Edited Text © Matthew Woessner 2005
IN RE YAMASHITA (1946) Majority Decision
7 to 2 in favor of the government and against General Yamashita
OPINION MR. CHIEF
JUSTICE STONE delivered the opinion of the Court.
From the petitions and supporting papers it appears that prior to
September 3, 1945, petitioner was the 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 the same date a bill of particulars was filed by the prosecution, and the
commission heard a motion made in petitioner's behalf to dismiss the charge on
the ground that it failed to state a violation of the law of war. On October
29th the commission was reconvened, a supplemental bill of particulars was
filed, and the motion to dismiss was denied. The trial then proceeded until its
conclusion on December 7, 1945, the commission hearing two hundred and
eighty-six witnesses, who gave over three thousand pages of testimony. On that
date petitioner was found guilty of the offense as charged and sentenced to
death by hanging.
The petitions for habeas corpus set up that the detention of petitioner for the
purpose of the trial was unlawful for reasons which are now urged
as showing that the military commission was without lawful authority or
jurisdiction to place petitioner on trial, as follows:
(a) That the military commission which tried and convicted petitioner was not
lawfully created, and that no military commission to try petitioner for
violations of the law of war could lawfully be convened after the cessation of
hostilities between the armed forces of the United States and Japan;
(b) That the charge preferred against petitioner fails to charge him with a
violation of the law of war;
(c) That the commission was without authority and jurisdiction to try and
convict petitioner because the order governing the procedure of the commission
permitted the admission in evidence of depositions, affidavits and hearsay and
opinion evidence, and because the commission's rulings admitting such evidence
were in violation of the 25th and 38th Articles of War and the Geneva Convention,
and deprived petitioner of a fair trial in violation of the due process clause
of the Fifth Amendment;
(d) That the commission was without authority and
jurisdiction in the premises because of the failure to give advance notice of
petitioner's trial to the neutral power representing the
interests of Japan as a belligerent as required by Article 60 of the Geneva
Convention….
On the same grounds the petitions for writs of prohibition set up that the
commission is without authority to proceed with the trial.
The Supreme Court of the Philippine Islands, after hearing argument, denied the
petition for habeas corpus presented to it, on the ground, among others, that
its jurisdiction was limited to an inquiry as to the jurisdiction of the
commission to place petitioner on trial for the offense charged, and that the
commission, being validly constituted by the order of General Styer, had jurisdiction over the person of petitioner and
over the trial for the offense charged.
In Ex parte Quirin,
317
We further pointed out that Congress, by sanctioning trial of enemy combatants
for violations of the law of war by military commission, had not attempted to
codify the law of war or to mark its precise boundaries. Instead, by Article 15
it had incorporated, by reference, as within the preexisting
jurisdiction of military commissions created by appropriate military command,
all offenses which are defined as such by the law of war, and which may
constitutionally be included within that jurisdiction. It thus adopted the
system of military common law applied by military tribunals so far as it should
be recognized and deemed applicable by the courts, and as further defined and
supplemented by the Hague Convention, to which the United States and the Axis
powers were parties.
We also emphasized in Ex parte Quirin,
as we do here, that on application for habeas corpus we are not concerned with
the guilt or innocence of the petitioners. We consider here only the lawful
power of the commission to try the petitioner for the offense charged. In the
present cases it must be recognized throughout that the military tribunals
which Congress has sanctioned by the Articles of War are not courts whose
rulings and judgments are made subject to review by this Court. See Ex parte Vallandigham… Ex
parte Quirin, supra,
39. They are tribunals whose determinations are reviewable
by the military authorities either as provided in the military orders
constituting such tribunals or as provided by the Articles of War. Congress
conferred on the courts no power to review their determinations save only as it
has granted judicial power "to grant writs of habeas corpus for the
purpose of an inquiry into the cause of restraint of liberty."…. The
courts may inquire whether the detention complained of is within the authority
of those detaining the petitioner. If the military tribunals have lawful
authority to hear, decide and condemn, their action is not subject to judicial
review merely because they have made a wrong
decision on disputed facts. Correction of their errors of decision is not for
the courts but for the military authorities which are alone authorized to
review their decisions…
Finally, we held in Ex parte Quirin…
as we hold now, that Congress by sanctioning trials of enemy aliens by
military commission for offenses against the law of war had recognized the
right of the accused to make a defense…. It has not foreclosed their
right to contend that the Constitution or laws of the
With these governing principles in mind we turn to the consideration of the
several contentions urged to establish want of authority in the commission. We
are not here concerned with the power of military commissions to try
civilians…. The Government's contention is that General Styer's order creating the commission conferred authority
on it only to try the purported charge of violation of the law of war committed
by petitioner, an enemy belligerent, while in command of a hostile army
occupying United States territory during time of war. Our first inquiry must
therefore be whether the present commission was created by lawful military
command and, if so, whether authority could thus be conferred on the commission
to place petitioner on trial after the cessation of hostilities between the
armed forces of the
The authority to create the commission. General Styer's
order for the appointment of the commission was made by him as Commander of the
United States Army Forces, Western Pacific. His command includes, as part
of a vastly greater area, the Philippine Islands, where the
alleged offenses were committed, where petitioner surrendered as a prisoner of
war, and where, at the time of the order convening the commission, he was
detained as a prisoner in custody of the United States Army. The congressional
recognition of military commissions and its sanction of their use in trying
offenses against the law of war to which we have referred, sanctioned their
creation by military command in conformity to long-established American
precedents. Such a commission may be appointed by any field commander, or by
any commander competent to appoint a general court-martial, as was General Styer, who had been vested with that power by order of the
President….
Here the commission was not only created by a commander competent to appoint
it, but his order conformed to the established policy of the Government and to
higher military commands authorizing his action. In a proclamation of
By direction of the President, the Joint Chiefs of Staff of the American
Military Forces, on September 12, 1945, instructed General MacArthur,
Commander in Chief, United States Army Forces, Pacific, to proceed with the
trial, before appropriate military tribunals, of such Japanese
war criminals "as have been or may be apprehended." By
order of General MacArthur of
It thus appears that the order creating the commission for the trial of
petitioner was authorized by military command, and was in complete conformity
to the Act of Congress sanctioning the creation of such tribunals for the trial
of offenses against the law of war committed by enemy combatants. And we turn
to the question whether the authority to create the commission and direct the
trial by military order continued after the cessation of hostilities.
An important incident to the conduct of war is the adoption of measures by the
military commander, not only to repel and defeat the enemy, but to seize and
subject to disciplinary measures those enemies who, in their attempt to thwart
or impede our military effort, have violated the law of war. Ex parte Quirin, supra, 28. The
trial and punishment of enemy combatants who have committed violations of the
law of war is thus not only a part of the conduct of war operating as a
preventive measure against such violations, but is an exercise of the authority
sanctioned by Congress to administer the system of military justice recognized
by the law of war. That sanction is without qualification as to the exercise of
this authority so long as a state of war exists -- from its
declaration until peace is proclaimed….The war power, from which the
commission derives its existence, is not limited to victories in the field, but
carries with it the inherent power to guard against the immediate renewal of
the conflict, and to remedy, at least in ways Congress has recognized, the
evils which the military operations have produced….
We cannot say that there is no authority to convene a commission after
hostilities have ended to try violations of the law of war committed before
their cessation, at least until peace has been officially recognized by treaty
or proclamation of the political branch of the Government. In fact, in most
instances the practical administration of the system of military justice under
the law of war would fail if such authority were thought to end with the
cessation of hostilities. For only after their cessation could the greater
number of offenders and the principal ones be apprehended and subjected to
trial.
No writer on international law appears to have regarded the power of military
tribunals, otherwise competent to try violations of the law of war, as
terminating before the formal state of war has ended. In our own military history there have been
numerous instances in which offenders were tried by military commission after
the cessation of hostilities and before the proclamation of
peace, for offenses against the law of war committed before the cessation of
hostilities.
The extent to which the power to prosecute violations of the law of war shall
be exercised before peace is declared rests, not with the courts, but with the
political branch of the Government, and may itself be governed by the terms of
an armistice or the treaty of peace. Here, peace has not been agreed upon or
proclaimed.
The charge. Neither congressional action nor the military orders
constituting the commission authorized it to place petitioner on trial unless
the charge preferred against him is of a violation of the law of war. The
charge, so far as now relevant, is that petitioner, between October 9, 1944 and
September 2, 1945, in the Philippine Islands, "while 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
. . . thereby violated the laws of war."
Bills of particulars, filed by the prosecution by order of the commission,
allege a series of acts, one hundred and twenty-three in number,
committed by members of the forces under petitioner's command during the period
mentioned. The first item specifies the execution of "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 noncombatant civilians, were
brutally mistreated and killed, without cause or trial, and entire settlements
were devastated and destroyed wantonly and without military necessity."
Other items specify acts of violence, cruelty and homicide inflicted upon the
civilian population and prisoners of war, acts of wholesale pillage and the
wanton destruction of religious monuments.
It is not denied that such acts directed against the civilian population of an
occupied country and against prisoners of war are recognized in international
law as violations of the law of war. Articles 4, 28, 46, and 47, Annex to the
Fourth Hague Convention, 1907… But it is urged that the charge does not
allege that petitioner has either committed or directed the commission of such
acts, and consequently that no violation is charged as against him. But this
overlooks the fact that the gist of the charge is an unlawful breach of duty by
petitioner as an army commander to control the operations of the members of his
command by "permitting them to commit" the extensive and widespread
atrocities specified. The question then is whether the law of war imposes
on an army commander a duty to take such appropriate measures as
are within his power to control the troops under his command for the prevention
of the specified acts which are violations of the law of war and which are
likely to attend the occupation of hostile territory by an uncontrolled
soldiery, and whether he may be charged with personal responsibility for his
failure to take such measures when violations result. That this was the precise
issue to be tried was made clear by the statement of the prosecution at the
opening of the trial.
It is evident that the conduct of military operations by troops whose excesses
are unrestrained by the orders or efforts of their commander would almost
certainly result in violations which it is the purpose of the law of war to
prevent. Its purpose to protect civilian populations and
prisoners of war from brutality would largely be defeated if the commander of
an invading army could with impunity neglect to take reasonable measures for
their protection. Hence the law of war presupposes that its violation is to be
avoided through the control of the operations of war by commanders who are to
some extent responsible for their subordinates.
This is recognized by the Annex to the Fourth Hague Convention of 1907,
respecting the laws and customs of war on land. Article 1 lays down as a
condition which an armed force must fulfill in order to be accorded the rights
of lawful belligerents, that it must be "commanded by a person responsible
for his subordinates." 36 Stat. 2295. Similarly Article 19 of the Tenth
Hague Convention, relating to bombardment by naval vessels, provides that
commanders in chief of the belligerent vessels "must see that the above
Articles are properly carried out."… And Article 26 of the Geneva
Red Cross Convention of 1929… for the amelioration of the condition of
the wounded and sick in armies in the field, makes it "the duty of the
commanders-in-chief of the belligerent armies to provide for the
details of execution of the foregoing articles, [of the convention] as well as
for unforeseen cases . . ." And, finally, Article 43 of the Annex of the
Fourth Hague Convention,… requires that the commander of a
force occupying enemy territory, as was petitioner, "shall take all the
measures in his power to restore, and ensure, as far as possible, public order
and safety, while respecting, unless absolutely prevented, the laws in force in
the country."
These provisions plainly imposed on petitioner, who at the time specified was
military governor of the
We do not make the laws of war but we respect them so far as they do not
conflict with the commands of Congress or the Constitution. There is no
contention that the present charge, thus read, is without the support of
evidence, or that the commission held petitioner responsible for failing to
take measures which were beyond his control or inappropriate for a commanding
officer to take in the circumstances.
We do not here appraise the evidence on which petitioner was convicted.
We do not consider what measures, if any, petitioner took to prevent the
commission, by the troops under his command, of the plain violations of the law
of war detailed in the bill of particulars, or whether such measures as he may
have taken were appropriate and sufficient to discharge the duty imposed upon
him. These are questions within the peculiar competence of the military
officers composing the commission and were for it to decide. See Smith
v. Whitney, 116
Obviously charges of violations of the law of war triable
before a military tribunal need not be stated with the precision of a common
law indictment. Cf. Collins v. McDonald, supra, 420. But we
conclude that the allegations of the charge, tested by any reasonable standard,
adequately allege a violation of the law of war and that the
commission had authority to try and decide the issue which it
raised.
The proceedings before the commission. The regulations prescribed by
General MacArthur governing the procedure for the
trial of petitioner by the commission directed that the commission should admit
such evidence "as in its opinion would be of assistance in proving or
disproving the charge, or such as in the commission's opinion would have
probative value in the mind of a reasonable man," and that in particular
it might admit affidavits, depositions or other statements taken by officers
detailed for that purpose by military authority. The petitions in this case
charged that in the course of the trial the commission received, over objection
by petitioner's counsel, the deposition of a witness taken pursuant to military
authority by a United States Army captain. It also, over like objection,
admitted hearsay and opinion evidence tendered by the prosecution. Petitioner
argues, as ground for the writ of habeas corpus, that Article 25 n5 of the
Articles of War prohibited the reception in evidence by the commission of
depositions on behalf of the prosecution in a capital case, and that Article 38
n6 prohibited the reception of hearsay and of opinion evidence.
We think that neither Article 25 nor Article 38 is applicable to the trial of
an enemy combatant by a military commission for violations of the law of war.
Article 2 of the Articles of War enumerates "the persons . . . subject to
these articles," who are denominated, for purposes of the Articles, as
"persons subject to military law." In general, the persons so
enumerated are members of our own Army and of the personnel accompanying the
Army. Enemy combatants are not included among them. Articles 12, 13 and 14,
before the adoption of Article 15 in 1916, made all "persons subject to
military law" amenable to trial by courts-martial for any offense made
punishable by the Articles of War. Article 12 makes triable
by general court-martial "any other person who by the law of war is
subject to trial by military tribunals." Since Article 2, in its 1916
form, includes some persons who, by the law of war, were, prior to 1916, triable by military commission, it was feared by the
proponents of the 1916 legislation that in the absence of a saving provision,
the authority given by Articles 12, 13 and 14 to try such persons before
courts-martial might be construed to deprive the non-statutory military
commission of a portion of what was considered to be its traditional
jurisdiction. To avoid this, and to preserve that jurisdiction
intact, Article 15 was added to the Articles. It
declared that "The provisions of these articles
conferring jurisdiction upon courts-martial shall not be construed as
depriving military commissions . . . of concurrent jurisdiction in respect of
offenders or offenses that . . . by the law of war may be triable
by such military commissions."
By thus recognizing military commissions in order to preserve their traditional
jurisdiction over enemy combatants unimpaired by the Articles, Congress gave
sanction, as we held in Ex parte Quirin, to any use of the military commission
contemplated by the common law of war. But it did not thereby make subject to
the Articles of War persons other than those defined by Article 2 as being
subject to the Articles, nor did it confer the benefits of the Articles upon
such persons. The Articles recognized but one kind of military commission, not
two. But they sanctioned the use of that one for the trial of two classes of
persons, to one of which the Articles do, and to the other of which they do
not, apply in such trials. Being of this latter class, petitioner cannot claim
the benefits of the Articles, which are applicable only to the members of the
other class. Petitioner, an enemy combatant, is therefore not a person made
subject to the Articles of War by Article 2, and the military commission before
which he was tried, though sanctioned, and its jurisdiction saved, by Article
15, was not convened by virtue of the Articles of War, but pursuant to the
common law of war. It follows that the Articles of War, including Articles 25
and 38, were not applicable to petitioner's trial and imposed no restrictions
upon the procedure to be followed. The Articles left the control over the
procedure in such a case where it had previously been, with the military
command.
Petitioner further urges that by virtue of Article 63 of the Geneva Convention
of 1929, 47 Stat. 2052, he is entitled to the benefits afforded by the 25th and
38th Articles of War to members of our own forces. Article 63 provides:
"Sentence may be pronounced against a prisoner of war only
by the same courts and according to the same procedure as in the case of
persons belonging to the armed forces of the detaining Power." Since petitioner
is a prisoner of war, and as the 25th and 38th Articles of War apply to the
trial of any person in our own armed forces, it is said that Article 63
requires them to be applied in the trial of petitioner. But we think
examination of Article 63 in its setting in the Convention plainly shows that
it refers to sentence "pronounced against a prisoner of war" for an
offense committed while a prisoner of war, and not for a violation of the law
of war committed while a combatant.
Article 63 of the Convention appears in part 3, entitled "Judicial
Suits," of Chapter 3, "Penalties Applicable to Prisoners of
War," of § V, "Prisoners'
Relations with the Authorities," one of the sections of Title III,
"Captivity." All taken together relate only to the conduct and
control of prisoners of war while in captivity as such. Chapter 1 of § V, Article 42 deals with complaints of
prisoners of war because of the conditions of captivity. Chapter
2, Articles 43 and 44, relates to those of their number chosen by prisoners of
war to represent them.
Chapter 3 of § V, Articles 45
through 67, is entitled "Penalties Applicable to Prisoners of War."
Part 1 of that chapter, Articles 45 through 53, indicate what acts of prisoners
of war, committed while prisoners, shall be considered offenses, and defines to
some extent the punishment which the detaining power may impose
on account of such offenses. Punishment
is of two kinds -- "disciplinary" and
"judicial," the latter being the more severe. Article 52 requires
that leniency be exercised in deciding whether an offense requires disciplinary
or judicial punishment. Part 2 of Chapter 2 is entitled "Disciplinary
Punishments," and further defines the extent of such punishment, and the
mode in which it may be imposed. Part 3, entitled "Judicial Suits," in
which Article 63 is found, describes the procedure by which
"judicial" punishment may be imposed. The three parts of Chapter 3,
taken together, are thus a comprehensive description of the substantive
offenses which prisoners of war may commit during their imprisonment, of the
penalties which may be imposed on account of such offenses, and of the
procedure by which guilt may be adjudged and sentence pronounced.
We think it clear, from the context of these recited provisions, that part 3,
and Article 63, which it contains, apply only to judicial proceedings directed
against a prisoner of war for offenses committed while a prisoner of war.
Section V gives no indication that this part was designed to deal
with offenses other than those referred to in parts 1 and 2 of Chapter 3.
We cannot say that the commission, in admitting evidence to which objection is
now made, violated any act of Congress, treaty or military command defining the
commission's authority. For reasons already stated we hold that the commission's
rulings on evidence and on the mode of conducting these proceedings against
petitioner are not reviewable by the courts, but only
by the reviewing military authorities. From this viewpoint it is unnecessary to
consider what, in other situations, the Fifth Amendment might require, and as
to that no intimation one way or the other is to be implied.
Nothing we have said is to be taken as indicating any opinion on the question
of the wisdom of considering such evidence, or whether the action of a military
tribunal in admitting evidence, which Congress or controlling military command
has directed to be excluded, may be drawn in question by petition for habeas
corpus or prohibition.
Effect of failure to give notice of the trial to the protecting power.
Article 60 of the Geneva Convention of July 27, 1929, 47 Stat. 2051, to which
the United States and Japan were signatories, provides that "At the
opening of a judicial proceeding directed against a prisoner of war, the
detaining Power shall advise the representative of the protecting Power thereof
as soon as possible, and always before the date set for the opening of the
trial." Petitioner relies on the failure to give the prescribed notice to
the protecting power n9 to establish want of authority in the
commission to proceed with the trial.
For reasons already stated we conclude that Article 60 of the Geneva
Convention, which appears in part 3, Chapter 3, §
V, Title III of the Geneva Convention, applies only to persons who are
subjected to judicial proceedings for offenses committed while prisoners of war.
It thus appears that the order convening the commission was a lawful order,
that the commission was lawfully constituted, that petitioner was charged with
violation of the law of war, and that the commission had
authority to proceed with the trial, and in doing so did not violate any
military, statutory or constitutional command. We have considered, but find it
unnecessary to discuss, other contentions which we find to be without merit. We
therefore conclude that the detention of petitioner for trial and his detention
upon his conviction, subject to the prescribed review by the military
authorities, were lawful, and that the petition for certiorari, and leave to
file in this Court petitions for writs of habeas corpus and
prohibition should be, and they are.
Denied.
MR. JUSTICE JACKSON took no part in the consideration or decision of these
cases.