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Case Name: IN RE YAMASHITA, 327 U.S. 1 
Part I
Opinion of the Court  
Mr Justice Murphy Dissenting

Mr Justice Rutledge Dissenting
ARGUED JANUARY 7, 8, 1946.  - DECIDED FEBRUARY 4, 1946.  - LEAVE AND
PETITION DENIED. 


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 DAY, HE SURRENDERED TO THE UNITED STATES
ARMY AND BECAME A PRISONER OF WAR.  RESPONDENT WAS THE COMMANDING
GENERAL OF THE UNITED STATES ARMY FORCES, WESTERN PACIFIC, WHOSE
COMMAND EMBRACED THE PHILIPPINE ISLANDS.  RESPONDENT APPOINTED A
MILITARY COMMISSION TO TRY THE PETITIONER ON A CHARGE OF VIOLATION OF
THE LAW OF WAR.  THE GIST OF THE CHARGE WAS THAT PETITIONER HAD FAILED
IN HIS DUTY AS AN ARMY COMMANDER TO CONTROL THE OPERATIONS OF HIS
TROOPS, "PERMITTING THEM TO COMMIT" SPECIFIED ATROCITIES AGAINST THE
CIVILIAN POPULATION AND PRISONERS OF WAR.  PETITIONER WAS FOUND GUILTY
AND SENTENCED TO DEATH.  HELD: 

1.  THE MILITARY COMMISSION APPOINTED TO TRY THE PETITIONER WAS
LAWFULLY CREATED.  P. 9. 

(A)  NATURE OF THE AUTHORITY TO CREATE MILITARY COMMISSIONS FOR THE
TRIAL OF ENEMY COMBATANTS FOR OFFENSES AGAINST THE LAW OF WAR, AND
PRINCIPLES GOVERNING THE EXERCISE OF JURISDICTION BY SUCH COMMISSIONS,
CONSIDERED.  CITING EX PARTE QUIRIN, 317 U.S. 1, AND OTHER CASES.  PP.
7-9. 

(B)  A MILITARY COMMISSION MAY BE APPOINTED BY ANY FIELD COMMANDER,
OR BY ANY COMMANDER COMPETENT TO APPOINT A GENERAL COURT MARTIAL, AS
WAS RESPONDENT BY ORDER OF THE PRESIDENT.  P. 10. 

(C)  THE ORDER CREATING THE MILITARY COMMISSION WAS IN CONFORMITY
WITH THE ACT OF CONGRESS (10 U.S.C. SECS. 1471-1593) SANCTIONING THE
CREATION OF SUCH TRIBUNALS FOR THE TRIAL OF OFFENSES AGAINST THE LAW OF
WAR COMMITTED BY ENEMY COMBATANTS.  P. 11. 

2.  TRIAL OF THE PETITIONER BY THE MILITARY COMMISSION WAS LAWFUL,
ALTHOUGH HOSTILITIES HAD CEASED.  P. 12. 

(A)  A VIOLATION OF THE LAW OF WAR, COMMITTED BEFORE THE CESSATION OF
HOSTILITIES, MAY LAWFULLY BE TRIED BY A MILITARY COMMISSION AFTER
HOSTILITIES HAVE CEASED, AT LEAST UNTIL PEACE HAS BEEN OFFICIALLY
RECOGNIZED BY TREATY OR PROCLAMATION BY THE POLITICAL BRANCH OF THE
GOVERNMENT.  P. 12. 

(B)  TRIAL OF THE PETITIONER BY THE MILITARY COMMISSION WAS
AUTHORIZED BY THE POLITICAL BRANCH OF THE GOVERNMENT, BY MILITARY
COMMAND, BY INTERNATIONAL LAW AND USAGE, AND BY THE TERMS OF THE
SURRENDER OF THE JAPANESE GOVERNMENT.  P. 13. 

3.  THE CHARGE PREFERRED AGAINST THE PETITIONER WAS OF A VIOLATION OF
THE LAW OF WAR.  P. 13. 

(A)  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 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 HE MAY BE CHARGED WITH
PERSONAL RESPONSIBILITY FOR HIS FAILURE TO TAKE SUCH MEASURES WHEN
VIOLATIONS RESULT.  PP. 14, 16. 

(B)  WHAT MEASURES, IF ANY, PETITIONER TOOK TO PREVENT THE ALLEGED
VIOLATIONS OF THE LAW OF WAR, AND WHETHER SUCH MEASURES AS HE MAY HAVE
TAKEN WERE APPROPRIATE AND SUFFICIENT TO DISCHARGE THE DUTY IMPOSED
UPON HIM, WERE QUESTIONS WITHIN THE PECULIAR COMPETENCE OF THE MILITARY
OFFICERS COMPOSING THE COMMISSION AND WERE FOR IT TO DECIDE.  P. 16. 

(C)  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.  P. 17. 

(D)  THE ALLEGATIONS OF THE CHARGE HERE, TESTED BY ANY REASONABLE
STANDARD, SUFFICIENTLY SET FORTH A VIOLATION OF THE LAW OF WAR; AND THE
MILITARY COMMISSION HAD AUTHORITY TO TRY AND TO DECIDE THE ISSUE WHICH
IT RAISED.  P. 17. 

4.  IN ADMITTING ON BEHALF OF THE PROSECUTION A DEPOSITION AND
HEARSAY AND OPINION EVIDENCE, THE MILITARY COMMISSION DID NOT VIOLATE
ANY ACT OF CONGRESS, TREATY OR MILITARY COMMAND DEFINING THE
COMMISSION'S AUTHORITY.  PP. 18, 23. 

(A)  THE ARTICLES OF WAR, INCLUDING ARTICLES 25 AND 38, ARE NOT
APPLICABLE TO THE TRIAL OF AN ENEMY COMBATANT BY A MILITARY COMMISSION
FOR VIOLATIONS OF THE LAW OF WAR, AND IMPOSED NO RESTRICTIONS UPON THE
PROCEDURE TO BE FOLLOWED IN SUCH TRIAL.  PP. 19, 20. 

(B)  ARTICLE 63 OF THE GENEVA CONVENTION OF 1929, WHICH PROVIDES THAT
"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," DOES NOT REQUIRE
THAT ARTICLES 25 AND 38 OF THE ARTICLES OF WAR BE APPLIED IN THE TRIAL
OF THE PETITIONER.  ARTICLE 63 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.  P.
20. 

(C)  THE COURT EXPRESSES NO OPINION ON THE QUESTION OF THE WISDOM OF
CONSIDERING SUCH EVIDENCE AS WAS RECEIVED IN THIS PROCEEDING, NOR ON
THE QUESTION 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.  P. 23. 

5.  ON AN APPLICATION FOR HABEAS CORPUS, THE COURT IS NOT CONCERNED
WITH THE GUILT OR INNOCENCE OF THE PETITIONER.  P. 8. 

6.  BY SANCTIONING TRIALS OF ENEMY ALIENS BY MILITARY COMMISSION FOR
OFFENSES AGAINST THE LAW OF WAR, CONGRESS RECOGNIZED THE RIGHT OF THE
ACCUSED TO MAKE A DEFENSE, AND DID NOT FORECLOSE THEIR RIGHT TO CONTEND
THAT THE CONSTITUTION OR LAWS OF THE UNITED STATES WITHHOLD AUTHORITY
TO PROCEED WITH THE TRIAL.  P. 9. 

7.  THE COURT DOES NOT APPRAISE THE EVIDENCE ON WHICH THE PETITIONER
HERE WAS CONVICTED.  P. 17. 

8.  THE MILITARY COMMISSION'S RULINGS ON EVIDENCE AND ON THE MODE OF
CONDUCTING THE PROCEEDINGS AGAINST THE 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.  PP. 8, 23. 

9.  ARTICLE 60 OF THE GENEVA CONVENTION OF 1929, WHICH 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," APPLIES ONLY TO PERSONS WHO ARE
SUBJECTED TO JUDICIAL PROCEEDINGS FOR OFFENSES COMMITTED WHILE
PRISONERS OF WAR.  P. 23. 

10.  THE DETENTION OF THE PETITIONER FOR TRIAL AND HIS DETENTION UPON
HIS CONVICTION, SUBJECT TO THE PRESCRIBED REVIEW BY THE MILITARY
AUTHORITIES, WERE LAWFUL.  P. 25. 

IN RE YAMASHITA. 

NO. 61, MISC. APPLICATION FOR LEAVE TO FILE PETITION FOR WRIT OF
HABEAS CORPUS AND WRIT OF PROHIBITION* . 

*TOGETHER WITH NO. 672, YAMASHITA V. STYER, COMMANDING GENERAL, ON
PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF THE
COMMONWEALTH OF THE PHILIPPINES.  FOR EARLIER ORDERS IN THESE CASES SEE
326 U.S. 693, 694. 

NO. 61, MISC.  APPLICATION FOR LEAVE TO FILE A PETITION FOR WRITS OF
HABEAS CORPUS AND PROHIBITION IN THIS COURT CHALLENGING THE
JURISDICTION AND LEGAL AUTHORITY OF A MILITARY COMMISSION WHICH
CONVICTED APPLICANT OF A VIOLATION OF THE LAW OF WAR AND SENTENCED HIM
TO BE HANGED.  DENIED. 

NO. 672.  PETITION FOR CERTIORARI TO REVIEW AN ORDER OF THE SUPREME
COURT OF THE COMMONWEALTH OF THE PHILIPPINES, 42 OFF.  GAZ.  664,
DENYING AN APPLICATION FOR WRITS OF HABEAS CORPUS AND PROHIBITION
LIKEWISE CHALLENGING THE JURISDICTION AND LEGAL AUTHORITY OF THE
MILITARY COMMISSION WHICH TRIED AND CONVICTED PETITIONER.  DENIED. 

COLONEL HARRY E. CLARKE, PRO HAC VICE, CAPTAIN A. FRANK REEL AND
CAPTAIN MILTON SANDBERG ARGUED THE CAUSE FOR PETITIONER.  WITH THEM ON
THE BRIEF WERE LT. COL. WALTER C. HENDRIX, LT. COL. JAMES G. FELDHAUS
AND MAJOR GEORGE F. GUY. 

SOLICITOR GENERAL MCGRATH AND ASSISTANT SOLICITOR GENERAL JUDSON
ARGUED THE CAUSE FOR RESPONDENT.  WITH THEM ON THE BRIEF WERE THE JUDGE
ADVOCATE GENERAL OF THE ARMY, FREDERICK BERNAYS WIENER, GEORGE THOMAS
WASHINGTON, DAVID REICH, IRVING HILL, COLONEL WILLIAM J. HUGHES, JR.
AND CAPTAIN D. C. HILL. 

MR. CHIEF JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

NO. 61 MISCELLANEOUS IS AN APPLICATION FOR LEAVE TO FILE A PETITION
FOR WRITS OF HABEAS CORPUS AND PROHIBITION IN THIS COURT.  NO. 672 IS A
PETITION FOR CERTIORARI TO REVIEW AN ORDER OF THE SUPREME COURT OF THE
COMMONWEALTH OF THE PHILIPPINES (28 U.S.C. SEC. 349), DENYING
PETITIONER'S APPLICATION TO THAT COURT FOR WRITS OF HABEAS CORPUS AND
PROHIBITION.  AS BOTH APPLICATIONS RAISE SUBSTANTIALLY LIKE QUESTIONS,
AND BECAUSE OF THE IMPORTANCE AND NOVELTY OF SOME OF THOSE PRESENTED,
WE SET THE TWO APPLICATIONS DOWN FOR ORAL ARGUMENT AS ONE CASE. 

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 BAGUIO, PHILIPPINE ISLANDS.  ON
SEPTEMBER 25TH, BY ORDER OF RESPONDENT, LIEUTENANT GENERAL WILHELM D.
STYER, COMMANDING GENERAL OF THE UNITED STATES ARMY FORCES, WESTERN
PACIFIC, WHICH COMMAND EMBRACES THE PHILIPPINE ISLANDS, PETITIONER WAS
SERVED WITH A CHARGE PREPARED BY THE JUDGE ADVOCATE GENERAL'S
DEPARTMENT OF THE ARMY, PURPORTING TO CHARGE PETITIONER WITH A
VIOLATION OF THE LAW OF WAR.  ON OCTOBER 8, 1945, PETITIONER, AFTER
PLEADING NOT GUILTY TO THE CHARGE, WAS HELD FOR TRIAL BEFORE A MILITARY
COMMISSION OF FIVE ARMY OFFICERS APPOINTED BY ORDER OF GENERAL STYER. 
THE ORDER APPOINTED SIX ARMY OFFICERS, ALL LAWYERS, AS DEFENSE
COUNSEL.  THROUGHOUT THE PROCEEDINGS WHICH FOLLOWED, INCLUDING THOSE
BEFORE THIS COURT, DEFENSE COUNSEL HAVE DEMONSTRATED THEIR PROFESSIONAL
SKILL AND RESOURCEFULNESS AND THEIR PROPER ZEAL FOR THE DEFENSE WITH
WHICH THEY WERE CHARGED. 

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 (10 U.S.C. SECS. 1496, 1509) AND THE
GENEVA CONVENTION (47 STAT. 2021), 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, 47 STAT. 2021, 2051. 

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 U.S. 1, WE HAD OCCASION TO CONSIDER AT LENGTH
THE SOURCES AND NATURE OF THE AUTHORITY TO CREATE MILITARY COMMISSIONS
FOR THE TRIAL OF ENEMY COMBATANTS FOR OFFENSES AGAINST THE LAW OF WAR. 
WE THERE POINTED OUT THAT CONGRESS, IN THE EXERCISE OF THE POWER
CONFERRED UPON IT BY ARTICLE I, SEC. 8, CL. 10 OF THE CONSTITUTION TO
"DEFINE AND PUNISH  ... OFFENCES AGAINST THE LAW OF NATIONS  ...," OF
WHICH THE LAW OF WAR IS A PART, HAD BY THE ARTICLES OF WAR (10 U.S.C.
SECS. 1471-1593) RECOGNIZED THE "MILITARY COMMISSION" APPOINTED BY
MILITARY COMMAND, AS IT HAD PREVIOUSLY EXISTED IN UNITED STATES ARMY
PRACTICE, AS AN APPROPRIATE TRIBUNAL FOR THE TRIAL AND PUNISHMENT OF
OFFENSES AGAINST THE LAW OF WAR.  ARTICLE 15 DECLARES THAT THE
"PROVISIONS OF THESE ARTICLES CONFERRING JURISDICTION UPON COURTS
MARTIAL SHALL NOT BE CONSTRUED AS DEPRIVING MILITARY COMMISSIONS  ...
OR OTHER MILITARY TRIBUNALS OF CONCURRENT JURISDICTION IN RESPECT OF
OFFENDERS OR OFFENSES THAT BY STATUTE OR BY THE LAW OF WAR MAY BE
TRIABLE BY SUCH MILITARY COMMISSIONS  ...  OR OTHER MILITARY
TRIBUNALS."  SEE A SIMILAR PROVISION OF THE ESPIONAGE ACT OF 1917, 50
U.S.C. SEC. 38.  ARTICLE 2 INCLUDES AMONG THOSE PERSONS SUBJECT TO THE
ARTICLES OF WAR THE PERSONNEL OF OUR OWN MILITARY ESTABLISHMENT.  BUT
THIS, AS ARTICLE 12 INDICATES, DOES NOT EXCLUDE FROM THE CLASS OF
PERSONS SUBJECT TO TRIAL BY MILITARY COMMISSIONS "ANY OTHER PERSON WHO
BY THE LAW OF WAR IS SUBJECT TO TRIAL BY MILITARY TRIBUNALS," AND WHO,
UNDER ARTICLE 12, MAY BE TRIED BY COURT-MARTIAL, OR UNDER ARTICLE 15 BY
MILITARY COMMISSION. 

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, 1 WALL.  243; IN RE VIDAL, 179 U.S.
126; CF. 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."  28 U.S.C. SECS. 451,
452.  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.  SEE DYNES V. HOOVER,
20 HOW.  65, 81; RUNKLE V. UNITED STATES, 122 U.S. 543, 555-556; CARTER
V. MCCLAUGHRY, 183 U.S. 365; COLLINS V. MCDONALD, 258 U.S. 416.  CF.
MATTER OF MORAN, 203 U.S. 96, 105. 

FINALLY, WE HELD IN EX PARTE QUIRIN, SUPRA, 24, 25, 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.  CF. EX PARTE KAWATO, 317 U.S. 69. 
IT HAS NOT FORECLOSED THEIR RIGHT TO CONTEND THAT THE CONSTITUTION OR
LAWS OF THE UNITED STATES WITHHOLD AUTHORITY TO PROCEED WITH THE
TRIAL.  IT HAS NOT WITHDRAWN, AND THE EXECUTIVE BRANCH OF THE
GOVERNMENT COULD NOT, UNLESS THERE WAS SUSPENSION OF THE WRIT, WITHDRAW
FROM THE COURTS THE DUTY AND POWER TO MAKE SUCH INQUIRY INTO THE
AUTHORITY OF THE COMMISSION AS MAY BE MADE BY HABEAS CORPUS. 

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.  SEE EX PARTE MILLIGAN, 4 WALL.  2, 132;
STERLING V. CONSTANTIN, 287 U.S. 378; EX PARTE QUIRIN, SUPRA, 45.  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 UNITED STATES AND JAPAN. 

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.  2 WINTHROP,
MILITARY LAW AND PRECEDENTS, 2D ED.,*  1302; CF. ARTICLE OF WAR 8. 

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 JULY 2, 1942(56 STAT. 1964), THE PRESIDENT PROCLAIMED
THAT ENEMY BELLIGERENTS WHO, DURING TIME OF WAR, ENTER THE UNITED
STATES, OR ANY TERRITORY OR POSSESSION THEREOF, AND WHO VIOLATE THE LAW
OF WAR, SHOULD BE SUBJECT TO THE LAW OF WAR AND TO THE JURISDICTION OF
MILITARY TRIBUNALS.  PARAGRAPH 10 OF THE DECLARATION OF POTSDAM OF JULY
26, 1945, DECLARED THAT "...  STERN JUSTICE SHALL BE METED OUT TO ALL
WAR CRIMINALS, INCLUDING THOSE WHO HAVE VISITED CRUELTIES UPON OUR
PRISONERS."  U.S. DEPT. OF STATE BULL., VOL. XIII, NO. 318, PP. 137
138.  THIS DECLARATION WAS ACCEPTED BY THE JAPANESE GOVERNMENT BY ITS
NOTE OF AUGUST 10, 1945.  U.S. DEPT. OF STATE BULL., VOL. XIII, NO.
320, P. 205.    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 SEPTEMBER 24, 1945,
GENERAL STYER WAS SPECIFICALLY DIRECTED TO PROCEED WITH THE TRIAL OF
PETITIONER UPON THE CHARGE HERE INVOLVED.  THIS ORDER WAS ACCOMPANIED
BY DETAILED RULES AND REGULATIONS WHICH GENERAL MACARTHUR PRESCRIBED
FOR THE TRIAL OF WAR CRIMINALS.  THESE REGULATIONS DIRECTED, AMONG
OTHER THINGS, THAT REVIEW OF THE SENTENCE IMPOSED BY THE COMMISSION
SHOULD BE BY THE OFFICER CONVENING IT, WITH "AUTHORITY TO APPROVE,
MITIGATE, REMIT, COMMUTE, SUSPEND, REDUCE OR OTHERWISE ALTER THE
SENTENCE IMPOSED," AND DIRECTED THAT NO SENTENCE OF DEATH SHOULD BE
CARRIED INTO EFFECT UNTIL CONFIRMED BY THE COMMANDER IN CHIEF, UNITED
STATES ARMY FORCES, PACIFIC. 

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.  SEE
UNITED STATES V. ANDERSON, 9 WALL.  56, 70; THE PROTECTOR, 12 WALL. 
700, 702; MCELRATH V. UNITED STATES, 102 U.S. 426, 438; KAHN V.
ANDERSON, 255 U.S. 1, 9-10.  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.  SEE
STEWART V. KAHN, 11 WALL.  493, 507. 

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.  FN1  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.  FN2 

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.  JAPAN, BY HER ACCEPTANCE
OF THE POTSDAM DECLARATION AND HER SURRENDER, HAS ACQUIESCED IN THE
TRIALS OF THOSE GUILTY OF VIOLATIONS OF THE LAW OF WAR.  THE CONDUCT OF
THE TRIAL BY THE MILITARY COMMISSION HAS BEEN AUTHORIZED BY THE
POLITICAL BRANCH OF THE GOVERNMENT, BY MILITARY COMMAND, BY
INTERNATIONAL LAW AND USAGE, AND BY THE TERMS OF THE SURRENDER OF THE
JAPANESE GOVERNMENT. 

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,
36 STAT. 2277, 2296, 2303, 2306-7.  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."  36 STAT. 2389.  AND ARTICLE 26 OF THE GENEVA RED CROSS
CONVENTION OF 1929, 47 STAT. 2074, 2092, 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, 36 STAT. 2306,
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 PHILIPPINES, AS WELL AS
COMMANDER OF THE JAPANESE FORCES, AN AFFIRMATIVE DUTY TO TAKE SUCH
MEASURES AS WERE WITHIN HIS POWER AND APPROPRIATE IN THE CIRCUMSTANCES
TO PROTECT PRISONERS OF WAR AND THE CIVILIAN POPULATION.  THIS DUTY OF
A COMMANDING OFFICER HAS HERETOFORE BEEN RECOGNIZED, AND ITS BREACH
PENALIZED BY OUR OWN MILITARY TRIBUNALS.  FN3  A LIKE PRINCIPLE HAS
BEEN APPLIED SO AS TO IMPOSE LIABILITY ON THE UNITED STATES IN
INTERNATIONAL ARBITRATIONS.  CASE OF JEANNAUD, 3 MOORE, INTERNATIONAL
ARBITRATIONS, 3000; CASE OF THE ZAFIRO, 5 HACKWORTH, DIGEST OF
INTERNATIONAL LAW, 707. 

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
N4.  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 U.S.
167, 178.  IT IS PLAIN THAT THE CHARGE ON WHICH PETITIONER WAS TRIED
CHARGED HIM WITH A BREACH OF HIS DUTY TO CONTROL THE OPERATIONS OF THE
MEMBERS OF HIS COMMAND, BY PERMITTING THEM TO COMMIT THE SPECIFIED
ATROCITIES.  THIS WAS ENOUGH TO REQUIRE THE COMMISSION TO HEAR EVIDENCE
TENDING TO ESTABLISH THE CULPABLE FAILURE OF PETITIONER TO PERFORM THE
DUTY IMPOSED ON HIM BY THE LAW OF WAR AND TO PASS UPON ITS SUFFICIENCY
TO ESTABLISH GUILT. 

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.  CF. DEALY
V. UNITED STATES, 152 U.S. 539; WILLIAMSON V. UNITED STATES, 207 U.S.
425, 447; GLASSER V. UNITED STATES, 315 U.S. 60, 66, AND CASES CITED. 

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  FN5
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  FN6  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 N7.  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
SEC. V, "PRISONERS' RELATIONS WITH THE AUTHORITIES," ONE OF THE
THE CONDUCT AND CONTROL OF PRISONERS OF WAR WHILE IN CAPTIVITY AS
SUCH.  CHAPTER 1 OF SEC. 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 SEC. 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.  FN8  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 3 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  FN9  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, SEC. V, TITLE III OF
THE GENEVA CONVENTION, APPLIES ONLY TO PERSONS WHO ARE SUBJECTED TO
JUDICIAL PROCEEDINGS FOR OFFENSES COMMITTED WHILE PRISONERS OF WAR. 
FN10 

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. 

FN1 THE COMMISSION ON THE RESPONSIBILITY OF THE AUTHORS OF THE WAR
AND ON THE ENFORCEMENT OF PENALTIES OF THE VERSAILLES PEACE CONFERENCE,
WHICH MET AFTER CESSATION OF HOSTILITIES IN THE FIRST WORLD WAR, WERE
OF THE VIEW THAT VIOLATORS OF THE LAW OF WAR COULD BE TRIED BY MILITARY
TRIBUNALS.  SEE REPORT OF THE COMMISSION, MARCH 9, 1919, 14 AM. J. INT.
L. 95, 121.  SEE ALSO MEMORANDUM OF AMERICAN COMMISSIONERS CONCURRING
ON THIS POINT, ID., AT P. 141.  THE TREATIES OF PEACE CONCLUDED AFTER
WORLD WAR I RECOGNIZED THE RIGHT OF THE ALLIES AND OF THE UNITED STATES
TO TRY SUCH OFFENDERS BEFORE MILITARY TRIBUNALS.  SEE ART. 228 OF
TREATY OF VERSAILLES, JUNE 28, 1919; ART. 173 OF TREATY OF ST. GERMAIN,
SEPT. 10, 1919; ART. 157 OF TREATY OF TRIANON, JUNE 4, 1920. 

THE TERMS OF THE AGREEMENT WHICH ENDED HOSTILITIES IN THE BOER WAR
RESERVED THE RIGHT TO TRY, BEFORE MILITARY TRIBUNALS, ENEMY COMBATANTS
WHO HAD VIOLATED THE LAW OF WAR.  95 BRITISH AND FOREIGN STATE PAPERS
(1901-1902) 160.  SEE ALSO TRIALS CITED IN COLBY, WAR CRIMES, 23
MICHIGAN LAW REV. 482, 496-7. 

FN2  SEE CASES MENTIONED IN EX PARTE QUIRIN, SUPRA, P. 32, NOTE 10,
AND IN 2 WINTHROP, SUPRA,* 1310-1311, N. 5; 14 OP. A.G. 249(MODOC
INDIAN PRISONERS). 

FN3  FAILURE OF AN OFFICER TO TAKE MEASURES TO PREVENT MURDER OF AN
INHABITANT OF AN OCCUPIED COUNTRY COMMITTED IN HIS PRESENCE.  GEN.
ORDERS NO. 221, HQ. DIV. OF THE PHILIPPINES, AUGUST 17, 1901.  AND IN
GEN. ORDERS NO. 264, HQ. DIV. OF THE PHILIPPINES, SEPTEMBER 9, 1901, IT
WAS HELD THAT AN OFFICER COULD NOT BE FOUND GUILTY FOR FAILURE TO
PREVENT A MURDER UNLESS IT APPEARED THAT THE ACCUSED HAD "THE POWER TO
PREVENT" IT. 

FN4  IN ITS FINDINGS THE COMMISSION TOOK ACCOUNT OF THE DIFFICULTIES
"FACED BY THE ACCUSED WITH RESPECT NOT ONLY TO THE SWIFT AND
OVERPOWERING ADVANCE OF AMERICAN FORCES, BUT ALSO TO THE ERRORS OF HIS
PREDECESSORS, WEAKNESSES IN ORGANIZATION, EQUIPMENT, SUPPLY  ...,
TRAINING, COMMUNICATION, DISCIPLINE AND MORALE OF HIS TROOPS," AND THE
"TACTICAL SITUATION, THE CHARACTER, TRAINING AND CAPACITY OF STAFF
OFFICERS AND SUBORDINATE COMMANDERS AS WELL AS THE TRAITS OF CHARACTER
...  OF HIS TROOPS."  IT NONETHELESS FOUND THAT PETITIONER HAD NOT
TAKEN SUCH MEASURES TO CONTROL HIS TROOPS AS WERE "REQUIRED BY THE
CIRCUMSTANCES."  WE DO NOT WEIGH THE EVIDENCE.  WE MERELY HOLD THAT THE
CHARGE SUFFICIENTLY STATES A VIOLATION AGAINST THE LAW OF WAR, AND THAT
THE COMMISSION, UPON THE FACTS FOUND, COULD PROPERLY FIND PETITIONER
GUILTY OF SUCH A VIOLATION. 

FN5 ARTICLE 25 PROVIDES:  "A DULY AUTHENTICATED DEPOSITION TAKEN UPON
REASONABLE NOTICE TO THE OPPOSITE PARTY MAY BE READ IN EVIDENCE BEFORE
ANY MILITARY COURT OR COMMISSION IN ANY CASE NOT CAPITAL, OR IN ANY
PROCEEDING BEFORE A COURT OF INQUIRY OR A MILITARY BOARD,  ...
PROVIDED, THAT TESTIMONY BY DEPOSITION MAY BE ADDUCED FOR THE DEFENSE
IN CAPITAL CASES." 

FN6  ARTICLE 38 PROVIDES:  "THE PRESIDENT MAY, BY REGULATIONS, WHICH
HE MAY MODIFY FROM TIME TO TIME, PRESCRIBE THE PROCEDURE, INCLUDING
MODES OF PROOF, IN CASES BEFORE COURTS-MARTIAL, COURTS OF INQUIRY,
MILITARY COMMISSIONS, AND OTHER MILITARY TRIBUNALS, WHICH REGULATIONS
SHALL INSOFAR AS HE SHALL DEEM PRACTICABLE, APPLY THE RULES OF EVIDENCE
GENERALLY RECOGNIZED IN THE TRIAL OF CRIMINAL CASES IN THE DISTRICT
COURTS OF THE UNITED STATES:  PROVIDED, THAT NOTHING CONTRARY TO OR
INCONSISTENT WITH THESE ARTICLES SHALL BE SO PRESCRIBED:..." 

FN7  GENERAL CROWDER, THE JUDGE ADVOCATE GENERAL, WHO APPEARED BEFORE
CONGRESS AS SPONSOR FOR THE ADOPTION OF ARTICLE 15 AND THE ACCOMPANYING
AMENDMENT OF ARTICLE 25, IN EXPLAINING THE PURPOSE OF ARTICLE 15,
SAID: 

"ARTICLE 15 IS NEW.  WE HAVE INCLUDED IN ARTICLE 2 AS SUBJECT TO
MILITARY LAW A NUMBER OF PERSONS WHO ARE ALSO SUBJECT TO TRIAL BY
MILITARY COMMISSION.  A MILITARY COMMISSION IS OUR COMMON-LAW WAR
COURT.  IT HAS NO STATUTORY EXISTENCE, THOUGH IT IS RECOGNIZED BY
STATUTE LAW.  AS LONG AS THE ARTICLES EMBRACED THEM IN THE DESIGNATION
'PERSONS SUBJECT TO MILITARY LAW,' AND PROVIDED THAT THEY MIGHT BE
TRIED BY COURT-MARTIAL, I WAS AFRAID THAT, HAVING MADE A SPECIAL
PROVISION FOR THEIR TRIAL BY COURT-MARTIAL, (ARTS. 12, 13, AND 14) IT
MIGHT BE HELD THAT THE PROVISION OPERATED TO EXCLUDE TRIALS BY MILITARY
COMMISSION AND OTHER WAR COURTS; SO THIS NEW ARTICLE WAS
INTRODUCED:..."  (SEN. R. 130, 64TH CONG., 1ST SESS., P. 40.) 

FN8  PART 1 OF CHAPTER 3, "GENERAL PROVISIONS," PROVIDES IN ARTICLES
45 AND 46 THAT PRISONERS OF WAR ARE SUBJECT TO THE REGULATIONS IN FORCE
IN THE ARMIES OF THE DETAINING POWER, THAT PUNISHMENTS OTHER THAN THOSE
PROVIDED "FOR THE SAME ACTS FOR SOLDIERS OF THE NATIONAL ARMIES" MAY
NOT BE IMPOSED ON PRISONERS OF WAR, AND THAT "COLLECTIVE PUNISHMENT FOR
INDIVIDUAL ACTS" IS FORBIDDEN.  ARTICLE 47 PROVIDES THAT "ACTS
CONSTITUTING AN OFFENSE AGAINST DISCIPLINE, AND PARTICULARLY ATTEMPTED
ESCAPE, SHALL BE VERIFIED IMMEDIATELY; FOR ALL PRISONERS OF WAR,
COMMISSIONED OR NOT, PREVENTIVE ARREST SHALL BE REDUCED TO THE ABSOLUTE
MINIMUM.  JUDICIAL PROCEEDINGS AGAINST PRISONERS OF WAR SHALL BE
CONDUCTED AS RAPIDLY AS THE CIRCUMSTANCES PERMIT  ...  IN ALL CASES,
THE DURATION OF PREVENTIVE IMPRISONMENT SHALL BE DEDUCTED FROM THE
DISCIPLINARY OR JUDICIAL PUNISHMENT INFLICTED  ..."    ARTICLE 48
PROVIDES THAT PRISONERS OF WAR, AFTER HAVING SUFFERED "THE JUDICIAL OR
DISCIPLINARY PUNISHMENT WHICH HAS BEEN IMPOSED ON THEM," ARE NOT TO BE
TREATED DIFFERENTLY FROM OTHER PRISONERS, BUT PROVIDES THAT "PRISONERS
PUNISHED AS A RESULT OF ATTEMPTED ESCAPE MAY BE SUBJECTED TO SPECIAL
SURVEILLANCE."  ARTICLE 49 RECITES THAT PRISONERS "GIVEN DISCIPLINARY
PUNISHMENT MAY NOT BE DEPRIVED OF THE PREROGATIVES ATTACHED TO THEIR
RANK."  ARTICLES 50 AND 51 DEAL WITH ESCAPED PRISONERS WHO HAVE BEEN
RETAKEN OR PRISONERS WHO HAVE ATTEMPTED TO ESCAPE.  ARTICLE 52
PROVIDES: "BELLIGERENTS SHALL SEE THAT THE COMPETENT AUTHORITIES
EXERCISE THE GREATEST LENIENCY IN DECIDING THE QUESTION OF WHETHER AN
INFRACTION COMMITTED BY A PRISONER OF WAR SHOULD BE PUNISHED BY
DISCIPLINARY OR JUDICIAL MEASURES.  THIS SHALL BE THE CASE ESPECIALLY
WHEN IT IS A QUESTION OF DECIDING ON ACTS IN CONNECTION WITH ESCAPE OR
ATTEMPTED ESCAPE....  A PRISONER MAY NOT BE PUNISHED MORE THAN ONCE
BECAUSE OF THE SAME ACT OR THE SAME COUNT." 

FN9  SWITZERLAND, AT THE TIME OF THE TRIAL, WAS THE POWER DESIGNATED
BY JAPAN FOR THE PROTECTION OF JAPANESE PRISONERS OF WAR DETAINED BY
THE UNITED STATES, EXCEPT IN HAWAII.  U.S. DEPT. OF STATE BULL., VOL.
XIII, NO. 317, P. 125. 

FN10  ONE OF THE ITEMS OF THE BILL OF PARTICULARS, IN SUPPORT OF THE
CHARGE AGAINST PETITIONER, SPECIFIES THAT HE PERMITTED MEMBERS OF THE
ARMED FORCES UNDER HIS COMMAND TO TRY AND EXECUTE THREE NAMED AND OTHER
PRISONERS OF WAR, "SUBJECTING TO TRIAL WITHOUT PRIOR NOTICE TO A
REPRESENTATIVE OF THE PROTECTING POWER, WITHOUT OPPORTUNITY TO DEFEND,
AND WITHOUT COUNSEL; DENYING OPPORTUNITY TO APPEAL FROM THE SENTENCE
RENDERED; FAILING TO NOTIFY THE PROTECTING POWER OF THE SENTENCE
PRONOUNCED; AND EXECUTING A DEATH SENTENCE WITHOUT COMMUNICATING TO THE
REPRESENTATIVE OF THE PROTECTING POWER THE NATURE AND CIRCUMSTANCES OF
THE OFFENSE CHARGED."  IT MIGHT BE SUGGESTED THAT IF ARTICLE 60 IS
INAPPLICABLE TO PETITIONER IT IS INAPPLICABLE IN THE CASES SPECIFIED,
AND THAT HENCE HE COULD NOT BE LAWFULLY HELD OR CONVICTED ON A CHARGE
OF FAILING TO REQUIRE THE NOTICE, PROVIDED FOR IN ARTICLE 60, TO BE
GIVEN. 

AS THE GOVERNMENT INSISTS, IT DOES NOT APPEAR FROM THE CHARGE AND
SPECIFICATIONS THAT THE PRISONERS IN QUESTION WERE NOT CHARGED WITH
OFFENSES COMMITTED BY THEM AS PRISONERS RATHER THAN WITH OFFENSES
AGAINST THE LAW OF WAR COMMITTED BY THEM AS ENEMY COMBATANTS.  BUT
APART FROM THIS CONSIDERATION, INDEPENDENTLY OF THE NOTICE REQUIREMENTS
OF THE GENEVA CONVENTION, IT IS A VIOLATION OF THE LAW OF WAR, ON WHICH
THERE COULD BE A CONVICTION IF SUPPORTED BY EVIDENCE, TO INFLICT
CAPITAL PUNISHMENT ON PRISONERS OF WAR WITHOUT AFFORDING TO THEM
OPPORTUNITY TO MAKE A DEFENSE.  2 WINTHROP, SUPRA,*  434-435, 1241;
ARTICLE 84, OXFORD MANUAL, LAWS AND CUSTOMS OF WAR ON LAND; U.S. WAR
DEPT., BASIC FIELD MANUAL, RULES OF LAND WARFARE (1940) PAR. 356;
LIEBER'S CODE, G.O. NO. 100(1863) INSTRUCTIONS FOR THE GOVERNMENT OF
ARMIES OF THE UNITED STATES IN THE FIELD, PAR. 12; SPAIGHT, WAR RIGHTS
ON LAND, 462, N. 

FURTHER, THE COMMISSION, IN MAKING ITS FINDINGS, SUMMARIZED AS
FOLLOWS THE CHARGES, ON WHICH IT ACTED, IN THREE CLASSES, ANY ONE OF
WHICH, INDEPENDENTLY OF THE OTHERS IF SUPPORTED BY EVIDENCE, WOULD BE
SUFFICIENT TO SUPPORT THE CONVICTION:  (1) EXECUTION OR MASSACRE
WITHOUT TRIAL AND MALADMINISTRATION GENERALLY OF CIVILIAN INTERNEES AND
PRISONERS OF WAR; (2) BRUTALITIES COMMITTED UPON THE CIVILIAN
POPULATION, AND (3) BURNING AND DEMOLITION, WITHOUT ADEQUATE MILITARY
NECESSITY, OF A LARGE NUMBER OF HOMES, PLACES OF BUSINESS, PLACES OF
RELIGIOUS WORSHIP, HOSPITALS, PUBLIC BUILDINGS AND EDUCATIONAL
INSTITUTIONS. 

THE COMMISSION CONCLUDED:  "(1) THAT A SERIES OF ATROCITIES AND OTHER
HIGH CRIMES HAVE BEEN COMMITTED BY MEMBERS OF THE JAPANESE ARMED
FORCES" UNDER COMMAND OF PETITIONER "AGAINST PEOPLE OF THE UNITED
STATES, THEIR ALLIES AND DEPENDENCIES  ...; THAT THEY WERE NOT SPORADIC
IN NATURE BUT IN MANY CASES WERE METHODICALLY SUPERVISED BY JAPANESE
OFFICERS AND NONCOMMISSIONED OFFICERS"; (2) THAT DURING THE PERIOD IN
QUESTION PETITIONER "FAILED TO PROVIDE EFFECTIVE CONTROL OF  ...  (HIS)
TROOPS, AS WAS REQUIRED BY THE CIRCUMSTANCES."  THE COMMISSION SAID:
"...  WHERE MURDER AND RAPE AND VICIOUS, REVENGEFUL ACTIONS ARE
WIDESPREAD OFFENSES, AND THERE IS NO EFFECTIVE ATTEMPT BY A COMMANDER
TO DISCOVER AND CONTROL THE CRIMINAL ACTS, SUCH A COMMANDER MAY BE HELD
RESPONSIBLE, EVEN CRIMINALLY LIABLE, FOR THE LAWLESS ACTS OF HIS
TROOPS, DEPENDING UPON THEIR NATURE AND THE CIRCUMSTANCES SURROUNDING
THEM." 

THE COMMISSION MADE NO FINDING OF NON-COMPLIANCE WITH THE GENEVA
CONVENTION.  NOTHING HAS BEEN BROUGHT TO OUR ATTENTION FROM WHICH WE
COULD CONCLUDE THAT THE ALLEGED NON-COMPLIANCE WITH ARTICLE 60 OF THE
GENEVA CONVENTION HAD ANY RELATION TO THE COMMISSION'S FINDING OF A
SERIES OF ATROCITIES COMMITTED BY MEMBERS OF THE FORCES UNDER
PETITIONER'S COMMAND, AND THAT HE FAILED TO PROVIDE EFFECTIVE CONTROL
OF HIS TROOPS, AS WAS REQUIRED BY THE CIRCUMSTANCES; OR WHICH COULD
SUPPORT THE PETITIONS FOR HABEAS CORPUS ON THE GROUND THAT PETITIONER
HAD BEEN CHARGED WITH OR CONVICTED FOR FAILURE TO REQUIRE THE NOTICE
PRESCRIBED BY ARTICLE 60 TO BE GIVEN. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THESE CASES. 
Part I  Part II   Part III  Part IV  Part V
Stuart.Stein@uwe.ac.uk
Last Updated 06/11/01 14:50:39
S D Stein
 
Faculty of Economics and Social Science