the Constitution. I disagree
as to both conclusions or effects.
The Court rules that Congress has not made
Article 25 and 38 applicable to this
proceeding. It think it has made them
applicable to this and all other military
commissions or tribunals. If so, the
commission not only lost all power to punish
petitioner by what occurred in the
proceedings. It never acquired jurisdiction to
try him. For the directive by which it was
constituted, in the provisions of Section 16,
[Footnote 2/28] was squarely in conflict with
Articles 25 and 38 of the Articles of War,
[Footnote 2/29] and therefore was void.
Page 327 U. S. 62
Article 25 allows reading of depositions in
evidence, under prescribed conditions, in the
plainest terms "before any military court or
commission in any case not capital,"
providing, however, that "testimony by
deposition may be adduced for the defense
in capital cases." (Emphasis added.) This
language clearly and broadly covers every
kind of military tribunal, whether "court" or
"commission." It covers all capital cases. It
makes no exception or distinction for any
accused.
Article 38 authorizes the President, by
regulations, to prescribe procedure, including
modes of proof, even more all-inclusively, if
possible, "in cases before courts-martial,
courts of inquiry, military commissions, and
other military tribunals." Language could not
be more broadly inclusive. No exceptions are
mentioned or suggested, whether of tribunals
or of accused persons. Every kind of military
body for performing the function of trial is
covered. That is clear from the face of the
Article.
Article 38, moreover, limits the President's
power. He is, so far as practicable, to
prescribe "the rules of evidence generally
recognized in the trial of criminal cases in the
Page 327 U. S. 63
district courts of the United States," a clear
mandate that Congress intended all military
trials to conform as closely as possible to our
customary procedural and evidentiary
protections, constitutional and statutory, for
accused persons. But there are also two
unqualified limitations, one "that nothing
contrary to or inconsistent with these articles
(specifically here Article 25) shall be so
prescribed," the other "that all rules made in

pursuance of this article shall be laid before

the Congress annually."
Notwithstanding these broad terms, the
Court, resting chiefly on Article 2, concludes
the petitioner was not among the persons
there declared to be subject to the Articles of
War, and therefore the commission which
tries him is not subject to them. That Article
does not cover prisoners of war or war
criminals. Neither does it cover civilians in
occupied territories, theaters of military
operations, or other places under military
jurisdiction within or without the United
States or territory subject to its sovereignty,
whether they be neutrals or enemy aliens,
even citizens of the United States, unless
they are connected in the manner Article 2
prescribes with our armed forces, exclusive of
the Navy.
The logic which excludes petitioner on the
basic that prisoners of war are not mentioned
in Article 2 would exclude all these. I strongly
doubt the Court would go so far, if presented
with a trial like this in such instances. Nor
does it follow necessarily that, because some
persons may not be mentioned in Article 2,
they can be tried without regard to any of the
limitations placed by any of the other Articles
upon military tribunals.
Article 2, in defining persons "subject to the
articles of war," was, I think, specifying those
to whom the Articles in general were
applicable. And there is no dispute that most
of the Articles are not applicable to the
petitioner. It does not follow, however, and
Article 2 does not provide, that there may not
be in the Articles specific provisions
Page 327 U. S. 64
covering persons other than those specified
in Article 2. Had it so provided, Article 2
would have been contradictory not only of
Articles 25 and 38, but also of Article 15,
among others.
In 1916, when the last general revision of the
Articles of War took place, [Footnote 2/30] for
the first time, certain of the Articles were
specifically made applicable to military
commissions. Until then, they had applied
only to courts-martial. There were two
purposes -- the first to give statutory
recognition to the military commission
without loss of prior jurisdiction, and the
second to give those tried before military
commissions some of the more important
protections afforded persons tried by courtsmartial.
In order to effectuate the first purpose, the
Army proposed Article 15. [Footnote 2/31] To
effectuate the second purpose, Articles
Page 327 U. S. 66
25 and 38 and several others were proposed.
[Footnote 2/32] But, as the Court now
construes the Articles of War, they have no
application to military commissions before
which alleged offenders against the laws of
war are tried. What the Court holds, in effect,

22

is that there are two types of military

commissions, one to try offenses which might
be cognizable by a court-martial, the other to
try war crimes, and that Congress intended
the Articles of War referring in terms to
military commissions without exception to be
applicable only to the first type.
Page 327 U. S. 67
This misconceives both the history of military
commissions and the legislative history of the
Articles of War. There is only one kind of
military commission. It is true, as the history
noted shows, that what is now called "the
military commission" arose from two
separate military courts instituted during the
Mexican War. The first military court, called
by General Scott a "military commission,"
was given jurisdiction in Mexico over criminal
offenses of the class cognizable by civil
courts in time of peace. The other military
court, called a "counsel of war" was given
jurisdiction over offenses against the laws of
war. Winthrop, Military Law and Precedents
(2d ed., reprinted 1920) *1298-1299. During
the Civil War,
"the two jurisdictions of the earlier
commission and council respectively . . .
[were] united in the . . . war court, for which
the general designation of 'military
commission' was retained as the preferable
one."
Winthrop, supra at *1299. Since that time,
there has been only one type of military
tribunal, called the military commission,
though it may exercise different kinds of
jurisdiction, [Footnote 2/33] according to the
circumstances under which and purposes for
which it is convened.
The testimony of General Crowder is perhaps
the most authoritative evidence of what was
intended by the legislation,
Page 327 U. S. 68
for he was its most active official sponsor,
spending years in securing its adoption and
revision. Articles 15, 25, and 38 particularly
are traceable to his efforts. His concern to
secure statutory recognition for military
commissions was equalled by his concern
that the statutory provisions giving this
should not restrict their preexisting
jurisdiction. He did not wish, by securing
additional jurisdiction, overlapping partially
that of the court-martial, to surrender other.
Hence, Article 15. That Article had one
purpose and one only. It was to make sure
that the acquisition of partially concurrent
jurisdiction with courts-martial should not
cause loss of any other. And it was
jurisdiction, not procedure, which was
covered by other Articles with which he and
Congress were concerned in that Article. It
discloses no purpose to deal in any way with
procedure or to qualify Articles 25 and 38.
And it is clear that General Crowder at all
times regarded all military commissions as
being governed by the identical procedure. In

fact, so far as Articles 25 and 38 are

concerned, this seems obvious for all types of
military tribunals. The same would appear to
be true of other Articles also, e.g., 24,
(prohibiting compulsory self-incrimination),
26, 27, 32 (contempts), all except the last
dealing with procedural matters.
Article 12 is especially significant. It
empowers general courts-martial to try two
classes of offenders: (1) "any person subject
to military law," under the definition of Article
2, for any offense "made punishable by these
articles;" (2) "and any other person who by
the law of waris subject to trial by military
tribunals," not covered by the terms of Article
2. (Emphasis added.)
Article 12 thus, in conformity with Article 15,
gives the general court-martial concurrent
jurisdiction of war crimes and war criminals
with military commissions. Neither it nor any
other Article states or indicates there are to
be two kinds of general courts-martial for
trying war crimes; yet
Page 327 U. S. 69
this is the necessary result of the Court's
decision, unless, in the alternative, that
would be to imply that, in exercising such
jurisdiction, there is only one kind of general
court-martial, but there are two or more kinds
of military commission, with wholly different
procedures and with the result that "the
commander in the field" will not be free to
determine whether general court-martial or
military commission shall be used as the
circumstances may dictate, but must govern
his choice by the kind of procedure he wishes
to have employed.
The only reasonable and, I think, possible
conclusion to draw from the Articles is that
the Articles which are in terms applicable to
military commissions are so uniformly, and
those applicable to both such commissions
and to courts-martial when exercising
jurisdiction over offenders against the laws of
war likewise are uniformly, applicable, and
not diversely according to the person or
offense being tried.
Not only the face of the Articles, but specific
statements in General Crowder's testimony
support this view. Thus, in the portion quoted
above [Footnote 2/34] from his 1916
statement, after stating expressly the
purpose of Article 15 to preserve unimpaired
the military commission's jurisdiction, and to
make it concurrent with that of courts-martial
insofar as the two would overlap, "so that
the military commander in the field in time of
war will be at liberty to employ either form of
court that happens to be convenient," he
went on to say: "Both classes of courts have
the same procedure," a statement so
unequivocal as to leave no room for question.
And his quotation from Winthrop supports his
statement, namely: "Its (i.e., the military
commission's) composition, constitution and

23

procedure follow the analogy of courtsmartial."

At no point in the testimony is there
suggestion that there are two types of
military commission, one bound by
Page 327 U. S. 70
the procedural provisions of the Articles, the
other wholly free from their restraints, or, as
the Court strangely puts the matter, that
there is only one kind of commission, but that
it is bound or not bound by the Articles
applicable in terms, depending upon who is
being tried and for what offense; for that very
difference makes the difference between one
and two. The history and the discussion show
conclusively that General Crowder wished to
secure, and Congress intended to give,
statutory recognition to all forms of military
tribunals; to enable commanding officers in
the field to use either court-martial or
military commission as convenience might
dictate, thus broadening to this extent the
latter's jurisdiction and utility; but, at the
same time, to preserve its full preexisting
jurisdiction, and also to lay down identical
provisions for governing or providing for the
government of the procedure and rules of
evidence of every type of military tribunal,
wherever and however constituted. [Footnote
2/35]
Page 327 U. S. 71
Finally, unless Congress was legislating with
regard to all military commissions, Article 38,
which gives the President the power to
"prescribe the procedure, including modes of
proof, in cases before courts-martial, courts
of inquiry, military commissions, and other
military tribunals" takes on a rather senseless
meaning, for the President would have such
power only with respect to those military
commissions exercising concurrent
jurisdiction with courts-martial.
All this seems so obvious upon a mere
reading of the Articles themselves and the
legislative history as not to require
demonstration. And all this Congress knew,
as that history shows. In the face of that
showing, I cannot accept the Court's highly
strained construction, first, because I think it
is in plain contradiction of the facts disclosed
by the history of Articles 15, 25 and 38 as
well as their language, and also because that
construction defeats at least two of the ends
General Crowder had in mind -- namely, to
secure statutory recognition for every form of
military tribunal and to provide for them a
basic uniform
Page 327 U. S. 72
mode of procedure or method of providing for
their procedure.
Accordingly, I think Articles 25 and 38 are
applicable to this proceeding; that the
provisions of the governing directive in
Section 16 are in direct conflict with those
Articles, and, for that reason, the commission
was invalidly constituted, was without

jurisdiction, and its sentence is therefore

void.
V
The Geneva Convention of 1929
If the provisions of Articles 25 and 38 were
not applicable to the proceeding by their own
force as Acts of Congress, I think they would
still be made applicable by virtue of the
terms of the Geneva Convention of 1929, in
particular, Article 63. And in other respects,
in my opinion, the petitioner's trial was not in
accord with that treaty, namely with Article
60.
The Court does not hold that the Geneva
Convention is not binding upon the United
States, and no such contention has been
made in this case. [Footnote 2/36] It relies on
other
Page 327 U. S. 73
arguments to show that Article 60, which
provides that the protecting power shall be
notified in advance of a judicial proceeding
directed against a prisoner of war, and Article
63, which provides that a prisoner of war may
be tried only by the same courts and
according to the same procedure as in the
case of persons belonging to the armed
forces of the detaining power, are not
properly invoked by the petitioner. Before
considering the Court's view that these
Articles are not applicable to this proceeding
by their terms, it may be noted that, on his
surrender, petitioner was interned in
conformity with Article 9 of this Convention.
Page 327 U. S. 74
The chief argument is that Articles 60 and 63
have reference only to offenses committed
by a prisoner of war while a prisoner of war,
and not to violations of the law of war
committed while a combatant. This
conclusion is derived from the setting in
which these articles are placed. I do not
agree that the context gives any support to
this argument. The argument is, in essence,
of the same type as the argument the Court
employs to nullify the application of Articles
25 and 38 of the Articles of War by restricting
their own broader coverage by reference to
Article 2. For reasons set forth in the margin,
[Footnote 2/37] I think it equally invalid here.
Page 327 U. S. 76
Neither Article 60 nor Article 63 contains
such a restriction of meaning as the Court
reads into it. [Footnote 2/38] In the absence
of any such limitation, it would seem that
they were intended to cover all judicial
proceedings, whether instituted for crimes
allegedly committed before capture or later.
Policy supports this view. For such a
construction is require for the security of our
own soldiers, taken prisoner, as much as for
that of prisoners we take. And the opposite
one leaves prisoners of war open to any form
of trial and punishment for offenses against
the law of war their captors may wish to use,
while safeguarding them, to the extent of the

24

treaty limitations, in cases of disciplinary

offense. This, in many instances, would be to
make the treaty strain at a gnat and swallow
the camel.
The United States has complied with neither
of these Articles. It did not notify the
protecting power of Japan in advance of trial,
as Article 60 requires it to do, although the
supplemental bill charges the same failure to
petitioner
Page 327 U. S. 77
in Item 89. [Footnote 2/39] It is said that,
although this may be true, the proceeding is
not thereby invalidated. The argument is that
our noncompliance merely gives Japan a right
of indemnity against us, and that Article 60
was not intended to give Yamashita any
personal rights. I cannot agree. The treaties
made by the United States are, by the
Constitution, made the supreme law of the
land. In the absence of something in the
treaty indicating that its provisions were not
intended to be enforced, upon breach, by
more than subsequent indemnification, it is,
as I conceive it, the duty of the courts of this
country to insure the nation's compliance
with such treaties, except in the case of
political questions. This is especially true
where the treaty has provisions -- such as
Article 60 -- for the protection of a man being
tried for an offense the punishment for which
is death; for to say that it was intended to
provide for enforcement of such provisions
solely by claim, after breach, of indemnity
would be, in many instances, especially those
involving trial of nationals of a defeated
nation by a conquering one, to deprive the
Articles of all force. Executed men are not
much aided by post-war claims for indemnity.
I do not think the adhering powers' purpose
was to provide only for such ineffective relief.
Finally, the Government has argued that
Article 60 has no application after the actual
cessation of hostilities, as there is no longer
any need for an intervening power between
the two belligerents. The premise is that
Japan no longer needs Switzerland to
intervene with the United
Page 327 U. S. 78
States to protect the rights of Japanese
nationals, since Japan is now in direct
communication with this Government. This,
of course, is in contradiction of the
Government's theory, in other connections,
that the war is not over, and military
necessity still requires use of all the power
necessary for actual combat.
Furthermore the premise overlooks all the
realities of the situation. Japan is a defeated
power, having surrendered, if not
unconditionally, then under the most severe
conditions. Her territory is occupied by
American military forces. She is scarcely in a
position to bargain with us or to assert her
rights. Nor can her nationals. She no longer
holds American prisoners of war. [Footnote

2/40] Certainly, if there was the need of an

independent neutral to protect her nationals
during the war, there is more now. In my
opinion the failure to give the notice required
by Article 60 is only another instance of the
commission's failure to observe the
obligations of our law.
What is more important, there was no
compliance with Article 63 of the same
Convention. Yamashita was not tried
"according to the same procedure as in the
case of persons belonging to the armed
forces of the detaining Power." Had one of
our soldiers or officers been tried for alleged
war crimes, he would have been entitled to
the benefits of the Articles of War. I think that
Yamashita was equally entitled to the same
protection. In any event, he was entitled to
their benefits under the provisions of Article
63 of the Geneva Convention. Those benefits
he did not receive. Accordingly, his trial was
in violation of the Convention.
VI
The Fifth Amendment
Wholly apart from the violation of the Articles
of War and of the Geneva Convention, I am
completely unable to
Page 327 U. S. 79
accept or to understand the Court's ruling
concerning the applicability of the due
process clause of the Fifth Amendment to this
case. Not heretofore has it been held that
any human being is beyond its universally
protecting spread in the guaranty of a fair
trial in the most fundamental sense. That
door is dangerous to open. I will have no part
in opening it. For, once it is ajar, even for
enemy belligerents, it can be pushed back
wider for others, perhaps ultimately for all.
The Court does not declare expressly that
petitioner, as an enemy belligerent, has no
constitutional rights, a ruling I could
understand, but not accept. Neither does it
affirm that he has some, if but little,
constitutional protection. Nor does the Court
defend what was done. I think the effect of
what it does is in substance to deny him all
such safeguards. And this is the great issue
in the cause.
For it is exactly here we enter wholly
untrodden ground. The safe signposts to the
rear are not in the sum of protections
surrounding jury trials or any other
proceeding known to our law. Nor is the
essence of the Fifth Amendment's
elementary protection comprehended in any
single one of our time-honored specific
constitutional safeguards in trial, though
there are some without which the words "fair
trial" and all they cannot become a mockery.
Apart from a tribunal concerned that the law
as applied shall be an instrument of justice,
albeit stern in measure to the guilt
established, the heart of the security lies in
two things. One is that conviction shall not
rest in any essential part upon unchecked

25

rumor, report, or the results of the

prosecution's ex parte investigations, but
shall stand on proven fact; the other,
correlative, lies in a fair chance to defend.
This embraces at the least the rights to know
with reasonable clarity in advance of the trial
the exact nature of the offense with which
one is to be charged; to have reasonable
time for preparing to meet the charge, and to
have the aid of counsel in doing so, as also in
the
Page 327 U. S. 80
trial itself, and if, during its course, one is
taken by surprise, through the injection of
new charges or reversal of rulings which
brings forth new masses of evidence, then to
have further reasonable time for meeting the
unexpected shift.
So far as I know, it has not yet been held that
any tribunal in our system, of whatever
character, is free to receive "such evidence
as in its opinion would be of assistance in
proving or disproving the charge" or, again as
in its opinion, "would have probative value in
the mind of a reasonable man;" and, having
received what in its unlimited discretion it
regards as sufficient, is also free to determine
what weight may be given to the evidence
received without restraint. [Footnote 2/41]
When to this fatal defect in the directive,
however innocently made, are added the
broad departures from the fundamentals of
fair play in the proof and in the right to
defend which occurred throughout the
proceeding, there can be no accommodation
with the due process of law which the Fifth
Amendment demands.
All this the Court puts to one side with the
short assertion that no question of due
process under the Fifth Amendment or
jurisdiction reviewable here is presented. I do
not think this meets the issue, standing alone
or in conjunction with the suggestion which
follows that the Court gives no intimation one
way or the other concerning
Page 327 U. S. 81
what Fifth Amendment due process might
require in other situations.
It may be appropriate to add here that,
although without doubt the directive was
drawn in good faith in the belief that it would
expedite the trial and that enemy
belligerents in petitioner's position were not
entitled to more, that state of mind and
purpose cannot cure the nullification of basic
constitutional standards which has taken
place.
It is not necessary to recapitulate. The
difference between the Court's view of this
proceeding and my own comes down in the
end to the view, on the one hand, that there
is no law restrictive upon these proceedings
other than whatever rules and regulations
may be prescribed for their government by
the executive authority or the military and,
on the other hand, that the provisions of the

Articles of War, of the Geneva Convention

and the Fifth Amendment apply.
I cannot accept the view that anywhere in
our system resides or lurks a power so
unrestrained to deal with any human being
through any process of trial. What military
agencies or authorities may do with our
enemies in battle or invasion, apart from
proceedings in the nature of trial and some
semblance of judicial action, is beside the
point. Nor has any human being heretofore
been held to be wholly beyond elementary
procedural protection by the Fifth
Amendment. I cannot consent to even
implied departure from that great absolute.
It was a great patriot who said:
"He that would make his own liberty secure
must guard even his enemy from oppression,
for if he violates this duty he establishes a
precedent that will reach himself. [Footnote
2/42]"
MR. JUSTICE MURPHY joins in this opinion.
[Footnote 2/1]
Cummings v. Missouri, 4 Wall. 277; Kring v.
Missouri, 107 U. S. 221.
[Footnote 2/2]
Armour Packing Co. v. United States, 209 U.
S. 56, 209 U. S. 83-84; United States v.
Cohen Grocery Co., 255 U. S. 81, cf. Screws
v. United States, 325 U. S. 91. See note 17
and text.
[Footnote 2/3]
Hawk v. Olson, 326 U. S. 271; Snyder v.
Massachusetts, 291 U. S. 97, 291 U. S. 105:
"What may not be taken away is notice of the
charge and an adequate opportunity to be
heard in defense of it." See 327 U. S.
[Footnote 2/4]
The commission's findings state:
"We have received for analysis and
evaluation 423 exhibits consisting of official
documents of the United States Army, the
United States State Department, and the the
Philippines; affidavits; captured enemy
documents or translations thereof; diaries
taken from Japanese personnel, photographs,
motion picture films, and Manila
newspapers."
See notes 19 and 20.
Concerning the specific nature of these
elements in the proof, the issues to which
they were directed, and their prejudicial
effects, see textinfra and notes in 327 U. S.
[Footnote 2/5]
Queen v. Hepburn, 7 Cranch. 290; Donnelly v.
United States, 228 U. S. 243, 228 U. S.
273. See 327 U. S. note 21.
[Footnote 2/6]
Motes v. United States, 178 U. S. 458, 178 U.
S. 471; Paoni v. United States, 281 F.
801. See Parts 327 U. S. S. 56|>III.
[Footnote 2/7]
See 327 U. S. S. 1fn2/10|>10, 19; 327 U. S.
[Footnote 2/8]
The line of authorization within the military
hierarchy extended from the President,

26

through the Joint Chiefs of Staff and General

MacArthur, to General Styer, whose order of
September 25th and others were made
pursuant to and in conformity with General
MacArthur's directive. The charge was
prepared by the Judge Advocate General's
Department of the Army. There is no dispute
concerning these facts or that the directive
was binding on General Styer and the
commission, though it is argued his own
authority as area commanding general was
independently sufficient to sustain what was
done.
[Footnote 2/9]
"16. Evidence. -- a. The commission shall
admit such evidence as in its opinion would
be of assistance in proving or disproving the
charge, or such as in the commission's
opinion would have probative value in the
mind of a reasonable man. In particular, and
without limiting in any way the scope of the
foregoing general rules, the following
evidence may be admitted:"
"(1) Any document while appears to the
commission to have been signed or issued
officially by any officer, department, agency,
or member of the armed forces of any
government, without proof of the signature or
of the issuance of the document."
"(2) Any report which appears to the
commission to have been signed or issued by
the International Red Cross or a member
thereof, or by a medical doctor or any
medical service personnel, or by an
investigator or intelligence officer, or by any
other person whom the commission finds to
have been acting in the course of his duty
when making the report."
"(3) Affidavits, depositions, or other
statements taken by an officer detailed for
that purpose by military authority."
"(4) Any diary, letter or other document
appearing to the commission to contain
information relating to the charge."
"(5) A copy of any document or other
secondary evidence of its contents, if the
commission believes that the original is not
available or cannot be produced without
undue delay. . . ."
[Footnote 2/10]
In one instance, the president of the
commission said:
"The rules and regulations which guide this
Commission are binding upon the
Commission and agencies provided to assist
the Commission. . . . We have been
authorized to receive and weigh such
evidence as we can consider to have
probative value, and further comments by
the Defense on the right which we have to
accept this evidence is decidedly out of
order."
But see note 19.
[Footnote 2/11]
Cf. text infra at note 19 concerning the
prejudicial character of the evidence.

[Footnote 2/12]
Note 4.
[Footnote 2/13]
Namely,
"(1) starvation, execution or massacre
without trial, and maladministration generally
of civilian internees and prisoners of war; (2)
torture, rape, murder, and mass execution of
very large numbers of residents of the
Philippines, including women and children
and members of religious orders, by
starvation, beheading, bayoneting, clubbing,
hanging, burning alive, and destruction by
explosives; (3) burning and demolition
without adequate military necessity of large
numbers of homes, places of business, places
of religious worship, hospitals, public
buildings, and educational institutions. In
point of time, the offenses extended
throughout the period the accused was in
command of Japanese troops in the
Philippines. In point of area, the crimes
extended through the Philippine Archipelago,
although by far he most of the incredible acts
occurred on Luzon."
[Footnote 2/14]
Cf. note 13.
[Footnote 2/15]
In addition, the findings set forth that
captured orders of subordinate officers gave
proof that "they at least" ordered acts
"leading directly to" atrocities; that
"the proof offered to the
Commission alleged criminal neglect . . . as
well as complete failure by the higher
echelons of command to detect and prevent
cruel and inhuman treatment accorded by
local commanders and guards;"
and that, although "the defense had
established the difficulties faced by the
accused" with special reference, among other
things, to the discipline and morale of his
troops under the "swift and overpowering
advance of American forces," and
notwithstanding he had stoutly maintained
his complete ignorance of the crimes, still he
was an officer of long experience; his
assignment was one of broad responsibility; it
was his duty "to discover and control" crimes
by his troops, if widespread, and therefore
"The Commission concludes: (1) that a series
of atrocities and other high crimes have been
committed by members of the Japanese
armed forces under your command against
the people of the United States, their allies,
and dependencies throughout the Philippine
Islands; that they were not sporadic in
nature, but in many cases were methodically
supervised by Japanese officers and
noncommissioned officers; (2) that, during
the period in question, you failed to provide
effective control of your troops, as was
required by the circumstances."
"Accordingly, upon secret written ballot, twothirds or more of the members concurring,

27

the Commission finds you guilty as charged

and sentences you to death by hanging."
(Emphasis added.)
[Footnote 2/16]
See note 15.
[Footnote 2/17]
The charge, set forth at the end of this note,
is consistent with either theory -- or both -and thus ambiguous, as were the
findings. Seenote 15. The only word implying
knowledge was "permitting." If "willfully" is
essential to constitute a crime or charge of
one, otherwise subject to the objection of
"vagueness," cf. Screws v. United States, 325
U. S. 91, it would seem that "permitting"
alone would hardly be sufficient to charge
"willful and intentional" action or omission;
and, if taken to be sufficient to charge
knowledge, it would follow necessarily that
the charge itself was not drawn to state, and
was insufficient to support, a finding of mere
failure to detect or discover the criminal
conduct of others.
At the most, "permitting" could charge
knowledge only by inference or implication.
And, reasonably, the word could be taken in
the context of the charge to mean "allowing"
or "not preventing" -- a meaning consistent
with absence of knowledge and mere failure
to discover. In capital cases, such ambiguity
is wholly out of place. The proof was equally
ambiguous in the same respect, so far as we
have been informed, and so, to repeat, were
the findings. The use of "willfully," even
qualified by a "must have," one time only in
the findings hardly can supply the absence of
that or an equivalent word or language in the
charge or in the proof to support that
essential element in the crime.
The charge was as follows:
"Tomoyuki Yamashita, General Imperial
Japanese Army, between 9 October 1944 and
2 September 1945 at Manila and other places
in the Philippine Islands, 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, General
Tomoyuki Yamashita, thereby violated the
laws of war."
[Footnote 2/18]
Cf. Text infra, 327 U. S.
[Footnote 2/19]
On November 1, early in the trial, the
president of the commission stated:
"I think the Prosecution should consider the
desirability of striking certain items. The
Commission feels that there must be
witnesses introduced on each of the
specifications or items. It has no objection to
considering affidavits, but it is unwilling to

form an opinion of a particular item based

solely on an affidavit. Therefore, until
evidence is introduced, these particular
exhibits are rejected."
(Emphasis added.)
Later evidence of the excluded type was
offered, to introduction of which the defense
objected on various grounds, including the
prior ruling. At the prosecution's urging, the
commission withdrew to deliberate. Later, it
announced that,
"after further consideration, the Commission
reverses that ruling [of November 1] and
affirms its prerogative of receiving and
considering affidavits or depositions, if it
chooses to do so, for whatever probative
value the Commission believes they may
have, without regard to the presentation of
some partially corroborative oral testimony."
It then added:
"The Commission directs the prosecution
again to introduce the affidavits or
depositions then in question, and other
documents of similar nature which the
prosecution stated has been prepared for
introduction."
(Emphasis added.)
Thereafter, this type of evidence was
consistently received, and again by the
undisputed statement of counsel, as the sole
proof of many of the specifications of the bills
a procedure which they characterized
correctly, in my view, as having, "in effect,
stripped the proceeding of all semblance of a
trial, and converted it into an ex
parte investigation."
[Footnote 2/20]
This perhaps consisted in the showing of the
so-called "propaganda" film, "Orders from
Tokyo," portraying scenes of battle
destruction in Manila, which counsel say "was
not, in itself, seriously objectionable." Highly
objectionable, inflammatory and prejudicial,
however, was the accompanying sound track
with comment that the film was "evidence
which will convict," mentioning petitioner
specifically by name.
[Footnote 2/21]
Innumerable instances of hearsay, once or
several times removed, relating to all manner
of incidents, rumors, reports, etc., were
among these. Many instances, too, are shown
of the use of opinion evidence and
conclusions of guilt, including reports made
after ex parteinvestigations by the War
Crimes Branch of the Judge Advocate
General's Department, which it was and is
urged had the effect of "putting the
prosecution on the witness stand" and of
usurping the commission's function as judge
of the law and the facts. It is said also that
some of the reports were received as the sole
proof of some of the specifications.
[Footnote 2/22]
Also with Paragraph 82 of the Rules of I and
Warfare.

28

[Footnote 2/23]
Typical of the items are allegations that
members of the armed forces of Japan under
the command of the accused committed the
acts
"[d]uring the months of October, November,
and December, 1944 [of] brutally mistreating
and torturing numerous unarmed
noncombatant civilians at the Japanese
Military Police Headquarters located at
Cortabitarte and Mabini Streets, Manila,"
and,
"On or about 19 February 1945, in the Town
of Cuenca, Batangas Province, brutally
mistreating, massacring, and killing Jose M.
Laguo, Esteban Magsamdol, Jose Lanbo,
Felisa Apuntar, Elfidio Lunar, Victoriana
Ramo, and 978 other persons, all unarmed
noncombatant civilians, pillaging and
unnecessarily, deliberately, and wantonly
devastating, burning, and destroying large
areas of that town."
[Footnote 2/24]
The supplemental bill contains allegations
similar to those set out in the original
bill. See note 23. For example, it charged that
members of the armed forces of Japan under
the command of the accused "during the
period from 9 October 1944 to about 1
February 1945 at Cavite City, Imus, and
elsewhere in Cavite Province," were
permitted to commit the acts of "brutally
mistreating, torturing, and killing or
attempting to kill, without cause or trial,
unarmed noncombatant civilians."
[Footnote 2/25]
See note 39 and text, 327 U. S.
[Footnote 2/26]
In support of the motion, counsel indicated
surprise by saying that, though it was
assumed two or three new specifications
might be added, there had been no
expectation of 59 "about entirely new
persons and times." The statement
continued:
"We have worked earnestly seven days a
week in order to prepare the defense on 64
specifications. And when I say 'prepare the
defense,' sir, I do not mean merely an
affirmative defense, but to acquaint
ourselves with the facts so that we could
properly cross-examine the Prosecution's
witnesses."
". . . 'In advance of trial' means: sufficient
time to allow the defense a chance to
prepare its defense."
"We earnestly state that we must have this
time in order adequately to prepare the
defense. I might add, sir, we think this is
important to the accused, but far more
important than any rights of this accused, we
believe, is the proposition that this
Commission should not deviate from a
fundamental American concept of fairness. . .
."
[Footnote 2/27]

The commission went on to question the

need for all of the six officers representing
the defense to be present during
presentation of all the case, suggested one or
two would be adequate and others "should
be out of the courtroom" engaged in other
matters, and strongly suggested bringing in
additional counsel in the midst of the trial, all
to the end that "need to request continuance
may not arise."
[Footnote 2/28]
See note 9.
[Footnote 2/29]
Article 25 is as follows:
"A duly authenticated deposition taken upon
reasonable notice to the opposite party may
be read in evidence before any military court
or commission in any case not capital, or in
any proceeding before a court of inquiry or a
military board, if such deposition be taken
when the witness resides, is found, or is
about to go beyond the State, Territory, or
district in which the court, commission, or
board is ordered to sit, or beyond the
distance of one hundred miles from the place
of trial or hearing, or when it appears to the
satisfaction of the court, commission, board,
or appointing authority that the witness, by
reason of age, sickness, bodily infirmity,
imprisonment, or other reasonable cause, is
unable to appear and testify in person at the
place of trial or hearing: Provided, That
testimony by deposition may be adduced for
the defense in capital cases."
(Emphasis added.) 10 U.S.C. 1496.
Article 38 reads:
"The President may, by regulations, which he
may modify from time to time, prescribe the
procedure, including modes of proof, in cases
before courts-martial, courts of inquiry,
military commissions, and other military
tribunals, which regulations shall, insofar as
he shall deem practicable, apply the rules of
evidence generally recognized in the trial of
criminal cases in the district courts of the
United States:Provided, That nothing
contrary to or inconsistent with these articles
shall be so prescribed: Provided further, That
all rules made in pursuance of this article
shall be laid before the Congress annually."
(Emphasis added.) 10 U.S.C. 1509.
[Footnote 2/30]
Another revision of the Articles of War took
place in 1920. At this time, Article 15 was
slightly amended.
In 1916 Article 15, 39 Stat. 653, was enacted
to read:
"The provisions of these articles conferring
jurisdiction upon courts-martial shall not be
construed as depriving military commissions,
provost courts, or other military tribunals of
concurrent jurisdiction in respect of offenders
or offenses that, by the law of war, may be
lawfully triable by such military commissions,
provost courts, or other military tribunals."
(Emphasis added.)

29

The 1920 amendment put in the words "by

statute or" before the words "by the law of
war" and omitted the word "lawfully."
[Footnote 2/31]
Speaking at the Hearings before the
Committee on Military Affairs, House of
Representatives, 62nd Cong., 2d Sess.,
printed as an Appendix to S.Rep.229, 63rd
Cong., 2d Sess., General Crowder said:
"The next article, No. 15, is entirely new, and
the reasons for its insertion in the code are
these: in our War with Mexico, two war courts
were brought into existence by orders of Gen.
Scott, viz., the military commission and the
council of war. By the military commission,
Gen. Scott tried cases cognizable in time of
peace by civil courts, and by the council of
war, he tried offenses against the laws of
war. The council of war did not survive the
Mexican War period, and, in our subsequent
wars, its jurisdiction has been taken over by
the military commission, which, during the
Civil War period, tried more than 2,000 cases.
While the military commission has not been
formally authorized by statute, its jurisdiction
as a war court has been upheld by the
Supreme Court of the United States. It is an
institution of the greatest importance in a
period of war, and should be preserved. In
the new code, the jurisdiction of courtsmartial has been somewhat amplified by the
introduction of the phrase 'Persons subject to
military law.' There will be more instances in
the future than in the past when the
jurisdiction of courts-martial will overlap that
of the war courts, and the question would
arise whether Congress having vested
jurisdiction by statute the common law of
war jurisdiction was not ousted. I wish to
make it perfectly plain by the new article
that, in such cases, the jurisdiction of the war
court is concurrent."
S.Rep. No.229, 63rd Cong., 2d Sess., p. 53.
(Emphasis added.)
And later, in 1916, speaking before the
Subcommittee on Military Affairs of the
Senate at their Hearings on S.3191, a project
for the revision of the Articles of War, 64th
Cong., 1st Sess., printed as an Appendix to
S.Rep.230, 64th Cong., 1st Sess., General
Crowder explained at greater length:
"Article 15 is new. We have included in article
2 as subject to military law a number of
persons who are also subject to trial by
military commissions. A military commission
is our common law war court. It has no
statutory existence, though it is recognized
by statute law. As long as the articles
embraced them in the designation 'persons
subject to military law,' and provided that
they might be tried by court-martial, I was
afraid that, having made a special provision
for their court-martial, it might be held that
the provision operated to exclude trials by
military commission and other war courts; so
this new article was introduced. . . ."

"It just saves to these war courts the

jurisdiction they now have and makes it a
concurrent jurisdiction with courts-martial, so
that the military commander in the field in
time of war will be at liberty to employ either
form of court that happens to be
convenient. Both classes of courts have the
same procedure. For the information of the
committee and in explanation of these war
courts to which I have referred, I insert here
an explanation from Winthrop's Military Law
and Precedents --"
" The military commission -- a war court -had its origin in G.O. 20, Headquarters of the
Army at Tampico, February 19, 1847 (Gen.
Scott). Its jurisdiction was confined mainly to
criminal offenses of the class cognizable by
civil courts in time of peace committed by
inhabitants of the theater of hostilities. A
further war court was originated by Gen.
Scott at the same time, called 'council of
war,' with jurisdiction to try the same classes
of persons for violations of the laws of war,
mainly guerillas. These two jurisdictions were
united in the later war court of the Civil War
and Spanish War periods, for which the
general designation of 'military commission'
was retained. The military commission was
given statutory recognition in section 30, act
of March 3, 1863, 12 Stat. 736, and in various
other statutes of that period. The United
States Supreme Court has acknowledged the
validity of its judgments (Ex parte
Vallandingham, 1 Wall. 243 andColeman v.
Tennessee, 97 U. S. 509). It tried more than
2,000 cases during the Civil War and
reconstruction period. Its composition,
constitution, and procedure follows the
analogy of courts-martial. Another war court
is the provost court, an inferior court with
jurisdiction assimilated to that of justices of
the peace and police courts, and other war
courts variously designated 'courts of
conciliation,' 'arbitrators,' 'military tribunals'
have been convened by military commanders
in the exercise of the war power as occasion
and necessity dictated."
" Yet, as I have said, these war courts never
have been formally authorized by statute."
" Senator Colt: They grew out of usage and
necessity?"
" Gen. Crowder: Out of usage and necessity. I
thought it was just as well, as inquiries would
arise, to put this information in the record."
S.Rep. No.130, 64th Cong., 1st Sess. (1916)
p. 40. (Emphasis added.)
Article 15 was also explained in the "Report
of a committee on the proposed revision of
the articles of war, pursuant to instructions of
the Chief of Staff, March 10, 1915," included
in Revision of the Articles of War,
Comparative Prints, Etc., 1904-1920. J.A.G.O.,
as follows:
"A number of articles . . . of the revision have
the effect of giving courts-martial jurisdiction
over certain offenders and offenses which,

30

under the law of war or by statute, are also

triable by military commissions, provost
courts, etc. Article 15 is introduced for the
purpose of making clear that, in such cases,
a court martial has only a concurrent
jurisdiction with such war tribunals."
[Footnote 2/32]
Of course, Articles 25 and 38, at the same
time that they gave protection to defendants
before military commissions, also provided
for the application by such tribunals of
modern rules of procedure and evidence.
[Footnote 2/33]
Winthrop, speaking of military commissions
at the time he was writing, 1896, says:
"The offences cognizable by military
commissions may thus be classed as follows:
(1) Crimes and statutory offences cognizable
by State or U.S. courts, and which would
properly be tried by such courts if open and
acting; (2) Violations of the laws and usages
of warcognizable by military tribunals only;
(3) Breaches of military orders or regulations
for which offenders are not legally triable by
court-martial under the Articles of War."
(Emphasis added.) Winthrop at *1309. And
cf. Fairman, The Law of Martial Rule (2d
ed.1943):
"Military commissions take cognizance of
three categories of criminal cases: offenses
against the laws of war, breaches of military
regulations, and civil crimes which, where the
ordinary courts have ceased to function,
cannot be tried normally."
(Emphasis added.) Fairman, 265-266. See
also Davis, A Treatise on the Military Law of
the United States (1915) 309, 310.
[Footnote 2/34]
Note 31.
[Footnote 2/35]
In addition to the statements of General
Crowder with relation to Article 15, set out
in note 31, supra, see the following
statements made with reference to Article 25
in 1912 at a hearing before the Committee
on Military Affairs of the House:
"We come now to article 25, which relates to
the admissibility of depositions. . . . It will be
noted further that the application of the old
article has been broadened to include
military commissions, courts of inquiry, and
military boards."
"Mr. SWEET. Please explain what you mean
by military commission."
"Gen. CROWDER. That is our common law of
war court, and was referred to by me in a
prior hearing. [The reference is to the
discussion of Article 15.] This war court came
into existence during the Mexican War, and
was created by orders of Gen. Scott. It had
jurisdiction to try all cases usually cognizable
in time of peace by civil courts. Gen. Scott
created another war court, called the 'council
of war,' with jurisdiction to try offenses
against the laws of war. The constitution,
composition, and jurisdiction of these

courts have never been regulated by

statute. The council of war did not survive
the Mexican War period, since which its
jurisdiction has been taken over by the
military commission. The military commission
received express recognition in the
reconstruction acts, and its jurisdiction has
been affirmed and supported by all our
courts. It was extensively employed during
the Civil War period and also during the
Spanish-American War. It is highly desirable
that this important war court should be
continued to be governed as heretofore, by
the laws of war, rather than by statute."
S.Rep. No.229, 63d Cong., 2d Sess.,
59; cf. S.Rep. 130, 64th Cong., 1st Sess., 5455. (Emphasis added.) See also Hearings
before the Subcommittee of the Committee
on Military Affairs of the Senate on
Establishment of Military Justice, 66th Cong.,
1st Sess., 1182-1183.
Further evidence that procedural provisions
of the Articles were intended to apply to all
forms of military tribunal is given by Article
24, 10 U.S.C. 1495, which provides against
compulsory self-incrimination "before a
military court, commission, court of injury, or
board, or before any officer conducting an
investigation." This article was drafted so
that "The prohibition should reach all
witnesses, irrespective of the class of military
tribunal before which they appear. . . ."
(Emphasis added.) Comparative Print
showing S.3191 with the Present Articles of
War and other Related Statutes, and
Explanatory Notes, Printed for use of the
Senate Committee on Military Affairs, 64th
Cong., 1st Sess., 17, included in Revision of
the Articles of War, Comparative Prints, Etc.,
1904-1920, J.A.G.O.
[Footnote 2/36]
We are informed that Japan has not ratified
the Geneva Convention. See discussion of
Article 82 in the paragraphs below. We are
also informed, however -- and the record
shows this at least as to Japan -- that, at the
beginning of the war, both the United States
and Japan announced their intention to
adhere to the provisions of that treaty. The
force of that understanding continues,
perhaps with greater reason, if not effect,
despite the end of hostilities. See note 40
and text.
Article 82 provides:
"The provisions of the present Convention
must be respected by the High Contracting
Parties under all circumstances."
"In case, in time of war, one of the
belligerents is not a party to the Convention,
its provisions shall nevertheless remain in
force as between the belligerents who are
parties thereto."
It is not clear whether the Article means that,
during a war, when one of the belligerents is
not a party to the Convention, the provisions
must nevertheless be applied by all the other

31

belligerents to the prisoners of war not only

of one another, but also of the power that
was not a party thereto, or whether it means
that they need not be applied to soldiers of
the nonparticipating party who have been
captured. If the latter meaning is accepted,
the first paragraph would seem to contradict
the second.
"Legislative history" here is of some, if little,
aid. A suggested draft of a convention on war
prisoners drawn up in advance of the Geneva
meeting by the International Committee of
the Red Cross (Actes de la Conference
Diplomatique de Geneve, edited by Des
Gouttes, pp. 21-34) provided in Article 92
that the provisions of the Convention
"ne cesseront d'etre obligatories qu'au cas ou
l'un des Etats belligerents participant a la
Convention se trouve avoir a combattre les
forces armees d'un autre Etat que n'y serait
par parties at a l'egard de cet Etat
seulement."
See Rasmussen, Code des Prisonniers de
Guerre (1931) 70. The fact that this
suggested article was not included in the
Geneva Convention would indicate that the
nations in attendance were avoiding a
decision on this problem. But I think it shows
more -- that is, it manifests an intention not
to foreclose a future holding that, under the
terms of the Convention, a state is bound to
apply the provisions to prisoners of war of
nonparticipating state. And not to foreclose
such a holding is to invite one. We should, in
my opinion, so hold, for reasons of security to
members of our own armed forces taken
prisoner, if for no others.
Moreover, if this view is wrong and the
Geneva Convention is not strictly binding
upon the United States as a treaty, it is
strong evidence of and should be held
binding as representing what have become
the civilized rules of international warfare.
Yamashita is as much entitled to the benefit
of such rules as to the benefit of a binding
treaty which codifies them. See U.S. War
Dep't Basic Field Manual, Rules of Land
Warfare (1940), par. 5-b.
[Footnote 2/37]
Title III of the Convention, which comprises
Articles 7 to 67, is called "Captivity." It
contains Section I, "Evacuation of Prisoners of
War" (Articles 7, 8); Section II, "Prisoners-ofWar Camps" (Articles 9-26); Section III,
"Labor of Prisoners of War" (Articles 27-34);
Section IV, "External Relations of Prisoners of
War" (Articles 35-41), and Section V,
"Prisoners' Relations with the Authorities"
(Articles 42-67). Thus, Title III regulates all
the various incidents of a prisoner of war's
life while in captivity.
Section V, with which we are immediately
concerned, is divided into three chapters.
Chapter 1 (Article 42) gives a prisoner of war
the right to complain of his condition of
captivity. Chapter 2 (Articles 43-44) gives

prisoners of war the right to appoint agents

to represent them. Chapter 3 is divided into
three subsections, and is termed "Penalties
Applicable to Prisoners of War." Subsection 1
(Articles 45-53) contains various
miscellaneous articles to be considered in
detail later. Subsection 2 (Articles 54-59)
contains provisions with respect to
disciplinary punishments. And subsection 3
(Articles 60-67), which is termed "Judicial
Suits," contains various provisions for
protection of a prisoner's rights in judicial
proceedings instituted against him.
Thus, subsection 3, which contains Articles
60 and 63, as opposed to subsection 2, of
Chapter 3, is concerned not with mere
problems of discipline, as is the latter, but
with the more serious matters of trial leading
to imprisonment or possible sentence of
death; cf. Brereton, The Administration of
Justice Among Prisoners of War by Military
Courts (1935) 1 Proc. Australian & New
Zealand Society of International Law 143,
153. The Court, however, would have the
distinction between subsection 2 and
subsection 3 one between minor disciplinary
action against a prisoner of war for acts
committed while a prisoner and major judicial
action against a prisoner of war for acts
committed while a prisoner. This narrow view
not only is highly strained, confusing the
different situations and problems treated by
the two subdivisions. It defeats the most
important protections subsection 3 was
intended to secure, for our own as well as for
enemy captive military personnel.
At the most, there would be logic in the
Court's construction if it could be said that all
of Chapter 3 deals with acts committed while
a prisoner of war. Of course, subsection 2
does, because of the very nature of its
subject matter. Disciplinary action will be
taken by a captor power against prisoners of
war only for acts committed by prisoners
after capture.
But it is said that subsection 7 deals
exclusively with acts committed by a prisoner
of war after having become a prisoner, and
this indicates subsection 3 is limited similarly.
This ignores the fact that some of the articles
in subsection 1 appear, on their face, to
apply to all judicial proceedings for whatever
purpose instituted. Article 46, for example,
provides in part:
"Punishments other than those provided for
the same acts for soldiers of the national
armies may not be imposed upon prisoners
of war by the military authorities and courts
of the detaining Power."
This seems to refer to war crimes as well as
to other offenses, for surely a country cannot
punish soldiers of another army for offenses
against the law of war when it would not
punish its own soldiers for the same offences.
Similarly, Article 47 in subsection 1 appears
to refer to war crimes as well as to crimes

32

committed by a prisoner after his capture. It

reads in part:
"Judicial proceedings against prisoners of war
shall be conducted as rapidly as the
circumstances permit; preventive
imprisonment shall be limited as much as
possible."
Thus, at the most, subjection 1 contains, in
some of its articles, the same ambiguities,
and is open to the same problem, that we are
faced with in construing Articles 60 and 63. It
cannot be said therefore that all of chapter 3,
and especially subsection 3, relate only to
acts committed by prisoners of war after
capture, for the meaning of subsection 3, in
this argument, is related to the meaning of
subsection 1, and subsection 1 is no more
clear restricted to punishments and
proceedings in disciplinary matters than is
subsection 3.
[Footnote 2/38]
Article 60 pertinently is as follows:
"At the opening of a judicial proceeding
directed against a prisoner of war, the
detaining Power shall advise the
representative of the protecting Power
thereof as soon as possible, and always
before the date set for the opening of the
trial."
"This advice shall contain the following
information:"
"a) Civil state and rank of prisoner;"
"b) Place of sojourn or imprisonment;"
"c) Specification of the [count] or counts of
the indictment, giving the legal provisions
applicable."
"If it is not possible to mention in that advice
the court which will pass upon the matter,
the date of opening the trial, and the place
where it will take place, this information must
be furnished to the representative of the
protecting Power later, as soon as possible,
and at all events at least three weeks before
the opening of the trial."
Article 63 reads:
"Sentence may be pronounced against a
prisoner of war only by the same courts and
according to the same procedure as in the
case of persons belonging to the armed
forces of the detaining Power."
[Footnote 2/39]
Item 89 charged the armed forces of Japan
with subjecting to trial certain named and
other prisoners of war
"without prior notice to a representative of
the protecting power, without opportunity to
defend, and without counsel; denying
opportunity to appeal from the sentence
rendered; failing to notify the protecting
power of the sentence pronounced, and
executed a death sentence without
communicating to the representative of the
protecting power the nature and
circumstances of the offense charged."
[Footnote 2/40]

Nations adhere to international treaties

regulating the conduct of war at least in part
because of the fear of retaliation. Japan no
longer has the means of retaliating.
[Footnote 2/41]
There can be no limit either to the
admissibility or the use of evidence if the
only test to be applied concerns probative
value and the only test of probative value, as
the directive commanded and the
commission followed out, lies "in the
Commission's opinion," whether that be
concerning the assistance the "evidence"
tendered would give in proving or disproving
the charge or as it might think would "have
value in the mind of a reasonable man." Nor
is it enough to establish the semblance of a
constitutional right that the commission
declares, in receiving the evidence, that it
comes in as having only such probative
value, if any, as the commission decides to
award it and this is accepted as conclusive.
[Footnote 2/42]
2 The Complete Writings of Thomas Paine
(edited by Foner, 1945) 588.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-129
December 19, 1945
TOMOYUKI YAMASHITA, petitioner,
vs.
WILHELM D. STYER, Commanding General,
United States Army Forces, Western
Pacific, respondent.
Col. Harry E. Clarke and Lt. Col. Walter C.
Hendrix for petitioner.
Maj. Robert M. Kerr for respondent.
Delgado, Dizon, Flores and Rodrigo appeared
as amici curiae.
MORAN, C.J.:
Tomoyuki Yamashita, erstwhile commanding
general of the 14th army group of the
Japanese Imperial Army in the Philippines,
and now charged before an American Military
Commission with the most monstrous crimes
ever committed against the American and
Filipino peoples, comes to this Court with a
petition for habeas corpus and prohibition
against Lt. Gen. Wilhelm D. Styer,
Commanding General of the United States
Army Forces, Western Pacific. It is alleged
therein that petitioner after his surrender
became a prisoner of war of the United
States of America but was later removed
from such status and placed in confinement
as an accused war criminal charged before
an American Military Commission constituted
by respondent Lieutenant General Styer; and
he now asks that he be reinstated to his
former status as prisoner of war, and that the
Military Commission be prohibited from
further trying him, upon the following
grounds:

33

(1) That the Military Commission was not duly

constituted, and, therefore, it is without
jurisdiction;
(2) That the Philippines cannot be considered
as an occupied territory, and the Military
Commission cannot exercise jurisdiction
therein;
(3) That Spain, the "protecting power" of
Japan, has not been given notice of the
implementing trial against petitioner,
contrary to the provisions of the Geneva
Convention of July 27, 1892, and therefore,
the Military Commission has no jurisdiction to
try the petitioner;
(4) That there is against the petitioner no
charge of an offense against the laws of war;
and
(5) That the rules of procedure and evidence
under which the Military Commission
purports to be acting denied the petitioner a
fair trial.
We believe and so hold that the petition
for habeas corpus is untenable. It seeks no
discharge of petitioner from confinement but
merely his restoration to his former status as
a prisoner of war, to be interned, not
confined. The relative difference as to the
degree of confinement in such cases is a
matter of military measure, disciplinary in
character, beyond the jurisdiction of civil
courts.
Neither may the petition for prohibition
prosper against Lt. Gen. Wilhelm D. Styer.
The military Commission is not made party
respondent in this case, and although it may
be acting, as alleged, without jurisdiction, no
order may be issued in these case
proceedings requiring it to refrain from trying
the petitioner.
Furthermore, this Court has no jurisdiction to
entertain the petition even if the commission
be joined as respondent. As we have said
in Raquiza vs. Bradford (pp. 50, 61, ante), ". .
. an attempt of our civil courts to exercise
jurisdiction over the United States Army
before such period (state of war) expires,
would be considered as a violation of this
country's faith, which this Court should not
be the last to keep and uphold." (Emphasis
supplied) We have said this in a case where
Filipino citizens were under confinement, and
we can say no less in a case where the
person confined is an enemy charged with
the most heinous atrocities committed
against the American and Filipino peoples.
True that the rule was made applicable in
time of war, and there is a conflict of opinion
as to whether war has already terminated.
War is not ended simply because hostilities
have ceased. After cessation of armed
hostilities, incident of war may remain
pending which should be disposed of as in
time of war. "An important incident to a
conduct of a war is the adoption of measure
by the military command not only to repel
and defeat the enemies but to seize and

subject to disciplinary measures those

enemies who in their attempt to thwart or
impede our military effort to have violated
the law of the war." (Ex parte Quirin, 317 US.,
1; 63 Sup. Ct., 2.) Indeed, the power to create
a Military Commission for the trial and
punishment of war criminals is an aspect of
waging war. And, in the language of a writer,
a Military Commission "has jurisdiction so
long as a technical state of war continues.
This includes the period of an armistice, or
military occupation, up to the effective date
of a treaty agreement." (Cowles,Trial of War
Criminals by Military Tribunals, American Bar
Association Journal, June, 1944.)
Upon the other hand, we have once said
(Payomo vs. Floyd, 42 Phil., 788), and this
applicable in time of war as well as the time
of peace that this Court has no power to
review upon habeas corpus the proceedings
of a military or naval tribunal, an that, in such
case, "the single inquiry, the test, is
jurisdiction. That being established,
the habeas corpus must be denied and the
petitioner discharged." (In re Grimley, 137
U.S., 147; 11 Sup. Ct., 54; 34 La. ed., 636.)
Following this rule in the instant case, we find
that the Military Commission has been validly
constituted and it has jurisdiction both over
the person of the petitioner and over the
offenses with which he is charged.
The Commission has been validly constituted
by Lieutenant General Styer duly issued by
General Douglas MacArthur, Commander in
Chief, United States Army Force Pacific, in
accordance in authority vested in him and
with radio communication from the Joint
Chiefs of Staff, as shown by Exhibits C, E, G,
and H, attached by petition. Under paragraph
356 of the Rules of the Land Welfare a
Military Commission for the trial and
punishment of the war criminals must be
designated by the belligerent. And the
belligerent's representative in the present
case is none other than the Commander in
Chief of the United States Army in the Pacific.
According to the Regulations Governing the
Trial of the War Criminals in the Pacific,
attached as Exhibit F to the petition, the "trial
of persons, units and organizations accused
as a war criminals will be the Military
Commissions to be convened by or under the
authority of the Commander in Chief, United
States Army Forces, Pacific." Articles of War
Nos. 12 and 15 recognized the "Military
Commission" appointed by military command
as an appropriate tribunal for the trial and
punishment of offenses against the law of the
war not ordinarily tried by court martial. (Ex
parte Quirin, supra.) And this has always
been the United States military practice at
since the Mexican War of 1847 when General
Winfield Scott took the position that, under
the laws of war, a military commander has an
implied power to appoint and convene a
Military Commission. This is upon the theory

34

that since the power to create a Military

Commission is an aspect of waging war,
Military Commanders have that power unless
expressly withdrawn from them.
The Military Commission thus duly
constituted has jurisdiction both over the
person of the petitioner and over the
offenses with which he is charged. It has
jurisdiction over the person of the petitioner
by reason of his having fallen into the hands
of the United States Army Forces. Under
paragraph 347 of the Rules of the Land
Warfare, "the commanders ordering the
commission of such acts, or under whose
authority they are committed by their troops,
may be punished by the belligerent into
whose hands they may fall."
As to the jurisdiction of the Military
Commission over war crimes, the Supreme
Court of the United States said:
From the very beginning of its history this
Court has recognized and applied the law of
war as including that part of the law of
nations which prescribes, for the conduct of
war, the status rights and duties and of
enemy nations as well as of enemy
individuals. By the Articles of War, and
especially Article 15, Congress has explicitly
provided, so far as it may constitutionally do
so, that military tribunals shall have
jurisdiction to try offenders or offenses
against the law of war in appropriate cases.
Congress, in addition to making rules for the
government of our Armed Forces, has thus
exercised its authority to define and punish
offenses against the law of nations by
sanctioning, within constitutional limitations,
the jurisdiction of military commissions to try
persons and offenses which, according to the
rules and precepts of the law of nations, and
more particularly the law of war, are
cognizable by such tribunals. (Ex
parte Quirin, 317 U.S. 1, 27-28; 63 Sup. Ct.,
2.)
Petitioner is charged before the Military
Commission sitting at Manila with having
permitted members of his command "to
commit brutal atrocities and other high
crimes against the people of the United
States and of its allies and dependencies,
particularly the Philippines," crimes and
atrocities which in the bills of particulars, are
described as massacre and extermination of
thousand and thousands of unarmed
noncombatant civilians by cruel and brutal
means, including bayoneting of children and
raping of young girls, as well as devastation
and destruction of public, or private, and
religious property for no other motive than
pillage and hatred. These are offenses
against the laws of the war as described in
paragraph 347 of the Rules of Land Warfare.
It is maintained, however, that, according to
the Regulations Governing the Trial of War
Criminals in the Pacific. "the Military
Commission . . . shall have jurisdiction over

all of Japan and other areas occupied by the

armed forces commanded by the
Commander in Chief, United States Army
Forces, Pacific" (emphasis supplied), and the
Philippines is not an occupied territory. The
American Forces have occupied the
Philippines for the purpose of liberating the
Filipino people from the shackles of Japanese
tyranny, and the creation of a Military
Commission for the trial and punishment of
Japanese war criminals is an incident of such
war of liberation.
It is maintained that Spain, the "protecting
power" of Japan, has not been given notice
before trial was begun against petitioner,
contrary to the provisions of the Geneva
Convention of July 27, 1929. But there is
nothing in that Convention showing that
notice is a prerequisite to the jurisdiction of
Military Commissions appointed by victorious
belligerent. Upon the other hand, the
unconditional surrender of Japan and her
acceptance of the terms of the Potsdam
Ultimatum are a clear waiver of such a
notice. It may be stated, furthermore, that
Spain has severed her diplomatic relation of
Japan because of atrocities committed by the
Japanese troops against Spaniards in the
Philippines. Apparently, therefore, Spain has
ceased to be the protecting power of Japan.
And, lastly, it is alleged that the rules of
procedure and evidence being followed by
the Military Commission in the admission of
allegedly immaterial or hearsay evidence,
cannot divest the commission of its
jurisdiction and cannot be reviewed in a
petition for the habeas corpus. (25 Am. Jur.,
218; Collins vs. McDonald, 258 U. S. 416; 66
Law. ed., 692; 42 Sup. Ct., 326).
For all foregoing, petition is hereby dismissed
without costs.lawphi1.net
Jaranilla, Feria, De Joya, Pablo, Hilado,
Bengzon, and Briones, JJ., concur.
Paras, J., concurs in the result.

Separate Opinions
OZAETA, J., concurring and dissenting:
I concur in the dismissal of the petition
for habeas corpus and prohibition on the
ground that the Military Commission trying
the petitioner has been legally constituted,
and that such tribunal has jurisdiction to try
and punish the petitioner for offenses against
the law of war. (Ex parte Quirin, 317 U.S. 1;
63 Sup. Ct., 2.)
I dissent, however, from the portion of the
opinion of the Court which cities and applies
herein its decision in the case Raquiza vs.
Bradford (pp. 50, 61, ante ), to the effect that
an attempt of our civil court to exercise
jurisdiction over the United States Army
would considered as a violation of this
country's faith. The decision of Raquiza case,

35

from which I dissented, was based mainly of

the case of Coleman vs. Tennessee (97 U. S.,
509), in which was mentioned merely by way
of argument the rule of international law to
effect that a foreign army, permitted to
march through a friendly country to be
stationed in it, by permission of its
government or sovereign, is exempt from the
civil and criminal jurisdiction of the place.
After reviewing the facts and the ruling of the
court in the Coleman case, I said in my
dissenting opinion in the Raquiza case the
following:
. . . Thus it is clear that the rule of
international law above mentioned formed no
part of the holding of the court in the said
case.
Neither can such rule of international law of
itself be applicable to the relation between
the Philippines and the United States, for the
reason that the former is still under the
sovereign of the latter. The United States
Army is not foreign to the Philippines. It is
here not by permission or invitation of the
Philippine Government but by right of
sovereignty of the United States over the
Philippines. It has the same right to be here
as it has to be in Hawaii or California. The
United States has the same obligation to
defend and protect the Philippines, as it has
to defend and protect Hawaii or California,
from foreign invasion. The citizens of the
Philippines owe the same allegiance to the
United States of the America as the citizens
of any territory or States of the Union.
That the case of Coleman vs. Tennessee was
erroneously invoked and applied by this
Court in the case ofRaquiza vs. Bradford, was
admitted by Mr. Wolfson, the attorney for
Lieutenant Colonel Bradford, who,
notwithstanding the judgment in favor of his
client, moved this Court to modify the
majority opinion "by eliminating all reference
to the case of Coleman vs. Tennessee (97
U.S. 509). because, as well pointed out in
both dissenting opinions, said case has no
application whatever to the case at bar." .
The rule of international law mentioned in the
Coleman case and erroneously applied by
analogy in the Raquiza case, has likewise no
application whatever to the case at bar. A
mistake when repeated only becomes a
blunder.
PERFECTO, J., concurring and dissenting:
1. FACTS IN THIS CASE
Petitioner prays that a writ of habeas
corpus be issued directed to respondent Lt.
Gen. Wilhelm D. Styer, Commanding General,
United Army Forces, Western Pacific,
commanding him to produce the body of the
petitioner before this Court and that "he be
ordered returned to the status of an internee
as a prisoner of war in conformity with the
provision of article 9 of the Geneva
Convention of July 27, 1929, relative to the
treatment of prisoners of war and of

paragraph 82 of the Rules of Land Warfare, F.

M. 27-10, United States War Department, and
that a writ of prohibition be issued by this
Court prohibiting the respondent from
proceeding with the trial, and that the
petitioner be discharged from the offenses
and confinement aforesaid."
Prior to September 3, 1945, petitioner was
the commanding general of the 14th Army
Group of the Imperial Japanese Army in the
Philippines. On said date, he surrendered to
the United States and was interned in New
Bilibid Prison, in Muntinlupa, in conformity
with the provision of article 9 of the Geneva
Convention of July 27, 1929, relative to the
treatment of prisoners of war, and of
paragraph 82 of the Rules of Land Warfare of
the United States War Department.
On October 2, 1945, respondent caused to be
served on petitioner a charge for violation of
the laws of war, signed by Colonel Alva C.
Carpenter, wherein it is alleged that between
9 October, 1944, and 2 September, 1945,
petitioner "while commander of the armed
forces of Japan at war with the United States
and its allies, unlawfully disregarded and
failed it 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 the
people of the United States and its allies and
dependencies, particularly the Philippines."
Thereafter petitioner was removed from the
status of the prisoner of war and was placed
in confinement as an accused war criminal
and is presently confined in the custody of
respondent at the residence of the United
States High Commissioner of the Philippines
in Manila.
On October 1, 1945, by command of
respondent and pursuant to authority
contained in a letter from the General
Headquarters, United States Army Force,
Western Pacific, dated September 24, 1945, a
Military Commission was appointed to try
petitioner. At the same time several officers
were designated to conduct the prosecution
and several others to act as defense counsel.
The commission was instructed to follow the
provisions of the letter of September 24,
1945, and was empowered to "make such
rules for the conduct of the proceedings as it
shall deem necessary for a full and fair trial
of the person before it. Such evidence shall
be admitted as would, in the opinion of the
president of the commission, have probative
value to a reasonable man and is relevant
and material to the charges before the
commission. The concurrence of at least twothirds of the members of the commission
present shall be necessary for a conviction or
sentence."
Said letter (Exhibit G) addressed to
respondent by Brigadier General B. M. Fitch,
"by command of General MacArthur,"
empowers respondent "to appoint Military

36

Commissions for the trial of such persons

accused of war crimes as may hereafter be
designated by this Headquarters," with the
instructions that "all the records of trial
including judgment or sentence and the
action of the appointing authority will be
forwarded to this Headquarters. Unless
otherwise directed, the execution of
judgment or sentence in all cases will be
withheld pending the action of the
Commander in Chief.
On the same date "by Command of General
MacArthur" (Exhibit H), respondent was
instructed to proceed immediately with the
trial of General Tomoyuki Yamashita for the
charge served on petitioner on October 2,
1945 (Exhibit B).
Upon arraignment on October 8, 1945, by the
above mentioned Military Commission,
petitioner entered a plea of not guilty. On the
same date the prosecution filed a bill of
particulars (Exhibit 1) with 64 items of
crimes, and on October 29, 1945, a
supplemental bill of particulars (Exhibit J)
with many other additional items, adding up
to 123, of the specified crimes imputed to
petitioner.
On October 19, 1945, petitioner's defense
filed a motion to dismiss the case before the
Military Commission for the reasons that the
charge, as supplemented by the bills of
particulars, "fails to state a violation of the
laws of war by the accused, and that the
commission has no jurisdiction to try this
cause." The motion was denied on October
29.
On said day, which was the first day of trial,
the prosecution offered in evidence an
affidavit of Naukata Utsunomia (Exhibit M)
executed on October 1, 1945, and subscribed
and sworn to before Captain Jerome Richard
on October 22, 1945. The affidavit was made
in Japanese through interpreter Tadashi Yabi.
The defense objected to the admission of
said affidavit, invoking to said effect article
25 of the Articles of War prohibiting the
introduction of depositions by the prosecution
in a capital case in proceedings before a
court martial or a Military Commission.
(Exhibit L and N.)
Again on the same first day of trial, hearsay
evidence was offered, defense counsel
objected, but the objection was again
overruled. (Exhibits O and P.) The defense
counsel alleged then that the admission of
hearsay evidence was violative of Article of
War 38, the manual for the court-martial, and
the rules of evidence in criminal cases in the
district courts of the United States. It is
alleged by petitioner that violations of legal
rules of evidence have continued and are
continuing during the trial.
At the opening of the trial, "the prosecution
stated that no notice of impending trial had
been given the protecting power of the Japan
by the United States," such notice being

required by article 60 of the Geneva

Convention of July 27, 1929, and of
paragraph 133 of the Rules of Land Warfare,
United States War Department.
2. REMEDIES PRAYED FOR
After alleging the above-mentioned facts,
petitioner maintains that his confinement and
trial as a war criminal are illegal and in
violation of articles 1 and 3 of the
Constitution of the United States and the Fifth
Amendment thereto, and a certain other
portions of said Constitution, and laws of the
United States, and article 3 of the
Constitution of the Philippines and certain
other portions of said Constitution and laws
of the Philippines Islands, and of certain
provisions of the Geneva Convention of July
27, 1929, in that:
(a) There being no martial law, no Military
Government of occupied territory and no
active hostilities in the Philippines at the time
of the appoint the same, the commission is
without jurisdiction.
(b) There being no charge of an offense
against the laws of war by the petitioner, the
commission is without jurisdiction.
(c) The rules of procedure and evidence
under which the Military Commission
purports to be acting deny the petitioner the
fair trial guaranteed by the Constitution of
the United States and the Constitution of the
Philippines, and are in violation of Articles of
War 25 and 38 and of other provisions of the
laws of the United States and of the
Philippines.
(d) The respondent was granted to authority
by the Commander in Chief, United States
Army Forces, Western Pacific, to appoint a
military commission and /or to try the
petitioner in the Philippine Islands, and the
Commission is, therefore, without jurisdiction
to try this case.
(e) The United, States, not having given
notice of the impending trial to the protecting
power of Japan as made mandatory by the
Geneva Convention of July 27, 1929, relative
to the treatment of prisoners of war, cannot
properly and illegally try the petitioner on the
charge.
3. RULES OF INTERNATIONAL LAW
In the Rules of Land Warfare, paragraph 133
(Exhibit Q), it is provided that "at the opening
of a judicial proceeding directed against a
prisoner of war the detaining power shall
advise the representative of the protecting
power thereof as soon as possible, and
always before the date set for the opening of
the trial," and "at all events, at least three
weeks before the opening of the trial."
Article VIII of the Convention respecting the
laws and customs of war on land, agreed in
The Hague on July 29, 1899, provides:
"Prisoners of war shall be subject to the laws,
regulations, and orders in force in the army of
the State into whose hands they have fallen.

37

Section 59 of General Orders No. 100, dated

April 24, 1863, containing instructions for the
government of armies of the United States in
the field provides: "A prisoner of war remains
answerable for his crimes committed against
captor's army or people, committed before
he was captured, and for which he has not
been punished by his own authorities."
Secretary of State Daniel Webster, in a
communication addressed to Mr. Thompson,
Minister to Mexico, on April 5, 1842, said:
"The law of the war forbids the wounding,
killing, impressment into the troops of the
country or the enslaving or otherwise
maltreating of prisoners of war, unless they
have been guilty of some grave crime; and
from the obligation of this law no civilized
state can discharged itself."
4. IN ANCIENT GREECE AND ROME
Many of the basic ideas which prevail today
in the customs and usages of nations and
became part of the international law
emerged from the human mind centuries
before the Christian Era. Such is the idea that
prisoners of war are entitled to humane
treatment, that treasons of war should be
discountenanced, and that belligerents must
abstain from causing harm to noncombatants.
On his return to Peloponnesus in 427 B. C.,
Alcibiades touched at Mayonnesus and there
slew most of the captives taken on his
voyage. According to Thucydides, the Samian
exiles remonstrated with him for putting to
the death prisoners who have not been in
open hostilities against him.
The same historian narrates that the year
before, the Mytileneans of Lesbos revolted
from Athens, but they were obliged to
capitulate in the following year to Paches,
who dispatched to Athens over a thousand
prisoners. Their disposal provoked discussion
in the Athenian assembly. At the instigation
of Cleon, the demagogue and the former
opponent of Pericles, an order was issued to
slaughter not only the men who arrived in
Athens, but the entire made population of
Mytilene that was of military age, and to
enslave the women and children. The
execution of the order was delayed, and
another assembly was called. There an
amendment of Theodotus was carried, and
the previous order countermanded.
The roman treatment of prisoners was less
rigorous than the Greek. As stated by
Virgilius, "the Roman policy from the first
was, on the one hand, debellare super bos, to
subdue the proud and arrogant peoples and,
on the other,parcellare subiectes, to spare
those who have submitted."
"Dionisius states that a rule existed in Rome
as early as the time of Romulus, which
prohibited the putting to death or enslaving
on men captured in the conquered cities, and
also the devastation of their territories; it
provided, on the contrary, for the sending of

inhabitants, either to take possession by lot

of the some part of the country, for making
the conquered cities Roman colonies, and
even for conceding to them some of the
privileges Roman citizenship." (Philipps on
the International Law and Custom of Ancient
Greece and Rome, Vol. II, p. 254.)
In 407 B.C. the Spartan commander
Callicraditas took the town of Methymna by
storm. In spite of the persuasion of his allies,
according to Xenophon, he refused to the sell
the Athenian garrison and Methymnaean
citizens as slaves, declaring that so long as
he exercises the command no Greek should
ever be reduced to slavery. Grote in his
History of Greece could not refrain from
praising this gesture of the Macedonian
admiral by saying: "No one who has
familiarized himself with the details of
Greecian warfare can feel the full grandeur
and sublimity of this proceeding . . . It is not
merely that the prisoners were spared and
set free . . . It is that this particular act of
generosity was performed in the name and
for the recommendation of Pan-Hellenic
brotherhood and Pan-Hellenic independence
for the foreigner . . . It is, lastly, that the step
was taken in resistance to the formal
requisition on the part of his allies." (History
of Greece, Vol. VI p. 387.)
Philip, the Macedonian King, liberated
Athenian prisoners without ransom after the
taking of Olynthus in 348 B.C. and ten years
later after the Battle of Chaeronee, he
dismissed the prisoners with all their
baggage.
Xenophon quotes Agesileus reminding his
soldiers that "prisoners were meant to be
kept, and not criminals to be punished." And
Pausanias narrates that when Epaminondas,
the greatest Theban general, had gathered
together, he nominally assigned to each of
the men he captured there a different
nationality, and set them all free, and there
are cases where captives were dismissed on
parole to have chance of finding ransomers.
Among the Greeks much was done to
humanize warfare, and to remove from it the
atrocities which prevailed amongst the most
of the nations antiquity. The Oracle of Delfi
refused to listen to the Milesians as they had
not duly expiated the excesses committed in
their civil wars, though it responded to all,
others, even to barbarians, who consulted
it. "C'etait comme l'excommunication du
paganisme", comments Leurent (Vol. II, p.
135).
Poets, philosophers, artist, and men of
intellectual distinction in general, even
though they became invested with enemy
character on the outbreak of war, were
honored and respected. In 335 B.C.
Alexander the Great destroyed Thebes, but
he left Pindar's house uninjured and honored
the poet's descendants. In ancient Hellas was
already known the practice of neutralizing

38

cities and protecting them from the ravages

of war. Temples, priest, and embassies were
considered inviolable. The right sanctuary
was universally recognized. Mercy was shown
to suppliant and helpless captives. Safeconducts were granted and respected. Burial
of dead was permitted, and graves were
unmolested. It was considered wrong to cut
off or poison the enemy's water supply, or to
make use of poisonous weapons. Treacherous
strategems of whatever description were
condemned as being contrary to civilized
warfare. Poets and philosophers, orators and
historians proclaimed humane doctrines.
Plato constructed his ideal republic on the
basis of what he conceived to be perfect
justice. Aristotle condemned the principle of
retaliation as being antagonistic to true
justice. Euripides speaks of excesses in war
not only as acts of intrinsic wickedness and
transgression against universal law, but,
indeed, as a suicidal folly on the part of the
offender. In one of his dramas he makes
Poseidon declare: "But foolish is the mortal
who lays waste cities, temple, and tombs, the
sanctuaries of the dead; for having consigned
them to solitude, he is the one himself to
perish afterwards."
The mild and clement nature shown by
Caesar to many belligerent peoples was
recognized even by his political enemy Cicero
to whom he wrote: You are not mistaken
about me . . . . Nothing is far from my nature
than cruelty . . . . I am told that some
prisoners I set free seize the first opportunity
to take up arms against me; nevertheless, I
shall not renounce my policy."
The Roman conduct Roman conduct far
transcended in its civilized and humane
character that of the German leader
Arminius, who is reported by Tacitus to have
burned to death and otherwise barbarously
slain the centurions and tribunes of the
Varian legions, and nailed the skulls to trees.
The sanction of Roman jurisprudence and the
submission to the fundamental principles of
justice proved effective.
Livy narrates that in 393 B.C. a certain school
master of Falerii, who was in charge of the
sons of the principal citizens of the town,
took the opportunity to lead them to the
Roman camp and threw them into the power
of the enemy. The roman general Camillus,
indignant at this treason, ordered the boys to
drive their master back to the town, and flog
him all the way. There were, he pointed, laws
of war as well as of peace, and the Romans
had learn to put them into practice not less
justly than bravely "sunt et belli, sicut
pacis, iura; iusteque, ea, non, minus, quam
fortiter, didicimus gerere."
When Adgantestrius made an offer to the
Romans Senate to poison Arminius, according
to Tacitus, he was at once informed that it
was not by secret treachery but openly by
arms that the Romans proceeded against

their enemies. The same historian mentioned

the fact that the Romans generals rejected
the scheme, suggested by the King's
physician, of poisoning Pyrrhus (280 B.C.)
and even delivered up the traitor, Pyrrhus, in
return for the Roman generosity, allowed his
prisoners to go to Rome on parole in order to
celebrate the Saturnalia; after which, they,
faithfully returned.
5. UNQUENCHABLE THIRSTINESS OF
PERFECTION. PETITIONER ENTITLED TO
LEGAL GUARANTEES
Impelled by irrepressible endeavors aimed
towards the ideal, by the unconquerable
natural urge for improvement, by the
unquechable thirstiness of perfection in all
orders of life, humanity has been struggling
during the last two dozen centuries to
develop an international law which could
answer more and more faithfully the
demands of right and justice as expressed in
principles which, weakly enunciated at first in
the rudimentary juristic sense of peoples of
antiquity, by the inherent power of their
universal appeal to human conscience, at
last, were accepted, recognized, and
consecrated by all the civilized nations of the
world.
Under these principles, petitioner General
Tomoyuki Yamashita is entitled to be
accorded all the guarantees, protections, and
defenses that all prisoners should have
according to the customs and usages,
convention and treaties, judicial decisions
and executive pronouncements, and
generally accepted opinions of thinkers, legal
philosophers and other expounders of just
rules and principles of international law. The
seriousness or unfathomable gravity of a
charges against him, the unthinkable
magnitude of the wholesale murders, rapes,
and destructions for which he is called to
answer, the beastly massacres and horrors
by which he was thrown from the pedestal of
military glory as the "Tiger of Malaya" into
the bottom of perversity of a human monster,
must not be taken into consideration, must
all be forgotten, in order that true justice may
be administered in this case.
6. WAR CRIMINALS
P ALIGN="JUSTIFY">"There is very little
limitation on what a victorious nation can do
with a vanquished State at the close of a war.
One shudders to think what Germany and
Japan would do if they were the victors! But
the common law of nations probably requires
a fair trial of offenders against war law as a
prerequisite to punishment for alleged
offenses; and that Geneva Convention so
prescribed in the case of prisoners of war. But
in the final analysis a decent respect for the
opinion of mankind and the judgment of
history is, in effect, a victorious belligerent's
main limitation on its treatment of the
surrendered at the close of a war; and this is
self-imposed. The United Nations are

39

solemnly committed to the vindication and

the rule of law which has been ruthlessly
destroyed by the Nazis and Japanese."
(Sheldon Glueck, War Criminals, p. 77.).
"Formalized vengeance can bring only
ephemeral satisfaction, with every probability
of ultimate regret; but vindication of law
through legal process may contribute
substantially to the re-establishment of order
and decency in international relations."
(Report of the Subcommittee on the Trial and
Punishment of War Crimes, 37 Am. J. Int. L.
[1943], 663, 666.)
"Centuries of civilization stretched between
the summary slaying of the defeated in a
war, and the employment of familiar process
and protections of justice according to law to
air the extent and nature of individual guilt . .
. and in the civilized administration of justice,
even the most loathsome criminal caught
redhanded must be given his day in court
and an opportunity to interpose such
defenses as he may have." (Sheldon
Glueck, Id., p. 78.)
7. ALLIED PRONOUNCEMENTS
According to a number of official
pronouncements by United Nations'
statesmen, the vast majority of offenders will
be tried in the domestic criminal or military
tribunals of the injured nations. Thus on
August 21, 1942, President Roosevelt, in
condemning the crimes committed against
the civil population in occupied lands,
solemnly announced that "the time will come
when the criminals will have stand in courts
of law in the very countries which they are
now oppressing, and to answer for their
acts."
On September 8, 1942, Mr. Churchill
promised that "those who are guilty of the
Nazi crimes will have to stand up before
tribunals in every land where the atrocities
have been committed."
The Moscow Declaration of November 1,
1943, sternly warned that: "at the time of
granting of any armistice to any government
which may set up in Germany, those German
officers or men and members of the Nazi
party, who have been responsible for or have
taken a part (in the various) atrocities,
massacres and executions will be sent back
to the countries in which their abominable
deeds according to the laws of these
liberated countries and of the free
governments which will be erected therein,"
and that "the Allied Powers will pursue them
to the utmost ends of the earth and will
deliver them to the accusers in order that
justice may be done."
The American members of commission on
responsibilities appointed at the close of
World War I, had strenuously opposed the
trial of German war criminals in an
international high tribunal on the grounds
that it was unprecedented and that there
existed no international statute or convention

making violations of the laws and customs of

warfare international statute or convention
making violations of the laws and customs of
warfare international crimes defining such
offenses more specifically than the definitions
to be found in the prohibitions of the
unwritten or written law of nations affixing a
specific punishment to each crime, and
giving jurisdiction to a world court.
But Doctor Glueck is of opinion that "If the
Germans were to try an American soldier for
violating German statutes implementing the
laws and custom of warfare in a newly
established type of military tribunal, the
accused would not be heard to complain that
he had been set up Provided the international
tribunal affords as adequate a trial as the
accused would have had in the court of any
injured belligerent he has no valid ground for
complaint."(P. 116.).
"One of the arguments he continues
advanced by the American participants on
the commission on responsibility at the close
of World War I, against the establishment of
an international criminal tribunal was that it
was unprecedented. The atrocities committed
by Axis powers led by Germany, even by
comparison with their behavior in World War
I, are unprecedented. Can history show a
better age than our own to initiate a series of
much-needed precedents? Few symbols of
this new era which heralds the neighborly
cooperation of civilized people in the
vindication of the laws of civilized nation
would be more impressive than an
international criminal court, in which the
plaintiff would be the world community. . . .
The international criminal court would be a
more vivid symbol of the reign of justice of an
international plane than even the permanent
court at The Hague has been. In domestic
polity, the administration of criminal justice
of the strongest pillar of government. The
doing of an international plane under
international auspices is even more
important. It is indispensable to the survival,
in the intercourse of nations, of the very
traditions of law and justice. The besmirching
of the prestige of international law is not the
least of the evils perpetrated by the Axis
power led by Nazi Germany. The peerless and
efficient administration of justice in the case
of Axis war criminals is today indispensable
as a token to the peoples of the world, a sign
that crimes committed by one country's
subject against the people of another
member of the family of nations will be
relentlessly punished even though they run
into huge numbers, were committed by men
in uniform, and are instigated by a Fuehrer
endowed by himself and his intoxicated
followers with the attributes of a demigod."
(Page 178.)
"Adequate law for use by an international
court now exist; and its enforcement by such
a tribunal would violate no fundamental

40

tenets of civilized nations. The law for an

international tribunal can be drawn from the
rich reserviors of common and conventional
law of nations and the principles, doctrines
and standards of criminal law that constitute
the common denominator of all civilized
penal codes.
"The punishment to be applied by domestic
military and civil courts depend upon local
law and practice. Those to be imposed by the
international tribunal could be based either
upon the punishments permitted by the laws
and customs or warfare or upon those
provided for crimes of similar nature and
gravity by the law of the accusing State,
taking into account, also, where necessary
individual instances, the law of the
defendants States." (Page 181.)
8. NO SURPRISES TO PETITIONER
Petitioner in this case cannot allege
ignorance of the fact that the criminal acts
alleged in the specified charges against him
are punishable by law, not only in all civilized
nations, but in his own country.
Since January 1, 1882, the Japanese
Government had been enforcing a Criminal
Code based on the Code of Napoleon of
1811, prepared by the French jurist M.
Boissonade, said criminal code having been
superseded by a new one on October 1,
1908.
Under the last, arson may be punished with
death (article 108); rape is heavily punished
(articles 176, 177 and 178); and murder or
homicide may be punished with death or
penal servitude for life (article 109). These
offenses and many others, punished by our
Penal Code, are known to the Japanese as
crimes, which in Japanese is tsumi.
From the Lauterpacht edition (1944) of
Oppenheim's International Law, Vol. II, pp.
450-458, we quote:
SEC. 251. In contradistinction to hostile acts
of soldiers by which the latter do not lose
their privilege of being treated as lawful
members of armed forces, war crimes are
such hostile or other acts of soldiers or other
individuals as may be punished by the enemy
on capture of the offenders. They include
acts contrary to International Law
perpetrated in violation of the law of the
criminal's own State, such as killing or
plunder for satisfying private lust and gain,
as well as criminal acts contrary to the laws
of war committed by order and on behalf of
the enemy State. To that extent the notion of
war crimes is based on the view that States
and their organs are subject to criminal
responsibility under International Law.
SEC. 253. The fact that a rule of warfare has
been violated in pursuance of an order of the
belligerent Government or of an individual
belligerent commander does not deprive the
act in question of its character as a war
crime; neither does it, in principle, confer
upon the perpetrator immunity from

punishment by the injured belligerent. A

different view has occasionally been adopted
in military manuals and by writers, but it is
difficult to regard it as expressing a sound
legal principle. Undoubtedly, a Court
confronted with the plea of superior orders
adduced in justification of a war crime is
bound to take into consideration the fact that
obedience to military orders, not obviously
unlawful, is the duty of every member of the
armed forces and that the latter cannot, in
conditions of war discipline, be expected to
weigh scrupulously the legal merits of the
order received; that rules of warfare are often
controversial; and that an act otherwise
amounting to a war crime may have been
executed in obedience to orders conceived as
a measure of reprisals. Such circumstances
are probably in themselves sufficient to
divest the act of the stigma of a crime. Also,
the political authorities of the belligerent will
frequently incline to take into consideration
the danger of reprisals against their own
nation which are likely to follow as a measure
of retaliation for punishment of war
crimedurante bello. However, subject to
these qualifications, the question is governed
by the major principles that members of the
armed forces are bound to obey lawful orders
only and that they cannot therefore escape
liability if, in obedience to a command, they
commit acts both violate unchallenged rules
of warfare and outrage the general sentiment
of humanity. To limit liability to the person
responsible for the order may frequently
amount, in practice, to concentrating
responsibility on the head of the State whose
accountability, from the point of view of both
international and constitutional law, is
controversial.
SEC. 257. All war crimes may be punished
with death, but belligerents may, of course,
inflict a more lenient punishment, or
commute a sentence of death into a more
lenient penalty. If this be done and
imprisonment take the place of capital
punishment, the question arises whether
persons so imprisoned must be released at
the end of the war, although their term of
imprisonment has not yet expired. Some
answer this question in the affirmative,
maintaining that it could never be lawful to
inflict a penalty extending beyond the
duration of war. But is believed that the
question has to be answered in the negative.
If a belligerent has a right to pronounce a
sentence of a capital punishment, it is
obvious that he may select more lenient
penalty and carry it out even beyond the
duration of the war. It would in no wise be in
interest of humanity to deny this right, for
otherwise belligerents would be tempted
always to pronounce and carry out a
sentence of capital punishment in the
interest of self-preservation.

41

SEC. 257a. The right of belligerent to punish,

during the war, such war criminals are fall
into his hands is a well-recognized principle
of International Law. It is a right of which he
may effectively avail himself after he has
occupied all or part of enemy territory, and is
thus in the position to seize war criminals
who happen to be there. He may, as a
condition of the armistice, impose upon the
authorities of the defeated State the duty to
hand over persons charged with having
committed war crimes, regardless of whether
such persons are present in the territory
actually occupied by him or in the territory
which, at the successful end of hostilities, he
is the position to occupy. For in both cases
the accused are, in effect, in his power. And
although normally the Treaty of Peace brings
to an end the right to prosecute war
criminals, no rule of International Law
prevents the victorious belligerent from
imposing upon the defeated State the duly,
as one of the provisions of the armistice or
the Peace Treaty, to surrender for trial
persons accused of war crimes. In this, as in
other matters, the will of the victor is the law
of the Treaty. It is not to be expected that he
will concede to the defeated State the
corresponding right to punish any war
criminals of the victorious belligerent. The
resulting inequality is the unavoidable
concomitant of the existing imperfections of
international organization and of the
institution of war itself. But the victorious
belligerent may achieve a substantial
approximation to justice by making full
provision for a fair trial of the surrender
enemy nationals, and by offering to try
before his tribunals such members of his own
armed forces are accused of war crimes.
Such conduct may go a long way towards
reducing substantially the inequality of
treatment as between the victor and the
vanquished.
The permissible acts of warfare are, by the
authority of long and common usage, strictly
limited. The treaties entered into between
members of the family of nation are but
specific definitions and reinforcements of the
general common law nations, the "unwritten"
rules of warfare, which for centuries have
limited the method and manner of
conducting wars. The common law of nations,
by which all states are and must be bound,
dictates that warfare shall be carried on only
in accordance with basic considerations of
humanity and chivalry.
These matters are of course well known to
the German and Japanese warlords and
statement, as well as to their henchmen.
They will also believe the brutal
pronouncements of German military
philosophy in such cynical handbooks for the
guidance of officers as the Kriegsbrauch im
Lambkrege in which, although Germany had
to observe the provisions of the Hague

Convention regulating warfare, their human

tenets of international law are referred to as
expressed generally "sentimentalism and
flabby emotionalism " and are declared to be
"in fundamental contradiction with the nature
of war and its objects"; and in which the
German officer is sternly warned to "guard
himself against exaggerated humanitarian
ideas."
From Doctor Glueck's book we quote:
If there was a domain to which Mr. Justice
Holmes' illuminating dictum about a page of
history being worth a volume of logic is
applicable, it is that concern the war
criminal's problem (P. 12.) The law of nations
has a long way to go before it can claim to be
coherent and fixed system. Its relevant
tenets were develop under the
presupposition the members of the
community of nations are governed by selfimposed restraints in accordance with
international law; but the emergence of
states with a national policy of deliberate
lawlessness and with their invasion of 'total
war in the service of a program of world
enslavement, compels a realistic modification
of inadequate doctrines and principles of the
law (P.13). Nobody who has made a thorough
study of the status of the branch of law of
nations involved can adhere to the view that
it is anywhere near as well developed or
subject to the same techniques of "rigorous
legal logic" as the more sophisticated
branches of private law. (P14). On September
18, 1942, Churchill assured the House of
Commons that "those who are guilty of the
nazi crimes will have to stand up before
tribunals in very land where their atrocities
have been committed, in order that an
indelible warning men given to future ages
and that successive generations of men may
say, "so perish all who do the like again."
On January 25, 1919, the preliminary peace
conference of World War No. I set upon a
commission of fifteen to inquire into and
report upon violations of international law
chargeable to Germany and her allies. This
commission recommended the setting up of a
high tribunals which was to apply "the
principles of the law of nation as the result
from the usages established among civilized
peoples, from the laws of humanity and from
the dictates of public conscience." Upon a
finding of guilty, the court could sentence to
such punishment as could be imposed foe
the offense in question "by any court in any
country represented on the tribunal or in the
country of the convicted persons." The
recommendation was not adopted. They were
opposed by American and Japanese
members. The Japanese members raised the
basic question, among others, "whether
international law recognizes a penal law as
applicable to those who are guilty." And it
seemed to them "important to consider the
consequences which would be created in the

42

history of international law the prosecution

for breaches of the or customs of war enemy
states before a tribunal constituted by the
opposite party," an argument rejected at the
treaty.
In the Treaty of Versailles there were inserted
the punitive articles 228, 229 and 230. By the
article 288 the German Government
recognized "the right of the allied and
associated powers to bring before the
military tribunals persons accused of having
committed acts in violation of the laws to
"punishments laid down by law." Article 299
provided for the trial of accused in military
tribunals of the power against whose the
nationals the alleged crimes were committed
and the specified that "in every case the
accused will be entitled to name his own
counsel."
9. SOME CONCLUSIONS
From all the foregoing, with regards to the
petition for a writ of habeas corpus, we
conclude:
(1) That petitioner Yamashita, if he is
responsible for the acts imputed to him in the
charges filed before the Military Commission
can properly and justly be prosecuted and
punished for them.
(2) That the fact that he has the Commander
in Chief of a belligerent army does not
exempt him from criminal liability either for
violations of international law or for the
commission of crimes defined and punishable
under the laws of the country where
committed.
(3) That his rights and privileges as a
prisoners of war, under the Geneva
Convention, are not incompatible with nor are
violated by his prosecution for the
international and domestic crimes committed
by him.
(4) That under the principles of natural law,
all persons guilty of such crimes are
amenable to be arraigned before a court of
the justice and, after a fair trial, if found
guilty, should bear the full weight of the law.
(5) That petitioner Yamashita can be
prosecuted before the Philippine civil courts
in the like manner as a common criminal and
the punished under the provisions of the
Philippine Penal Code.
(6) That the military Commission set up to try
him possesses a jurisdiction which is
concurrent with that of the Philippine civil
courts, and the choice of the competent
tribunal where he should be tried, which a
mere procedural technically, is left to the
wise discretion of the officials in charge of the
prosecution.
(7) That in violation of the law of nations, the
offended party is the people of the whole
world, and the case against petitioner could
be properly entitled as
Humanity versus Tomoyuki Yamashita," and
no person in position to prosecute the
violators can honesty shirk the responsibility

of relentlessly prosecuting them, lest he be

branded with the stigma of complicity.
(8) That the absence of a codified
International Penal Code or of a criminal law
adopted by the comity of nations with
specific penalties for specific and welldefined international crimes, is not a bar to
the prosecution of war criminals, as all
civilized nations have provided in their laws
the necessary punishment for war crimes
which, for their very nature, cease to be
lawful acts of war, and become ordinary
crimes with the extraordinary character of
having been committed in connection with
war, which should be considered as an
aggravating circumstance.
10. THE SUPREME COURT'S JURISDICTION
Whether this Court has jurisdiction or not to
take cognizance of this case is the first
question raised herein.
We believe that no doubt should be
entertained that it has.
The petition pertains to a judicial case, to a
case wherein justice is to be administered. It
is a criminal case initiated for the prosecution
and punishment of Tomoyuki Yamashita,
Commander Chief of the Japanese Army in
the Philippines, alleged as the greatest war
criminal in the Pacific and in the Whole
eastern hemisphere.
The case calls for the exercise of the judicial
power, one of the three government powers,
firstly defined by Aristotle and upon which
Montesquieu elaborated later in his "Spirit of
the Laws."
The judicial power shall be vested in one
Supreme Court and in such inferior courts as
may be established by law. (Art. VIII, sec. 1,
Constitution of the Philippines.)
By this provision, the judicial power is
primarily vested in the Supreme Court, which
exclusively exercise the whole power. But it
also authorizes the enactment of laws
sharing the power to inferior courts, which
include all other courts and tribunals of all
description, whether ordinary or
extraordinary, whether civil or criminal,
whether industrial or military, whether
designated as "courts" or simply as
"commissions."
The Congress shall the power to define,
prescribe, and apportion the jurisdiction of
the various courts, but may not deprive the
Supreme Court of its original jurisdiction over
cases affecting ambassadors, other public
ministers, and consuls, nor of its jurisdiction
to review, revise, reverse, modify, or affirm
on appeal,certiorari, or writ of error, as the
law or the law of the rules of court may
provide, final judgments and decrees of
inferior courts in
(1) All cases in which the constitutionality or
validity of any treaty, law, ordinance, or
executive order or regulation is in question.

43

(2) All cases involving the legality of any tax,

impost, assessment, or toll, or any penalty
imposed in relation thereto.
(3) All cases in which the jurisdiction in which
of any trial court is in issue.
(4) All criminal cases in which the penalty
imposed is death or life imprisonment.
(5) All cases in which an error or question of
law in involved.
(Art. VIII, sec. 2, Constitution of the
Philippines.)
From the foregoing it is evident that this
Supreme Court has jurisdiction, which
Congress is powerless to abolish, to review,
revise, reverse, modify, or affirm any and all
actuations of judicial nature of the party
respondent and the Military Commission
before whom petitioner Yamashita tried is for
his life. In facts, this Supreme Court's
jurisdiction extends, not only to courts and
judicial institutions, but to all persons, and
agencies which form part of the whole
machinery of the administration of the
justice, in so far as is necessary to the
administration of the justice.
We have jurisdiction over the person of
respondent Lt. Gen. Wilhelm D. Styer, not as
to the discharge of his military functions and
duties, but in regards to his official acts in
connection with the administration of justice
in the criminal case against Tomoyuki
Yamashita, and that jurisdiction became
effective since November 13, 1945, his
refusal to sign receipt for the summons and
the refusal of the subordinate officers in his
officers in his office to accept said and the
summoning of said military commission.
No one questions our jurisdiction over the
person of petitioner, he having voluntarily
submitted himself to it by his petition.
With respect to the military commission
trying him, under the questions raised in the
petition, it is a proper party respondent and
the petitioner should have included it as
among the party respondents. But
petitioner's omission is just a technical error
of no vital consequence, because under the
judicial rules, we can order the inclusion and
the summoning of said military commission.
The amici curiae want to us to be cautious
and slow in exercising jurisdiction in this
case, in view of the possibility that our orders
might be disregarded by the military officers
concerned. The fear entertained by the amici
curiaemight find some ground in the attitude
of respondent General Styer, when the latter
refused to sign receipt for the summons or to
receive the papers thereof.
The same warning has been made in a case
decided by this Supreme Court several weeks
ago. In answer to the warning, we can do no
better than to repeat what we said therein.
It has been argued with energy by those who
oppose our issuing the order for the release
of the petitioners, that if we decide to issue
it, the United States Army might refuse to set

them at liberty, with the result that the order

of release will become a mere scrap of paper
and the Supreme Court of the Philippines will
be placed in the unenviable position of utter
ridicule. We have to answer in the most
definite way that we can not agree with such
a narrow point of view.
But suppose the most unexpected should
happen, that there might be members of the
United States Armed Forces who will be blind
enough to ignore the order of this Supreme
Court, to make a mockery of the
administration of justice, shall that
unthinkable hypothesis deter us from doing
our duty? Our answer is a simple. No. No one
and nothing in the whole world, neither the
all-powerful army which humbled Germany
and forced the surrender of the "invincible"
Japanese Army, nor weapons more dreadful
than the atomic bomb, the menace of an
imminent catastrophe, shall be powerful
enough to make us flinch from complying
with our plain duty as Justices of the Supreme
Court. We must do our duty as our
conscience dictates, without fear nor favor. It
is our duty to make reason and right supreme
regardless of consequences. Law and justice
might suffer setbacks, endure eclipses, but at
the end they shall reign with all the splendors
of the real majesty. (Raquiza vs. Bradford,
G.R. No. L-44, pp. 76, 88, ante, dissenting.)
We recognized no one to be above the law.
Mere military might cannot change and
nullify the course of justice. In the long run,
everybody must have to bow and prostrate
himself before the supreme majesty of the
law.
11. HABEAS CORPUS
In praying for a writ of habeas corpus,
petitioner wants us to order that he be
returned from the status of an accused war
criminal to that of a prisoner of war.
He is not seeking release from confinement.
We are of opinion that the petition for a a writ
of habeas corpus must be denied. The
purpose of said writ is to restore liberty to a
person who is being deprived of it without
due process of law. Such is not the case of
petitioner. He does not complain of any illegal
detention or deprivation of personal freedom.
He is deprived of his liberty because he is,
according to his own allegation, a prisoners
of war. Whether or not he should be accused
as a war criminal, is not a proper question to
be raised in habeas corpus proceeding.
The fact that petitioner is an accused war
criminal does not change his status as a war
prisoner. He remains to be so, whether he is
prosecuted as a war prisoner because he was
placed and regarded as war criminal or not.
Not having lost his status as a war prisoners
because he was placed and regarded as a
war criminal, there is no reason for ordering
his reversion to a status which he did not
cease to retain since his surrender or capture
on September 2, 1945.

44

For these reasons we voted for the denial of

the writ of habeas corpus.
12. JURISDICTION OF THE MILITARY
COMMISSION
We are opinion that the Military Commission
conducting the trial of petitioner has
jurisdiction to try him for the crimes alleged
in the 123 items in the specified charges filed
against him.
From the very allegations and exhibits of
petitioner it appears that said Military
Commission was created and organized by
orders of General Douglas MacArthur,
Commandeer in Chief of the United States
Army Forces in Western Pacific.
We are of opinion that said Commander in
Chief has authority to convene said Military
Commission.
Petitioner contends that "there being no
marital law, active hostilities in the Philippine
Islands at the time of the appointment of the
commission, there was no authority to
appoint the commission, and the commission
in without jurisdiction.
We do not agree with the contention. Neither
martial law, nor the existence of Military
Government, nor the waging of active
hostilities is a prerequisite for exercising the
power of appointing a Military Commission.
In the absence of pre-established tribunals
clothed with authority to try war criminals,
Military Commission may be established for
said purpose, and unless organized by the
Chief Executive himself they may be
organized by the military Commander in
Chief, representing said Chief Executive.
The American Representatives (Lansing and
Scott) in the Allied commission of 15
organized after the first World War, although
opposed, with the Japanese Representatives,
the creation of an international criminal
court, which became abortive, were of
opinion that war criminals may be tried by
Military Commission of the offended
countries.
13. COLLECTIVE RESPONSIBILITY
Although we maintain that the Military
Commission here in question has jurisdiction
to try the case for war crimes against
petitioner Yamashita, in the regulations
governing the trial of war criminals, Exhibit F,
there are several features which should not
be left unchallenged. Section 4-b, under the
title of "Jurisdiction" of Exhibit F, provides:
"Any military or naval unit or any official or
unofficial group or organization whether or
not still in existence, may be charged with
criminal acts or complicity therein and tried
by a Military Commission."
This provision, undoubtedly, advances the
principle of collective responsibility in
contradistinction to the principle of individual
criminal responsibility.
Under the principle of individualized criminal
responsibility, no person may be convicted of
any offense without due process of law and

without proving in said process in which he

should also enjoy the guarantee of equal
protection of the laws, that the he is
personally guilty of the offense.
Under the principle of collective criminal
responsibility, any member of any social
group or organization may be convicted
without any hearing if, in a process where he
did not have his day in court, the social group
or any other member thereof is found guilty
of an offense.
During the Japanese regime, when a member
of a family was found by the military police,
with or without ground, as responsible for an
alleged offense or being a member of a
guerrilla unit, the remaining members of his
family were also made to suffer.
When a town or barrio was suspected of
harboring guerrilleros, the Japanese would
punish the whole town or barrio by mowing
down all the inhabitants, or burning all the
houses, or, at least, subjecting all the male
inhabitants thereof to brutal zonings. The
ruins of Manila are graphic illustrations of
how the principle worked.
It is unnecessary to elaborate more to show
the grave iniquities to which the principle of
collective criminal responsibility leads.
We are of opinion that said principle violates
the constitutional guarantee of due process
of law and therefore, we should have issued a
writ of prohibition enjoining the Military
Commission from exercising the
unconstitutional jurisdiction granted in
section 4-b of Exhibit F.
14. EVIDENCE
Section 16 (1), under the title of "Evidence,"
provides what may be admitted as evidence
as follows: "Any document which appears to
the commission to have been signed or
issued officially by any officer, department,
agency, or member of the armed forces of
any government, without proof of the
signature or of the issuance of the
document."
The following may also be admitted as
evidence according to section 16 (3):
"Affidavits depositions, or other statements
taken by an officer detailed for that purpose
by military authority."
We are of opinion that the admission of
documents as evidence, "without proof of the
signature or of the issuance of the
document," is a denial of the due process of
law constitutionally guaranteed to all persons
before he could be deprived of his life,
liberty, or property. The authenticity or
genuiness of a document is an essential
element in order that it may acquire the
nature of an evidence. Proof of signature of
the issuance of the document is essential to
show its genuiness.
The admission of affidavits "or other
statements taken by an officer detailed for
that purpose by military authority" is clear
violation of the constitutional guarantee that

45

in all criminal prosecution that accused shall

enjoy the right" to meet the witness face to
face." (Art. III, sec. 1 [17], Constitution of the
Philippines.) The Military Commission
accepted as evidence against accused
Yamashita the affidavits of Naokata
Utsunomiya (Exhibits L and M), denying said
Yamashita the constitutional right "to meet
face to face affiant Naokata Utsunomiya.
According to section 16 (4) of the regulations
(Exhibit F); "Any diary, letter or other
document appearing to the to the
commission to contain information relating to
the charge," may also be admitted as
evidence. This provision denies also to the
accused the constitutional guarantee of
meeting a witness face and, therefore, of
cross-examining him.
We are of opinion that the admission of
evidence above-mentioned must be
prohibited, and that a writ of prohibition
issued by the Court is a proper remedy.
15. HEARSAY
The regulations (Exhibit F) authorizes also the
admission of hearsay as evidence.
Section 16-d of said regulation provides: "If
the accused is charged with an offense
involving concerted criminal action upon the
part of a military of naval unit, or any group
or organization, evidence which has been
given previously at a trial of any member of
that unit, group or organization, relative to
that concerted offense, may be received
as prima facie evidence that the accused
likewise is guilty of that offense."
In section 16-e, the objectionable feature of a
hearsay evidence is aggravated by the
adherence to the principles of collective
criminal responsibility. It provides: "The
findings and judgment of a commission in
any trial of sa unit, group or organization with
respect to the criminal character, purpose or
activities thereof shall given full faith and
credit in any subsequent trial by that or any
other commission of an individual person
charged with criminal responsibility through
membership in such unit, group or
organization convicted by the commission,
the burden of the proof shall shift to the
accused to establish any mitigating
circumstances relating to his membership or
participation therein."
We are opinion, too, that the Military
Commission should be prohibited to follow
the unjust procedures delineated in the
above-quoted provisions, the objectionable
character of which was explicitly admitted
even by the amicus curiae who appeared to
argue in this case in opposition to the
granting of remedies sought by petitioner.
16. FUNDAMENTAL RIGHTS GUARANTEED TO
EVERYBODY
No matter who the petitioner is, we are of
opinion that he is entitled to all the safeguard
of a fair trial.

The fundamental rights freedoms guaranteed

in the Charter of the United Nations are
guaranteed to all human beings, without
exception.
In his annual proclamation setting November
22, 1945, as Thanksgiving Day, President
Truman, among other things, said: "Liberty
knows no race, creed or class in our country
or in the world. In unity we found our first
weapon, for without it, both here and abroad,
we were doomed. None have known this
better than our very gallant dead, none
better than their comrade Franklin Delano
Roosevelt. Our Thanksgiving has the humility
of our deep mourning for them, our vast
gratitude for them.
"Triumph over the enemy has not dispelled
very difficulty. Many vital and far-reaching
decisions await us as we strive for a just and
enduring peace. We will not fail if we
preserve, in our own land and throughout the
world, the same devotion to the essential
freedoms and rights of mankind which
sustained us throughout the war and brought
us final victory."
And Prime Minister Attlee, in the face of the
potential destructiveness of the atom bomb,
said before the English Parliament: "It is well
that we should make up our minds that in a
war on the scale to that which we have just
emerged every weapon will be used. We may
confidently expect the fullest destruction of
great cities, death of millions and the setting
back of civilization to an unimaginable
extent.
"No system of safeguards which could be
devised will of itself I emphasized of itself
provide an effective guarantee against
production of automatic weapons by a nation
or nations bent on aggression.
"With the terrible march of the science of
destruction, every nation will realize more
urgently the overwhelming need to maintain
the rule of the law among nations and to
banish the scourage of war from the earth.
"We have in prospect the meeting of United
Nations Organization and there is an
instrument which, if all are resolved to use it,
could establish the rule of the law and
prevent war I resolved."
In the eternal struggle between the principles
of right and wrong, there no choice if
humanity must survive. Lincoln said: "That is
the real issue that will continue in this
country when these poor tongues of Judge
Douglas and myself shall be silent. It is the
eternal struggle between these two
principles, right and wrong, throughout the
world. They are the two principles that have
stood face to face from the beginning of
time."
When we voted for the granting of the writ of
prohibition, we did it out of consistency, as
the vibrant words of Jefferson must no cease
ringing ours in ours ears when he said: "What
a stupendous, what an incomprehensible

46

machine is man! who can endure toil, famine,

stripes, imprisonment, and death itself, in
vindication of his own liberty, and, the next
moment be deaf to all those motives whose
power supported him through his trial, and
inflict on his fellowmen a bandage, one our of
which is fraught with more misery than ages
of that which he rose in rebellion to oppose."
17. NEEDED SERVICE TO THE MORAL AND
CULTURAL PURPOSES OF HUMANITY
If petitioner is tried and convicted under a
process in which some of the recognized
essential guarantees for a fair trial are
violated, it would produce a result opposite
that expected by those who are following up
the trials of all war criminals; the arousing of
a deep-rooted universal conviction that law
must be supreme and that justice should be
equally administered to each and very
member of humanity.
The peoples of all nations who are keenly
watching the prosecution of Yamashita should
be convicted, by conclusive evidence, that
said prosecution is not a mere parody of the
administration of justice, devised to disguise
the primitive impulses of vengeance and
retaliation, the instinctive urge to crush at all
costs, no matter what the means, hated
fallen enemy.
The prosecution, trial, and conviction of
Yamashita must impress all the peoples of
the world that the principle of law is
paramount, and supersedes and wipes out all
other considerations in dealing with war or
common criminals. Otherwise, their faith in
the supremacy of law as the invulnerable
bulwark of all fundamental human rights will
be shaken, and the moral position of the
victorious United Nations, the ethical value of
the grandiose pronouncements of their
leaders, and the profound significance of the
lofty ideals for which millions of their soldiers
have fought and died, will be weakened and
diminished to such an extent as to make
barren all the tremendous sacrifices made by
so many countries and so many peoples in
the last global hecatomb.
It was Ihering who, in his " LAW AS A MEANS
TO AN END ," said that: "There is no human
life which exist merely for itself, every one is
at the same time for the same of the world:
every man in his place, however limited it
may be, is a collaborator in the cultural
purposes of humanity . . . . I cannot imagine
a human life so poor, so devoid of content, so
narrow, so miserable, that it is not of some
good to some other life; even such a life has
not seldom borne the world the richest fruit."
(Page 60.)
So even the shameful exploits in the
Philippines with which Yamashita ingloriously
crowned his military career, at its peak when
he conquered Malaya and Singapore, and
descended from the pedestal of the greatest
Nippon military hero in all her history to the
moral abyss of that abominable monstrous

figure, the greatest war criminal in Asia and

in the Pacific, cannot put render some service
to the cultural purposes of humanity if, by his
due trial in accordance with the elemental
rules in the criminal procedure, the sense of
law and justice is further developed in the
conscience of the present and future
generations.
18. OUR VOTE
From all foregoing, when the resolution to
dispose of this case was put to a vote, we
concurred in the denial of the petition for a
writ of habeas corpus, and we voted for the
granting of the writ of prohibition in order
that the objectionable features in the trial
before the Military Commission may be
eliminated, so that petitioner Yamashit a may
be given the full justice due to all human
beings.

47