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).
11. THE CLOSING ADDRESS FOR THE PROSECUTION
The Prosecution claimed that the principal contentions as between the Defence and the Prosecution were as to whether or not the accused failed to perform a duty which he owed as commander of armed forces in the Philippines, and as to whether or not such a failure would constitute a violation of the Laws of War.
The accused had acknowledged that he was under a duty under International Law to control his troops so that they would not commit wrongful acts, that if commanding officer ordered, permitted or condoned the crime which was committed by his troops or his subordinate, then that commanding officer would be subject to criminal punishment under the military law of Japan, and that if he took all possible means to prevent the crime committed by his troops or his subordinate, and yet that crime was committed, then the commanding officer, despite all of the efforts which he made, would bear administrative responsibility to his superiors.
The Prosecution underlined the fact that so far as the Laws of War were concerned there was no such distinction between criminal responsibility and administrative responsibility. If an act constituted a violation of the laws of war the death penalty might be assessed irrespective of whether or not under the military laws of the nation involved or in civil law there would or would not be a criminal responsibility.
The evidence had shown that the accused became to all intents and purposes after the 17th November, 1944, the military governor of the Philippine Islands. He was the highest military commander in this area. It was his duty, in addition to his duty as a military commander, to protect the civilian population. Whereas Defence Counsel had referred to the atrocities as having been committed by battle-crazed men under the stress and strain of battle, there was in fact evidence that in many instances those acts were committed under the leadership of commissioned officers. That is quite a far cry from the sudden breaking of bounds of restraint by individuals on their own initiative. The submission of the Prosecution was that the evidence showed that these atrocities were carefully planned, carefully supervised ; they were in fact commanded.
The Prosecution recalled that the accused had asserted that he had no knowledge of these acts, and that if he had had knowledge or any reason to forsee these acts he would have taken affirmative steps to prevent them. In explanation of his claim that he had no knowledge he had asserted that his communications were faulty. The Prosecution submitted however that there was nothing in the record to the effect that the accused did have adequate communications. For instance, the accused had acknowledged that reports from Batangas concerning guerrilla activity were received from time to time. Even if it were accepted that the accused did not know of what was going on in Batangas, the fact remained that he did not make an adequate effort to find out. It was his duty to know what was being done by his troops under his orders. The accused had pleaded that he was too hard pressed by the enemy to find out what was the state of discipline among his troops. The Prosecution claimed however that the performance of the responsibility of the commanding officer toward the civilian populations is as heavy a responsibility as the combating of the enemy. And if he chose to ignore one and devote all of his attention to the other he did so at his own risk.
The accused had made no special attempt to find what the prevailing conditions were in the prison camps under his control, and many of the atrocities against the civilian population were committed very close to his headquarters. The accused had testified that he did not inquire as to the methods being pursued by the military police. He issued orders for the release of certain unfortunate captives upon the approach of United States troops, but only because he knew he was defeated and wanted to improve his record.
He had also acknowledged that he knew that prisoners of war were being made to work on airfields or on airfield installation. In response to questions he had stated that, in his opinion, airfield work was entirely in accordance with International Law, so long as the airfield was not under
attack. The Prosecution claimed, however, that it was a violation of the Geneva Convention for those men to work on that airfield at all.
Turning to the food situation, the Prosecutor claimed that the evidence showed that according to the observation and the personal knowledge of internees the Japanese garrison at each of those camps actually were getting better food and more food than were the internees.
There was no evidence that the accused ordered the executions of certain prisoners of war which had been proved. The executions were, however, carried out by men under his command. The very method by which those executions were accomplished, the complete disregard of the prescribed procedure, showed that those men were acting under approval. Otherwise they would never have dared tp be so arbitrary.
Many thousands of unarmed women and children had been butchered in Manila and in Batangas, and they could not be considered guerrillas. They were given no trial, and their killing was carried out by military men acting as military units, and led by officers, non-commissioned and commissioned. These massacres were not done in the heat of battle. More than 25,000 people, over a period of more than a month, were massacred in a methodical obviously planned way and, as the evidence indicated very strongly, under the orders of General Fujisige, the Commanding Officer in the Batangas area. The Prosecution claimed that the accused must be held responsible for these atrocities in view of the wide and general nature of the order which he issued for the prompt subjugation of armed guerrillas. The Prosecutor claimed that : He knew the guerrilla activity. He knew that his troops were being harassed. He gave them an order which naturally under the circumstances would result in excesses, in massacres, in devastation, unless the order were properly supervised. He unleashed the fury of his men upon the helpless population, and apparently, according to the record, made no subsequent effort to see what was happening or to take steps to see to it that the obvious results would not occur-not a direct order, but contributing necessarily, naturally and directly to the ultimate result.
Whatever the procedures of the courts martial under Yamashita may have been, he had acknowledged that he made no effort to determine what those courts martial were doing. He had stated that no American prisoner of war was tried by court martial. But he could not possibly know one way or the other because, as he had said, he received no reports from them. The same applied with respect to trials by military tribunals of civilian internees.
A suspected guerrilla was not afforded any particular type of trial under International Law. There must, however, be a trial, and the minimum requirements of a trial would be knowledge of the charges, an opportunity to defend, and a judicial determination of guilty or innocence on the basis of the evidence. In fact, if the Military Police saw fit to decide that a person was to be killed, that person did not go to a court martial ; he was executed by the Military Police. General Yamashita had denied that he had ever given the Military Police authority to carry out death sentences, or authority to try and assess death sentences ; and yet, according to the testimony of the interpreter at the Cortabitarte garrison headquarters that was the
practice of the Military Police. If Yamashita did not know of it, that was his fault. There was no question that the Military Police were directly under the command of Yamashita ; he had acknowledged that to be so.
Yamashita had claimed that the naval troops in Manila were only under his tactical command, but General Muto had acknowledged that any officer having command of troops of another branch under him did have the authority and duty of restraining those men from committing wrongful acts. The atrocities committed by these naval troops were not the acts of irresponsible individuals, acting according to a whim or while in a drunken orgy ; nor were they usually committed in the heat of battle. They were acting under officers, sometimes in concert with officers. Obviously, their acts constituted a deliberate, planned enterprise.
The Prosecutor admitted that the application of the Laws of War to a commanding officer who fails to control his troops had not frequently been attempted. Nevertheless, he submitted that it was well recognised in International Law, even under the international conventions, that a commanding officer did have a duty to control his troops in such a way that they did not commit widespread, flagrant, notorious violations of the laws of war. He repeated that since there had existed in the Philippines a wide-spread pattern of atrocities over a period of time, necessarily notorious and committed by organised military units led by officers, there must have been a failure on the part of the ultimate commander of those troops to perform his duty so to control those troops that they would not commit such acts.
The Prosecutor argued that, since Yamashita had acknowledged that he did command an army composed of lawful belligerents, then Article 1 of the Hague Convention made him responsible for the acts of his subordinates. (Footnote 1: The laws, rights and duties of war apply not only to armies, but also to militia and volunteer corps fulfilling the following conditions : 1. To be commanded by a person responsible for his subordinates. ) This was true also under the common usages of war. Further, claimed the Prosecutor : " The criminal laws, the customs, the laws generally of civilised nations, are construed to apply in the international field as a part of the Laws of War as well, wherever they bear any relation at all, and under laws generally, any man who, having the control of the operation of a dangerous instrumentality, fails to exercise that degree of care which under the circumstances should be exercised to protect third persons, is responsible for the consequences of his dereliction of duty. We say, apply that in this case ! Apply that in the field of military law. It is applied by international tribunals or claims commissions with respect to claims for pecuniary damages by individuals or governments against individuals of another government, or against other governments, arising out of illegal acts. There are many cases where, under International Law, a government of one nation - or let us say a nation has been held financially responsible because of the wrongful acts of its agents or representatives, military or otherwise, with consequent injuries to the nationals of other countries. There is nothing to prevent the application of that same principle in the law of war on a criminal basis.
The Prosecution regarded the present case to be a clear case, in the international field, of criminal negligence. Whartons Criminal Evidence, Volume I, Section 88, stated that a person is not supposed to have known the facts of which it appears he was ignorant ; but if his ignorance is negligent or culpable . . . then his ignorance is no defence. A similar principle had been applied in the field of International Law. For instance, Borchard, Diplomatic Protection, page 217, stated that : . . . the failure of a government to use due diligence to prevent a private injury is a well recognised ground of international responsibility. The Prosecutor continued : Now, if it is proper and permissible under International Law and the Laws of War to apply to an entire government, an entire nation, civil responsibility in the form of damages for wrongful actions, violations of Laws of War by the agents or the representatives of that nation, is there any reason under the sun why a responsibility, criminal or civil, under the Laws of War, might not properly be applied under the proper circumstances in the proper case to an individual. The Defence cries that Yamashita was too far away from the scene of battle, too far removed from the actual perpetrators, justly to be charged and punished for the crimes of those under him. Yet, his very government, his entire nation may legally be held responsible - even farther removed from the perpetrators and from the scene of the crime. The analogy of liability under municipal law for the specific crime of manslaughter was also used by the Prosecution.
Moores International Law Digest, Volume VI, page 919, stated that . . . It is true that soldiers sometimes commit excesses which their officers cannot prevent ; but in general, a commanding officer is responsible for the acts of those under his orders. Unless he can control his soldiers, he is unfit to command them. The Prosecution concluded that if Yamashita could not control his troops, it was his duty to mankind, to say nothing of his duty to his country to inform his superiors of that fact so that they might have taken steps to relieve him. There was no evidence that he did that.
12. THE VERDICT AND SENTENCE
The findings of the Commission were delivered on 7th December, 1945.
The President of the Commission, after repeating the charge and summarising the offences contained in the Bills of Particulars, (Footnote 1: See p.4.) pointed out that it was noteworthy that the accused made no attempt to deny that the crimes were committed, although some deaths were attributed by Defence Counsel to legal execution of armed guerrillas, hazards of battle and action of guerrilla troops favourable to Japan.
The President made the following remarks concerning the evidence which had been received :
The President then went on to set out what may be regarded as the essential facts of the case as follows :
The Judgment of the Commission was delivered by the President in the following words :
13. AN APPEAL FOR CLEMENCY
Five of the Counsel who had defended Yamashita addressed to the Appointing Authority, and to General MacArthur as Confirming Authority, a request that the verdict of guilty be disapproved, and as an alternative a recommendation for clemency.
They submitted that even were it a fact that the atrocities were not sporadic in nature but were supervised by Japanese officers and non-commissioned officers, these supervised cases were scattered over the entire area of the Philippine Islands and there was no evidence that the officers or non-commissioned officers who were responsible therefore reported these acts to General Yamashita. The second and basic conclusion of the Commission( Footnote 1) indicated that its members agreed that the fact that in some instances there was a supervision bv Japanese officers and non-commissioned officers did not warrant a conclusion that General Yamashita had ordered or directed the commission of such acts or that he had any knowledge that such acts had been or were being committed. (l) That during the period in question the accused failed to provide effective control of (his) troops as was required by the circumstances. The second conclusion made it apparent that the death sentence was adjudged for an offence that did not include any criminal intent, any specific intent, or any mens rea. At its worst, the offence stated by the Commission was simply unintentional ordinary negligence. The sentence of hanging was grossly disproportionate for such an offence.
The recommendation continued :
It is respectfully submitted that even though this be accepted as a fact, no General Officer commanding any army is to be held criminally liable and hanged for the customs and procedure inherent in that army simply because that standard of customs and procedure in the American Army.
The plea went on to claim that :
It was submitted that, under those circumstances, Yamashita did not fail to exercise control of his troops to the extent that he was criminally negligent in the performance of his duty.
After pointing out that much of the evidence against the accused consisted of hearsay. evidence, opinion evidence, and ex parte affidavits, and
(1) That during the period in question the accused failed to provide effective control of (his) troops as was required by the circumstances.
claiming that the cumulative effect was prejudicial to the substantial rights of the accused, the plea went on to claim that the prosecution did not introduce any direct evidence whatsoever to show that the accused had issued orders for the commission of the alleged atrocities, nor that he had received any reports from any subordinate officers, or from any other sources, that such alleged atrocities had been or were being committed ; nor that he had had any knowledge that such alleged atrocities had been or were being committed. Having no knowledge of the commission of the alleged atrocities, the accused could not have permitted the commission thereof as alleged in the charge, and the Commission in its conclusion indicated that it found no such permission.
It was maintained that : This is the first time in the history of the modern world that a commanding officer has been held criminally liable for acts committed by his troops. It is the first time in modern history that any man has been held criminally liable for acts which according to the conclusion of the Commission do not involve criminal intent or even gross negligence. The Commission therefore by its findings created a new crime.
This plea was rejected by the Appointing and Confirming Authorities and the findings of the Military Commission confirmed.
14. PETITION TO THE SUPREME COURT OF THE PHILIPPINE ISLANDS
Yamashita, on being sentenced, petitioned the Supreme Court of the Philippine Islands for a writ of habeas corpus, but this Court after hearing argument, denied the petition 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 offence charged, and that the Commission, being validly constituted by the order of General Styer, had jurisdiction over the person of petitioner and over the trial for the offence charged.
The decision of the Court is not here analysed at length, since there is available the decision of the Supreme Court of the United States, to which Yamashita had recourse on the failure of his petition to the Supreme Court of the Philippines.