Source: Law Reports of Trials of War Criminals. Selected and Prepared by the United Nations War Crimes Commission. Volume IV. London: HMSO, 1948p.1
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).
Responsibility of a Military Commander for offences committed by his troops. The sources and nature of the authority to create military commissions to conduct War Crime Trials, Non-applicability in War Crime Trials of the United States Articles of War and of the provisions of the Geneva Convention relating to Judicial Proceedings. Extent of review permissible to the Supreme Court over War Crime Trials.
Tomoyuki Yamashita, formerly Commanding General of the Fourteenth Army Group of the Imperial Japanese Army in the Philippine Islands, was arraigned before a United States Military Commission and charged with unlawfully disregarding and failing to discharge his duty as commander to control the acts of members of his command by permitting them to commit war crimes. The essence of the case for the Prosecution was that the accused knew or must have known of, and permitted, the widespread crimes committed in the Philippines by troops under his command (which included murder, plunder, devastation, rape, lack of provision for prisoners of war and shooting of guerrillas without trial), and/or that he did not take the steps required of him by international law to find out the state of discipline maintained by his men and the conditions prevailing in the prisoner-of-war and civilian internee camps under his command. The Defence argued, inter alia, that what was alleged against , Yamashita did not constitute a war crime, that the Commission was without jurisdiction to try the case, that there was no proof that the accused even knew of the offences which were being perpetrated and that no war crime could therefore be said to have been committed by him, that no kind of plan was discernible in the atrocities. committed, and that the conditions under which Yamashita had had to work, caused in large part by the United States military offensive and by guerrilla activities, had prevented him from maintaining any adequate overall supervision even over the acts of such troops in the islands as were actually under his command.
The evidence before the Commission regarding the accuseds knowledge of, acquiescence in, or approval of the crimes committed by his troops was conflicting, but of the crimes themselves, many and widespread both in space and time, there was abundant evidence, which in general the Defence did not attempt to deny.
The Commission sentenced Yamashita to death and its findings and sentence were confirmed by higher military authority. When the matter came before the Supreme Court of the United States on a petition for certiorari and an application for leave to file a petition for writs of habeas corpus and prohibition, the majority of that Court, in a judgment delivered by Chief Justice Stone, ruled that the order convening the Commission which tried Yamashita was a lawful order under both United States and International Law, that the Commission was lawfully constituted, that the offence of which Yamashita was charged constituted a violation of the laws of war, and that the procedural safeguards of the United States Articles of War and of the provisions of the Geneva Prisoners of War Convention relating to Judicial Proceedings had no application to war crime trials.
Mr. Justice Murphy and Mr. Justice Rutledge dissented. Questions other than those already mentioned which were touched upon either in the majority judgment or in the two minority judgments were the following : the applicability or non-applicability to such proceedings as those taken against Yamashita of the safeguards provided by the United States Constitution and particularly of the Fifth Amendment thereto ; the extent of review permissible to the Supreme Court over war crimes trials ; and the alleged denial of adequate opportunity for the preparation of Yamashitas defence.
Yamashita was executed on 23rd February 1946.
A. OUTLINE OF THE PROCEEDINGS
1. THE APPOINTMENT OF THE COMMISSION
The Court which tried Yamashita was a United States Military Commission established under, and subject to, the provisions of the Pacific Regulations of 24th September, 1945, Governing the Trial of War Criminals. (Footnote 1: See Volume III of these Reports, p. 105.) Acting under authority from General MacArthur, Commander-in-Chief,
United States Army Forces, Pacific Theatre, General Styer, Commanding General, United States Army Forces, Western Pacific, appointed the Commission, and instructed it to meet in the City of Manila, Philippine Islands, at the call of the President thereof. The Commission was convened on 8th October, 1945, at the High Commissioners Residence in Manila.
2. AN INTENDED DEFENCE WITNESS PERMITTED TO ACT AS DEFENCE COUNSEL
In addition to the six officers appointed by Lt.-General Styer to defend the accused, the latter requested that his former Chief-of-Staff, Lieutenant-General Muto, and his former Assistant Chief or Deputy Chief-of-Staff, Major-General Utsunomiya, should act as additional counsel. There were, he explained, a number of records and facts with which they alone were conversant. He needed their advice and assistance.
In view of the fact that the accused was proposing to call one of the men named as a Defence witness, however, the Prosecution submitted that, in a criminal proceeding, it would be entirely irregular for a witness for the Defence also to represent the accused as counsel. Even if his intention was not to serve as counsel, it would be equally irregular to allow the witnesses for a person accused as a criminal to sit in Court through the proceedings. He should be allowed to enter the court-room only if and when counsel proposed to call him as witness. On a Defending Officer stating that the proposed new Counsel would be in the court room only during the hearing of the Prosecutions evidence and that he would leave the court-room before the opening of the Defence, Counsel for the Prosecution pointed out that the damage would be done when the witnesses were in the courtroom during the Prosecutions case and not during the hearing of the evidence for the defence.
The President ruled that, since it was the desire of the Commission to conduct a fair trial, the request of the Defence would be granted.
Lt.-General Muto subsequently appeared as a defence witness.
3. THE ACCUSED AND THE CHARGE
Prior to 3rd September, 1945, the accused, Tomoyuki Yamashita, was 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, 1 Philippine Islands. On 25th September, by order of Lieutenant-General Wilhehn D. Styer, Commanding General of the United States Army Forces, Western Pacific, which command embraced the Philippine Islands, Yamashita was served with a charge prepared by the Judge Advocate Generals Department of the Army which alleged that he, Tomoyuki Yamashita, General Imperial Japanese Army, between 9th October, 1944 and 2nd September, 1945, at Manila and at other places in the Philippine Islands, while a 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 pf war.
On 8th October, 1945, the accused was arraigned before the Military Commission already described.
4. THE BILL OF PARTICULARS AND SUPPLEMENTAL BILL OF PARTICULARS
On 8th October, 1945, as a result of a motion put forward by the Defence, (Footnote 1: see p. 8) the Prosecution filed a Bill of Particulars making 64 separate allegations, under a general introductory sentence which claimed that : Between 9th October, 1944, and 2nd September, 1945, at Manila and other places in the Philippine Islands, members of Armed Forces of Japan under the command of the accused committed the following : On 29th October, after a recess during which the Defence was to prepare its case, the Prosecution filed a Supplemental Bill of Particulars claiming that : members of the armed forces of Japan, under the command of the accused, were permitted to commit . . . during the period from 9th October, 1944, to 2nd September, 1945, at Manila and other places in the Philippine Islands a further 59 offences or groups of offences. The Defence claimed that the Supplemental Bill made a completely new type of allegation, but this view was not shared by the Commission. (Footnote 2: See pp. 8-9.)
The classification of alleged offences made by the President of the Com-mission in delivering judgment may be reproduced at this point. He pointed out that : The crimes alleged to have been permitted by the accused in violation of the laws of war may be grouped into three categories :
Nearly all of the 123 paragraphs contained in the two Bills of Particulars alleged the commission of a number of separate illegal acts ; nearly all of them also charged the perpetration of more than one crime, of which mistreating and killing appeared most frequently. An attempt was clearly made to arrange under each paragraph offences alleged to have been committed in one locality during one period of time or at the same approximate date.
Thus, in the first paragraph of the Bill of Particulars, appear a number of different categories of crimes, committed against thousands of persons and against property :
1. During the period from 9th October, 1944, to 1st May, 1945, undertaking and putting into execution 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 non-combatant civilians, were brutally mistreated and killed, without cause or trial, and entire settlements were devastated and destroyed wantonly and without military necessity.
The fifth paragraph provides an example of one offence allegedly committed against a plurality of persons :
5. During November 1944, in northern Cebu Province, massacre, without cause or trial, of more than 1,000 unarmed non-combatant civilians. .
Paragraph 122, which appeared in the Supplemental Bill, alleged the commission of one offence against one person, the killing, on about 20th January, 1945, at Los Banos Internment Camp, Laguna Province, without cause or trial, of a named non-combatant civilian citizen of the United States of America, then and there interned by armed forces of Japan.
While many paragraphs simply alleged, for instance, the killing of patients and civilian refugees by shellfire (12), the rape of civilian women (14), or brutally mistreating and killing two unarmed non-combatant male civilians (16), others set out the names of the victims. Paragraph 22 alleged the brutal killing without cause or trial of three named persons, an Austrian citizen, a German citizen and a Russian citizen, all unarmed and non-combatant civilians.
The offences against persons alleged in the two Bills were largely described in the following terms, often with the addition of the words, without cause or trial : mistreating, beating, wounding, torturing, mutilating, maiming, raping, attempting to rape, killing, attempting to kill, executing, burning alive, massacring and exterminating.
Other such alleged offences were the unjustified failure or refusal to provide prisoners of war or civilian internees with adequate shelter, food, water, clothing, sanitation, medical care, and other essentials it being sometimes stated specifically that such omission caused malnutrition and death ; abandoning, without care or attention helplessly sick, wounded or starved prisoners of war and internees ; and deliberately profaning the bodies of dead prisoners of war and internees ; compelling non-combatant civilians to construct fortifications and entrenchments and otherwise take part in the operations of armed forces of Japan against the country of those civilians ; deliberately and unnecessarily exposing prisoners of war and civilian internees to gunfire and other hazards; and deliberately contaminating and poisoning a well of water, the sole source of potable drinking water for a large number of civilians. A breach of the Geneva Prisoners
of War Convention was implied by paragraph 89, which alleged that, during the month of December 1944, at Manila, the crimes were committed against various prisoners of war, named and unnamed, of 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 pronounced ; and executing a death sentence without communicating to the representative of the protecting power the nature and circumstances of the offence charged.
The Bills of Particulars also alleged many offences against property, again often of a mass and indiscriminate nature, on the part of the accuseds troops. There were many allegations of the devastation, destruction and pillage, unjustified by military necessity, of public, private or religious property. For instance, paragraph 15 enumerates : During the period from 1st January, 1945, to 1st March, 1945, both dates inclusive, deliberately, wantonly and without justification or military necessity, devastating, destroying and pillaging and looting of large areas of the city of Manila, including public, private and religious buildings and other property, and committing widespread theft of money, valuables, food and other private property in that city. Paragraphs 70 and 72 allege, inter alia, the destruction of property devoted exclusively to religious, hospital, or educational purposes. Paragraph 6 includes an allegation relating to, . . . looting and stealing the contents of, and wilfully falling to deliver or make available, Red Cross packages and supplies intended for such prisoners of war.
Those stated to have been the victims of these atrocities were unarmed non-combatant civilians, civilian internees and prisoners of war ; and unspecified hospital patients. The civilians included Austrian, French, Russian, Chinese and German nationals as well as United States citizens.
The allegation that atrocities were committed according to a plan was made not only in paragraph 1, already quoted, (Footnote 1: See p.5) but also in paragraph 25, which sets out the following offences : During the period from 1st January, 1945, to 1st March, 1945, deliberately planning and undertaking, without cause or trial, the extermination, massacre and wanton, indiscriminate killing of large numbers of unarmed non-combatant civilian men, women and children, inhabitants of the city of Manila and its environs, brutally mistreating, wounding, mutilating, killing and attempting to kill, without cause or trial, large numbers of such inhabitants, and raping or attempting to rape large numbers of civilian women and female children in that city.
In his opening address, the Prosecutor said that, in calling his witnesses, the number of the paragraph to which each piece of evidence related would be indicated. The legal significance of the Bills of Particulars was never defined by the Commission, and the brief analysis of their contents, which has been set out above, is intended simply to show the range of the offences for which the Prosecution held the accused responsible.
5. DEFENCE PLEAS AND MOTIONS RELATING TO THE CHARGE AND THE BILLS OF PARTICULARS
Apart from the plea of not guilty, a number of motions were entered by the accused and his Counsel concerning various aspects of the Charge and the Bills of Particulars. These are described in the following ten paragraphs. It will be noticed that, while the first nine paragraphs set out arguments which took place before the beginning of the hearing of the evidence, and the rulings of the Commission on the matters in dispute, the last paragraph deals with certain events which took place during the hearing of the evidence but which are most conveniently dealt with in this part of the Report.
(i) Claim of the Accused that a Copy of the Specifications was not Properly Served on Him
On 8th October, 1945, the accused pleaded that no copy of the specifications had been sent to him in accordance with paragraph 14 (a) of the letter dated 24th September, 1945, General Headquarters, United States Forces, Pacific, entitled Regulations Governing the Trial of War Criminals :
The Prosecution claimed that the Charge which was served upon the accused included both what was ordinarily known as a Charge and also the specifications. In court-martial procedure, he went on, the Charge Sheet contained the Charge proper, as for instance the violation of the 86th Article of War. Underneath that, in a separate paragraph, would appear what was known as a specification, alleging that the accused, on a certain time, at a certain place, did certain things. If the Commission would examine the Charge which had been served upon the accused it would note that it did include both of those elements. He submitted that since court-martial procedure was much more strict in its provisions than the procedure followed before Military Commissions, it followed that the Charge against the accused was adequately drafted.
On finding that Defence Counsel were in agreement with the Prosecution on this point, the Commission ruled that the Charge and specifications had been properly served upon the accused.
(ii) The First Motion to Dismiss the Case
Later during the same sitting of the Commission, however, Defence Counsel moved that the Charge in hearing be stricken on the ground that it failed to state a violation, in so far as General Yamashita was concerned, of the laws of war. The Prosecution pointed out that the Commission had been ordered to try General Yamashita. If the Defence were seeking to raise a point of law, the appropriate time to do so was at the conclusion of the Prosecutions case, when they could move for a judgment of acquittal.
He submitted, however, that there was no provision in the Commissions procedure for a motion such as Defence Counsel was now interposing. The objection of Counsel for the Defence was not sustained by the Court.
(iii) Motion for the Filing of a Bill of Particulars
Thereupon, Counsel for the Defence claimed that the language in which the Charge and specifications .had been drafted was uncertain and indefinite and did not fairly apprise the accused of that with which he stood charged. The Defence therefore moved that the Charge and cause in hearing be made more definite and certain, by specifying the time, place and dates of the accuseds disregarding and failing to discharge his duty as Commander to control the operations of the members of his command. Details as to time, place and date should also be furnished as to the alleged offences and as to the persons who were allegedly permitted to commit them. The Prosecution, however, stressed that, although a motion such as this might be permissible in a court of law, the regulations the Defence was putting forward governing the Commission made no provision for such a motion. If the accused desired a Bill of Particulars, the Prosecution had no objection to supplying one ; what they objected to was an attempt to apply to the proceedings of the Commission the technical objections and rules of evidence, pleadings and procedure which might apply in a court of law. Defence Counsel admitted that the Commission was not bound by the rules of a court of law, and based its application on principles of justice and fairness to the accused. Until they had received a Bill of Particulars, the Defence did not know what was charged and could not in fairness plead to the general issue of guilty or not guilty. The Prosecution then agreed to file a Bill of Particulars which they had already drafted, provided that they should have at a later date the privilege of serving and filing a Supplemental Bill of Particulars ; certain new information was expected from the United States, and other material had arrived too late for incorporation in the first Bill.
The Court granted the Defence motion for a Bill of Particulars and ruled that a Supplemental Bill of Particulars might be filed later, subject to such conditions as the Commission might then specify. The Court would judge these additional charges on their merits when the Prosecution presented them. Whereupon, the Bill of Particulars was received into evidence. (Footnote 1: See p.4)
(iv) Plea of Not Guilty
The accused was then asked for his plea to the Charge, and pleaded not guilty. The Commission then went into recess for three weeks to enable the Defence to prepare their case and the Prosecution to complete theirs.
(v) Objection to the Filing of a Second Bill of Particulars
On 29th October, the Commission was reconvened, and the Prosecution requested that there should be incorporated into the record of the proceedings the Prosecutions Supplemental Bill of Particulars. To this procedure the Defence objected.
Defence Counsel began his argument on this point by claiming that on 8th October, 1945, the Defence had successfully objected to the granting to the Prosecution of the right to file a Supplemental Bill of Particulars, on the grounds that it was unprecedented and against ordinary principles of law and justice to allow the Prosecution, after a case had begun, to continue to file additional specifications. Counsel for the Defence submitted that any normal, intelligent person would assume that when the Prosecution, after filing sixty-four separate specifications, stated that they wished to file a Supplemental Bill of Particulars, that Supplemental Bill would probably contain one, two, three, four or perhaps even half a dozen additional particulars. Yet the Supplemental Bill of Particulars contained fifty-nine new, separate and distinct alleged offences. These fifty-nine offences were new in so far as the persons involved were concerned, in so far as the times were concerned, and for the most part in so far as the places were concerned. The Defence urged that it was unconscionable in a case of this type practically to double at the last minute the list of offences charged.
In the second place, the Defence pointed out that whereas the first Bill had commenced with the words : Between 9th October, 1944, and 2nd September, 1945, at Manila and other places in the Philippine Islands, members of Armed Forces of Japan under the command of the Accused committed the following : . . . the opening words of the Supplemental Bill stated that . . . members of the Armed Forces of Japan, under the command of the Accused, were permitted to commit certain acts which were then set out. The new Bill alleged the granting of permission for 59 acts, and in no single case did it provide any details as to that permission. It was not said who permitted any one of these acts, or how or in what circumstances.
The Prosecution first reminded the Commission that it had indeed given the former permission to file a Supplemental Bill of Particulars, then went on to say that there was no significance in the different opening wording contained in the two Bills. The purpose of the so-called Bill of Particulars was simply to specify the instances which were referred to generally in the Charge, and whether the Bill of Particulars said that the acts alleged were permitted or whether it claimed that they were committed by members of the command of the accused was immaterial. There was no provision in the regulations governing the procedure of such Commissions as the present for the production of a Bill of Particulars or for a motion to make the Charge more definite and certain. It was purely a matter of discretion for the Commission as to whether or not it would require a Bill of Particulars. The document had been termed a Bill of Particulars for lack of any more appropriate term, but it was not in fact a bill of the kind signified when that term was used in courts of law in the United States. Its sole purpose was to specify the instances when the members of the command of the accused were permitted to commit acts contrary to the Laws of War. In other words, it referred back to and-must be construed in the light of the Charge itself.
The Defence thereupon pointed out that the Commission, in allowing the Bill of Particulars to be filed, had stated that a Supplemental Bill might be
filed later, subject to such conditions as the Commission may then specify. Counsel submitted that the normal, natural condition that would be specified in the filing of any Supplemental Bill of Particulars was that it should stay within the bounds of reason. The filing of nearly as many particulars as were contained in the first Bill he described as unconscionable. Defence Counsel could not agree that the two sets of opening words were materially the same, and claimed that the very essence of the case was the question of what must be established to prove an offence against the Laws of War, the four possible requirements being to show simply that an act was committed by someone under the command of a certain General, or that somebody permitted those acts, or that someone authorised them, or that someone ordered them.
The Commission rejected the Defence motion.
(vi) Motion that the Prosecution Amplify the Particulars in Certain Ways
The Defence next moved that particulars be furnished by the Prosecution, regarding each of the 59 new paragraphs, as to who granted permission to commit the alleged offences, to whom such permission was granted, the form of expression of the permission, and the times, places and dates of the giving of permission.
The Prosecutor replied that the Charge stated specifically that it was the accused who permitted these acts to be committed. Even in a United States Civil Court, the Prosecution would not be required to disclose their evidence through the medium of a Bill of Particulars, as was shown by the following passage from the judgment in the case of Commonwealth v. Jordan, 207 Massachusetts Reports 259 :
The office of a Bill of Particulars is not to compel the Commonwealth to disclose its evidence but to give the defendant such information in addition to that contained in the complaint or indictment in regard to the crime with which he is charged, as law and justice require that he should have in order to safeguard his constitutional rights and to enable him to fully understand the crime with which he is charged and to prepare his defence.
The Prosecutor pointed out that the mention of constitutional rights made in this dictum constituted a reference to the Constitution of the United States, which in any case conferred no rights on the accused, an enemy alien. He thought that the details already provided in the Bills of Particulars met all of the requirements of justice and fair trial.
Defence Counsels answer was that the Fifth Amendment of the Constitution of the United States applied to any person, not any citizen. " Nevertheless, the Commission rejected the Defence motion.
(vii) The First Motion for a Continuance
The Defence then entered a motion requesting a recess of two weeks in order to enable the preparation of a case in answer to the 59 new allegations, to allow the Defence, for instance, so to acquaint themselves with the new
accusations as to place them in a position properly to cross-examine the Prosecutions witnesses. Counsel reminded the Commission that the Prosecution had expressed surprise when the Defence had stated, on 8th October, 1945, that they could properly prepare a defence in two weeks. Surely, if the Prosecution was surprised that the Defence could prepare a defence on 64 specifications in two weeks, Counsel did not think that they could now object to a recess of two weeks to prepare a defence for a similar number of specifications based on new facts, new places, new names and a new theory of the case.
Defence Counsel quoted the passage from paragraph 14 of the Commissions rules of procedure to which reference had already been made : The accused shall be entitled . . . to have in advance of trial a copy of the Charges and specifications, so worded as clearly to apprise the accused of each offence charged. Counsel interpreted the action of the Commission on 8th October, in requiring the Prosecution to furnish a Bill of Particulars, as signifying that a Supplemental Bill should also be furnished in advance of trial, and claimed that this phrase signified : Sufficient time to allow the Defence a chance to prepare its defence.
The Prosecutor at this point began to urge again that the specifications were incorporated in the original charge, as he had claimed when the accused himself insisted that he had not been served with specifications ; but the President interrupted the Prosecutor and said that this point had been adequately discussed.
The Defence motion was rejected by the Commission, but the latter added that if, at the end of the presentation by the Prosecution of evidence concerning the Bill of Particulars as presented during the arraignment, Defence Counsel should believe that they required additional time to prepare their case, the Commission would consider such a motion at that time.
Defence Counsel then indicated, but without further result, that time was desired at once as much, if not more to prepare for cross-examination as the Prosecutors case goes in as to prepare an affirmative defence.
(viii) The Second Motion to Dismiss the Case
The Defence then entered a motion to dismiss the case. Counsel first reminded the Commission that the previous motion to dismiss, made on the ground that the charge failed to state a violation of the Laws of War by the accused, was denied. The present motion was addressed to the Charge as supplemented by the original Bill of Particulars and by the Supplemental Bill of Particulars, and the claim was again made that it failed to set forth a violation of the Laws of War by the accused and that the Commission did not have jurisdiction to try the cause. It was the contention of Defence that the Bill of Particulars did not cure the defects of the Charge. On the contrary, it provided further reasons for allowing the motion.
The Bill of Particulars detailed sixty-four instances in which members of the accuseds command ,were alleged to have committed. war crimes. In no instance was it alleged that the accused committed or aided in the commission of a crime or crimes, In no instance was it alleged that the accused
issued an order, expressly or impliedly, for the perpetration of the crime or crimes charged. Nor was it alleged that the accused authorised the crimes prior to their commission or condoned them thereafter.
The Charge alleged that the accused failed in his duty to control his troops, permitting them to commit certain alleged crimes. The Bill of Particulars, however, set forth no instance of neglect of duty by the accused. Nor did it set forth any acts of commission or omission by the accused as amounting to a permitting of the crimes in question. What then was the substance of the Charge against the accused ? It was submitted by the Defence that, on the three documents now before the Commission, the Charge and the two Bills of Particulars, the accused was not accused of having done something or having failed to do something, but solely of having been something, namely commander of the Japanese forces. It was being claimed that, by virtue of that fact alone, he was guilty of every crime committed by every soldier assigned to his command.
American jurisprudence recognised no such principle so far as its own military personnel was concerned. The Articles of War denounced and punished improper conduct by military personnel, but they did not hold a commanding officer responsible for the crimes committed by his subordinates. No one would even suggest that the Commanding General of an American occupation force became a criminal every time an American soldier violated the law. It was submitted that neither the Laws of War nor the conscience of the world upon which they were founded would countenance any such charge. It was the basic premise of all civilised criminal justice that it punished not according to status but according to fault, and that one man was not held to answer for the crime of another.
It was an incontrovertible fact that the branding of military personnel as war criminals did not rest upon the mere fact of the command of troops, but rather upon the improper exercise of that command. This point was recognised officially by the War Department in its publication, Rules of Land Warfare (FM 27-10, Section 345, l), which provided as follows : Liability of Offending Individuals. Individuals and organisations 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 defence or in mitigation of punishment. The person giving such orders may also be punished.
There was nothing said in that provision concerning the Commanding General of a force being responsible, under the Laws of War, for any offences committed by members of his command without his sanction. Liability for war crimes was imposed on the persons who committed the crimes and on the officers who ordered the commission thereof. The war crime of a subordinate, committed without the order, authority or knowledge of his superior, was not a war crime on the part of the superior. The pleadings now before the Commission did not allege that the accused ordered, authorised or had knowledge of the commission of any of the alleged atrocities or war crimes. Without such an allegation, it was submitted, the cause must be dismissed as not stating an offence under the Laws of War.
The Defence claimed that if a violation of the Laws of War was not alleged, the Military Commission had no jurisdiction to hear the cause. In the case of the saboteurs, Ex Parte Quirin [Outline details of the case], decided in 1942, the judgment of the Supreme Court stated that : Congress . . . has exercised its authority to define and punish offences against the law of nations by sanctioning, within constitutional limitations, the jurisdiction of military commissions to try persons and offences which, according to the rules and precepts of the law of nations, and more particularly the Law of War, are cognisable by such tribunals. . . . We are concerned only with the question of whether it is within the constitutional power of the national government to place petitioners on trial before a military commission for the offences with which they are charged. We must therefore first inquire whether any of the acts charged is an offence against the Law of War cognisable before a military tribunal, and if so, whether the Constitution prohibits the trial.(Footnote 1: Ex Parte Quirin et al, 317 U.S.l, 1942. ) Ex Parte Quirin et al, 317 U.S.l, 1942.
The Supreme Court found that the allegations contained in the charges against Quirin and his associates were offences within the Laws of War. Defence Counsel submitted that, had they found these allegations not related to offences against the Laws of War, the Supreme Court would have ruled that the military commission had no jurisdiction.
Defence Counsel maintained that there were two other grounds for the proposition that the Commission had no jurisdiction to try the case. The Commission was appointed by the Commanding General of Army Forces, Western Pacific, pursuant to authority delegated to him by the Commander-in-Chief, Army Forces, Pacific. The record did not, however, said Counsel, show any grant of authority from the President of the United States to the Commander-in-Chief, Army Forces, Pacific. Neither the Commander-in-Chief, Army Forces, Pacific, nor the Commanding General, Army Forces, Western Pacific, in the submission of the Defence, had authority to take the above-mentioned action. It was well settled that, in the absence of express statutory authority, a military commander had power to appoint a military commission only (a) as an exercise of martial law, (b) as an exercise of military government in occupied territory, or (c) as an incident of military operations during a period of hostilities. This principle was stated in Winthrop, Military Law and Precedents, on page 936.
There existed, said Counsel, neither martial law nor military government in the Philippines, and hostilities had ceased on or about 2nd September, 1945. There was no justification in law for the exercise by the Commander-in-Chief of the Army Forces, Pacific, of the extraordinary power by virtue of which the Commission was set up. The fundamental principle involved was apparently within the contemplation of the Commander-in-Chief, Army Forces, Pacific, when he issued the letter of 24th September, 1945, upon which the Commission based its authority, because paragraph 3 of his letter read as follows : The Military Commissions established hereunder shall have jurisdiction over all Japan and all other areas occupied by the armed forces commanded by the Commander-in-Chief, Army Forces, Pacific. The Philippine Islands, Counsel pointed out, were not areas occupied by the armed forces. The above-mentioned letter, consequently, did not
grant authority to set up military commissions in the Philippine Islands ; and Special Orders No. 112, Headquarters, United States Army Forces, Western Pacific, dated 1st October, 1945, was therefore without authority.
Paragraph 271 of the War Department Basic Field Manual, Rules of Land Warfare, in its reprint of Article 42 of the Annex of the Hague Convention No. IV of 1907, said that : A territory is considered occupied when it is actually placed under the authority of the hostile army. The United States was not and never had been a hostile army with respect to the Philippine Islands. The re-entry into the Philippine Islands in 1944 and 1945 had constituted a recovery of territory, not an occupation. From the date of re-entry on Philippine soil, General MacArthur had consistently affirmed and recognised the full governmental responsibility of the Philippine Commonwealth. This was evidenced by publications in the Official Gazette, April 1945, page 86 ; May 1945, pages 145 to 148 ; and September 1945, page 494. On 22nd August, 1945, General MacArthur issued the following proclamation : Effective on 1st September, 1945, United States Army Forces in the Pacific shall cease from further participation in the self-administration of the Philippines, as such is no longer necessary.
Counsel claimed that if the projected trial should result in the conviction and sentence of the accused, such action would be subject to reversal, and made the following statement : As officers of the United States Army, and as lawyers appointed to defend the accused, Defence Counsel are charged with a duty to the accused, to the Army, and to the people of the United States to pursue all proper legal remedies open to the Defence, including, if warranted, recourse to the Federal courts, and more particularly, the Supreme Court of the United States-citing again the Quirin case.
In his reply, the Prosecutor submitted that there was no reason for the Commission to reverse its previous decision of 8th October, 1945, to deny the motion to dismiss. The mere fact that a Bill of Particulars and a Supplemental Bill of Particulars had subsequently been presented to the Commission had no bearing upon the issue. In any case, it was beyond question that the Commission had no authority to dismiss this proceeding, It was under direct orders of the Commanding General, Army Forces, Western Pacific, to proceed with the trial of Tomoyuki Yamashita. The Letter Order of General MacArthur, as Commander-in-Chief of the United States Army Forces, Pacific, dated 24th September, 1945, and addressed to the Commanding General, United States Army Forces, Western Pacific, stated : It is desired that you proceed immediately with the trial of General Tomoyuki Yamashita, now in your custody, for the crimes indicated in the attached charge. Special Orders No. 112, dated 1st October, 1945, being the Order of the Commanding General, Army Forces, Western Pacific, establishing the Military Commission and directing its proceedings, required that it should follow the provisions of the above-mentioned letter. The Prosecutor concluded, therefore, that the Commission had no authority to dismiss the case at this stage. It must try Tomoyuki Yamashita and, in order to accomplish that task, it must hear the Prosecutions case.
Called upon to offer his arguments in rebuttal, Defence Counsel claimed that, if the officer who gave the direction to try Tomoyuki Yamashita had
no jurisdiction to appoint a commission, he had no jurisdiction to order the trial of General Yamashita. The courts of the Commonwealth were open for any crimes which were committed by any member of the Japanese forces while they were in occupation of the Philippine Islands. He added that the present motion was not based on the Charge alone as had been the original motion to dismiss ; it was based on the Bill of Particulars and the Supplemental Bill, which did not state an offence against the Laws of War. The Defence had understood that the Bill of Particulars would cure the defects in the Charge but this had not been so.
The Commission rejected the second Defence motion to dismiss the case.
(ix) A Question relating to the Status of the Accused
The final motion put forward by the Defence before the Prosecutors opening speech was one to cause the Prosecution to state for the record whether or not any notice had been given to the protecting power of the Japanese government concerning the trial of the case now before the Commission, in accordance with Article 60 of the Geneva Convention and paragraph 133 of Field Manual 27-10. The Prosecutor pointed out that Defence Counsel was basing his inquiry on the assumption that the accused was a prisoner-of-war. He claimed, however, that Yamashita was not before the Commission as a prisoner-of-war but as an alleged war criminal. The Prosecutor had therefore no objection to stating, for the benefit of the record, that so far as he knew, the United States of America had not given any notification, official notification, to the Government of Spain, the protecting power of Japan, that Tomoyuki Yamashita was being tried as a prisoner-of-war, for the reason that he was not being so tried. The Geneva Convention had no application to the case.
The President of the Commission then ruled that the request of the Defence Counsel had been adequately discussed by the Prosecution, within the limits of the information which would ordinarily be available, and requested the Prosecution to open its case.
(x) Some Later Events Relating to the Preparation of the Defence
This appears to be the most appropriate place to set out certain further requests for a continuance made by the Defence, and related events, which were referred to by Mr. Justice Rutledge in the course of his dissenting judgment on the motion and petition which Yamashita brought before the Supreme Court of the United States. (Footnote 1: See p.62)
On 29th October, 1945, near the end of the days sittings, the President of the Commission interrupted the Prosecutor, who was about to call certain evidence relating to an item contained in the Supplemental Bill of Particulars, and stated that the Commission would not at that time listen to testimony or discussion on the item in question. In response to an inquiry by the Prosecution, the Defence indicated that it would require two weeks before it could proceed on the Supplemental Bill.
On 2nd November, 1945, after the Commission had received an affirmative answer to its inquiry whether the Defence was ready to proceed with an item in the Supplemental Bill which the Prosecution proposed to prove, the President said to the Defence Counsel : Hereafter, then, unless there is no (sic) objection by the Defence, the Commission will assume that you are prepared to proceed with any items in the Supplemental Bill. On 6th November, 1945, the Prosecution enquired when the Defence would be ready to proceed on certain further items in the Supplemental Bill, and the Prosecutor added : Frankly, sir, it took the War Crimes Commission some three months to investigate these matters and I cannot conceive of the Defence undertaking a similar investigation with any less period of time. At this point, the President stated : Let the Commission answer that. We realise the tremendous task which we placed upon the Defence and with which they are faced and it is our determination to give them the time they require. We ask that no time be wasted and we feel confident that you will not waste any, and we will see to it that you get time to prepare your defence.
On 12th November, 1945, the Commission announced that it would grant a continuance only for the most urgent and unavoidable reasons. The Commission went on to question the need for all of the six officers representing the defence to be present during presentation of all the case, suggested that one or two would be adequate and others should be out of the court-room engaged in performing specific missions for Senior Counsel, and suggested bringing in additional Counsel, that need to request continuance may not arise.
Finally, on 20th November, at the end of the presentation of the evidence for the Prosecution, the Defence moved for a reasonable continuance. Counsel stated that during the time the court had been in session, the Defence had had no time to prepare any affirmative defence, since they had had to work day and night to keep up with the new Bill of Particulars.
The Commission denied the motion ; in announcing its decision the President stated that in open session and in chambers the Commission had cautioned both Prosecution and Defence to so plan their preparation as to avoid the necessity of asking for a continuance, recalled the words used by the Commission on 12th November, and repeated that the Commission had, from an early point in the trial, from time to time invited the Defence to apply for the appointment of additional Counsel.
Counsel for the Defence 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 Defence should be prepared at least on its opening statement, to which Senior Counsel answered : We havent had time to do that, sir. The Commission then recessed until 8.30 the following morning.