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).
(iii) The Question of the Accuseds Knowledge
Mr. Justice Rutledges judgment continues :
(3) 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 offences 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 the most of the incredible acts occurred on Luzon.
In a footnote to these paragraphs, Mr. Justice Rutledge pursues the point further :
(1) 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 defence 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 : (I) 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 non-commissioned 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, two-thirds or more of the members concurring, the Commission finds you guilty as charged and sentences you to death by hanging. (Emphasis added.)
The judgment itself then goes on :
A footnote explains the reference to one of the Commissions reversals of its earlier rulings : On 1st November, 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.)
( iv) Concluding Remarks on the Type of Evidence Admitted
The Judgment continues :
(1) 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.
(v) The Alleged Denial of Opportunity to Prepare Defence
Mr. Justice Rutledge claimed that Yamashitas six Defence Counsel would have found it impossible to prepare adequately, during the three weeks before the trial, a defence against the 64 items contained in the Bill of Particulars, (Footnote 1: See p.4) had nothing more occurred. He went on :
After recapitulating the various requests of the Defence for a continuance, (Footnote 2: And also the Commissions rulings of 1st and 5th November, 1945, regarding admissibility of uncorroborated affidavits. See pp. 10, 15-16, 23 and 60-l. ) Mr. Justice Rutledge expressed the following view :
(vi) The Question of the Applicability of the Articles of War
This section omitted here, pp.63-69
(vii) The Question of the Applicability of the Geneva Convention of 1929
This section omitted here, pp.69-73
(viii) The Question of the Applicability of the Fifth Amendment to the United States Constitution (Footnote 2: See p. 49)
Mr. Justice Rutledges view on this final topic was expressed in his judgment as follows :
(ix) Concluding Remarks
Mr. Justice Rutledges dissenting judgment ends with these words :
(1) 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 Commissions 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 com mission 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.
16. EXECUTION OF SENTENCE
Yamashita was executed on 23rd February, 1946.
B. NOTES ON THE CASE
It is not proposed in these pages to touch upon all of the many points of legal interest which arose between the commencement of proceedings against Yamashita in Manila and the delivery of judgments by Chief Justice Stone, Mr. Justice Rutledge and Mr. Justice Murphy in the Supreme Court. Attention is to be turned more particularly to the questions of International Law which were involved and, where desirable to a comparative study of international practice on these matters. Among the topics which will not be discussed in this commentary, most of which received extensive treatment during the proceedings and particularly in the judgments delivered by Chief Justice Stone, Mr. Justice Murphy and Mr. Justice Rutledge, are the question of the legal basis in United States Law and the jurisdiction of the Commission which tried Yamashita, (Footnote 2: See pp. 38-41, and-see Volume I of this series pp. 23-4, 29-31 and 72-9) the applicability of the United States Articles of War (Footnote 3: See pp. 44 and 63) and of the Fifth Amendment to the United States Constitution (Footnote 4: See pp. 49 and 73) and the extent to which the Supreme Court of the United States was legally empowered to review the proceedings and findings of United States Military Commissions. (Footnote 5: See pp. 39 and 50) It is proposed to devote attention to the following topics ; the legality of the trial of war criminals after the termination of hostilities, the finding that an alleged war criminal is not entitled to the protection of the Geneva Prisoner of War Convention relating to trial, the types of evidence admitted in war crime trial proceedings, the stress placed by the Commission on the need for expeditious procedure, and the responsibility of a commander for offences committed by his troops.
1. THE LEGALITY OF THJ3 TRIAL OF WAR CRIMINALS AFTER THE TERMINATION OF HOSTILITIES
Chief Justice Stone, in delivering the majority judgment of the Supreme Court, stated that :
The dissenting judges made little objection to this point, although Mr. Justice Rutledge thought that there was less necessity for a military commission to be appointed after active hostilities were over, since there is no longer the danger which always exists before surrender and armistice. . . . The nation may be more secure now than at any time after peace is officially concluded. " (Footnote 2: See p.56)
It has been pointed out that, In so far as the application of the usages of war to war crimes is concerned, the jurisdiction of the enemy courts only exists as long as the war lasts. After the war, war crimes can only be prosecuted if they constitute ordinary crimes, and The most serious shortcoming of customary International Law consists in its limitation for the duration of war of national jurisdiction in war crimes which are not simultaneously ordinary crimes. " (Footnote 3: Dr. G. Schwarzenberger, International Law and Totalitarian Lawlessness, London, 1943, pp. 61 and 67.)
The position under customary International Law seems, therefore, to be that whereas (as was recognised by the Supreme Court and by general international practice following the recent war) jurisdiction over war crimes exists without limitation beyond the cessation of fighting and up to the conclusion of peace, jurisdiction continues after this point only over such offences as are also infringements of the municipal law of the state whose courts are trying the alleged offender. Whether an offence fulfils this test of illegality under municipal law will depend upon the laws of each state, and the attitude which these laws reflect to the principle of the territoriality of criminal law. (Footnote 4: See G. Schwarzenberger, op.cit, pp.61-2)
This position under customary International Law can, of course, be altered by international agreement ; . . . the belligerents have to make up their mind at the peace conference whether they wish to bury the past by a general amnesty, leave the matter unsettled or institute proceedings in time of peace, a procedure which, as a derogation of customary International Law, requires the sanction of an international agreement between the States concerned. (Footnote 5: G. Schwarzenberger, op.cit, pp.67) It has thus been possible for the Peace Treaty between the Allied and Associated Powers and Italy to provide, in Article 45, that:
The Treaties of Peace with Roumania, Bulgaria, Hungary and Finland contain similar provisions. (Footnote 2: Ibid, pp.80, 100, 119 and 140) An interesting passage in the official Commentary by the United Kingdom Foreign Office on the Treaty with Italy runs as follows :
On the related question of the permissibility under International Law of continuing, after the conclusion of peace, the operation of sentences passed on war criminals before that event, another learned authority has expressed the following view, which commands general assent :
2. ALLEGED WAR CRIMINALS NOT ENTITLED TO RIGHTS RELATING TO JUDICIAL PROCEEDINGS SET OUT IN THE GENEVA CONVENTION
There was a division of opinion in the Supreme Court as to the applicability of Part 3 (Judicial Proceedings) of Part III, Section V, Chapter 3 of the Geneva Prisoners of War Convention of 1929 to the trial of a person accused of a war crime as distinct from an offence committed while a prisoner. (Footnote 1: See pp.46 and 69) The view taken by the majority, that the Convention does not apply, has, however, been that followed in the practice of the various states which have held war crime trials in recent years.
This principle is so well established that it has rarely been questioned in war crime trials. It was, however, raised, and decided in the same way as in the Yamashita Trial, in the Dostler Trial (see Volume I of this series, pp. 29- 31) and in the Trial of Martin Gottfried Weiss and 39 others by a General Military Government Court at Dachau, 15th November-13th December, 1945 (The Dachau Trial) to be reported in a later volume of these reports. For an interesting decision on the part of the French Cour de Cassation (Court of Appeal), that an alleged war criminal is not entitled to the rights provided for a prisoner of war under French Law reference should be made to the report on the Wagner Trial (see Volume III of these Reports, pp. 42- 43). The Court ruled that the appellants were not sent as prisoners of war before the Military Tribunal which tried them and regarded as irrelevant the fact that that Tribunal was not composed in the way laid down for the trial of French military personnel and so, in accordance with paragraph 13 of Article 10 of the Code de Justice Militaire, also for the trial of prisoners of war. Paragraph 13 provides that military tribunals convened to try prisoners of war are composed in the same way as those convened for the trial of French military personnel, that is to say according to the rank of the accused. It will be seen that this is an application in terms of French law of Article 63 of the Geneva Convention : A sentence shall only be pronounced on a prisoner of war by the same tribunals and in accordance with the same procedure as in the case of persons belonging to the armed forces of the detaining Power. In deciding as it did, therefore, the Cour de Cassation tacitly affirmed the principle that the provisions of the Geneva Convention regarding judicial proceedings do not protect any prisoner of war during his trial for alleged war crimes.
In an editorial comment on the Yamashita proceedings, Professor Quincy Wright has made a brief but interesting comment on a separate though related aspect of the matter. He states that, irrespective of the interpretation of Article 63 of the Geneva Convention, it is to be noted that denial of justice in International Law has frequently been interpreted to require, as a minimum, treatment of aliens equal to that of nationals. It may be questioned, however, whether International Law requires the application of this principle in military commissions. The enemy can, apart from specific convention, claim only the international standard even if the national is given more." (Footnote 2: American Journal of International Law, Vol. 40, No. 2 , April, 1946, p . 405.)
THE TYPES OF EVIDENCE ADMITTED IN WAR CRIME TRIAL PROCEEDINGS
In commenting upon the conflict of opinion in the Supreme Court as to the admissibility in war crime proceedings of depositions, affidavits, and hearsay
and opinion evidence, (Footnote 1: See pp.46, 48, 50, 57, and 61) Professor Quincy Wright points out that, while the majority opinion of the Supreme Court did not cite international practice on this matter, it is clear that international tribunals have hesitated to exclude any sort of evidence and the courts in many civilised countries are similarly free in the admission of evidence leaving it to the judges to appreciate the weight that should be attached to the materials. Such evidence has been commonly admitted in military tribunals although in American courts martial certain limitations are imposed by statute.. It is not believed that admission of such evidence constitutes a denial of justice in International Law." (Footnote 2: Loc cit, p.405)
A study of the rules and the practice followed in war crime trials by other than United States Military Tribunals, (Footnote 3:Regarding the rules of evidence followed by United States Military Commissions, Military Government Courts and Military Tribunals, see Volume III of this series, pp. 109-111, 117 and 118.) does indeed indicate that the tendency to render admissible a wide range of evidence, and to allow the courts then to decide what weight to place on each item is at least in the Anglo-Saxon Countries a general one and is demonstrated not merely in the elastic rules of evidence which are binding on the courts but also by the liberal interpretations placed by the courts on these provisions when points of doubt arise.
The practice of the British Military Courts for instance, is amply demonstrated by the Belsen Trial proceedings, (Footnote 4: See Volume II of this series, pp.129 et.seq.) and indeed the decisions of the Court in this trial had a strong influence on the British practice in subsequent trials. The opening words of Regulation 8 (i) of the British Royal Warrant (Ibid. pp.130-131) are moreover substantially the same as Article 9 (1) of the Australian War Crimes Act of October 11th, 1945, and the provisions of Regulation 8 (i) as a whole are essentially the same as those of Regulations 10 (1) and (2) re-enacted under the Canadian War Crimes Act of 31st August, 1946, it being stated again that it is the duty of the Court to judge the weight to be attached to any evidence given in pursuance of this provision which would not otherwise be admissible.
A few words may be added on affidavit and hearsay evidence in particular. The Defence in the Yamashita Trial directed more objections against affidavits and items of hearsay evidence than against any other type of evidence. It is true that these types of evidence cannot be subjected to cross-examination in the same way as the first hand evidence of a witness in court, yet in these particular aspects also the attitude of the Commission trying the case, and of the draftsmen who produced the regulations which bound its proceedings, is paralleled by the practice of other Anglo-Saxon countries. In the Belsen Trial, for instance, a large number of affidavits were admitted and also much hearsay evidence, including some contained in the affidavits themselves. (Footnote 6: See Volume II of this series, pp.. 131-138) During the trial of Erich Killinger and four others by a British Military Court, Wuppertal, 26th November-3rd December, 1945,(Footnote 7: See Volume III of this series, pp. 67-75) before the tendering of the affidavit evidence for the Prosecution, the Defence applied for one
deponent to be produced in person. The Defence had been given to understand that the British officer in question would be available for questioning. The Court decided, after hearing argument, that the deponent could not be produced without undue delay (in the wording of Regulation 8 (i) (a)), and the President of the Court added the significant statement that we realise that this affidavit business does not carry the weight of the man himself here, as evidence, and when it is read we will hear what objections you have got to anything that the affidavit says, and we will give that, as a Court, due weight. The Presidents words may fairly be taken as a reference to the fact that if evidence is given by means of an affidavit the person providing the evidence is not present in Court to be examined, cross-examined and re-examined.
Nevertheless, in his summing up, the Judge Advocate in the trial of Karl Adam Golkel and thirteen others, by a British Military Court, Wuppertal, Germany, 15th-21st May, 1946,(Footnote 1: To be reported in Volume V of this series) stressed that : There is no rule that evidence given in the witness box must be given more weight than evidence, statements, taken on oath outside the court. As I said earlier, take into account all the circumstances . . .
The Continental practice tends to prefer not to make special rules of evidence applicable to war crime trials, yet often the result is the same, the Courts not being bound by rules of evidence of a highly technical nature. For instance, the Ordinance of 28th August, 1944, under which trials by French Military Tribunals are held, makes no special provisions regarding evidence and procedure, and the rules contained in the Code de Justice Militaire, which govern trials of French military personnel, are applied. (Footnote 2: See volume III of this series, pp.97-9) Article 82 of the Code, on which the Presiding Judge in the Wagner Trial relied in ordering certain documents to be filed with the records of the case, (Footnote 3: Ibid,p.39) provides however that :
It is also significant that such special rules of evidence as have been made for the conduct of war crime trials by courts set up by continental countries have tended to relax the rules of evidence binding on those courts. Thus, the Norwegian Law No. 2 of 21st February, 1947, which governs the procedure of Norwegian War Crimes Trials, has made, on the matter of evidence, only one departure from the ordinary civil court procedure of Norway, (Footnote 4: ibid, pp.87 and 88) but this provides that, during the main hearing of war crimes cases, previous statements of witnesses, whether given before a court or not, may be read and used as evidence if the statement has been given by a person who has since died or disappeared or whose personal appearance is impossible to arrange or would cause considerable delay or expense. Again, paragraph
28 (1) of the Czechoslovak Law of 24th January, 1946, which concerns the punishment of war criminals and traitors by Extraordinary Peoples Courts, provides that : . . . The examination of the accused and the taking of evidence shall be conducted in general in accordance with the ordinary rules of criminal procedure. Verbatim reports of the interrogation of accomplices and witnesses and the views of experts may be read whenever the president of the senate considers this suitable." (Footnote 1: Italics Inserted) Such verbatim reports as those mentioned in the second sentence of this provision would be admissible in other than war crimes proceedings only with the consent of both Prosecution and Defence, if at all.
The Anglo-Saxon drafting technique is reflected in the wording of the Charters of the International Military Tribunals. Article 13 (Evidence) of the Charter of the International Military Tribunal for the Far East provides, inter alia, as follows :
With the exception of the omission of the final sentence, Article 19 of the Charter of the Nuremberg International Military Tribunal has the same wording.
In general it may be said that the rules of evidence applied in war crime trials are less technical than those governing the proceedings of courts conducting trials in accordance with the ordinary criminal law. This is not to say that any unfairness is done to the accused ; the aim has been to ensure that no guilty person will escape punishment by exploiting technical rules. The circumstances in which war crime trials are often held make it necessary to dispense with certain such rules. For instance many eye witnesses whose evidence was needed in trials in Europe had in the meantime returned to their homes overseas and been demobilised. To transport them to the scene of trial would not have been practical, and it was for that reason that affidavit evidence was permitted and so widely used.
Furthermore, it should be pointed out that the historic function of many of the stricter rules of evidence such as the rule against hearsay was to protect juries from evidence which had not been subjected to cross-examination and the value of which, owing to their inexperience, they might not be able properly to assess. It has been argued with justification, however, that the judges serving on war crime courts are less likely to need such protections than is the average juryman and that many of the stricter rules therefore lose their raison dÍtre.