Trial
of General Tomoyuki Yamashita
Case
No. 21
IV
Law Reports of Trials of War Criminals 1
(
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 accused’s 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 Yamashita’s 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,
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 Prosecution’s 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 Prosecution’s 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
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 :
(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
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
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 accused’s 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
The allegation that atrocities were committed according to a plan was made not only in paragraph 1, already quoted, 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 ” :
“ 14. RIGHTS OF THE ACCUSED. The accused shall be entitled:
“ (a) 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.”
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 Prosecution’s case, when they could move for a judgment of acquittal.
He submitted, however, that there was no provision in the Commission’s 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 accused’s 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
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.
(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 Prosecution’s 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
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
Defence Counsel’s answer was that the Fifth Amendment of the Constitution
of the
(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 Prosecution’s 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 Commission’s 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 Prosecutor’s 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 accused’s 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, 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
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
There existed, said Counsel, neither martial law nor military government in
the
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
” 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 Prosecution’s 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 Prosecutor’s 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
On 29th October, 1945, near the end of the day’s 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 haven’t had time to do that, sir.” The Commission then recessed until 8.30 the following morning
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 Yamashita’s command :
“ We will open our case with proof that the accused, Yamashita, was Commander of the Army Forces in the Philippines during the period stated in the charge-that is to say, from 9th October, 1944, to the time of surrender, September 1945 ; that in addition he commanded, as a part of those forces, or attached thereto, the so-called ‘ Kempei Tai ‘, or military police. We will show also that he had overall command of the prisoner-of-war camps and civilian internment camps, labour camps, and other installations containing prisoners of war and other internees in all the Philippine Islands.
“ We will show that his area or territory of command included all of the Philippine Islands, the entire area so known. We will show that at times he also commanded Navy forces and air forces, particularly when engaged as ground troops.”
The Prosecutor then set out the essence of the case against the accused, in the following words :
“ We will then show that various elements, individuals, units, organisations, officers, being a part of those forces under the command of the accused, did commit a wide pattern of widespread, notorious, repeated, constant atrocities of the most violent character ; that those atrocities were spread from the northern portion of the Philippine Islands to the southern portion ; that they continued, as I say, repeatedly throughout the period of Yamashita’s command ; that they were so notorious and so flagrant and so enormous, both as to the scope of their operation and as to the inhumanity, the bestiality involved, that they must have been known to the accused if he were making any effort whatever to meet the responsibilities of his command or his position ; and that if he did not know of those acts, notorious, wide-spread, repeated, constant as they were, it was simply because he took affirmative action not to know. That is our case.”
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 to its proceedings :
“ Furthermore, sir, the Articles of War do not apply to this Commission in any particular. It is so ruled by the Judge Advocate-General, and if the Commission or Defence so desires I will be glad to supply a copy of that recent ruling. The Articles of War are not binding upon, do not apply to this Commission.
“ This Commission, sir, is not a judicial body ; it is an executive tribunal set up by, the Commander-in-Chief-more specifically, the Commanding General, AFWESPAC-for the purpose of hearing the evidence on this charge, and of advising him, along with the Commander-in-Chief of the Army Forces of the Pacific, as to the punishment, in the event that the Commission finds the charge to be sustained. It is an executive body, and not a judicial body.”
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 :
“ Defence will show that the accused never ordered the commission of any crime or atrocity ; that the accused never gave permission to anyone to commit any crimes or atrocities ; that the accused had no knowledge of the commission of the alleged crimes or atrocities ; that the accused had no actual control of the perpetrators of the atrocities at any time that they occurred, and that the accused did not then and does not now condone, excuse or justify any atrocities or violation of the laws of war.
“ On the matter of control we shall elaborate upon a number of facts that have already been suggested to the Commission in our cross-examination of the Prosecution’s witnesses :
1. That widespread, devastating guerilla activities created an atmosphere in which control of troops by high ranking officers became difficult or impossible
2. That guerilla activities and American air and combat activities disrupted communications and in many areas destroyed them altogether, making control by the accused a meaningless concept. And
3. That in many of the atrocities alleged in the Bill of Particulars there was not even paper control ; the chain of command did not channel through the accused at all. . . . “
You will see the picture of a General working under terrific pressure and difficulty, subject to last-minute changes in tactical plans ordered from higher headquarters, and a man who when he arrived in Luzon actually had command over less than half of the ground troops in the Island.”
8. THE EVIDENCE BEFORE THE COMMISSION
As the President of the Commission pointed out, 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
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
Joaquin Galang, who claimed to have been a friend of Ricarte, stated that in December 1944, Yamashita visited Ricarte, and the former rejected Ricarte’s request that the order to kill all Philippine inhabitants and destroy Manila be revoked ; speaking through Ricarte’s 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
Richard Sakakida stated that he had been an interpreter in the office of Yamashita’s 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 Yamashita’s 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
“ I further certify that, in response to proposals made by the Government
of the United States through the Swiss Minister in Tokyo, the Swiss Minister
telegraphed on 30th January, 1942, that the ‘ Japanese Government has informed
me : “. . . Although not bound by the Convention relative treatment prisoners
of war
Filemon Castillejos, a Filipino, after describing the killing of three American prisoners of war by Japanese troops belonging to General Tajima’s 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
(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
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 former’s 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 witness’s grandfather had never made to Yamashita in the witness’s 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
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
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
Lieutenant-Colonel Ishikawa of Yamashita’s 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
Lieutenant-General Koh, who had been Commanding General of Prison and
Internment Camps in the
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
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
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
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 14th Army Group was subordinate to the Supreme Southern Command under
Count Terauchi, whose headquarters was in
“ To unify the 14th Command, General Yamashita requested that 30,000 troops
under the Southern Command be transferred to him. This was accomplished in the
early part of December. The 4th Air Army came under his command on 1st January,
1945, the 3rd Maritime Transport Command came under his command during the
period 15th January to 15th February of this year. The navy never came under his
command, but the naval troops in the City of
“This limited command . . . involved the right to order naval troops to advance or to retreat, but did not include the command of such things as personnel, discipline, billeting or supply. . . .
“After the American
victory on Leyte, the Japanese situation on
“The history of General Yamashita’s command in the
The Defence maintained that the
In the submission of the Defence no kind of plan was discernible in the
It was pointed out that General Yamashita arrived in
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
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 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
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 accused’s 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 Yamashita’s 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 :
“ Under these circumstances I had to plan, study and carry out plans of how
to combat superior American forces, and it took all of my time and effort.
“ At the time of my arrival I was unfamiliar with the Philippine situation,
and nine days after my arrival I was confronted with a superior American force.
Another thing was that I was not able to make a personal inspection and to
co-ordinate the units under my command. . . . It was impossible to unify my
command, and my duties were extremely complicated.
“ Another matter was that the troops were scattered about a great deal and the
communications would of necessity have to be good, but the Japanese
communications were very poor. . . .
“ Reorganisation of the military force takes quite a while, and these various
troops, which were not under my command, such as the Air Force and the Third
Maritime Command . . . were gradually entering the command one at a time, and it
created a very complicated situation. . . . Under the circumstances I was forced
to confront the superior
“ Besides this I put all my effort to get the maximum efficiency and the best
methods in the training of troops and the maintaining of discipline, and even
during combat I demanded training and main: tenance of discipline. However, they
were inferior troops, and there simply wasn’t enough time to bring them up to
my expectations. . . .
“ We managed to maintain some liaison, but it was gradually cut off, and I
found myself completely out of touch with the situation. I believe that under
the foregoing conditions I did the best possible job I could have done. However,
due to the above circumstances, my plans and my strength were not sufficient to
the situation, and if these things happened they were absolutely unavoidable.”
The Defence submitted that General Yamashita’s 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, 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
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
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.
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
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
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
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.” ”)[Emphasis added]. 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. Wharton’s 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.
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 Commission has heard 286 persons during the course of this trial, most of
whom have given eye-witness accounts of what they endured or what they saw. They
included doctors and nurses ; lawyers, teachers, businessmen ;men and women of
religious orders ; prisoners of war and civilian internees ; officers of the
United States Army; officers of the Japanese Army and Navy ; Japanese civilians
; a large number of men, women and children of the Philippines ; and the
accused. Testimony has been given in eleven languages or dialects. Many of the
witnesses displayed incredible scars of wounds which they testified were
inflicted by Japanese from whom they made miraculous escapes followed by
remarkable physical recovery. For the most part, we have been impressed by the
candour, honesty and sjncerity of the witnesses whose testimony is contained in
4055 pages in the record of trial.
“ We have received for analysis and evaluation 423 exhibits consisting of
official documents of the United States Army, the United States State
Department, and the Commonwealth of the Philippines ; affidavits ; captured
enemy documents or translations thereof ; diaries taken from Japanese personnel,
photographs, motion picture films, and Manila newspapers.”
The
President then went on to set out what may be regarded as the essential facts of
the case as follows :
“
The Prosecution presented evidence to show that the crimes were so extensive and
widespread, both as to time and area, that they must either have been wilfully
permitted by the accused, or secretly ordered by the accused. Captured orders
issued by subordinate officers of the accused were presented as proof that they,
at least, ordered certain acts leading directly to exterminations of civilians
under the guise of eliminating the activities of guerrillas hostile to
“ The Defence established the difficulties faced by the accused with respect
not only to the swift and overpowering advance of American forces, but also to
the errors of his predecessors, weaknesses in organisation, equipment, supply
with especial reference to food and gasolene, train communication, discipline
and morale of his troops. It was alleged that the sudden assignment of Naval and
Air Forces to his tactical command presented almost insurmountable difficulties.
This situation was followed, the Defence contended, by failure to obey his
orders to withdraw troops from
The
Judgment of the Commission was delivered by the President in the following words
:
“
This accused is an officer of long years of experience, broad in its scope, who
has had extensive command and staff duty in the Imperial Japanese Army in peace
as well as war in Asia, Malaya, Europe, and the
“
General Yamashita : The Commission concludes : (1) That a series of atrocities
and other high crimes have been committed by members of the Japanese armed
forces under your command against 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.”
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 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 :
“
The Commission said inter alia :
“
‘Taken at full face value, the testimony indicates that Japanese senior
commanders operate in a vacuum, almost in another world with respect to their
troops, compared with standards American Generals take for granted.’
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 :
“
The first duty of an officer in any army is to accomplish the mission assigned
to him. This General Yamashita attempted to do, concentrating most of his time
and the time of the members of his staff on the countless operational matters
involved in the accomplishment of his mission, and thereby, of necessity,
relegating administrative functions within his command to a secondary role.”
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.