Source: Law Reports of Trials of War Criminals. Selected and Prepared by the United Nations War Crimes Commission. Volume IV. London: HMSO, 1948
CASE NO. 21
TRIAL OF GENERAL TOMOYUKI YAMASHITA
UNITED STATES MILITARY COMMISSION, MANILA,
(8TH OCTOBER-7TH DECEMBER, 1945), AND THE SUPREME COURT OF THE UNITED STATES
(JUDGMENTS DELIVERED ON 4TH FEBRUARY, 1946).
6. THE OPENING ADDRESS FOR THE PROSECUTION
After repeating the Charge facing the accused and emphasising that the former alleged a disregard of his duty to control the members of his
command, the Prosecution made the following claim regarding General Yamashitas command :
The Prosecutor then set out the essence of the case against the accused, in the following words :
The Prosecutor made the following statement on the legal nature of the Commission and on the question of the applicability of the United States Articles of War (Footnote 1: See pp. 44-6 and 63-9.) to its proceedings :
7. THE OPENING ADDRESS FOR THE DEFENCE
Before introducing evidence, the Defence made a short opening statement summarising the facts which they hoped to prove, and making the following claims in particular :
8. THE EVIDENCE BEFORE THE COMMISSION
As the President of the Commission pointed out, (Footnote 1: See pp.33-4.) the latter heard 286 witnesses and also accepted as evidence 423 exhibits of various kinds.
(i) The Evidence for the Prosecution
The evidence brought before the Commission established hundreds of incidents which included the withholding of medical attention from, and starvation of, prisoners of war and civilian internees, pillage, the burning and destruction of homes and public buildings without military necessity, torture by burning and otherwise, individual and mass execution without trial, rape and murder, all committed by members of the Japanese forces under the command of accused. These offences were widespread as regards both space and time.
By and large, the Defence did not deny that troops under the command of the accused had committed these various atrocities, and it is not therefore
proposed to summarise in these pages the testimony and documents which were placed before the Commission regarding these offences.
By stipulation, it was agreed that the accused was from 9th October, 1944, to 3rd September, 1945, Commanding General of Japanese 14th Army Group, including the Kempei Tei, or Military Police in the Philippine Islands ; this stipulation was received in evidence.
Apart from claiming that the widespread nature of the offences described above must lead inevitably to the conclusion that they were planned by Yamashita, in view of his position of command, the Prosecution also produced evidence purporting more directly to show that the accused was implicated in the offences charged. This evidence is summarised in the following paragraphs.
Colonel Masatoski Fujishige, of the Japanese Army, testified that troops under. his command had operated in the Batangas Islands and part of the Laguna Province after 1st January, 1945. His commander was Lt.-General Yokoyama ; the latter, stated the witness, probably might have come under Yamashitas command. Masatoski admitted having instructed certain officers and non-commissioned officers under his orders to kill all who oppose the Emperor with arms, even women and children ; he had had orders to expedite the clearing of his area of guerrillas.
Narciso Lapus stated that he had been private secretary to the Philippine General Artemio Ricarte, who had supported and worked for the Japanese during their occupation of the Philippine Islands. During the period from October 1944 and 31st December, 1944, Ricarte maintained contact with Yamashita as Commander-in Chief of the Japanese forces in the Philippines. Ricarte told the witness that Yamashita, as the highest commander of the Japanese forces in the Philippines, had control over the army the navy and the air force. Four or five days after Yamashita arrived in the Philippines, Ricarte had a conversation with him, and on returning to his house, the latter told Lapus that Yamashita had issued a general order to all the commanders of the military posts in the Philippine Islands to wipe out the whole Philippines, if possible, and to destroy Manila, since everyone in the Islands were either guerrillas or active supporters of the guerrillas ; wherever the population gave signs of favouring the Americans the whole population of that area should be exterminated. Yamashita subsequently rejected Ricartes plea that he should withdraw these orders.
Joaquin Galang, who claimed to have been a friend of Ricarte, stated that in December 1944, Yamashita visited Ricarte, and the former rejected Ricartes request that the order to kill all Philippine inhabitants and destroy Manila be revoked ; speaking through Ricartes grandson as interpreter, Yamashita said : An order is an order, it is my order, and because of that it should not be broken or disobeyed.
Hideo Nishiharu, who had been head of the Judge Advocate Section in the Headquarters of Yamashita in the Philippines, stated that on 14th December, 1944, he advised the accused that a large number of persons suspected of being guerrillas were in custody and that there was no time for trial. He suggested that the question of their punishment be left to military tribunal officers co-operating with the Military Police. Yamashita, said
the witness, offered no suggestions. He just nodded and Nishiharu took this to signify assent. About 600 persons were thereupon executed without trial other than investigation by two officers.
Richard Sakakida stated that he had been an interpreter in the office of Yamashitas Judge Advocate. He testified that in the case of offences by Filipino civilians and Americans, an investigation was made by the Japanese Military Police (Kempei Tai) and the record thereof was sent to the Court Martial Department ; the Judge Advocate assigned to the case and the Chief Judge Advocate would then decide on the verdict and sentence in advance of the trial. During December 1944, trial consisted merely in the accused signing his name and giving his thumb-print, in reading the charge to him and in sentencing him. In the event of death sentence being passed, the victim was not informed of this until arrival at the cemetery. In one week in December 1944, cases involving about 2,000 Filipinos accused of being guerrillas were so handled in Yamashitas headquarters. If Japanese soldiers were tried, however, witnesses for the accused were allowed to testify, and the accused was told of any death sentence at the time of trial. Japanese soldiers were tried and convicted of rape, but the witness could remember no convictions after October 1944.
Fermin Miyasaki, a Filipino citizen who had been employed by the Japanese Military Police as an interpreter, described the various methods of torture used by the Cortabitarte Garrison (the Southern Manila Branch of the Militarjr Police) during the period October to December 1944, on civilians suspected of being guerrillas or guerrilla sympathisers ; the witness then went on to state that in December 1944, Yamashita commended the Garrison in writing for their work in suppressing guerrilla activities.
The Prosecution put in as evidence a certificate signed by Mr. James F. Bymes, Secretary of State of the United States of America, under date of 26th October, 1945, which included the following words:
Filemon Castillejos, a Filipino, after describing the killing of three American prisoners of war by Japanese troops belonging to General Tajimas garrison, said that a Japanese Captain, a lieutenant and two soldiers had told him that the victims were killed because there was a telegram from Yamashita to General Tajima ordering that all the American prisoners in the Philippines be killed.
Paul Herinesen, a United States national who had been a prisoner of war in the Philippines, described how an American civilian internee, at the prison camp commandants order, had been shot without trial while lying wounded on the guard-house floor. When protest was made by the internees, the commandant stated that he had had orders from Imperial Headquarters in Manila to shoot persons attempting to escape.
(ii) The Evidence for the Defence
The following paragraphs set out the essential facts placed before the Commission by the Defence.
Denhichi Okoochi, who had been Supreme Commander of the naval forces in the Philippines, stated that he transferred to Yamashita tactical command of the navy and troops in Manila on 5th January, 1945, and that the accused retained this command until 24th August, 1945. The witness retained administrative control over these forces, that is to say control over such things as personnel, supplies and so forth but not the operational control, which was in Yamashitas hands.
Bislumino Romero, grandson of General Ricarte, stated that Galang was not stating the truth when he testified that Romero interpreted a conversation between Ricarte and Yamashita in the formers house ; he never interpreted any statement of the accused that all Filipinos are guerrillas and even the people who are supposed to be under Ricarte, and the witnesss grandfather had never made to Yamashita in the witnesss presence any request that Yamashita should revoke an order to kill all Filipinos and destroy Manila.
Shizus Yokoyma, previously a Lieutenant-General in the Japanese Army under Yamashita, stated that the latter had issued no orders to him for the .killing of Filipino citizens or the destruction of property in Manila. The accused had warned him to be fair in all his dealings with the Filipino people. Yamashita had no power to discipline, promote, demote or remove members of the naval land forces.
Photostatic copies of parts of the issues of Manila Tribune for 4th, 17th and 26th November, 1944, and 31st January, 1945, which were put in as evidence by the Defence, showed that General Ricarte was active in assisting the Japanese and urging the Filipinos to resist the Americans. Official documents were put in as tending to prove that the Prosecution witnesses Lapus and Galang had been collaborators during the Japanese occupation of the Philippines.
Lieutenant-General Muto, Chief of Staff for Yamashita, appeared for the Defence. He stated that Yamashita had commanded the 11th Area Army with the duty to defend the entire Philippine Islands. Morale in the army was low and preparations for the defence were inadequate when the accused took over this task. Lack of knowledge of the Islands and the separation of commands prohibited the correction of deficiencies, and efforts to bring the independent commands under Yamashitas control required several months of negotiation. The accused had wanted to withdraw from Manila altogether and to fight in the mountains, but lack of transportation and reluctance on the part of certain of his officers had prevented him from taking this step, despite the orders which he gave that evacuation should take place. Only 1,500 to 1,600 of Yamashitas troops were in Manila at the time of the battle ; they had orders to maintain order and to protect supplies. Yamashita had no authority over the others. The witness had never heard of any order by Yamashita that non-combatant civilians be killed and Manila destroyed. Yamashita never visited any of the prisoner-of- war camps in the Philippines, but his policy was that prisoners should
be treated in accordance with the Geneva Convention. Prisoners were to be fed according to the same standards as Japanese soldiers, but reduced rations were inevitable due to food shortages. After complaints had been made to Yamashita concerning Japanese military police methods, he succeeded in having the Military Police Commander removed by the authorities in Tokyo. The witness denied that Colonel Nishiharu, Yamashitas Judge Advocate, had reported that there were one thousand guerrillas in custody and that there was no time to try them. In December, 1944, the Shimbu Army had power to try all suspected guerrillas and impose death sentences.
Lieutenant-Colonel Ishikawa of Yamashitas headquarters staff, who had been in charge of supply after 27th September, 1944, and inspected prisoner and internee camps, also stated that the prisoners food was similar to that of the Japanese soldiers. An order from Tokyo, that prisoners be treated in a friendly manner and that as much food as possible be left behind for them should the Americans approach, was passed on by Yamashita. The witness, on his trips to the camps at Santo Tomas, Bilibid and Fort McKinley, had heard no reports of cruelty or ill-treatment. The accused required that any complaints filed by American prisoners of war and civilian internees should be brought to his attention.
Lieutenant-General Koh, who had been Commanding General of Prison and Internment Camps in the Philippines under Yamashita, also claimed that prison camps were operated under orders from Tokyo in accordance with the provisions of the Geneva Convention. The food given to prisoners of war and internees was inadequate, but the Japanese were likewise on reduced rations. Yamashita did not inspect the camps.
This witness gave evidence regarding conditions in the camps tending to show that they were as high as they could be in the circumstances. Lieutenant-General Shiyoku Kou, who had been in charge of two prisoner-of- war camps and three civilian internment camps, and John Shizuo Ohaski, an employee in one of the camps, were also called and gave similar evidence for the Defence.
The accused himself gave sworn evidence. He stated that, on his assuming command of the 14th Area Army on 9th October, 1944, he had but few experienced officers and he was short of all supplies, including food and transport. At first there were over 30,000 troops in the Islands who were not under his orders. These included the naval land forces in Manila, and when he did achieve control over these it was for operational and not for disciplinary purposes. He had unsuccessfully ordered the evacuation of Manila. He denied issuing orders for ill-treatment or torture of captives or having had reports of such offences, and his policy was to treat prisoners of war in the same way as his own troops in matters such as food. He had ordered that armed guerrillas be suppressed and had left the methods to be used to the discretion of his commanders. He denied that his Judge Advocate had ever told him that a large number of guerrillas would have to be disposed of without trial, for lack of time. The Commanding Generals of the 35th and Shimbu Armies had authority to pass death sentences on American prisoners of war tried in their areas without referring
the matter to the accused. The accused admitted, nevertheless, that he was responsible to the Southern Army for seeing that the proper procedure was followed ; communications were cut, however, and he did not always know about details.
The accused admitted that prisoner-of-war and civilian internment camps were under his command and claimed that all death sentences passed in the 14th Army required his approval ; the death sentences passed on guerrillas which he had approved in the Philippines were not more than 44 in number.
9. THE TYPES OF EVIDENCE ADMITTED
As was indicated by the President of the Commission (Footnote 1:see pp. 33-4), a wide variety of types of evidence was admitted during the course of the trial. A large number of objections were made by the Defence, not always unsuccessfully, to the admission of items of evidence, in particular to pieces of documentary evidence and to hearsay evidence.
When the case eventually came before the Supreme Court of the United States, Mr. Justice Rutledge, in his dissenting opinion (Footnote 2:See pp. 60-l and 62-3.), referred to a series of events which it would be appropriate to describe at this point. On 1st November, 1945, the President of the Commission ruled that the latter was unwilling to receive affidavits without corroboration by witnesses on any item in the Bills of Particulars. On 5th November, however, the Commission reversed this ruling and affirmed its prerogative of receiving and considering affidavits or depositions, if it chose to do so, for whatever probative value the Commission believes they may have, without regard to the presentation of some partially corroborative oral testimony.
10. THE CLOSING ADDRESS FOR THE DEFENCE
Defence Counsel attacked the evidence of the Prosecution concerning some few of the alleged offences, but in general the Defence did not deny that the atrocities alleged by the Prosecution had actually taken place, and the principal aim of Counsel was to show that the accused was not legally responsible for these offences.
Great stress was placed on the difficulties which had faced the accused on his taking command of the 14th Army Group on 9th October, 1944. It was claimed that :
The Defence maintained that the Manila atrocities were committed by the naval troops, and that these troops were not under General Yamashitas command. How, it was asked, could he be held accountable for the actions of troops which had passed into his command only one month before, at a time when he was 150 miles away-troops whom he had never seen, trained or inspected, whose commanding officers he could not change or designate, and over whose actions he had only the most nominal control ?
In the submission of the Defence no kind of plan was discernible in the Manila atrocities : We see only wild, unaccountable looting, murder and rape. If there be an explanation of the Manila story, we believe it lies in this : Trapped in the doomed city, knowing that they had only a few days at best to live, the Japanese went berserk, unloosed their pent-up fears and passions in one last orgy of abandon.
It was pointed out that General Yamashita arrived in Manila on 9th October and left on 26th December. Until 17th November, General Yamashita was not even the highest commander in the City of Manila since his immediate superior, Count Terauchi, was there and in charge. It was Count Terauchi and not General Yamashita who was handling affairs concerning the civilian population, relations with the civil government and the discouragement and suppression of anti-Japanese activities. The crucial period, therefore, was from 17th November to 26th December, a matter of a mere five weeks, during which General Yamashita was in Manila and in charge of civilian affairs. Could it be seriously contended that a commander who was beset and harassed by the enemy and was staggering under a successful enemy invasion to the south and expecting at any moment another invasion in the north could in such a short period gather in all the strings of administration ? Even so, the accused took some steps in an attempt to curb the activities of the Japanese military police who were terrorising the civilian population.
Regarding the charges alleging the killings of prisoners of war, the submission of the Defence, in essence, was that Yamashita had not been shown to have known of, condoned, excused, permitted or ordered them ; sometimes there was no proof even of them having been committed by troops under his command.
The rest of the allegations as to prisoner-of-war camps had to do with treatment and, for the most part, the question of insufficient food. The Defence rested their argument in this connection on the seriousness of the general food situation in the Philippine Islands, which was aggravated by the United States offensive. The Defence claimed that the evidence had shown that, despite this situation, the prisoners of war got rations equal to those of the Japanese soldiers. The accused had done all he could to alleviate the food situation in the civilian internee and prisoner-of-war camps, and far from ordering all American prisoners of war executed, or ordering any prisoners of war executed, General Yamashitas orders were to turn them over to the American forces at the earliest available time.
The main submissions of the Defence relating to the military police and guerrilla situation in Manila were : first, that guerrillas were, in the eyes of International Law, subject to trial and execution if caught ; second, that International Law did not prescribe the manner or form of trial which must be given ; third, that the suspected guerrillas held in Manila in December, 1944, were tried in accordance with the provisions of Japanese military law and regulations ; fourth, that General Yamashita never ordered or authorised any deviation from the provisions of Japanese military law and regulations ; fifth, that the fact that the method of trial prescribed by Japanese military law and regulations is a summary one and not in accord with Anglo-Saxon conceptions of justice was immaterial, since International Law did not prescribe any special method of trial, and in no event were Japanese methods of trial provided by Japanese law the fault or responsibility of the accused.
The explanation for many of the atrocities alleged by the Prosecution was to be found in the activities of the Philippine guerrilla movement which did great damage to the Japanese position. However admirable its members i might be as fearless fighters, they were, in Japanese eyes, criminals, and the
Japanese had every right under International Law to try and execute them as such. Any civilian who took up arms against the Japanese was, in the eyes of International Law, guilty of war treason, just as any Japanese in Tokyo who might now take up arms against the United States would be a war traitor and subject to the death sentence. The evidence regarding the treatment of the Philippine guerrillas on capture was confused but it seemed that there was first an investigation by a military police investigating officer ; then a consultation or conference by the judge advocates department ; and finally a form of trial, which had much less importance and formality than the hearing in the judge advocates department. The evidence indicated that Japanese methods of trial and procedure were foreign to the American standards of justice. It had been shown in the witness box, however, that these methods were used not only in the case of civilians accused of guerrilla activities, but also in the case of Japanese soldiers accused of purely military offences. In neither case was there a right to counsel ; in neither case were witnesses called. In both cases the decision of the court was based on the facts developed in the military police investigation held before trial. Furthermore, the methods of trial used were substantially those required by Japanese military law and regulations. As war criminals, guerrillas were liable to execution and there was an equal right on the part of the occupant to take stern methods to exterminate them. If captured, they were not entitled to any of the rights of a prisoner of war. There would certainly have to be proof that the person captured was a guerrilla, or was aiding the guerrillas, and this implied the holding of a trial. The Prosecution had alleged many executions without trial, but the Defence submitted that in practically all of these cases there was at least a semblance of an investigation. The Defence had claimed that because General Yamashita was a prisoner of war, his trial should follow at least the rules laid down by the Manual for Courts Martial, but the Prosecution had taken the position that General Yamashita, as an accused war criminal, was not entitled to the rights of a prisoner of war and that those rules need not apply. The same should apply, a fortiori, to guerrillas, argued the Defence, because a guerrilla was never a prisoner of war.
The allegations concerning punitive expeditions that included the execution of small children or other persons who were not guerrillas were a different matter, but there had been no testimony that General Yamashita ever ordered or permitted or condoned or justified or excused in any way these atrocities. All of the testimony had been to the contrary. In relation to the guerrillas, however, the Defence submitted that General Yamashita did precisely what he should have done under the circumstances. He issued an order in which he directed action against armed guerrillas, but was careful to say armed, and at the same time he informed his chiefs-of-staff to handle the Filipinos carefully, to co-operate with them and to get as much co-operation as possible from the Filipino people.
The Defence anticipated that the Prosecution would claim that there were so many of these atrocities, that they covered so large a territory, that General Yamashita must have known about them. The reply of the Defence was that, in the first place, a man was not convicted on the basis of what someone thought he must have known but on what he has been proved beyond reasonable doubt to have known ; and in the second place, General
Yamashita did not know and could not have known about any of these atrocities.
Practically all of the atrocities took place at times when and in areas where the communication of news of such matters was practically impossible. Further, the accuseds orders were clear : to attack armed guerrillas and to befriend and win the co-operation of other civilians. When atrocities occurred, they were committed in violation of General Yamashitas orders, and it was quite natural that those who violated these orders would not inform him of their acts.
The accused had himself explained why he knew nothing of the various alleged atrocities. He had pointed out that he was constantly under attack by large American forces, and had said :
The Defence submitted that General Yamashitas problem was not easy. He was harassed by American troops, by the guerrillas, and even by conflicting and unreasonable demands of his superiors. He had no time to inspect prisoners ; all he could do about the guerrilla situation was to give orders to suppress armed combatant guerrillas and befriend and co-operate with other civilians, and to trust his subordinates to carry out his orders.
Defence Counsel pointed out that the evidence of the Prosecution related almost exclusively to the proof of the atrocities alleged in the Bills
of Particulars. A minute fraction thereof attempted to impute to General Yamashita the knowledge of the commission of the atrocities and, in a few instances, the ordering of the commission of the atrocities.
The evidence of Lapus (Footnote 1: See p.19), a collaborator during the Japanese occupation, had tended to show General Yamashita as having ordered the massacre of civilians and the destruction of the City of Manila, but his evidence had been full of inconsistencies. Galang, (Footnote 2: See p.19) another collaborator, testified that in a conversation General Ricarte said to General Yamashita, through Ricartes grandson as interpreter : I would like to take this occasion to ask you again to revoke the order to kill all of the Filipinos and to destroy all of the city, and that General Yamashita answered : An order is an order ; it is my order. It should not be broken or disobeyed. Yet the grandson (Footnote 3: See p.21.) had testified that he had not interpreted the conversation alleged to have taken place between his grandfather and General Yamashita in the presence of Galang. The evidence of Castillegos (Footnote 4: See p.20) was valueless hearsay. Counsel for the Defence submitted that there was no credible testimony in the entire record of trial which in any manner supported any contention that General Yamashita had ordered or had actual knowledge of the commission of any of the atrocities set forth in the Bills of Particulars. Without knowledge of the commission or the contemplated commission of the offences, General Yamashita could not have permitted the commission of the atrocities. The Defence did not deny the commission of atrocities by Japanese troops, but the fact that atrocities were committed did not prove that General Yamashita had knowledge of the commission thereof ; nor could knowledge be inferred therefrom under the conditions which existed during the period in which the atrocities were committed.
Under adverse combat conditions, with the myriad of problems which had to be solved in fighting a losing battle, neither General Yamashita or the members of his staff could or would have time for any duties other than those of an operational nature and could not, and did not, know of the commission of the acts set forth in the Bills of Particulars by troops whose imminent and inevitable death turned them into battle-crazed savages. Nor was General Yamashita or the members of his staff chargeable with any dereliction of duty in not learning of these occurrences.
The evidence adduced by the Prosecution, therefore, did not establish that either General Yamashita or his headquarters issued orders directing the commission of the atrocities set forth in the Bills of Particulars ; nor did it establish that General Yamashita or his headquarters had any knowledge thereof, permitted the commission thereof, or that under the circumstances then existing General Yamashita unlawfully disregarded and failed to discharge his duty as the Commanding General of the 14th Area Army in controlling the operations of the members of his command, thereby permitting them to commit the atrocities alleged.
The only possible basis for imputing to General Yamashita any criminal responsibility for the commission of these atrocities was provided by his status as the Commanding General of some of the troops involved in the commission thereof.
The United States did not recognise a criminal responsibility based upon the status of an individual as a Commanding General of troops, but did recognise the criminal liability attached to a Commanding General for the improper exercise of that command. The United States had defined the criminal liability of individuals offending against the Laws of War in the War Department Publication, Rules of Land Warfare, FM 27-10, Section 345. 1, wherein criminal liability was defined and limited to individuals and organisations who violated the accepted laws and customs of war.
Under this section, the liability for war crimes was imposed on the persons who committed them and on the officers who ordered the commission thereof. The war crime of a subordinate, committed without the order authority or knowledge of the superior officer, was not the war crime of the superior officer.
Not only was there no proof of the criminal responsibility of General Yamashita for the alleged offences ; witnesses for the Defence had testified that no orders directing or authorising the commission of the alleged acts were issued by General Yamashita or by his headquarters, that no reports of any of the acts were received by General Yamashita or his headquarters, that under the circumstances General Yamashita and the members of his staff were absorbed in the duties incident to combat to the exclusion of other duties normally performed by an army headquarters, and that the proper functioning of General Yamashita and his staff officers was complicated by enemy action, disabling and destruction of supply lines, lines of communication and motor equipment, the lack of gas and oil for the operation of the vehicles which were not damaged, and the consequent impossibility to keep advised of the administrative functioning of his command.
General Yamashita, testifying as a witness in his own behalf, had denied that he issued any orders directing the commission of any act of atrocity, that he received any report of the commission of such acts, that he had any knowledge whatsoever of the commission of such acts, that he permitted such acts to be perpetrated, or that he condoned the commission of such acts.