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G.R. No.

L-129
[ G.R. No. L-129, December 19, 1945 ]
TOMOYUKI YAMASITA, !"TITION"R, #S. $IL"LM D. STY"R,
%OMMANDING G"N"RAL, UNIT"D STAT"S ARMY &OR%"S,
$"ST"RN !A%I&I%, R"S!OND"NT.
D " % I S I O N
MORAN, C.J.:
Tomoyuki Yamashita, erstwhile commanding general o the !"th army grou#
o the Ja#anese $m#erial Army in the %hili##ines, and now charged &eore
an American Military Commission with the most monstrous crimes e'er
committed against the American and (ili#ino #eo#les, comes to this Court
with a #etition or ha&eas cor#us and #rohi&ition against )t. *en. +ilhelm ,.
-tyer, Commanding *eneral o the .nited -tates Army (orces, +estern
%aciic. $t is alleged therein that #etitioner ater his surrender &ecame a
#risoner o war o the .nited -tates o America &ut was later remo'ed rom
such status and #laced in coninement as an accused war criminal charged
&eore an American Military Commission constituted &y res#ondent
)ieutenant *eneral -tyer/ and he now asks that he &e reinstated to his
ormer status as #risoner o war, and that the Military Commission &e
#rohi&ited rom urther trying him, u#on the ollowing grounds:
0!1 That the Military Commission was not duly constituted, and, thereore, it
is without 2urisdiction/
031 That the %hili##ines cannot &e considered as an occu#ied territory, and
the Military Commission cannot e4ercise 2urisdiction therein/
051 That -#ain, the 6#rotecting #ower6 o Ja#an, has not &een gi'en notice
o the im#ending trial against #etitioner, contrary to the #ro'isions o the
*ene'a Con'ention o July 37, !839, and thereore, the Military Commission
has no 2urisdiction to try the #etitioner/
0"1 That there is against the #etitioner no charge o an oense against the
laws o war/ and
0:1 That the rules o #rocedure and e'idence under which the Military
Commission #ur#orts to &e acting denied the #etitioner a air trial.
+e &elie'e and so hold that the #etition or ha&eas cor#us is untena&le. $t
seeks no discharge o #etitioner rom coninement &ut merely his restoration
to his ormer status as a #risoner o war, to &e interned, not conined. The
relati'e dierence as to the degree o coninement in such eases is a matter
o military measure, disci#linary in character, &eyond the 2urisdiction o ci'il
courts.
Neither may the #etition or #rohi&ition #ros#er against )t. *en. +ilhelm ,.
-tyer. The Military Commission is not made #arty res#ondent in this case,
and although it may &e acting, as alleged, without 2urisdiction, no order may
&e issued in these #roceedings re;uiring it to rerain rom trying the
#etitioner.
(urthermore, this Court has no 2urisdiction to entertain the #etition e'en i
the commission &e 2oined as res#ondent. As we ha'e said in Ra;ui<a 's.
=radord 0##. :>, ?!, ante1, 6@ @ @ an attem#t o our ci'il courts to e4ercise
2urisdiction o'er the .nited -tates Army &eore such #eriod 0state o war1
e4#ires, would &e considered as a 'iolation o this countryAs aith, which this
Court should not &e the last to kee# and u#hold.6 0%arenthesis su##lied.1 +e
ha'e said this in a case where (ili#ino citi<ens were under coninement, and
we can say no less in a case where the #erson conined is an enemy
charged with the most heinous atrocities committed against the American
and (ili#ino #eo#les.
True that the rule was made a##lica&le in time o war, and there is a conlict
o o#inion as to whether war has already terminated. +ar is not ended
sim#ly &ecause hostilities ha'e ceased. Ater cessation o armed hostilities,
incident o war may remain #ending which should &e dis#osed o as in time
o war. 6An im#ortant incident to a conduct o war is the ado#tion o
measures &y the military command not only to re#el and deeat the enemies
&ut to sei<e and su&2ect to disci#linary measures those enemies who in their
attem#t to thwart or im#ede our military eort ha'e 'iolated the law o
war.6 0B4 #arte Cuirin, 5!7 .-., !/ ?5 -u#. Ct., 3.1 $ndeed, the #ower to
create a Military Commission or the trial and #unishment o war criminals is
an as#ect o waging war. And, in the language o a writer, a Military
Commission 6has 2urisdiction so long as a technical state o war continues.
This includes the #eriod o an armistice, or military occu#ation, u# to the
eecti'e date o a treaty o #eace, and may e4tend &eyond, &y treaty
agreement.6 0Cowles, Trial o +ar Criminals &y Military Tri&unals, American
=ar Association Journal, June, !9"".1
.#on the other hand, we ha'e once said 0%ayomo 's. (loyd, "3 %hil., 7881D
and this is a##lica&le in time o war as well as the time o #eaceDthat this
Court has no #ower to re'iew u#on ha&eas cor#us the #roceedings o a
military or na'al tri&unal, and that, in such case, 6the single in;uiry, the
test, is 2urisdiction. That &eing esta&lished, the ha&eas cor#us must &e
denied and the #etitioner remanded. That wanting, it must &e sustained,
and the #etitioner discharged.6 0$n re *rimley, !57 .. -., !"7/ !! -u#. Ct,
:"/ 5" )aw. ed., ?5?.1 (ollowing this rule in the instant case, we ind that
the Military Commission has &een 'alidly constituted and it has 2urisdiction
&oth o'er the #erson o the #etitioner and o'er the oenses with which he is
charged.
The Commission has &een 'alidly constituted &y )ieutenant *eneral -tyer &y
order duly issued &y *eneral ,ouglas MacArthur, Commander in Chie,
.nited -tates Army (orces, %aciic, in accordance with authority 'ested in
him and with radio communications rom the Joint Chies o -ta, as shown
&y B4hi&its C, B, *, and E, attached to the #etition. .nder #aragra#h 5:? o
the Rules o )and +arare, a Military Commission or the trial and
#unishment o war criminals must &e designated &y the &elligerent. And the
&elligerentAs re#resentati'e in the #resent case is none other than the
Commander in Chie o the .nited -tates Army in the %aciic. According to
the Regulations *o'erning the Trial o +ar Criminals in the %aciic, attached
as B4hi&it ( to the #etition, the 6trial o #ersons, units, and organi<ations
accused as war criminals will &e &y Military Commissions to &e con'ened &y
or under the authority o the Commander in Chie, .nited -tates Army
(orces, %aciic.6 Articles o +ar Nos. !3 and !: recogni<e the 6Military
Commission6 a##ointed &y military command as an a##ro#riate tri&unal or
the trial and #unishment o oenses against the law o war not ordinarily
tried &y court martial. 0B4 #arte Cuirin, su#ra.1 And this has always &een
the .nited -tates military #ractice at least since the Me4ican +ar o !8"7
when *eneral +inield -cott took the #osition that, under the laws o war, a
military commander has an im#lied #ower to a##oint and con'ene a Military
Commission. This is u#on the theory that since the #ower to create a
Military Commission is an as#ect o waging war, Military Commanders ha'e
that #ower unless e4#ressly withdrawn rom them.
The Military Commission thus duly constituted has 2urisdiction &oth o'er the
#erson o the #etitioner and o'er the oenses with which he is charged. $t
has 2urisdiction o'er the #erson o the #etitioner &y reason o his ha'ing
allen into the hands o the .nited -tates Army (orces. .nder #aragra#h
5"7 o the Rules o )and +arare, 6the commanders ordering the
commission o such acts, or under whose authority they are committed &y
their troo#s, may &e #unished &y the &elligerent into whose hands they may
all.6
As to the 2urisdiction o the Military Commission o'er war crimes, the
-u#reme Court o the .nited -tates said:
6(rom the 'ery &eginning o its history this Court has recogni<ed
and a##lied the law o war as including that #art o the law o
nations which #rescri&es, or the conduct o war, the status, rights
and duties o enemy nations as well as o enemy indi'iduals. =y the
Articles o +ar, and es#ecially Article !:, Congress has e4#licitly
#ro'ided, so ar as it may constitutionally do so, that military
tri&unals shall ha'e 2urisdiction to try oenders or oenses against
the law o war in a##ro#riate cases. Congress, in addition to
making rules or the go'ernment o our Armed (orces, has thus
e4ercised its authority to deine and #unish oenses against the law
o nations &y sanctioning, within constitutional limitations, the
2urisdiction o military commissions to try #ersons and oenses
which, according to the rules and #rece#ts o the law o nations,
and more #articularly the law o war, are cogni<a&le &y such
tri&unals.6 0B4 #arte Cuirin, 5!7 .. -., !, 37F38/ ?5 -u#. Ct., 3.1
%etitioner is charged &eore the Military Commission sitting at Manila with
ha'ing #ermitted mem&ers o his command 6to commit &rutal atrocities and
other high crimes against the #eo#le o the .nited -tates and o its allies
and de#endencies, #articularly the %hili##ines,6 crimes and atrocities which
in the &ills o #articulars, are descri&ed as massacre and e4termination o
thousands and thousands o unarmed noncom&atant ci'ilians &y cruel and
&rutal means, including &ayoneting o children and ra#ing o young girls, as
well as de'astation and destruction o #u&lic, #ri'ate, and religious #ro#erty
or no other moti'e than #illage and hatred. These are oenses against the
laws o war as descri&ed in #aragra#h 5"7 o the Rules o )and +arare.
$t is maintained, howe'er, that, according to the Regulations *o'erning the
Trial o +ar Criminals in the %aciic, 6the Military Commission @ @ @ shall
ha'e 2urisdiction o'er all o Ja#an and other areas occu#ied &y the armed
orces commanded &y the Commander in Chie, .nited -tates Army (orces,
%aciic6 0underscoring su##lied1, and the %hili##ines is not an occu#ied
territory. The American (orces ha'e occu#ied the %hili##ines or the #ur#ose
o li&erating the (ili#ino #eo#le rom the shackless o Ja#anese tyranny, and
the creation o a Military Commission or the trial and #unishment o
Ja#anese war criminals is an incident o such war o li&eration.
$t is maintained that -#ain, the 6#rotecting #ower6 o Ja#an, has not &een
gi'en notice &eore trial was &egun against #etitioner, contrary to the
#ro'isions o the *ene'a Con'ention o July 37, !939. =ut there is nothing
in that Con'ention showing that notice is a #rere;uisite to the 2urisdiction o
Military Commissions a##ointed &y the 'ictorious &elligerent. .#on the other
hand, the unconditional surrender o Ja#an and her acce#tance o the terms
o the %otsdam .ltimatum are a clear wai'er o such a notice. $t may &e
stated, urthermore, that -#ain has se'ered her di#lomatic relations with
Ja#an &ecause o atrocities committed &y the Ja#anese troo#s against
-#aniards in the %hili##ines. A##arently, thereore, -#ain has ceased to &e
the #rotecting #ower o Ja#an.
And, lastly, it is alleged that the rules o #rocedure and e'idence &eing
ollowed &y the Military Commission are a denial o a air trial. The su##osed
irregularities committed &y the Military Commission in the admission o
allegedly immaterial or hearsay e'idence, cannot di'est the commission o
its 2urisdiction and cannot &e re'iewed in a #etition or ha&eas cor#us. 03:
Am. Jur., 3!8/ Collins 's. Mc,onald, 3:8 .. -., "!?/ ?? )aw. ed. ?93/ "3
-u#. Ct, 53?.1
(or all the oregoing, #etition is here&y dismissed without costs.
Jaranilla, (eria, ,e Joya, %a&lo, Eilado, =eng<on, and =riones, JJ., concur.
%ARA-, J.:
$ concur in the result.
%ON%URRING AND DISS"NTING
OGABTA, J.,
$ concur in the dismissal o the #etition or ha&eas cor#us and #rohi&ition on
the ground that the Military Commission trying the #etitioner has &een
legally constituted, and that such tri&unal has 2urisdiction to try and #unish
the #etitioner or oenses against the law o war. 0B4 #arte Cuirin, 5!7 ..
-., !/ ?5 -u#. Ct, 3.1
$ dissent, howe'er, rom the #ortion o the o#inion o Court which cites and
a##lies herein its decision in the case o Ra;ui<a 's.=radord 0##. :>, ?!,
ante1, to the eect that an attem#t o our ci'il courts to e4ercise 2urisdiction
o'er the .nited -tates Army would &e considered as a 'iolation o this
countryAs aith. The decision in the Ra;ui<a case, rom which $ dissented,
was &ased mainly on the case o Coleman 's. Tennessee 097 .. -., :>91, in
which was mentioned merely &y way o argument the rule o international
law to the eect that a oreign army, #ermitted to march through a riendly
country to &e stationed in it, &y #ermission o its go'ernment or so'ereign,
is e4em#t rom the ci'il and criminal 2urisdiction o the #lace. Ater
re'iewing the acts and the ruling o the court in the Coleman case, $ said in
my dissenting o#inion in the Ra;ui<a case the ollowing:
6@ @ @ Thus it is clear that the rule o international law a&o'e
mentioned ormed no #art o the holding o the court in the said
case.
6Neither can such rule o international law o itsel &e a##lica&le to
the relation &etween the %hili##ines and the .nited -tates, or the
reason that the ormer is still under the so'ereignty o the latter.
The .nited -tates Army is not oreign to the %hili#ines. $t is here
not &y #ermission or in'itation o the %hili##ine *o'ernment &ut &y
right o so'ereignty o the .nited -tates o'er the %hili##ines. $t has
the same right to &e here as it has to &e in Eawaii or Caliornia. The
.nited -tates has the same o&ligation to deend and #rotect the
%hili##ines, as it has to deend and #rotect Eawaii or Caliornia,
rom oreign in'asion. The citi<ens o the %hili##ines owe the same
allegiance to the .nited -tates o America as the citi<ens o any
territory or -tate o the .nion.6
That the case o Coleman 's. Tennessee was erroneously in'oked and
a##lied &y this Court in the case o Ra;ui<a 's. =radord, was admitted &y
Mr. +olson, the attorney or )ieutenant Colonel =radord, who,
notwithstanding the 2udgment in a'or o his client, mo'ed this Court to
modiy the ma2ority o#inion 6&y eliminating all reerences to the case o
Coleman 's. Tennessee 097 .. -., :>91. &ecause, as well #ointed out in &oth
dissenting o#inions, said case has no a##lication whate'er to the case at
&ar.6
The rule o international law mentioned in the Coleman case and
erroneously a##lied &y analogy in the Ra;ui<a case, has likewise no
a##lication whate'er to the ease at &ar. A mistake when re#eated only
&ecomes a &lunder.
%ON%URRING AND DISS"NTING
%BR(CTO, J.,
1. &A%TS IN TIS %AS"
%etitioner #rays that a writ o ha&eas cor#us &e issued directed to
res#ondent )t. *en. +ilhelm ,. -tyer, Commanding *eneral, .nited -tates
Army (orces, +estern %aciic, commanding him to #roduce the &ody o the
#etitioner &eore this Court and that 6he &e ordered returned to the status
o an internee as a #risoner o war in conormity with the #ro'ision o article
9 o the *ene'a Con'ention o July 37, !939, relati'e to the treatment o
#risoners o war and o #aragra#h 83 o the Rules o )and +arare, (. M. 37F
!>, .nited -tates +ar ,e#artment, and that a writ o #rohi&ition &e issued
&y this Court #rohi&iting the res#ondent rom #roceeding with the trial, and
that the #etitioner &e discharged rom the oenses and, coninement
aoresaid.6
%rior to -e#tem&er 5, !9":, #etitioner was the commanding general o the
!"th Army *rou# o the $m#erial Ja#anese Army in the %hili##ines. On said
date, he surrendered to the .nited -tates Army at =aguio and &ecame a
#risoner o war o the .nited -tates and was interned in New =ili&id %rison,
in Muntinlu#a, in conormity with the #ro'ision o article 9 o the *ene'a
Con'ention o July 37, !939, relati'e to the treatment o #risoners o war,
and o #aragra#h 83 o the Rules o )and +arare o the .nited -tates +ar
,e#artment.
On Octo&er 3, !9":, res#ondent caused to &e ser'ed on #etitioner a charge
or 'iolation o the laws o war, signed &y Colonel Al'a C. Car#enter, wherein
it is alleged that &etween 9 Octo&er, !9"", and 3 -e#tem&er, !9":,
#etitioner 6while commander o the armed orces o Ja#an at war with the
.nited -tates and its allies, unlawully disregarded and ailed to discharge
his duty as commander to control the o#erations o the mem&ers o his
command, #ermitting: them to commit &rutal atrocities and other high
crimes against the #eo#le o the .nited -tates and its allies and
de#endencies, #articularly the %hili##ines.6 Thereater #etitioner was
remo'ed rom the status o a #risoner o war and was #laced in coninement
as an accused war criminal and is #resently conined in the custody o
res#ondent at the residence o the .nited -tates Eigh Commissioner o the
%hili##ines in Manila.
On Octo&er !, !9":, &y command o res#ondent and #ursuant to authority
contained in a letter rom the *eneral Eead;uarters, .nited -tates Army
(orces, +estern %aciic, dated -e#tem&er 3", !9":, a Military Commission
was a##ointed to try #etitioner. At the same time se'eral oicers were
designated to conduct the #rosecution and se'eral others to act as deense
counsel.
The commission was instructed to ollow the #ro'isions o the letter o
-e#tem&er 3", !9":, and was em#owered to 6make such rules or the
conduct o the #roceedings as it shall deem necessary or a ull and air trial
o the #erson &eore it. -uch e'idence shall &e admitted as would, in the
o#inion o the #resident o the commission, ha'e #ro&ati'e 'alue to a
reasona&le man and is rele'ant and material to the charges &eore the
commission. The concurrence o at least twoFthirds o the mem&ers o the
commission #resent shall &e necessary or a con'iction or sentence.6
-aid letter 0B4hi&it *1 addressed to res#ondent &y =rigadier *eneral =. M.
(itch, 6&y command o *eneral MacArthur,6 em#owers res#ondent 6to
a##oint Military Commissions or the trial o such #ersons accused o war
crimes as may hereater &e designated &y this Eead;uarters,6 with the
instructions that 6all the records o trial including 2udgment or sentence and
the action o the a##ointing authority will &e orwarded to this
Eead;uarters. .nless otherwise directed, the e4ecution o 2udgment or
sentence in all cases will &e withheld #ending the action o the Commander
in Chie.
On the same date 6&y Command o *eneral MaeArthur6 0B4hi&it E1,
res#ondent was instructed to #roceed immediately with the trial o *eneral
Tomoyuki Yamashita or the charge ser'ed on #etitioner on Octo&er 3, !9":
0B4hi&it =1.
.#on arraignment on Octo&er 8, !9":, &y the a&o'e mentioned Military
Commission, #etitioner entered a #lea o not guilty. On the same date the
#rosecution iled a &ill o #articulars 0B4hi&it !1 with ?" items o crimes, and
on Octo&er 39, !9":, a su##lemental &ill o #articulars 0B4hi&it J1 with many
other additional items, adding u# to !35, o s#eciied crimes im#uted to
#etitioner.
On Octo&er !9, !9":, #etitionerAs deense iled a motion to dismiss the case
&eore the Military Commission or the reasons that the charge, as
su##lemented &y the &ills o #articulars, 6ails to state a 'iolation o the laws
o war &y the accused, and that the commission has no 2urisdiction to try
this cause.6 The motion was denied on Octo&er 39.
On said day, which was the irst day o trial, the #rosecution oered in
e'idence an aida'it o Naukata .tsunomia 0B4hi&it M1 e4ecuted on Octo&er
!, !9":, and su&scri&ed and sworn to &eore Ca#tain Jerome Richard on
Octo&er 33, !9":. The aida'it was made in Ja#anese through inter#reter
Tadashi Ya&i. The deense o&2ected to the admission o said aida'it,
in'oking to said eect article 3: o the Articles o +ar #rohi&iting the
$ntroduction o de#ositions &y the #rosecution in a ca#ital case in
#roceedings &eore a court martial or a Military Commission. 0B4hi&its ) and
N.1
Again an the same irst day o trial, hearsay e'idence was oered, deense
counsel o&2ected, &ut the o&2ection was again o'erruled. 0B4hi&its > and %.1
The deense counsel alleged then that the admission o hearsay e'idence
was 'iolati'e o Article o +ar 58, the manual or courtsFmartial, and the
rules o e'idence in criminal cases in the district courts o the .nited -tates.
$t is alleged &y #etitioner that 'iolations o legal rules o e'idence ha'e
continued and are continuing duringA the trial.
At the o#ening o the trial, 6the #rosecution stated that no notice o
im#ending trial had &een gi'en the #rotecting #ower o Ja#an &y the .nited
-tates,6 such notice &eing re;uired &y article ?> o the *ene'a Con'ention
o July 37, !939, and o #aragra#h !55 o the Rules o )and +arare, .nited
-tates +ar ,e#artment.
2. R"M"DI"S !RAY"D &OR
Ater alleging the a&o'eFmentioned acts, #etitioner maintains that his
coninement and trial as a war criminal are illegal and in 'iolation o articles
! and 5 o the Constitution o the .nited -tates and the (ith Amendment
thereto, and a certain other #ortions o said Constitution, and laws o the
.nited -tates, and article 5 o the Constitution o the %hili##ines and certain
other #ortions o said Constitution and laws o the %hili##ine $slands, and o
certain #ro'isions o the *ene'a Con'ention o July 37, !939, in that:
0a1 There &eing no martial law, no Military *o'ernment o occu#ied territory
and no acti'e hostilities in the %hili##ines at the time o the a##ointment o
the commission, there was no authority to a##oint the same, and the
commission is without 2urisdiction.
0&1 There &eing no charge o an oense against the laws o war &y the
#etitioner, the commission is without 2urisdiction.
0c1 The rules o #rocedure and e'idence under which the Military
Commission #ur#orts to &e acting deny the #etitioner the air trial
guaranteed &y the Constitution o the .nited -tates and the Constitution o
the %hili##ines, and are in 'iolation o Articles o +ar 3: and 58 and o other
#ro'isions o the laws o the .nited -tates and o the %hili##ines.
0d1 The res#ondent was granted no authority &y the Commander in Chie,
.nited -tates Army (orces, +estern %aciic, to a##oint a military
commission andHor to try the #etitioner in the %hili##ine $slands, and the
Commission is, thereore, without 2urisdiction to try this case.
0e1 The .nited -tates, not ha'ing6 gi'en notice o the im#ending trial to the
#rotecting #ower o Ja#an as made mandatory &y the *ene'a Con'ention o
July 37, !939, relati'e to the treatment o #risoners o war, cannot #ro#erly
and illegally try the #etitioner on the charge.
'. KUL"S O& INT"RNATIONAL LA$
$n the Iules o )and +arare, #aragra#h !55 0B4hi&it C1, it is #ro'ided that
6at the o#ening o a 2udicial #roceeding directed against a #risoner o war
the detaining #ower shall ad'ise the re#resentati'e o the #rotecting #ower
thereo as soon as #ossi&le, and always &eore the date set or the o#ening
o the trial,6 and 6at all e'ents, at least three weeks &eore the o#ening o
the trial.6
Article J$$$ o the Con'ention res#ecting the laws and customs o war on
land, agreed in The Eague on July 39, !899, #ro'ides: 6%risoners o war
shall &e su&2ect to the laws, regulations, and orders in orce in the army o
the -tate into whose hands they ha'e allen.6
-ection :9 o *eneral Orders No. !>>, dated A#ril 3", !8?8, containing
instructions or the go'ernment o armies o the .nited -tates in the ield,
#ro'ides: 6A #risoner o war remains answera&le or his crimes committed
against the ca#torAs army or #eo#le, committed &eore he was ca#tured, and
or which he has not &een #unished &y his own authorities.6
-ecretary o -tate ,aniel +e&ster, in a communication addressed to Mr.
Thom#son, Minister to Me4ico, on A#ril :, !8"3, said: 6The law o war
or&ids the wounding, killing, im#ressment into the troo#s o the country or
the ensla'ing or otherwise maltreating o #risoners o war, unless they ha'e
&een guilty o some gra'e crime/ and rom the o&ligation o this law no
ci'ili<ed state can discharge itsel.6
4. IN AN%I"NT GR""%" AND ROM"
Many o the &asic ideas which #re'ail today in the customs and usages o
nations and &ecame #art o the international law emerged rom the human
mind centuries &eore the Christian Bra. -uch is the idea that #risoners o
war are entitled to humane treatment, that treasons o war should &e
discountenanced, and that &elligerents must a&stain rom causing6 harm to
nonFcom&atants.
On his return to %elo#onnesus in "37 =. C, Alci&iades touched at
Mayonnesus and there slew most o the ca#ti'es taken on his 'oyage.
According to Thucydides, the -amian e4iles remonstrated with him or
#utting to death #risoners who ha'e not &een in o#en hostilities against
him.
The same historian narrates that the year &eore, the Mytileneans o )es&os
re'olted rom Athens, &ut they were o&liged to ca#itulate in the ollowing
year to %aches, who dis#atched to Athens o'er a thousand #risoners. Their
dis#osal #ro'oked discussion in the Athenian assem&ly. At the instigation o
Cleon, the demagogue and ormer o##onent o %ericles, an order was issued
to slaughter not only the men who arri'ed in Athens, &ut the entire male
#o#ulation o Mytilene that was o military age, and to ensla'e the women
and children. The e4ecution o the order was delayed, and another assem&ly
was called. There an amendment o Theodotus was carried, and the
#re'ious order countermanded.
The roman treatment o #risoners was less rigorous than the *reek. As
stated &y Jirgilius, 6the Roman #olicy rom the irst was, on the one hand,
de&ellare su#er &os, to su&due the #roud and arrogant #eo#les and, on the
other, #arcellare su&iectes, to s#are those who ha'e su&mitted.6
6,ionisius states that a rule e4isted in Rome as early as the time o
Romulus, which #rohi&ited the #utting to death or ensla'ing o men
ca#tured in the con;uered cities, and also the de'astation o their
territories/ it #ro'ided, on the contrary, or the sending o inha&itants, either
to take #ossession &y Jot o some #art o the country, or making the
con;uered cities Boman colonies, and e'en or conceding to them some o
the #ri'ileges o Ioman citi<enshi#.6 0%hili##s on the $nternational )aw and
Custom o Ancient *reece and Rome, Jol. $$, #. 3:".1
$n ">7 =. C. the -#artan commander Callicratidas took the town o
Methymna &y storm. $n s#ite o the #ersuasion o his allies, according to
Keno#hon, he reused to sell the Athenian garrison and Methymnaean
citi<ens as sla'es, declaring that so long as he e4ercises the command no
*reek should e'er &e reduced to sla'ery. *rote in his Eistory o *reece
could not rerain rom #raising this gesture o the Macedonian admiral &y
saying: 6No one who has amiliari<ed himsel with the details o *reecian
+arare can eel the ull grandeur and su&limity o this #roceeding @ @ @. $t
is not merely that the #risoners were s#ared and set ree @ @ @. $t is that
this #articular act o generosity was #erormed in the name and or the
recommendation o %anFEellenic &rotherhood and %anFEellenic
inde#endence or the oreigner @ @ @. $t is, lastly, that the ste# was taken in
resistance to the ormal re;uisition on the #art o his allies.6 0Eistory o
*reece, Jol. J$, #. 587.1
%hili#, the Macedonian Iing, li&erated Athenian #risoners without ransom
ater the taking o Olynthus in 5"8 =. C. and ten years later, ater the =attle
o Chaeronee, he dismissed the #risoners with all their &aggage.
Keno#hon ;uotes Agesileus reminding his soldiers that 6#risoners were
meant to &e ke#t, and not criminals to &e #unished.6 And %ausanias
narrates that when B#aminondas, the greatest The&an general, had taken
%hoe&ia, where most o the =oeotian ugiti'es had gathered together, he
nominally assigned to each o the men he ca#tured there a dierent
nationality, and set them all ree, and there are cases where ca#ti'es were
dismissed on #arole to ha'e chance o inding ransomers.
Among the *reeks much was done to humani<e warare, and to remo'e
rom it the atrocities which #re'ailed amongst the most o the nations o
anti;uity. The Oracle o ,eli reused to listen to the Milesians as they had
not duly e4#iated the e4cesses committed in their ci'il wars, though it
res#onded to all others, e'en to &ar&arians, who consulted it. 6CAetait
comme lAe4communication du #aganisme6, comments )eurent 0Jol. $$, #.
!5:1.
%oets, #hiloso#hers, artists, and men o intellectual distinction in general,
e'en though they &ecame in'ested with enemy character on the out&reak o
warL were honored and res#ected. $n 55: =.C. Ale4ander the *reat
destroyed The&es, &ut he let %indarAs house unin2ured and honored the
#oetAs descendants. $n ancient Eellas was already known the #ractice o
neutrali<ing cities and #rotecting them rom the ra'ages o war. Tem#les,
#riest, and em&assies were considered in'iola&le. The right o sanetuary
was uni'ersally recogni<ed. Mercy was shown to su##liant and hel#less
ca#ti'es. -aeFconducts were granted and res#ected. =urial o dead was
#ermitted, and gra'es were unmolested. $t was considered wrong to cut o
or #oison the enemyAs water su##ly, or to make use o #oisonous wea#ons.
Treacherous strategems o whate'er descri#tion were condemned as &eing
contrary to ci'ili<ed warare. %oets and #hiloso#hers, orators and historians
#roclaimed humane doctrines. %lato constructed his ideal re#u&lic on the
&asis o what he concei'ed to &e #erect 2ustice. Aristotle condemned the
#rinci#le o retaliation as &eing antagonistic to true 2ustice. Buri#ides s#eaks
o e4cesses in war not only as acts o intrinsic wickedness and transgression
against uni'ersal law, &ut, indeed, as a suicidal olly on the #art o the
oender. $n one o his dramas he makes %oseidon declare: 6=ut oolish is
the mortal who lays waste cities, tem#les, and tom&s, the sanctuaries o the
dead/ or ha'ing consigned them to solitude, he is one himsel to #erish
aterwards.6
The mild and clement nature shown &y Caesar to many &elligerent #eo#les
was recogni<ed e'en &y his #olitical enemy Cicero, to whom he wrote: 6You
are not mistaken a&out me @ @ @. Nothing is ar rom my nature than cruelty
@ @ @, $ am told that some #risoners $ set ree Mei<e the irst o##ortunity to
take u# arms against me/ ne'ertheless, $ shall not renounce my #olicy.6
The Roman conduct ar transcended in its ci'ili<ed and humane character
that o the *erman leader Arminius, who is re#orted &y Tacitus to ha'e
&urned to death and otherwise &ar&arously slain the centurions and tri&unes
o the Jarian legions, and nailed the skulls to trees. The sanction o Roman
2uris#rudence and the su&mission to the undamental #rinci#les o 2ustice
#ro'ed eecti'e.
)i'y narrates that in 595 =. C. a certain school master o (alerii, who was in
charge o the sons o the #rinci#al citi<ens o the town, took the o##ortunity
to lead them to the Roman cam# and threw them into the #ower o the
enemy. The Roman general Camillus, indignant at this treason, ordered the
&oys to dri'e their master &ack to the town, and log him all the way. There
were, he #ointed, laws o war as well as o #eace, and the Romans had
learnt to #ut them into #ractice not less 2ustly than &ra'elyD6sunt et &elli,
sicut #acis, iura/ iuste;ue ea, non minus ;uam ortiter, didicimus gerere.6
+hen Adgantestrius made an oer to the Roman -enate to #oison Arminius,
according to Tacitus, he was at once inormed that it was not &y secret
treachery &ut o#enly &y arms that the Romans #roceeded against their
enemies.
The same historian mentioned the act that the Roman generals re2ected the
scheme, suggested &y the kingAs #hysician, o #oisoning %yrrhus 038> =. C.1
and e'en deli'ered u# the traitor, %yrrhus, in return or the Roman
generosity, allowed his #risoners to go to Rome on #arole in order to
cele&rate the -aturnalia/ ater which, they aithully returned.
5. UN(U"N%A)L" TIRSTIN"SS O& !"R&"%TION.*
!"TITION"R "NTITL"D TO L"GAL GUARANT""S
$m#elled &y irre#ressi&le endea'ors aimed towards the ideal, &y the
uncon;uera&le natural urge or im#ro'ement, &y the un;uencha&le
thirstiness o #erection in all orders o lie, humanity has &een struggling
during the last two do<en centuries to de'elo# an international law which
could answer more and more aithully the demands o right and 2ustice as
e4#ressed in #rinci#les which, weakly enunciated at irst in the rudimentary
2uristic sense o #eo#les o anti;uity, &y the inherent #ower o their
uni'ersal a##eal to human conscience, at last, were acce#ted, recogni<ed,
and consecrated &y all the ci'ili<ed nations o the world.
.nder these #rinci#les, #etitioner *eneral Tomoyuki Yamashita is entitled to
&e accorded all the guarantees, #rotections, and deenses that all #risoners
should ha'e, according to the customs and usages, con'entions and
treaties, 2udicial decisions and e4ecuti'e #ronouncements, and generally
acce#ted o#inions o thinkers, legal #hiloso#hers and other e4#ounders o
2ust rules and #rinci#les o international law. The seriousness or
unathoma&le gra'ity o the charges against him, the unthinka&le
magnitude o the wholesale murders, ra#es, and destructions or which he is
called to answer, the &eastly massacres and horrors &y which he was thrown
rom the #edestal o military glory as the 6Tiger o Malaya6 into the &ottom
o #er'ersity o a human monster, must not &e taken into consideration,
must all &e orgotten, in order that true 2ustice may &e administered in this
case.
+. $AR %RIMINALS
6There is 'ery little limitation on what a 'ictorious nation can do
with a 'an;uished -tate at the close o a war. One shudders to
think what *ermany and Ja#an wouldF do i they were the 'ictorsN
=ut the common law o nations #ro&a&ly re;uires a air trial o
oenders against war law as a #rere;uisite to #unishment or
alleged oenses/ and the *ene'a Con'ention so #rescri&ed in the
case o #risoners o war. =ut in the inal analysis a decent res#ect
or the o#inion o mankind and the 2udgment o history is, in eect,
a 'ictorious &elligerentAs main limitation on its treatment o the
surrendered at the close o a war/ and this is selFim#osed. The
.nited Nations are solemnly committed to the 'indication and the
rule o law which has &een ruthlessly destroyed &y the Na<is and
Ja#anese.6 0-heldon *lueck, +ar Criminals, #, 77.1
6(ormali<ed 'engeance can &ring only e#hemeral satisaction, with
e'ery #ro&a&ility o ultimate regret/ &ut 'indication o law through
legal #rocess may contri&ute su&stantially to the reFesta&lishment
o order and decency in international relations.6 0Re#ort o the
-u&committee on the Trial and %unishment o +ar Crimes, 57 Am.
J. $nt. ). O!9"5P, ??5, ???.1
6Centuries o ci'ili<ation stretched &etween the summary slaying o
the deeated in a war, and the em#loyment o amiliar #rocess and
#rotections o 2ustice according to law to air the e4tent and nature
o indi'idual guilt @ @ @ and in the ci'ili<ed administration o 2ustice,
e'en the most loathsome criminal caught redhanded must &e gi'en
his day in court and an o##ortunity to inter#ose such deenses as
he may ha'e.6 0-heldon *lueck, $d., #. 78.1
7. A))$B, %RONO.NCBMBNT-
According to a num&er o oicial #ronouncements &y .nited NationsA
statesmen, the 'ast ma2ority o oenders will &e tried in the domestic
criminal or military tri&unals o the in2ured nations. Thus on August 3!,
!9"3, %resident Roose'elt, in condemning the crimes committed against the
ci'il #o#ulation in occu#ied lands, solemnly announced that 6 the time will
come when the criminals will ha'e to stand in courts o law in the 'ery
countries which they are now o##ressing, and to answer or their acts.6
On -e#tem&er 8,!9"3, Mr. Churchill #romised that 6those who are guilty o
the Na<i crimes will ha'e to stand u# &eore tri&unals in e'ery land where
the atrocities ha'e &een committed.6
The Moscow ,eclaration o No'em&er !, !9"5, sternly warned that: 6at the
time o granting o any armistice to any go'ernment which may &e set u# in
*ermany, those *erman oicers or men and mem&ers o the Na<i #arty,
who ha'e &een res#onsi&le or or ha'e taken a #art 0in the 'arious1
atrocities, massacres and e4ecutions will &e sent &ack to the countries in
which their a&omina&le deeds were done in order that they may &e 2udged
and #unished according to the laws o these li&erated countries and o the
ree go'ernments which will &e erected therein,6 and that 6the Allied %owers
will #ursue them to the utmost ends o the earth and will deli'er them to
the accusers in order that 2ustice may &e done.6
The American mem&ers o the commission on res#onsi&ilities a##ointed at
the close o +orld +ar $, had strenuously o##osed the trial o *erman war
criminals in an international high tri&unal on the grounds that it was
un#recedented and that there e4isted no international statute or con'ention
making 'iolations o the laws and customs o warare international crimes,
deining such oenses more s#eciically than the deinitions to &e ound in
the #rohi&itions o the unwritten or written law o nations, ai4ing a s#eciic
#unishment to each crime, and gi'ing 2urisdiction to a world court.
=ut ,octor *lueck is o o#inion that 6$ the *ermans were to try an
American soldier or 'iolating *erman statutes im#lementing the laws and
customs o warare in a newly esta&lished ty#e o military tri&unal, the
accused would not &e heard to com#lain that he had no #rior notice that a
new ty#e o court had &een set u#. %ro'ided the international tri&unal
aords as ade;uate a trial as the accused would ha'e had in the court o
any in2ured &elligerent, he has no 'alid ground or com#laint.6 0%. !!?.1
6One o the argumentsDhe continuesDad'anced &y the American
#artici#ants on the commission on res#onsi&ility at the close o
+orld +ar $, against the esta&lishment o an international criminal
tri&unal was that it was un#recedented. =ut all courts were at one
time un#recedented. The #ro&lems #resented &y our e#och are
un#recedented. The atrocities committed &y A4is #owers led &y
*ermany, e'en &y com#arison with their &eha'ior in +orld +ar $,
are un#recedented. Can history show a &etter age than our own to
initiate a series o muchFneeded #recedentsL (ew sym&ols o this
new era which heralds the neigh&orly coo#eration o ci'ili<ed
#eo#les in the 'indication o the laws o ci'ili<ed nations would &e
more im#ressi'e than an international criminal court, in which the
#lainti would &e the world community. @ @ @ The international
criminal court would &e a more 'i'id sym&ol o the reign o 2ustice
o an international #lane than e'en the #ermanent court at The
Eague has i&een. $n domestic #olity, the administration o criminal
2ustice is the strongest #illar o go'ernment. The doing o 2ustice on
an international #lane and under international aus#ices is e'en
more im#ortant. $t is indis#ensa&le to the sur'i'al, in the
intercourse o nations, o the 'ery traditions o law and 2ustice. The
&esmirching o the #restige o internaticmal law is not the least o
the e'ils #er#etrated &y the A4is #owers led &y Na<i *ermany. The
#eerless and eicient administration o 2ustice in the case o A4is
war criminals is today indis#ensa&le as a token to the #eo#les o
the world, a sign that crimesFcommitted &y one countryAs su&2ect
against the #eo#le o another mem&er o the amily o nations will
&e relentlessly #unished e'en though they run into huge num&ers,
were committed &y men in uniorm, and are instigated &y a (uehrer
endowed &y himsel and his into4icated ollowers with the attri&utes
o a demigod.6 0%age !78.1
6Ade;uate law or use &y an international court now e4ists/ and its
enorcement &y such a tri&unal would 'iolate no undamental
tenets o ci'ili<ed nations. The law or an international tri&unal can
&e drawn rom the rich reser'oirs o common and con'entional law
o nations and the #rinci#les, doctrines, and standards o criminal
law that constitute the common denominator o all ci'ili<ed #enal
codes.
6The #unishment to &e a##lied &y domestic military and ci'il courts
de#end u#on local law and #ractice. Those to &e im#osed &y the
international tri&unal could &e &ased either u#on the #unishments
#ermitted &y the law o nations in the case o #iracy and 'iolations
o the laws and customs o warare or u#on those #ro'ided or
crimes o similar nature and gra'ity &y the law o the accusing
-tate, taking into account, also, where necessary in indi'idual
instances, the law o the deendantAs -tates.6 0%age !8!.1
,. NO SUR!RIS"S TO !"TITION"R
%etitioner in this case cannot allege ignorance o the act that the criminal
acts alleged in the s#eciied charges against him are #unisha&le &y law, not
only in all ci'ili<ed nations, &ut in his own country.
-ince January !, !883, the Ja#anese *o'ernment had &een enorcing a
Criminal Code &ased on the Code o Na#oleon o !8!!, #re#ared &y the
(rench 2urist M. =oissonade, said criminal code ha'ing &een su#erseded &y
a new one on Octo&er !, !9>8.
.nder the last, arson may &e #unished with death 0article !>81/ ra#e is
hea'ily #unished 0articles !7?, !77, and !781 / and murder or homicide
may &e #unished with death or #enal ser'itude or lie 0article !>91. These
oenses and many others, #unished &y our %enal Code, are known to the
Ja#anese as crimes, which in Ja#anese is tsumi.
(rom the )auter#acht edition 0!9""1 o O##enheimAs $nternational )aw, Jol.
$$, ##. ":>F":8, we ;uote:
6-ec. 3:!. $n contradistinction to hostile acts o soldiers &y which
the latter do not lose their #ri'ilege o &eing treated as lawul
mem&ers o armed orces, war crimes are such hostile or other acts
o soldiers or other indi'iduals as may &e #unished &y the enemy
on ca#ture o the oenders. They include acts contrary to
$nternational )aw #er#etrated in 'iolation o the law o the
criminalAs own -tate, such as killing or #lunder or satisying6
#ri'at9 lust and gain, as well as criminal acts contrary to the laws
o war committed &y order and on &ehal o the enemy -tate. To
that e4tent the notion o war crimes is &ased on the 'iew that
-tates and their organs are su&2ect to criminal res#onsi&ility under
$nternational )aw.
6-ec. 3:5. The act that a rule o warare has &een 'iolated in
#ursuance o an order o the &elligerent *o'ernment or o an
indi'idual &elligerent commander does not de#ri'e the act in
;uestion o its character as a war crime/ neither does it, in
#rinci#le, coner u#on the #er#etrator immunity rom #unishment
&y the in2ured &elligerent. A dierent 'iew has occasionally &een
ado#ted in military manuals and hy writers, &ut it is diicult to
regard it as e4#ressing a sound legal #rinci#le. .ndou&tedly, a
Court conronted with the #lea o su#erior orders adduced in
2ustiication o a war crime is &ound to take into consideration the
act that o&edience to military orders, not o&'iously unlawul, is the
duty o e'ery mem&er o the armed orces and that the latter
cannot, in conditions o war disci#line, &e e4#ected to weigh
scru#ulously the legal merits o the order recei'ed/ that rules o
warare are oten contro'ersial/ and that an act otherwise
amounting: to a war crime may ha'e &een e4ecuted in o&edience
to orders concei'ed as a measure o re#risals. -uch circumstances
are #ro&a&ly in themsel'es suicient to di'est the act o the stigma
o a war crime. Also, the #olitical authorities o the &elligerent will
re;uently incline to take into consideration the danger o re#risals
against their own nations which are likely to ollow as a measure o
retaliation or #unishing a war crime durante &ello. Eowe'er,
su&2ect to these ;ualiications, the ;uestion is go'erned &y the
ma2or #rinci#le that mem&ers o the armed orces are &ound to
o&ey lawul orders only and that they cannot thereore esca#e
lia&ility i, in o&edience to a command, they commit acts which &oth
'iolate unchallenged rules o warare and outrage the general
sentiment o humanity. To limit lia&ility to the #ersoa res#onsi&le
or the order may re;uently amount, in #ractice, to concentrating
res#onsi&ility on the head o the -tate whose accounta&ility, rom
the #oint o 'iew o &oth international and constitutional law, is
contro'ersial.
6-ec. 3:7. All war crimes may &e #unished with death, &ut
&elligerents may, o course, inlict a more lenient #unishment, or
commute a sentence o death into a more lenient #enalty. $ this &e
done and im#risonment take the #lace o ca#ital #unishment, the
;uestion arises whether #ersons so im#risoned must &e released at
the end o the war, although their term o im#risonment has not yet
e4#ired. -ome answer this ;uestion in the airmati'e, maintaining
that it could ne'er &e lawul to inlict a #enalty e4tending &eyond
the duration o the war. =ut it is &elie'ed that the ;uestion has to
6&e answered in the negati'e. $ a &elligerent has a right to
#ronounce a sentence o a ca#ital #unishment, it is o&'ious that he
may select a more lenient #enalty and carry it out e'en &eyond the
duration o the war. $t would in no wise &e in the interest o
humanity to deny this right, or otherwise &elligerents would &e
tem#ted always to #ronounce and carry out a sentence o ca#ital
#unishment in the interest o selF#reser'ation.
6-ec. 3:7a. The right o the &elligerent to #unish, during the war,
such war criminals as all into his hands is a wellFrecogni<ed
#rinci#le o $nternational )aw. $t is a right o which he may
eecti'ely a'ail himsel ater he has occu#ied ail or #art o enemy
territory, and is thus in the #osition to sei<e war criminals who
ha##en to &e there. Ee may, as a condition o the armistice, im#ose
u#on the authorities o the deeated -tate the duty to hand o'er
#ersons charged with ha'ing committed war crimes, regardless o
whether such #ersons are #resent in the territory actually occu#ied
&y him or in the territory which, at the successul end o hostilities,
he is in the #osition to occu#y. (or in &oth cases the accused are, in
eect, in his #ower. And although normally the Treaty o %eace
&rings to an end the right to #rosecute war criminals, no rule o
$nternational )aw #re'ents the 'ictorious &elligerent rom im#osing
u#on the deeated -tate the duty, as one o the #ro'isions o the
armistice or o the %eace Treaty, to surrender or trial #ersons
accused o war crimes. $n this, as in other matters, the will o the
'ictor is the law o the Treaty. $t is not to &e e4#ected that he will
concede to the deeated -tate the corres#onding right to #unish
any war criminals o the 'ictorious &elligerent. The resulting
ine;uality is the una'oida&le concomitant o the e4isting
im#erections o international organi<ation and o the institution o
war itsel.A =ut the 'ictorious &elligerent may achie'e a su&stantial
a##ro4imation to 2ustice &y making ull #ro'ision or a air trial o
the surrender enemy nationals, and &y oering to try &eore his
tri&unals such mem&ers o his own armed orces as are accused o
war crimes. -uch conduct may go a long way towards reducing
su&stantially the ine;uality o treatment as &etween the 'ictor and
the 'an;uished.6
The #ermissi&le acts o warare are, &y the authority o long and common
usage, strictly limited. The treaties entered into &etween mem&ers o the
amily o nations are &ut s#eciic deinitions and reinorcements o the
general common law o nations, the 6unwritten6 rules o warare, which or
centuries ha'e limited the method and manner o conducting wars. The
common law o nations, &y which all states are and must &e &ound, dictates
that warare shall &e carried on only in accordance with &asic considerations
o humanity and chi'alry.
These matters are o course well known to the *erman and Ja#anese
warlords and statesmen, as well as to their henchmen. They will also &elie'e
the &rutal #ronouncements o *erman military #hiloso#hy in such cynical
hand&ooks or the guidance o oicers as the Iriegs&rauch im )am&krege in
which, although *ermany had to o&ser'e the #ro'isions o the Eague
Con'ention regulating warare, their human tenets o international law are
reerred to as e4#ressed generally 6sentimentalism and la&&y
emotionalism6 and are declared to &e 6in undamental contradiction with the
nature o war and its o&2ect6/ and in which the *erman oicer is sternly
warned to 6guard himsel against e4aggerated humanitarian ideas.6
(rom ,octor *lueckAs &ook we ;uote:
6$ e'er there was a domain to which Mr. Justice EolmesA
illuminating/ dictum a&out a #age o history &eing worth a 'olume
o logic is! a##lica&le, it is that concern the war criminalAs #ro&lem
0%. !3.1 The law o nations has a longF way to go &eore it can claim
to &e a coherent and i4ed system. $ts rele'ant tenets were
de'elo#ed under the #resu##osition that mem&ers o the
community o nations are go'erned &y selFim#osed restraints in
accordance with international law/ &ut the emergence o states with
a national #olicy o deli&erate lawlessness and with their in'asion o
Atotal war in the ser'ice o a #rogram o world ensla'ement,
com#els a realistic modiication o inade;uate doctrines and
#rinci#les o law.A 0%. !51. No&ody who has made a thorough study
o the status o the &ranch o law o nations in'ol'ed can adhere to
the 'iew that it is anywhere near as well de'elo#ed or su&2ect to
the same techni;ues o Arigorous! legal logicA as the more
so#histicated &ranches o #ri'ate law. 0%. !".1 On -e#tem&er 8,
!9"3, Churchill assured the Eouse o Commons that Athose who are
guilty o the Na<i crimes will ha'e to stand u# &eore tri&unals in
e'ery land where their atrocities ha'e &een committed, in order
that an indeli&le warning may &e gi'en to uture ages and that
successi'e generations o 3nen may say, Aso #erish all who do the
like again.A 6
On January 3:, !9!9, the #reliminary #eace conerence o +orld +ar No. $
set u# a commission o iteen to in;uire into and re#ort u#on 'iolations o
international law chargea&le to *ermany and her allies. This commission
recommended the setting u# o a high tri&unal which was to a##ly 6the
#rinci#les o the law o nations as the result rom the usages esta&lished
among ci'ili<ed #eo#les, rom the laws o humanity and rom the dictates o
#u&lic conscience.6 .#on a inding o guilty, the court could sentence to such
#unishment as could &e im#osed or the oense in ;uestion 6&y any court in
any country re#resented on the tri&unal or in the country o the con'icted
#ersons.6 The recommendation was not ado#ted. They were o##osed &y
American and Ja#anese mem&ers. The Ja#anese mem&ers raised the &asic
;uestion, among others, 6whether international law recogni<es a #enal law
as a##lica&le to those who are guilty.6 And it seemed to them 6im#ortant to
consider the conse;uences which would &e created in the history o
international law &y the #rosecution or &reaches o the law or customs o
war o enemy states &eore a tri&unal constituted &y the o##osite #arty,6 an
argument re2ected at the treaty.
$n the Treaty o Jersailles there were inserted the #uniti'e articles 338, 339
and 35>. =y article 338 the *erman *o'ernment recogni<ed 6the right o
the allied and associated #owers to &ring &eore military tri&unals #ersons
accused o ha'ing committed acts in 'iolation o the laws to 6#unishments
laid down &y law.6 Article 339 #ro'ided or the trial o the accused in
military tri&unals o the #ower against whose nationals the alleged crimes
were committed/ and s#eciied that 6in e'ery case the accused will &e
entitled to name his own counsel.6
9. SOM" %ON%LUSIONS
(rom all the oregoing, with regards to the #etition or a writ o ha&eas
cor#us, we conclude:
0!1 That #etitioner Yamashita, i he is res#onsi&le or the acts im#uted to
him in the charges Eied &eore the Military Commission, can #ro#erly and
2ustly &e #rosecuted and #unished or them.
031 That the act that he was the Commander in Chie o a &elligerent army
does not e4em#t him rom criminal lia&ility either or 'iolations o
international law or or the commission o crimes denned and #unisha&le
under the laws o the country where committed.
051 That his rights and #ri'ileges as a #risoners o war, under the *ene'a
Con'ention, are not incom#ati&le with nor are 'iolated &y his #rosecution or
the international and domestic crimes committed &y him.
0"1 That under the #rinci#les o natural law, all #ersons guilty o such crimes
are amena&le to &e arraigned &eore a court o 2ustice and, ater a air trial,
i ound guilty, should &ear the ull weight o the law.
0:1 That #etitioner Yamashita can &e #rosecuted &eore the %hili##ine ci'il
courts in the like manner as a common criminal and &e #unished underA the
#ro'isions o the %hili##ine %enal Code.
0?1 That the Military Commission set u# to try him #ossesses a 2urisdiction
which is concurrent with that o the %hili##ine ci'il courts, and the choice o
the com#etent tri&unal where he should &e tried, which is a mere #rocedural
technicality, is let to the wise discretion o the oicials in charge o the
#rosecution.
071 That in 'iolation o the law o nations, the oended #arty is the #eo#le
o the whole world, and the case against #etitioner could &e #ro#erly
entitled as 6Eumanity 'ersus Tomoyuki Yamashita,6 and no #erson in
#osition to #rosecute the 'iolators can honestly shirk the res#onsi&ility o
relentlessly #rosecuting them, lest he &e &randed with the stigma o
com#licity.
081 That the a&sence o a codiied $nternational %enal Code or o a criminal
law ado#ted &y the comity o nations, with s#eciic #enalties or s#eciic and
wellFdeined international crimes, is not a &ar to the #rosecution o war
criminalsA, as all ci'ili<ed nations ha'e #ro'ided in their laws the necessary
#unishment or war crimes which, or their 'ery nature, cease to &e lawul
acts o war, and &ecome ordinary crimes with the e4traordinary character o
ha'ing &een committed in connection with war, which should &e considered
as an aggra'ating circumstance.
!>. TEB -.%RBMB CO.RTA- J.R$-,$CT$ON
+hether this Court has 2urisdiction or not to take cogni<ance o this case is
the irst ;uestion raised herein.
+e &elie'e that no dou&t should &e entertained that it has.
The #etition #ertains to a 2udicial case, to a case wherein 2ustice is to &e
administered. $t is a criminal case mitiated or the #rosecution and
#unishment o Tomoyuki Yamashita, Commander $n Chie o the Ja#anese
Army in the %hili##ines, alleged as the greatest war criminal in the %aciic
and in the whole eastern hemis#here.
The case calls or the e4ercise o the 2udicial #ower, one o the three
go'ernment #owers, irstly deined &y Aristotle and u#on which Montes;uieu
ela&orated later in his 6-#irit o the )aws.6
6The 2udicial #ower shall &e 'ested in one -u#reme Court and in
such inerior courts as may &e esta&lished &y law.6 0Art. J$$$, sec.
!, Constitution o the %hili##ines.1
=y this #ro'ision, the 2udicial #ower is #rimarily 'ested in the -u#reme
Court, which can e4clusi'ely e4ercise the whole #ower. =ut it also authori<es
the enactment o laws sharing the #ower to inerior courts, which include all
other courts and tri&unals o all descri#tion, whether ordinary or
e4traordinary, whether ci'il or criminal, whether industrial or military,
whether designated as 6courts6 or sim#ly as 6commissions.6
6The Congress shall ha'e the #ower to deine, #rescri&e, and
a##ortion the 2urisdiction o the 'arious courts, &ut may not de#ri'e
the -u#reme Court o its original 2urisdiction o'er cases aecting
am&assadors, other #u&lic ministers, and consulsA, nor o its
2urisdiction to re'iew, re'ise, re'erse, modiy, or airm on a##eal,
certiorari, or writ o error, as the law or the rules o court may
#ro'ide, inal 2udgments and decrees o inerior courts inD
60!1 All cases in which the constitutionality or 'alidity o any treaty,
law, ordinance, or e4ecuti'e order or regulation is in ;uestion.
6031 All cases in'ol'ing the legality o any ta4, im#ost, assessment,
or toll, or any #enalty im#osed in relation thereto.
6051 All cases in which the 2urisdiction o any trial court is in issue.
60"1 All criminal cases in which the #enalty im#osed is death or lie
im#risonment.
60:1 All cases in which an error or ;uestion o law is in'ol'ed.6 0Art.
J$$$, sec. 3, Constitution o the %hili##inesA.1
(rom the oregoing it is e'ident that this -u#reme Court 2urisdiction, which
Congress is #owerless to a&olish, to re'iew, re'ise, re'erse, modiy, or
airm any and all actuations o 2udicial nature o the #arty res#ondent and
the Military Commission &eore whom #etitioner Yamashita is tried or his
lie. $n act, this -u#reme CourtAs 2urisdiction e4tends, not only to courts
and 2udicial institutions, &ut to all #ersons and agencies which orm #art o
the whole machinery o the administration o 2ustice, in so ar as is
necessary to the administration o 2ustice.
+e ha'e 2urisdiction o'er the #erson o res#ondent )t. *en. +ilhelm ,.
-tyer, not as to the discharge o his military unctions and duties, &ut in
regards to his oicial acts in connection with the administration o 2ustice in
the criminal case against Tomoyuki Yamashita, and that 2urisdiction &ecame
eecti'e since No'em&er !5, !9":, his reusal to sign recei#t or the
summons and the reusal o the su&ordinate oicers in his oice to acce#t
said and the summoning o said military commission.
No one ;uestions our 2urisdiction o'er the #erson o #etitioner, he ha'ing
'oluntarily su&mitted himsel to it &y his #etition.
+ith res#ect to the military commission trying him, under the ;uestions
raised in the #etition, it is a #ro#er #arty res#ondent and the #etitioner
should ha'e included it as among the #arty res#ondents. =ut #etitionerAs
omission is 2ust a technical error o no 'ital conse;uence, &ecause under the
2udicial rules, we can order the inclusion and the summoning o said military
commission.
The amici curiae want us to &e cautious and slow in e4ercising 2urisdiction in
this case, in 'iew o the #ossi&ility that our orders might &e disregarded &y
the military oicers concerned. The ear entertained &y the amici curiae
might ind some ground in the attitude o res#ondent *eneral -tyer, when
the latter reused to sign recei#t or the summons or to recei'e the #a#ers
thereo.
The same warning has &een made in a case decided &y this -u#reme Court
se'eral weeks ago. $n answer to the warning, we can do no &etter than to
re#eat what we said therein.
6$t has &een argued with energy &y those who o##ose our issuing6
the order or the release o the #etitioners, that i we decide to
issue it, the .nited -tates Army might reuse to set them at li&erty,
with the result that the order o release will &ecome a mere scra#
o #a#er aiid the -u#reme Court o the %hili##ines will &e #laced in
the unen'ia&le #osition o utter ridicule. +e ha'e to answer in the
most deinite way that we can not agree with such a narrow #oint
o 'iew.
6=ut su##ose the most une4#ected should ha##en, that there might
&e mem&ers o the .nited -tates Armed (orces who will he &lind
enough to ignore the order o this -u#reme Court, to make a
mockery o the administration o 2ustice, shall that unthinka&le
hy#othesis deter us rom doing our dutyL Our answer is sim#le. No.
No one and nothing in the whole world, neither the allF#owerul
army which hum&led *ermany and orced the surrender o the
6in'inci&leA Ja#anese Army, nor wea#ons more dreadul than the
atomic &om&, nor the menace o an imminent catastro#he, shall &e
#owerul enough to make us linch rom com#lying with our #lain
duty as Justices o the -u#reme Court. +e must do our duty as our
conscience Adictates, without ear nor a'or. $t is our duty to make
reason and right su#reme, regardless o conse;uences. )aw and
2ustice might suer set&acks, endure ecli#sesA, &ut at the end they
shall reign with all the s#lendors o real ma2esty.6 0Ra;ui<a 's.
=radord, *. =. No. )F"", ##. 7?, 88,ante, dissenting.1
+e recogni<e no one to &e a&o'e the law. Mere military might cannot
change and nulliy the course o 2ustice. $n the long run, e'ery&ody must
ha'e to &ow and #rostrate himsel &eore the su#reme ma2esty o the law.
11. A)"AS %OR!US
$n #raying or a writ o ha&eas cor#us, #etitioner wants us to order that he
&e returned rom the status o an accused war criminal to that o a #risoner
o war.
Ee is not seeking release rom coninement.
+e are o o#inion that the #etition or a writ o ha&eas cor#us must &e
denied. The #ur#ose o said writ is to restore li&erty to a #erson who is
&eing de#ri'ed o it without due #rocess o law. -uch is not the case o
#etitioner. Ee does not com#lain o any illegal detention or de#ri'ation o
#ersonal reedom.
Ee is de#ri'ed o his li&erty &ecause he is, according to his own allegation, a
#risoner o war. +hether or not he should &e accused as a war criminal, is
not a #ro#er ;uestion to &e raised in ha&eas cor#us #roceeding.
The act that #etitioner is an accused war criminal does not change his
status as a war #risoner. Ee remains to &e so, whether he is #rosecuted as a
war criminal or not.
Not ha'ing lost his status as a war #risoner &ecause he was #laced and
regarded as a war criminal, there is no reason or ordering his re'ersion to a
status which he did not cease to retain since his surrender or ca#ture on
-e#tem&er 3, !9":.
(or these reasons we 'oted or the denial o the writ o ha&eas cor#us.
12. -URISDI%TION O& T" MILITARY %OMMISSION
+e are o o#inion that the Military Commission conducting the trial o
#etitioner has 2urisdiction to try him or the crimes alleged in the !35 items
in the s#eciied charges iled against him.
(rom the 'ery allegations and e4hi&its o #etitioner it a##ears that said
Military Commission was created and organi<ed &y orders o *eneral
,ouglas Mac Arthur, Commander in Chie o the .nited -tates Army (orces
in +estern %aciic.
+e are o o#inion that said Commander in Chie has authority to con'ene
said Military Commission.
%etitioner contends that 6there &eing no martial law, nor Military
*o'ernment o occu#ied territory and no acti'e hostilities in the %hili##ine
$slands at the time o the a##ointment o the commission, there was no
authority to a##oint the commission, and the commission is without
2urisdiction.6
+e do not agree with this contention. Neither martial law, nor the e4istence
o Military *o'ernment, nor the waging o acti'e hostilities is a #rere;uisite
or e4ercising the #ower o a##ointing a Military Commission.
$n the a&sence o #reFesta&lished tri&unals clothed with authority to try war
criminals, Military Commissions may &e esta&lished or said #ur#ose, and,
unless organi<ed &y the Chie B4ecuti'e himsel, they may &e organi<ed &y
the military Commander in Chie, re#resenting said Chie B4ecuti'e.
The American Re#resentati'es 0)ansing and -cott1 in the Allied commission
o !: organi<ed ater the irst +orld +ar, although o##osed, with the
Ja#anese Re#resentati'es, the creation o an international criminal court,
which &ecame a&orti'e, were o o#inion that war criminals may &e tried &y
Military Commissions o the oended countries.
!5. CO))BCT$JB RB-%ON-$=$)$TY
Although we maintain that the Military Commission here in ;uestion has
2urisdiction to try the case or war crimes against #etitioner Yamashita, in
the regulations go'erning the trial o war criminals, B4hi&it (, there are
se'eral eatures which should not &e let unchallenged. -ection "F&, under
the title o 6Jurisdiction6 o B4hi&it (, #ro'ides: 6Any military or na'al unit or
any oicial or unoicial grou# or organi<ation, whether or not still in
e4istence, may &e charged with criminal acts or com#licity therein and tried
&y a Military Commission.6
This #ro'ision, undou&tedly, ad'ances the #rinci#le o collecti'e
res#onsi&ility in contradistinction to the #rinci#le o indi'iduali<ed criminal
res#onsi&ility.
.nder the #rinci#le o indi'iduali<ed criminal res#onsi&ility, no #erson may
&e con'icted o any oense without due #rocess o law and without #ro'ing
in said #rocess in which he should also en2oy the guarantee o e;ual
#rotection o the laws, that he is #ersonally guilty o the oense.
.nder the #rinci#le o collecti'e criminal res#onsi&ility, any mem&er o any
social grou# or organi<ation may &e con'icted without any hearing i, in a
#rocess where he did not ha'e his day in court, the social grou# or any
other mem&er thereo is ound guilty o an oense.
,uring the Ja#anese regime, when a mem&er o a amily was ound &y the
military #olice, with or without ground, as res#onsi&le or an alleged oense
or &eing a mem&er o a guerrilla unit, the remaining mem&ers o his amily
were also made to suer.
+hen a town or &arrio was sus#ected o har&oring guerrilleros, the
Ja#anese would #unish the whole town or &arrio &y mowing down all the
inha&itants, or &urning all the houses, or, at least, su&2ecting all the male
inha&itants thereo to &rutal <onings. The ruins o Manila are gra#hic
illustrations o how the #rinci#le worked.
$t is unnecessary to ela&orate more to show the gra'e ini;uities to which the
#rinci#le o collecti'e criminal res#onsi&ility leads.
+e are o o#inion that said #rinci#le 'iolates the constitutional guarantee o
due #rocess o law and, thereore, we should ha'e issued a writ o
#rohi&ition en2oining the Military Commission rom e4ercising the
unconstitutional 2urisdiction granted in section "F? o B4hi&it (.
14. "#ID"N%"
-ection !? 0!1, under the title o 6B'idence,6 #ro'ides what may &e
admitted as e'idence as ollows: 6Any document which a##ears to the
commission to ha'e &een signed or issued oicially &y any oicer,
de#artment, agency, or mem&er o the armed orces o any go'ernment,
without #roo o the signature or o the issuance o the document.6
The ollowing may also &e admitted as e'idence according to section !?
051 : 6Aida'its, de#ositions, or other statements taken &y an oicer
detailed or that #ur#ose &y military authority.6
+e are o o#inion that the admission o documents as e'idence, 6without
#roo o the signature or o the issuance o the document,6 is a denial o the
due #rocess o law constitutionally guaranteed to all #ersons &eore he could
&e de#ri'ed o his lie, li&erty, or #ro#erty. The authenticity or genuineness
o a document is an essential element in order that it may ac;uire the
nature o an e'idence. %roo o signature or o the issuance o the document
is essential to show its genuineness.
The admission o aida'its 6or other statements taken &y an oicer detailed
or that #ur#ose &y military authority.6 is a clear 'iolation o the
constitutional guarantee that in all criminal #rosecutions the accused shall
en2oy the right 6to meet the witnesses ace to ace.6 0Art. $$$, sec. ! O!7P,
Constitution o the %hili##ines.1 The Military Commission acce#ted as
e'idence against accused Yamashita the aida'its o Naokata .tsunomiya
0B4hi&its ) and M1, denying said Yamashita the constitutional right 6to meet
ace to ace6 aiant Naokata .tsunomiya.
According to section !? 0"1 o the regulations 0B4hi&it (1/ 6Any diary, letter
or other document a##earing to the commission to contain inormation
relating to the charge,6 may also &e admitted as e'idence. This #ro'ision
denies also to the accused the constitutional guarantee o meeting a witness
ace to ace and, thereore, o crossFe4amining him.
+e are o o#inion that the admission o the e'idence a&o'eFmentioned must
&e #rohi&ited, and that a writ o #rohi&ition issued &y this Court is a #ro#er
remedy.
15. "ARSAY
The regulations 0B4hi&it (1 authori<es also the admission o hearsay as
e'idence.
-ection !?Fd o said regulations #ro'ides: 6$ the accused is charged with an
oense in'ol'ing concerted criminal action u#on the #art o a military or
na'al unit, or any grou# or organi<ation, e'idence which has &een gi'en
#re'iously at a trial o any other mem&er o that unit, grou# or organi<ation,
relati'e to that concerted oense, may &e recei'ed as #rima acie e'idence
that the accused likewise is guilty o that oense.6
$n section !?Fe, the o&2ectiona&le eature o a hearsay e'idence is
aggra'ated &y the adherence to the #rinci#le o collecti'e criminal
res#onsi&ility. $t #ro'ides: 6The indings and 2udgment o a commission in
any trial o a unit, grou# or organi<ation with res#ect to the criminal
character, #ur#ose or acti'ities thereo shall &e gi'en ull aith and credit in
any su&se;uent trial &y that or any other commission o an indi'idual
#erson charged with criminal res#onsi&ility through mem&ershi# in that unit,
grou# or organi<ation. .#on #roo o mem&ershi# in such unit, grou# or
organi<ation con'icted &y a commission, the &urden o #roo shall shit to
the accused to esta&lish any mitigating circumstances relating to his
mem&ershi# or #artici#ation therein.6
+e are o o#inion, too, that the Military Commission should &e #rohi&ited to
ollow the un2ust #rocedures delineated in the a&o'eF;uoted #ro'isions, the
o&2ectiona&le character o which was e4#licitly admitted e'en &y the amicus
curise who a##eared to argue in this case in o##osition to the granting o
remedies sought &y #etitioner.
1+. &UNDAM"NTAL RIGTS GUARANT""D TO "#"RY)ODY
No matter who the #etitioner is, we are o o#inion that he is entitled to all
the saeguard o a air trial.
The undamental rights and reedoms guaranteed in the Charter o the
.nited Nations are guaranteed to all human &eings, without e4ce#tion.
$n his annual #roclamation setting No'em&er 33, !9":, as Thanksgi'ing
,ay, %resident Truman, among other things, said/ 6)i&erty knows no race,
creed or class in our country or in the world. $n unity we ound our irst
wea#on, or without it, &oth here and a&road, we were doomed. None ha'e
known this &etter than our 'ery gallant dead, none &etter than their
comrade (ranklin ,elano Roose'elt. Our Thanksgi'ing has the humility o
our dee# mourning! or them, our 'ast gratitude or them.
6Trium#h o'er the enemy has not dis#elled e'ery diiculty. Many
'ital and arFreaching decisions await us as we stri'e or a 2ust and
enduring #eace. +e will not ail i we #reser'e, in our own land and
throughout the world, the same de'otion to the essential reedoms
and rights o mankind which sustained us throughout the war and
&rought us inal 'ictory.6
And %rime Minister Attlee, in the ace o the #otential
destructi'eness o the atom &om&, said &eore the Bnglish
%arliament: 6$t is well that we should make u# our minds that in a
war on the scale to that which we ha'e 2ust emerged e'ery wea#on
will &e used. +e may conidently e4#ect the ullest destruction o
great cities, death o millions and the setting &ack o ci'ili<ation to
an unimagina&le e4tent.
6No system o saeguards which could &e de'ised will o itselD$
em#hasi<e o itselD#ro'ide an eecti'e guarantee against
#roduction o atomic wea#ons &y a nation or nations &ent on
aggression.
6+ith the terri&le march o the science o destruction, e'ery nation
will reali<e more urgently the o'erwhelming need to maintain the
rule o law among nations and to &anish the scourge o war rom
the earth.
6+e ha'e in #ros#ect the meeting o the .nited Nations
Organi<ation and there is an instrument which, i all are resol'ed to
use it, could esta&lish the rule o law and #re'ent warD$ resol'ed.6
$n the eternal struggle &etween the #rinci#les o right and wrong, there is
no choice i humanity must sur'i'e. )incoln said: 6That is the real issue that
will continue in this country when these #oor tongues o Judge ,ouglas and
mysel shall &e silent. $t is the eternal struggle &etween these two
#rinci#les, right and wrong, throughout the world. They are the two
#rinci#les that ha'e stood ace to ace rom the &eginning o time.6
+hen we 'oted or the granting o the writ o #rohi&ition, we did it out o
consistency, as the 'i&rant words o Jeerson must not cease ringing in our
ears when he said: 6+hat a stu#endous, what an, incom#rehensi&le
machine is manN who can endure toil, amine, stri#es, im#risonment, and
death itsel, in 'indication o his own li&erty, and, the ne4t moment &e dea
to all those moti'es whose #ower su##orted him through his trial, and inlict
on his ellowmen a &ondage, one hour o which is raught with more misery
than ages o that which he rose in re&ellion to o##ose.6
1.. N""D"D S"R#I%" TO T" MORAL AND %ULTURAL
!UR!OS"S O& UMANITY
$ #etitioner is tried and con'icted under a #rocess in which some o the
recogni<ed essential guarantees or a air trial are 'iolated, it would #roduce
a result o##osite that e4#ected &y those who are ollowing u# the trials o all
war criminals/ the arousing o a dee#Frooted uni'ersal con'iction that law
must &e su#reme and that 2ustice should &e e;ually administered to each
and e'ery mem&er o humanity.
The #eo#les o all nations who are keenly watching the #rosecution o
Yamashita should &e con'inced, &y conclusi'e e'idence, that said
#rosecution is not a mere #arody o the administration o 2ustice, de'ised to
disguise the #rimiti'e im#ulses o 'engeance and retaliation, the instincti'e
urge to crush at all costs, no matter what the means, a hated allen enemy.
The #rosecution, trial, and con'iction o Yamashita must im#ress all the
#eo#les o the world that the #rinci#le o law is #aramount, and su#ersedes
and wi#es out all other considerations in dealing with war or common
criminals. Otherwise, their aith in the su#remacy o law as the in'ulnera&le
&ulwark o all undamental human rights will &e shaken, and the moral
#osition o the 'ictorious .nited Nations, the ethical 'alue o the grandiose
#ronouncements o their great leaders, and the #roound signiicance o the
loty ideals or which millions o their soldiers ha'e ought and died, will &e
weakened and diminished to such an e4tent as to make &arren all the
tremendous sacriices made &y so many countries and so many #eo#les in
the last glo&al hecatom&.
$t was $hering who, in his 6)A+ A- A MBAN- TO AN BN,,6 said that: 6There
is no human lie which e4ists merely or itsel, e'ery one is at the same time
or the same o the world/ e'ery man in his #lace, howe'er limited it may
&e, is a colla&orator in the cultural #ur#oses o humanity @ @ @. $ cannot
imagine a human lie so #oor, so de'oid o content, so narrow, so misera&le,
that it is not o some good to some other lie/ e'en such a lie has not
seldom &orne the world the richest ruit.6 0%age ?>.1
-o, e'en the shameul e4#loits in the %hili##ines with which Yamashita
ingloriously crowned his military career, at its #eak when he con;uered
Malaya and -inga#ore, and descended rom the #edestal o the greatest
Ni##on military hero in all her history to the moral a&yss o that a&omina&le
monstrous igure, the greatest war criminal in Asia and in the %aciic, cannot
#ut render some ser'ice to the cultural #ur#oses o humanity i, &y his due
trial in accordance with the elemental rules in criminal #rocedure, the sense
o law and 2ustice is urther de'elo#ed in the conscience o the #resent and
uture generations.
1,. OUR #OT"
(rom, all the oregoing, when the resolution to dis#ose o this case was #ut
to a 'ote, we concurred in the denial o the #etition or a writ o ha&eas
cor#us, and we 'oted or the granting o the writ o #rohi&ition in order that
the o&2ectiona&le eatures in the trial &eore the Military Commission may &e
eliminated, so that #etitioner Yamashita may &e gi'en the ull 2ustice due to
all human &eings.