Case Name: IN RE YAMASHITA, 327 U.S. 1 

Part V

FN1  CUMMINGS V. MISSOURI, 4 WALL.  277; KRING V. MISSOURI, 107 U.S.
221. 

FN2  ARMOUR PACKING CO. V. UNITED STATES, 209 U.S. 56, 83-84; UNITED
STATES V. COHEN GROCERY CO., 255 U.S. 81; CF. SCREWS V. UNITED STATES,
325 U.S. 91.  SEE NOTE 17 AND TEXT. 

FN3  HAWK V. OLSON, 326 U.S. 271; SNYDER V. MASSACHUSETTS, 291 U.S.
97, 105:  "WHAT MAY NOT BE TAKEN AWAY IS NOTICE OF THE CHARGE AND AN
ADEQUATE OPPORTUNITY TO BE HEARD IN DEFENSE OF IT."  SEE PART III. 

FN4  THE COMMISSION'S FINDINGS STATE:  "WE HAVE RECEIVED FOR ANALYSIS
AND EVALUATION 423 EXHIBITS CONSISTING OF OFFICIAL DOCUMENTS OF THE
UNITED STATES ARMY, THE UNITED STATES STATE DEPARTMENT, AND THE
COMMONWEALTH OF THE PHILIPPINES; AFFIDAVITS; CAPTURED ENEMY DOCUMENTS
OR TRANSLATIONS THEREOF; DIARIES TAKEN FROM JAPANESE PERSONNEL,
PHOTOGRAPHS, MOTION PICTURE FILMS, AND MANILA NEWSPAPERS."  SEE NOTES
19 AND 20. 

CONCERNING THE SPECIFIC NATURE OF THESE ELEMENTS IN THE PROOF, THE
ISSUES TO WHICH THEY WERE DIRECTED, AND THEIR PREJUDICIAL EFFECTS, SEE
TEXT INFRA AND NOTES IN PART II. 

FN5  QUEEN V. HEPBURN, 7 CRANCH 290; DONNELLY V. UNITED STATES, 228
U.S. 243, 273.  SEE PART II; NOTE 21. 

FN6  MOTES V. UNITED STATES, 178 U.S. 458; PAONI V. UNITED STATES,
281 F. 801.  SEE PARTS II AND III. 

FN7  SEE PART II AT NOTES 10, 19; PART III. 

FN8  THE LINE OF AUTHORIZATION WITHIN THE MILITARY HIERARCHY EXTENDED
FROM THE PRESIDENT, THROUGH THE JOINT CHIEFS OF STAFF AND GENERAL
MACARTHUR, TO GENERAL STYER, WHOSE ORDER OF SEPTEMBER 25TH AND OTHERS
WERE MADE PURSUANT TO AND IN CONFORMITY WITH GENERAL MACARTHUR'S
DIRECTIVE.  THE CHARGE WAS PREPARED BY THE JUDGE ADVOCATE GENERAL'S
DEPARTMENT OF THE ARMY.  THERE IS NO DISPUTE CONCERNING THESE FACTS OR
THAT THE DIRECTIVE WAS BINDING ON GENERAL STYER AND THE COMMISSION,
THOUGH IT IS ARGUED HIS OWN AUTHORITY AS AREA COMMANDING GENERAL WAS
INDEPENDENTLY SUFFICIENT TO SUSTAIN WHAT WAS DONE. 

FN9  "16.  EVIDENCE.  - A. THE COMMISSION SHALL 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.  IN PARTICULAR, AND WITHOUT
LIMITING IN ANY WAY THE SCOPE OF THE FOREGOING GENERAL RULES, THE
FOLLOWING EVIDENCE MAY BE ADMITTED: 

(1)  ANY DOCUMENT WHICH APPEARS TO THE COMMISSION TO HAVE BEEN SIGNED
OR ISSUED OFFICIALLY BY ANY OFFICER, DEPARTMENT, AGENCY, OR MEMBER OF
THE ARMED FORCES OF ANY GOVERNMENT, WITHOUT PROOF OF THE SIGNATURE OR
OF THE ISSUANCE OF THE DOCUMENT. 

(2)  ANY REPORT WHICH APPEARS TO THE COMMISSION TO HAVE BEEN SIGNED
OR ISSUED BY THE INTERNATIONAL RED CROSS OR A MEMBER THEREOF, OR BY A
MEDICAL DOCTOR OR ANY MEDICAL SERVICE PERSONNEL, OR BY AN INVESTIGATOR
OR INTELLIGENCE OFFICER, OR BY ANY OTHER PERSON WHOM THE COMMISSION
FINDS TO HAVE BEEN ACTING IN THE COURSE OF HIS DUTY WHEN MAKING THE
REPORT. 

(3)  AFFIDAVITS, DEPOSITIONS, OR OTHER STATEMENTS TAKEN BY AN OFFICER
DETAILED FOR THAT PURPOSE BY MILITARY AUTHORITY. 

(4)  ANY DIARY, LETTER OR OTHER DOCUMENT APPEARING TO THE COMMISSION
TO CONTAIN INFORMATION RELATING TO THE CHARGE. 

(5)  A COPY OF ANY DOCUMENT OR OTHER SECONDARY EVIDENCE OF ITS
CONTENTS, IF THE COMMISSION BELIEVES THAT THE ORIGINAL IS NOT AVAILABLE
OR CANNOT BE PRODUCED WITHOUT UNDUE DELAY...." 

FN10  IN ONE INSTANCE THE PRESIDENT OF THE COMMISSION SAID: "THE
RULES AND REGULATIONS WHICH GUIDE THIS COMMISSION ARE BINDING UPON THE
COMMISSION AND AGENCIES PROVIDED TO ASSIST THE COMMISSION....  WE HAVE
BEEN AUTHORIZED TO RECEIVE AND WEIGH SUCH EVIDENCE AS WE CAN CONSIDER
TO HAVE PROBATIVE VALUE, AND FURTHER COMMENTS BY THE DEFENSE ON THE
RIGHT WHICH WE HAVE TO ACCEPT THIS EVIDENCE IS DECIDEDLY OUT OF
ORDER."  BUT SEE NOTE 19. 

FN11  CF. TEXT INFRA AT NOTE 19 CONCERNING THE PREJUDICIAL CHARACTER
OF THE EVIDENCE. 

FN12  NOTE 4. 

FN13  NAMELY, "(1) STARVATION, EXECUTION OR MASSACRE WITHOUT TRIAL
AND MALADMINISTRATION GENERALLY OF CIVILIAN INTERNEES AND PRISONERS OF
WAR; (2) TORTURE, RAPE, MURDER AND MASS EXECUTION OF VERY LARGE NUMBERS
OF RESIDENTS OF THE PHILIPPINES, INCLUDING WOMEN AND CHILDREN AND
MEMBERS OF RELIGIOUS ORDERS, BY STARVATION, BEHEADING, BAYONETING,
CLUBBING, HANGING, BURNING ALIVE, AND DESTRUCTION BY EXPLOSIVES; (3)
BURNING AND DEMOLITION WITHOUT ADEQUATE MILITARY NECESSITY OF LARGE
NUMBERS OF HOMES, PLACES OF BUSINESS, PLACES OF RELIGIOUS WORSHIP,
HOSPITALS, PUBLIC BUILDINGS, AND EDUCATIONAL INSTITUTIONS.  IN POINT OF
TIME, THE OFFENSES EXTENDED THROUGHOUT THE PERIOD THE ACCUSED WAS IN
COMMAND OF JAPANESE TROOPS IN THE PHILIPPINES.  IN POINT OF AREA, THE
CRIMES EXTENDED THROUGHOUT THE PHILIPPINE ARCHIPELAGO, ALTHOUGH BY FAR
THE MOST OF THE INCREDIBLE ACTS OCCURRED ON LUZON." 

FN14  CF. NOTE 13. 

FN15  IN ADDITION THE FINDINGS SET FORTH THAT CAPTURED ORDERS OF
SUBORDINATE OFFICERS GAVE PROOF THAT "THEY, AT LEAST," ORDERED ACTS
"LEADING DIRECTLY TO" ATROCITIES; THAT "THE PROOF OFFERED TO THE
COMMISSION ALLEGED CRIMINAL NEGLECT  ...  AS WELL AS COMPLETE FAILURE
BY THE HIGHER ECHELONS OF COMMAND TO DETECT AND PREVENT CREUL AND
INHUMAN TREATMENT ACCORDED BY LOCAL COMMANDERS AND GUARDS"; AND THAT,
ALTHOUGH THE "DEFENSE ESTABLISHED THE DIFFICULTIES FACED BY THE
ACCUSED" WITH SPECIAL REFERENCE AMONG OTHER THINGS TO THE DISCIPLINE
AND MORALE OF HIS TROOPS UNDER THE "SWIFT AND OVERPOWERING ADVANCE OF
AMERICAN FORCES," AND NOTWITHSTANDING HE HAD STOUTLY MAINTAINED HIS
COMPLETE IGNORANCE OF THE CRIMES, STILL HE WAS AN OFFICER OF LONG
EXPERIENCE; HIS ASSIGNMENT WAS ONE OF BROAD RESPONSIBILITY; IT WAS HIS
DUTY "TO DISCOVER AND CONTROL" CRIMES BY HIS TROOPS, IF WIDESPREAD, AND
THEREFORE 

"THE COMMISSION CONCLUDES:  (1) THAT A SERIES OF ATROCITIES AND OTHER
HIGH CRIMES HAVE BEEN COMMITTED BY MEMBERS OF THE JAPANESE ARMED FORCES
UNDER YOUR COMMAND AGAINST PEOPLE OF THE UNITED STATES, THEIR ALLIES
AND DEPENDENCIES THROUGHOUT THE PHILIPPINE ISLANDS; THAT THEY WERE NOT
SPORADIC IN NATURE BUT IN MANY CASES WERE METHODICALLY SUPERVISED BY
JAPANESE OFFICERS AND NONCOMMISSIONED OFFICERS; (2) THAT DURING THE
PERIOD IN QUESTION YOU FAILED TO PROVIDE EFFECTIVE CONTROL OF YOUR
TROOPS AS WAS REQUIRED BY THE CIRCUMSTANCES. 

"ACCORDINGLY UPON SECRET WRITTEN BALLOT, TWO-THIRDS OR MORE OF THE
MEMBERS CONCURRING, THE COMMISSION FINDS YOU GUILTY AS CHARGED AND
SENTENCES YOU TO DEATH BY HANGING." 

FN16  SEE NOTE 15. 

FN17  THE CHARGE, SET FORTH AT THE END OF THIS NOTE, IS CONSISTENT
WITH EITHER THEORY - OR BOTH - AND THUS AMBIGUOUS, AS WERE THE
FINDINGS.  SEE NOTE 15.  THE ONLY WORD IMPLYING KNOWLEDGE WAS
"PERMITTING."  IF "WILFULLY" IS ESSENTIAL TO CONSTITUTE A CRIME OR
CHARGE OF ONE, OTHERWISE SUBJECT TO THE OBJECTION OF "VAGUENESS," CF.
SCREWS V. UNITED STATES, 325 U.S. 91, IT WOULD SEEM THAT "PERMITTING"
ALONE WOULD HARDLY BE SUFFICIENT TO CHARGE "WILFUL AND INTENTIONAL"
ACTION OR OMISSION; AND, IF TAKEN TO BE SUFFICIENT TO CHARGE KNOWLEDGE,
IT WOULD FOLLOW NECESSARILY THAT THE CHARGE ITSELF WAS NOT DRAWN TO
STATE AND WAS INSUFFICIENT TO SUPPORT A FINDING OF MERE FAILURE TO
DETECT OR DISCOVER THE CRIMINAL CONDUCT OF OTHERS.    AT THE MOST,
"PERMITTING" COULD CHARGE KNOWLEDGE ONLY BY INFERENCE OR IMPLICATION. 
AND REASONABLY THE WORD COULD BE TAKEN IN THE CONTEXT OF THE CHARGE TO
MEAN "ALLOWING" OR "NOT PREVENTING," A MEANING CONSISTENT WITH ABSENCE
OF KNOWLEDGE AND MERE FAILURE TO DISCOVER.  IN CAPITAL CASES SUCH
AMBIGUITY IS WHOLLY OUT OF PLACE.  THE PROOF WAS EQUALLY AMBIGUOUS IN
THE SAME RESPECT, SO FAR AS WE HAVE BEEN INFORMED, AND SO, TO REPEAT,
WERE THE FINDINGS.  THE USE OF "WILFULLY," EVEN QUALIFIED BY A "MUST
HAVE," ONE TIME ONLY IN THE FINDINGS HARDLY CAN SUPPLY THE ABSENCE OF
THAT OR AN EQUIVALENT WORD OR LANGUAGE IN THE CHARGE OR IN THE PROOF TO
SUPPORT THAT ESSENTIAL ELEMENT IN THE CRIME. 

THE CHARGE WAS AS FOLLOWS:  "TOMOYUKI YAMASHITA, GENERAL IMPERIAL
JAPANESE ARMY, BETWEEN 9 OCTOBER 1944 AND 2 SEPTEMBER 1945, AT MANILA
AND AT OTHER PLACES 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, GENERAL TOMOYUKI YAMASHITA,
THEREBY VIOLATED THE LAWS OF WAR." 

FN18  CF. TEXT INFRA PART IV. 

FN19  ON NOVEMBER 1, EARLY IN THE TRIAL, THE PRESIDENT OF THE
COMMISSION STATED:  "I THINK THE PROSECUTION SHOULD CONSIDER THE
DESIRABILITY OF STRIKING CERTAIN ITEMS.  THE COMMISSION FEELS THAT
THERE MUST BE WITNESSES INTRODUCED ON EACH OF THE SPECIFICATIONS OR
ITEMS.  IT HAS NO OBJECTION TO CONSIDERING AFFIDAVITS, BUT IT IS
UNWILLING TO FORM AN OPINION OF A PARTICULAR ITEM BASED SOLELY ON AN
AFFIDAVIT.  THEREFORE, UNTIL EVIDENCE IS INTRODUCED, THESE PARTICULAR
EXHIBITS ARE REJECTED." 

LATER EVIDENCE OF THE EXCLUDED TYPE WAS OFFERED, TO INTRODUCTION OF
WHICH THE DEFENSE OBJECTED ON VARIOUS GROUNDS INCLUDING THE PRIOR
RULING.  AT THE PROSECUTION'S URGING THE COMMISSION WITHDREW TO
DELIBERATE.  LATER IT ANNOUNCED THAT "AFTER FURTHER CONSIDERATION, THE
COMMISSION REVERSES THAT RULING (OF NOVEMBER 1) AND AFFIRMS ITS
PREROGATIVE OF RECEIVING AND CONSIDERING AFFIDAVITS OR DEPOSITIONS, IF
IT CHOOSES TO DO SO, FOR WHATEVER PROBATIVE VALUE THE COMMISSION
BELIEVES THEY MAY HAVE, WITHOUT REGARD TO THE PRESENTATION OF SOME
PARTIALLY CORROBORATIVE ORAL TESTIMONY."  IT THEN ADDED:  "THE
COMMISSION DIRECTS THE PROSECUTION AGAIN TO INTRODUCE THE AFFIDAVITS OR
DEPOSITIONS THEN IN QUESTION, AND OTHER DOCUMENTS OF A SIMILAR NATURE
WHICH THE PROSECUTION STATED HAD BEEN PREPARED FOR INTRODUCTION." 

THEREAFTER THIS TYPE OF EVIDENCE WAS CONSISTENTLY RECEIVED AND AGAIN,
BY THE UNDISPUTED STATEMENT OF COUNSEL, AS THE SOLE PROOF OF MANY OF
THE SPECIFICATIONS OF THE BILLS, A PROCEDURE WHICH THEY CHARACTERIZE
CORRECTLY IN MY VIEW AS HAVING "IN EFFECT, STRIPPED THE PROCEEDING OF
ALL SEMBLANCE OF A TRIAL AND CONVERTED IT INTO AN EX PARTE
INVESTIGATION." 

FN20  THIS PERHAPS CONSISTED IN THE SHOWING OF THE SO-CALLED
"PROPAGANDA" FILM, "ORDERS FROM TOKYO," PORTRAYING SCENES OF BATTLE
DESTRUCTION IN MANILA, WHICH COUNSEL SAY "WAS NOT IN ITSELF SERIOUSLY
OBJECTIONABLE."  HIGHLY OBJECTIONABLE, INFLAMMATORY AND PREJUDICIAL,
HOWEVER, WAS THE ACCOMPANYING SOUND TRACK WITH COMMENT THAT THE FILM
WAS "EVIDENCE WHICH WILL CONVICT," MENTIONING PETITIONER SPECIFICALLY
BY NAME. 

FN21  INNUMERABLE INSTANCES OF HEARSAY, ONCE OR SEVERAL TIMES
REMOVED, RELATING TO ALL MANNER OF INCIDENTS, RUMORS, REPORTS, ETC.,
WERE AMONG THESE.  MANY INSTANCES, TOO, ARE SHOWN OF THE USE OF OPINION
EVIDENCE AND CONCLUSIONS OF GUILT, INCLUDING REPORTS MADE AFTER EX
PARTE INVESTIGATIONS BY THE WAR CRIMES BRANCH OF THE JUDGE ADVOCATE
GENERAL'S DEPARTMENT, WHICH IT WAS AND IS URGED HAD THE EFFECT OF
"PUTTING THE PROSECUTION ON THE WITNESS STAND" AND OF USURPING THE
COMMISSION'S FUNCTION AS JUDGE OF THE LAW AND THE FACTS.  IT IS SAID
ALSO THAT SOME OF THE REPORTS WERE RECEIVED AS THE SOLE PROOF OF SOME
OF THE SPECIFICATIONS. 

FN22  ALSO WITH PARAGRAPH 82 OF THE RULES OF LAND WARFARE. 

FN23  TYPICAL OF THE ITEMS ARE ALLEGATIONS THAT MEMBERS OF THE ARMED
FORCES OF JAPAN UNDER THE COMMAND OF THE ACCUSED COMMITTED THE ACTS
"DURING THE MONTHS OF OCTOBER, NOVEMBER AND DECEMBER 1944(OF) BRUTALLY
MISTREATING AND TORTURING NUMEROUS UNARMED NONCOMBATANT CIVILIANS AT
THE JAPANESE MILITARY POLICE HEADQUARTERS LOCATED AT CORTABITARTE AND
MABINI STREETS, MANILA" AND "ON ABOUT 19 FEBRUARY 1945, IN THE TOWN OF
CUENCA, BATANGAS PROVINCE, BRUTALLY MISTREATING, MASSACRING AND KILLING
JOSE M. LAGUO, ESTEBAN MAGSAMDOL, JOSE LANBO, FELISA APUNTAR, ELFIDIO
LUNAR, VICTORIANA RAMO, AND 978 OTHER PERSONS, ALL UNARMED NONCOMBATANT
CIVILIANS, PILLAGING AND UNNECESSARY, DELIBERATELY AND WANTONLY
DEVASTATING, BURNING AND DESTROYING LARGE AREAS OF THAT TOWN." 

FN24  THE SUPPLEMENTAL BILL CONTAINS ALLEGATIONS SIMILAR TO THOSE SET
OUT IN THE ORIGINAL BILL.  SEE NOTE 23.  FOR EXAMPLE, IT CHARGED THAT
MEMBERS OF THE ARMED FORCES OF JAPAN UNDER THE COMMAND OF THE ACCUSED
"DURING THE PERIOD FROM 9 OCTOBER 1944 TO ABOUT 1 FEBRUARY 1945, AT
CAVITE CITY, IMUS, AND ELSEWHERE IN CAVITE PROVINCE," WERE PERMITTED TO
COMMIT THE ACTS OF "BRUTALLY MISTREATING, TORTURING, AND KILLING OR
ATTEMPTING TO KILL, WITHOUT CAUSE OR TRIAL, UNARMED NONCOMBATANT
CIVILIANS." 

FN25  SEE NOTE 39 AND TEXT, PART V. 

FN26  IN SUPPORT OF THE MOTION COUNSEL INDICATED SURPRISE BY SAYING
THAT, THOUGH IT WAS ASSUMED TWO OR THREE NEW SPECIFICATIONS MIGHT BE
ADDED, THERE HAD BEEN NO EXPECTATION OF 59 "ABOUT ENTIRELY DIFFERENT
PERSONS AND TIMES."  THE STATEMENT CONTINUED: 

"WE HAVE WORKED EARNESTLY SEVEN DAYS A WEEK IN ORDER TO PREPARE THE
DEFENSE ON 64 SPECIFICATIONS.  AND WHEN I SAY 'PREPARE THE DEFENSE,'
SIR, I DO NOT MEAN MERELY AN AFFIRMATIVE DEFENSE, BUT TO ACQUAINT
OURSELVES WITH THE FACTS SO THAT WE COULD PROPERLY CROSS EXAMINE THE
PROSECUTION'S WITNESSES. 

"...  'IN ADVANCE OF TRIAL' MEANS:  SUFFICIENT TIME TO ALLOW THE
DEFENSE A CHANCE TO PREPARE ITS DEFENSE. 

"WE EARNESTLY STATE THAT WE MUST HAVE THIS TIME IN ORDER TO
ADEQUATELY PREPARE A DEFENSE.  I MIGHT ADD, SIR, WE THINK THAT THIS IS
IMPORTANT TO THE ACCUSED, BUT FAR MORE IMPORTANT THAN ANY RIGHTS OF
THIS ACCUSED, WE BELIEVE, IS THE PROPOSITION THAT THIS COMMISSION
SHOULD NOT DEVIATE FROM A FUNDAMENTAL AMERICAN CONCEPT OF FAIRNESS
..." 

FN27  THE COMMISSION WENT ON TO QUESTION THE NEED FOR ALL OF THE SIX
OFFICERS REPRESENTING THE DEFENSE TO BE PRESENT DURING PRESENTATION OF
ALL THE CASE, SUGGESTED ONE OR TWO WOULD BE ADEQUATE AND OTHERS "SHOULD
BE OUT OF THE COURTROOM" ENGAGED IN OTHER MATTERS AND STRONGLY
SUGGESTED BRINGING IN ADDITIONAL COUNSEL IN THE MIDST OF THE TRIAL, ALL
TO THE END THAT "NEED TO REQUEST A CONTINUANCE MAY NOT ARISE." 

FN28  SEE NOTE 9. 

FN29  ARTICLE 25 IS AS FOLLOWS:  "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, IF SUCH DEPOSITION BE TAKEN WHEN THE WITNESS RESIDES, IS FOUND,
OR IS ABOUT TO GO BEYOND THE STATE, TERRITORY, OR DISTRICT IN WHICH THE
COURT, COMMISSION, OR BOARD IS ORDERED TO SIT, OR BEYOND THE DISTANCE
OF ONE HUNDRED MILES FROM THE PLACE OF TRIAL OR HEARING, OR WHEN IT
APPEARS TO THE SATISFACTION OF THE COURT, COMMISSION, BOARD, OR
APPOINTING AUTHORITY THAT THE WITNESS, BY REASON OF AGE, SICKNESS,
BODILY INFIRMITY, IMPRISONMENT, OR OTHER REASONABLE CAUSE, IS UNABLE TO
APPEAR AND TESTIFY IN PERSON AT THE PLACE OF TRIAL OR HEARING:
PROVIDED, THAT TESTIMONY BY DEPOSITION MAY BE ADDUCED FOR THE DEFENSE
IN CAPITAL CASES."  U.S.C. SEC. 1496. 

ARTICLE 38 READS:  "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:  PROVIDED
FURTHER, THAT ALL RULES MADE IN PURSUANCE OF THIS ARTICLE SHALL BE LAID
BEFORE THE CONGRESS ANNUALLY."  10 U.S.C. SEC. 1509. 

FN30  ANOTHER REVISION OF THE ARTICLES OF WAR TOOK PLACE IN 1920.  AT
THIS TIME ARTICLE 15 WAS SLIGHTLY AMENDED. 

IN 1916 ARTICLE 15 WAS ENACTED TO READ:  "THE PROVISIONS OF THESE
ARTICLES CONFERRING JURISDICTION UPON COURTS-MARTIAL SHALL NOT BE
CONSTRUED AS DEPRIVING MILITARY COMMISSIONS, PROVOST COURTS, OR OTHER
MILITARY TRIBUNALS OF CONCURRENT JURISDICTION IN RESPECT OF OFFENDERS
OR OFFENSES THAT BY THE LAW OF WAR MAY BE LAWFULLY TRIABLE BY SUCH
MILITARY COMMISSIONS, PROVOST COURTS, OR OTHER MILITARY TRIBUNALS." 

THE 1920 AMENDMENT PUT IN THE WORDS "BY STATUTE OR" BEFORE THE WORDS
"BY THE LAW OF WAR" AND OMITTED THE WORD "LAWFULLY." 

FN31  SPEAKING AT THE HEARINGS BEFORE THE COMMITTEE ON MILITARY
AFFAIRS, HOUSE OF REPRESENTATIVES, 62D CONG., 2D SESS., PRINTED AS AN
APPENDIX TO S. REP. 229, 63D CONG., 2D SESS., GENERAL CROWDER SAID: 

"THE NEXT ARTICLE, NO. 15, IS ENTIRELY NEW, AND THE REASONS FOR ITS
INSERTION IN THE CODE ARE THESE:  IN OUR WAR WITH MEXICO TWO WAR COURTS
WERE BROUGHT INTO EXISTENCE BY ORDERS OF GEN. SCOTT, VIZ, THE MILITARY
COMMISSION AND THE COUNCIL OF WAR.  BY THE MILITARY COMMISSION GEN.
SCOTT TRIED CASES COGNIZABLE IN TIME OF PEACE BY CIVIL COURTS, AND BY
THE COUNCIL OF WAR HE TRIED OFFENSES AGAINST THE LAWS OF WAR.  THE
COUNCIL OF WAR DID NOT SURVIVE THE MEXICAN WAR PERIOD, AND IN OUR
SUBSEQUENT WARS ITS JURISDICTION HAS BEEN TAKEN OVER BY THE MILITARY
COMMISSION, WHICH DURING THE CIVIL WAR PERIOD TRIED MORE THAN 2,000
CASES.  WHILE THE MILITARY COMMISSION HAS NOT BEEN FORMALLY AUTHORIZED
BY STATUTE, ITS JURISDICTION AS A WAR COURT HAS BEEN UPHELD BY THE
SUPREME COURT OF THE UNITED STATES.  IT IS AN INSTITUTION OF THE
GREATEST IMPORTANCE IN A PERIOD OF WAR AND SHOULD BE PRESERVED.  IN THE
NEW CODE THE JURISDICTION OF COURTS-MARTIAL HAS BEEN SOMEWHAT AMPLIFIED
BY THE INTRODUCTION OF THE PHRASE 'PERSONS SUBJECT TO MILITARY LAW.' 
THERE WILL BE MORE INSTANCES IN THE FUTURE THAN IN THE PAST WHEN THE
JURISDICTION OF COURTS-MARTIAL WILL OVERLAP THAT OF THE WAR COURTS, AND
THE QUESTION WOULD ARISE WHETHER CONGRESS HAVING VESTED JURISDICTION BY
STATUTE THE COMMON LAW OF WAR JURISDICTION WAS NOT OUSTED.  I WISH TO
MAKE IT PERFECTLY PLAIN BY THE NEW ARTICLE THAT IN SUCH CASES THE
JURISDICTION OF THE WAR COURT IS CONCURRENT."  S. REP. NO. 229, 63D
CONG., 2D SESS., P. 53. 

AND LATER, IN 1916, SPEAKING BEFORE THE SUBCOMMITTEE ON MILITARY
AFFAIRS OF THE SENATE AT THEIR HEARINGS ON S. 3191, A PROJECT FOR THE
REVISION OF THE ARTICLES OF WAR, 64TH CONG., 1ST SESS., PRINTED AS AN
APPENDIX TO S. REP. 130, 64TH CONG., 1ST SESS., GENERAL CROWDER
EXPLAINED AT GREATER LENGTH: 

"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, IT MIGHT BE HELD THAT THE
PROVISION OPERATED TO EXCLUDE TRIALS BY MILITARY COMMISSION AND OTHER
WAR COURTS; SO THIS NEW ARTICLE WAS INTRODUCED ... 

"IT JUST SAVES TO THESE WAR COURTS THE JURISDICTION THEY NOW HAVE AND
MAKES IT A CONCURRENT JURISDICTION WITH COURTS-MARTIAL, SO THAT THE
MILITARY COMMANDER IN THE FIELD IN TIME OF WAR WILL BE AT LIBERTY TO
EMPLOY EITHER FORM OF COURT THAT HAPPENS TO BE CONVENIENT.  BOTH
CLASSES OF COURTS HAVE THE SAME PROCEDURE.  FOR THE INFORMATION OF THE
COMMITTEE AND IN EXPLANATION OF THESE WAR COURTS TO WHICH I HAVE
REFERRED I INSERT HERE AN EXPLANATION FROM WINTHROP'S MILITARY LAW AND
PRECEDENTS - 

"'THE MILITARY COMMISSION - A WAR COURT - HAD ITS ORIGIN IN G.O. 20,
HEADQUARTERS OF THE ARMY AT TAMPICO, FEBRUARY 19, 1847(GEN.  SCOTT). 
ITS JURISDICTION WAS CONFINED MAINLY TO CRIMINAL OFFENSES OF THE CLASS
COGNIZABLE BY CIVIL COURTS IN TIME OF PEACE COMMITTED BY INHABITANTS OF
THE THEATER OF HOSTILITIES.  A FURTHER WAR COURT WAS ORIGINATED BY GEN.
SCOTT AT THE SAME TIME, CALLED "COUNCIL OF WAR," WITH JURISDICTION TO
TRY THE SAME CLASSES OF PERSONS FOR VIOLATIONS OF THE LAWS OF WAR,
MAINLY GUERRILLAS.  THESE TWO JURISDICTIONS WERE UNITED IN THE LATER
WAR COURT OF THE CIVIL WAR AND SPANISH WAR PERIODS, FOR WHICH THE
GENERAL DESIGNATION OF "MILITARY COMMISSION" WAS RETAINED.  THE
MILITARY COMMISSION WAS GIVEN STATUTORY RECOGNITION IN SECTION 30, ACT
OF MARCH 3, 1863, AND IN VARIOUS OTHER STATUTES OF THAT PERIOD.  THE
UNITED STATES SUPREME COURT HAS ACKNOWLEDGED THE VALIDITY OF ITS
JUDGMENTS (EX PARTE VALLANDIGHAM, 1 WALL., 243, AND COLEMAN V.
TENNESSEE, 97 U.S., 509).  IT TRIED MORE THAN 2,000 CASES DURING THE
CIVIL WAR AND RECONSTRUCTION PERIOD.  ITS COMPOSITION, CONSTITUTION,
AND PROCEDURE FOLLOWS THE ANALOGY OF COURTS-MARTIAL.  ANOTHER WAR COURT
IS THE PROVOST COURT, AN INFERIOR COURT WITH JURISDICTION ASSIMILATED
TO THAT OF JUSTICES OF THE PEACE AND POLICE COURTS; AND OTHER WAR
COURTS VARIOUSLY DESIGNATED "COURTS OF CONCILIATION," "ARBITRATORS,"
"MILITARY TRIBUNALS," HAVE BEEN CONVENED BY MILITARY COMMANDERS IN THE
EXERCISE OF THE WAR POWER AS OCCASION AND NECESSITY DICTATED.'    "YET,
AS I HAVE SAID, THESE WAR COURTS NEVER HAVE BEEN FORMALLY AUTHORIZED BY
STATUTE. 

"SENATOR COLT.  THEY GREW OUT OF USAGE AND NECESSITY? 

"GEN. CROWDER.  OUT OF USAGE AND NECESSITY.  I THOUGHT IT WAS JUST AS
WELL, AS INQUIRIES WOULD ARISE, TO PUT THIS INFORMATION IN THE
RECORD."  S. REP. NO. 130, 64TH CONG., 1ST SESS. (1916) P. 40. 

ARTICLE 15 WAS ALSO EXPLAINED IN THE "REPORT OF A COMMITTEE ON THE
PROPOSED REVISION OF THE ARTICLES OF WAR, PURSUANT TO INSTRUCTIONS OF
THE CHIEF OF STAFF, MARCH 10, 1915," INCLUDED IN REVISION OF THE
ARTICLES OF WAR, COMPARATIVE PRINTS, ETC., 1904-1920, J.A.G.O., AS
FOLLOWS: 

"A NUMBER OF ARTICLES  ...  OF THE REVISION HAVE THE EFFECT OF GIVING
COURTS-MARTIAL JURISDICTION OVER CERTAIN OFFENDERS AND OFFENSES WHICH,
UNDER THE LAW OF WAR OR BY STATUTE, ARE ALSO TRIABLE BY MILITARY
COMMISSIONS, PROVOST COURTS, ETC.  ARTICLE 15 IS INTRODUCED FOR THE
PURPOSE OF MAKING CLEAR THAT IN SUCH CASES A COURT-MARTIAL HAS ONLY A
CONCURRENT JURISDICTION WITH SUCH WAR TRIBUNALS." 

FN32  OF COURSE, ARTICLES 25 AND 38, AT THE SAME TIME THAT THEY GAVE
PROTECTION TO DEFENDANTS BEFORE MILITARY COMMISSIONS, ALSO PROVIDED FOR
THE APPLICATION BY SUCH TRIBUNALS OF MODERN RULES OF PROCEDURE AND
EVIDENCE. 

FN33  WINTHROP, SPEAKING OF MILITARY COMMISSIONS AT THE TIME HE WAS
WRITING, 1896, SAYS:  "THE OFFENCES COGNIZABLE BY MILITARY COMMISSIONS
MAY THUS BE CLASSED AS FOLLOWS:  (1) CRIMES AND STATUTORY OFFENCES
COGNIZABLE BY STATE OR U.S. COURTS, AND WHICH WOULD PROPERLY BE TRIED
BY SUCH COURTS IF OPEN AND ACTING; (2) VIOLATIONS OF THE LAWS AND
USAGES OF WAR COGNIZABLE BY MILITARY TRIBUNALS ONLY; (3) BREACHES OF
MILITARY ORDERS OR REGULATIONS FOR WHICH OFFENDERS ARE NOT LEGALLY
TRIABLE BY COURT-MARTIAL UNDER THE ARTICLES OF WAR."  WINTHROP, AT*
1309.  AND CF. FAIRMAN, THE LAW OF MARTIAL RULE (2D ED. 1943):
"MILITARY COMMISSIONS TAKE COGNIZANCE OF THREE CATEGORIES OF CRIMINAL
CASES:  OFFENSES AGAINST THE LAWS OF WAR, BREACHES OF MILITARY
REGULATIONS, AND CIVIL CRIMES WHICH, WHERE THE ORDINARY COURTS HAVE
CEASED TO FUNCTION, CANNOT BE TRIED NORMALLY."  FAIRMAN, 265-266.  SEE
ALSO DAVIS, A TREATISE ON THE MILITARY LAW OF THE UNITED STATES (1915)
309-310. 

FN34  NOTE 31. 

FN35  IN ADDITION TO THE STATEMENTS OF GENERAL CROWDER WITH RELATION
TO ARTICLE 15, SET OUT IN NOTE 31 SUPRA, SEE THE FOLLOWING STATEMENTS
MADE WITH REFERENCE TO ARTICLE 25, IN 1912 AT A HEARING BEFORE THE
COMMITTEE ON MILITARY AFFAIRS OF THE HOUSE:  "WE COME NOW TO ARTICLE
25, WHICH RELATES TO THE ADMISSIBILITY OF DEPOSITIONS....  IT WILL BE
NOTED FURTHER THAT THE APPLICATION OF THE OLD ARTICLE HAS BEEN
BROADENED TO INCLUDE MILITARY COMMISSIONS, COURTS OF INQUIRY, AND
MILITARY BOARDS. 

"MR. SWEET.  PLEASE EXPLAIN WHAT YOU MEAN BY MILITARY COMMISSION. 

"GEN. CROWDER.  THAT IS OUR COMMON LAW OF WAR COURT, AND WAS REFERRED
TO BY ME IN A PRIOR HEARING.  (THE REFERENCE IS TO THE DISCUSSION OF
ARTICLE 15.)  THIS WAR COURT CAME INTO EXISTENCE DURING THE MEXICAN
WAR, AND WAS CREATED BY ORDERS OF GEN. SCOTT.  IT HAD JURISDICTION TO
TRY ALL CASES USUALLY COGNIZABLE IN TIME OF PEACE BY CIVIL COURTS. 
GEN. SCOTT CREATED ANOTHER WAR COURT, CALLED THE 'COUNCIL OF WAR,' WITH
JURISDICTION TO TRY OFFENSES AGAINST THE LAWS OF WAR.  THE
CONSTITUTION, COMPOSITION, AND JURISDICTION OF THESE COURTS HAVE NEVER
BEEN REGULATED BY STATUTE.  THE COUNCIL OF WAR DID NOT SURVIVE THE
MEXICAN WAR PERIOD, SINCE WHICH ITS JURISDICTION HAS BEEN TAKEN OVER BY
THE MILITARY COMMISSION.  THE MILITARY COMMISSION RECEIVED EXPRESS
RECOGNITION IN THE RECONSTRUCTION ACTS, AND ITS JURISDICTION HAS BEEN
AFFIRMED AND SUPPORTED BY ALL OUR COURTS.  IT WAS EXTENSIVELY EMPLOYED
DURING THE CIVIL WAR PERIOD AND ALSO DURING THE SPANISH-AMERICAN WAR. 
IT IS HIGHLY DESIRABLE THAT THIS IMPORTANT WAR COURT SHOULD BE
CONTINUED TO BE GOVERNED AS HERETOFORE, BY THE LAWS OF WAR RATHER THAN
BY STATUTE."  S. REP. NO. 229, 63D CONG., 2D SESS., 59; CF. S. REP.
130, 64TH CONG., 1ST SESS., 54-55.  SEE ALSO HEARINGS BEFORE THE
SUBCOMMITTEE OF THE COMMITTEE ON MILITARY AFFAIRS OF THE SENATE ON
ESTABLISHMENT OF MILITARY JUSTICE, 66TH CONG., 1ST SESS., 1182-1183. 

FURTHER EVIDENCE THAT PROCEDURAL PROVISIONS OF THE ARTICLES WERE
INTENDED TO APPLY TO ALL FORMS OF MILITARY TRIBUNAL IS GIVEN BY ARTICLE
24, 10 U.S.C. SEC. 1495, WHICH PROVIDES AGAINST COMPULSORY SELF
INCRIMINATION "BEFORE A MILITARY COURT, COMMISSION, COURT OF INQUIRY,
OR BOARD, OR BEFORE AN OFFICER CONDUCTING AN INVESTIGATION."  THIS
ARTICLE WAS DRAFTED SO THAT "THE PROHIBITION SHOULD REACH ALL
WITNESSES, IRRESPECTIVE OF THE CLASS OF MILITARY TRIBUNAL BEFORE WHICH
THEY APPEAR  ..."  COMPARATIVE PRINT SHOWING S. 3191 WITH THE PRESENT
ARTICLES OF WAR AND OTHER RELATED STATUTES, AND EXPLANATORY NOTES,
PRINTED FOR USE OF THE SENATE COMMITTEE ON MILITARY AFFAIRS, 64TH
CONG., 1ST SESS., 17, INCLUDED IN REVISION OF THE ARTICLES OF WAR,
COMPARATIVE PRINTS, ETC., 1904-1920, J.A.G.O. 

FN36  WE ARE INFORMED THAT JAPAN HAS NOT RATIFIED THE GENEVA
CONVENTION.  SEE DISCUSSION OF ARTICLE 82 IN THE PARAGRAPHS BELOW.  WE
ARE ALSO INFORMED, HOWEVER - AND THE RECORD SHOWS THIS AT LEAST AS TO
JAPAN - THAT AT THE BEGINNING OF THE WAR BOTH THE UNITED STATES AND
JAPAN ANNOUNCED THEIR INTENTION TO ADHERE TO THE PROVISIONS OF THAT
TREATY.  THE FORCE OF THAT UNDERSTANDING CONTINUES, PERHAPS WITH
GREATER REASON IF NOT EFFECT, DESPITE THE END OF HOSTILITIES.  SEE NOTE
40 AND TEXT. 

ARTICLE 82 PROVIDES: 

"THE PROVISIONS OF THE PRESENT CONVENTION MUST BE RESPECTED BY THE
HIGH CONTRACTING PARTIES UNDER ALL CIRCUMSTANCES. 

"IN CASE, IN TIME OF WAR, ONE OF THE BELLIGERENTS IS NOT A PARTY TO
THE CONVENTION, ITS PROVISIONS SHALL NEVERTHELESS REMAIN IN FORCE AS
BETWEEN THE BELLIGERENTS WHO ARE PARTIES THERETO." 

IT IS NOT CLEAR WHETHER THE ARTICLE MEANS THAT DURING A WAR, WHEN ONE
OF THE BELLIGERENTS IS NOT A PARTY TO THE CONVENTION, THE PROVISIONS
MUST NEVERTHELESS BE APPLIED BY ALL THE OTHER BELLIGERENTS TO THE
PRISONERS OF WAR NOT ONLY OF ONE ANOTHER BUT ALSO OF THE POWER THAT WAS
NOT A PARTY THERETO OR WHETHER IT MEANS THAT THEY NEED NOT BE APPLIED
TO SOLDIERS OF THE NONPARTICIPATING PARTY WHO HAVE BEEN CAPTURED.  IF
THE LATTER MEANING IS ACCEPTED, THE FIRST PARAGRAPH WOULD SEEM TO
CONTRADICT THE SECOND. 

"LEGISLATIVE HISTORY" HERE IS OF SOME, IF LITTLE, AID.  A SUGGESTED
DRAFT OF A CONVENTION ON WAR PRISONERS DRAWN UP IN ADVANCE OF THE
GENEVA MEETING BY THE INTERNATIONAL COMMITTEE OF THE RED CROSS (ACTES
DE LA CONFERENCE DIPLOMATIQUE DE GENEVE, EDITED BY DES GOUTTES, PP. 21
34) PROVIDED IN ARTICLE 92 THAT THE PROVISIONS OF THE CONVENTION "NE
CESSERONT D'ETRE OBLIGATORIES QU'AU CAS OU L'UN DES ETATS BELLIGERENTS
PARTICIPANT A LA CONVENTION SE TROUVE AVOIR A COMBATTRE LES FORCES
ARMEES D'UN AUTRE ETAT QUE N'Y SERAIT PAR PARTIE ET A L'EGARD DE CET
ETAT SEULEMENT."  SEE RASMUSSEN, CODE DES PRISONNIERS DE GUERRE (1931)
70.  THE FACT THAT THIS SUGGESTED ARTICLE WAS NOT INCLUDED IN THE
GENEVA CONVENTION WOULD INDICATE THAT THE NATIONS IN ATTENDANCE WERE
AVOIDING A DECISION ON THIS PROBLEM.  BUT I THINK IT SHOWS MORE, THAT
IS, IT MANIFESTS AN INTENTION NOT TO FORECLOSE A FUTURE HOLDING THAT
UNDER THE TERMS OF THE CONVENTION A STATE IS BOUND TO APPLY THE
PROVISIONS TO PRISONERS OF WAR OF NONPARTICIPATING STATES.  AND NOT TO
FORECLOSE SUCH A HOLDING IS TO INVITE ONE.  WE SHOULD, IN MY OPINION,
SO HOLD, FOR REASONS OF SECURITY TO MEMBERS OF OUR OWN ARMED FORCES
TAKEN PRISONER, IF FOR NO OTHERS. 

MOREOVER, IF THIS VIEW IS WRONG AND THE GENEVA CONVENTION IS NOT
STRICTLY BINDING UPON THE UNITED STATES AS A TREATY, IT IS STRONG
EVIDENCE OF AND SHOULD BE HELD BINDING AS REPRESENTING WHAT HAVE BECOME
THE CIVILIZED RULES OF INTERNATIONAL WARFARE.  YAMASHITA IS AS MUCH
ENTITLED TO THE BENEFIT OF SUCH RULES AS TO THE BENEFIT OF A BINDING
TREATY WHICH CODIFIES THEM.  SEE U.S. WAR DEPT., BASIC FIELD MANUAL,
RULES OF LAND WARFARE (1940), PAR. 5-B. 

FN37  TITLE III OF THE CONVENTION, WHICH COMPRISES ARTICLES 7 TO 67,
IS CALLED "CAPTIVITY."  IT CONTAINS SEC. I, "EVACUATION OF PRISONERS OF
WAR" (ARTICLES 7-8); SEC. II, "PRISONERS-OF-WAR CAMPS" (ARTICLES 9-26);
SEC. III, "LABOR OF PRISONERS OF WAR" (ARTICLES 27-34); SEC. IV,
"EXTERNAL RELATIONS OF PRISONERS OF WAR" (ARTICLES 35-41); AND SEC. V,
"PRISONERS' RELATIONS WITH THE AUTHORITIES" (ARTICLES 42-67).  THUS
TITLE III REGULATES ALL THE VARIOUS INCIDENTS OF A PRISONER OF WAR'S
LIFE WHILE IN CAPTIVITY. 

THREE CHAPTERS.  CHAPTER 1(ARTICLE 42) GIVES A PRISONER OF WAR THE
RIGHT TO COMPLAIN OF HIS CONDITION OF CAPTIVITY.  CHAPTER 2(ARTICLES 43
44) GIVES PRISONERS OF WAR THE RIGHT TO APPOINT AGENTS TO REPRESENT
THEM.  CHAPTER 3 IS DIVIDED INTO THREE SUBSECTIONS AND IS TERMED
"PENALTIES APPLICABLE TO PRISONERS OF WAR."  SUBSECTION 1(ARTICLES 45
53) CONTAINS VARIOUS MISCELLANEOUS ARTICLES TO BE CONSIDERED IN DETAIL
LATER.  SUBSECTION 2(ARTICLES 54-59) CONTAINS PROVISIONS WITH RESPECT
TO DISCIPLINARY PUNISHMENTS.  AND SUBSECTION 3(ARTICLES 60-67), WHICH
IS TERMED "JUDICIAL SUITS," CONTAINS VARIOUS PROVISIONS FOR PROTECTION
OF A PRISONER'S RIGHTS IN JUDICIAL PROCEEDINGS INSTITUTED AGAINST HIM. 

THUS, SUBSECTION 3, WHICH CONTAINS ARTICLES 60 AND 63, AS OPPOSED TO
SUBSECTION 2, OF CHAPTER 3, IS CONCERNED NOT WITH MERE PROBLEMS OF
DISCIPLINE, AS IS THE LATTER, BUT WITH THE MORE SERIOUS MATTERS OF
TRIAL LEADING TO IMPRISONMENT OR POSSIBLE SENTENCE OF DEATH; CF.
BRERETON, THE ADMINISTRATION OF JUSTICE AMONG PRISONERS OF WAR BY
MILITARY COURTS (1935) 1 PROC. AUSTRALIAN & NEW ZEALAND SOCIETY OF
INTERNATIONAL LAW 143, 153.  THE COURT, HOWEVER, WOULD HAVE THE
DISTINCTION BETWEEN SUBSECTION 2 AND SUBSECTION 3 ONE BETWEEN MINOR
DISCIPLINARY ACTION AGAINST A PRISONER OF WAR FOR ACTS COMMITTED WHILE
A PRISONER AND MAJOR JUDICIAL ACTION AGAINST A PRISONER OF WAR FOR ACTS
COMMITTED WHILE A PRISONER.  THIS NARROW VIEW NOT ONLY IS HIGHLY
STRAINED, CONFUSING THE DIFFERENT SITUATIONS AND PROBLEMS TREATED BY
THE TWO SUBDIVISIONS.  IT DEFEATS THE MOST IMPORTANT PROTECTIONS
SUBSECTION 3 WAS INTENDED TO SECURE, FOR OUR OWN AS WELL AS FOR ENEMY
CAPTIVE MILITARY PERSONNEL. 

AT THE MOST, THERE WOULD BE LOGIC IN THE COURT'S CONSTRUCTION IF IT
COULD BE SAID THAT ALL OF CHAPTER 3 DEALS WITH ACTS COMMITTED WHILE A
PRISONER OF WAR.  OF COURSE, SUBSECTION 2 DOES, BECAUSE OF THE VERY
NATURE OF ITS SUBJECT-MATTER.  DISCIPLINARY ACTION WILL BE TAKEN BY A
CAPTOR POWER AGAINST PRISONERS OF WAR ONLY FOR ACTS COMMITTED BY
PRISONERS AFTER CAPTURE. 

BUT IT IS SAID THAT SUBSECTION 1 DEALS EXCLUSIVELY WITH ACTS
COMMITTED BY A PRISONER OF WAR AFTER HAVING BECOME A PRISONER, AND THIS
INDICATES SUBSECTION 3 IS LIMITED SIMILARLY.  THIS IGNORES THE FACT
THAT SOME OF THE ARTICLES IN SUBSECTION 1 APPEAR, ON THEIR FACE, TO
APPLY TO ALL JUDICIAL PROCEEDINGS FOR WHATEVER PURPOSE INSTITUTED. 
ARTICLE 46, FOR EXAMPLE, PROVIDES IN PART: 

"PUNISHMENTS OTHER THAN THOSE PROVIDED FOR THE SAME ACTS FOR SOLDIERS
OF THE NATIONAL ARMIES MAY NOT BE IMPOSED UPON PRISONERS OF WAR BY THE
MILITARY AUTHORITIES AND COURTS OF THE DETAINING POWER." 

THIS SEEMS TO REFER TO WAR CRIMES AS WELL AS TO OTHER OFFENSES; FOR
SURELY A COUNTRY CANNOT PUNISH SOLDIERS OF ANOTHER ARMY FOR OFFENSES
AGAINST THE LAWS OF WAR, WHEN IT WOULD NOT PUNISH ITS OWN SOLDIERS FOR
THE SAME OFFENSES.  SIMILARLY, ARTICLE 47 IN SUBSECTION 1 APPEARS TO
REFER TO WAR CRIMES AS WELL AS TO CRIMES COMMITTED BY A PRISONER AFTER
HIS CAPTURE.  IT READS IN PART: 

"JUDICIAL PROCEEDINGS AGAINST PRISONERS OF WAR SHALL BE CONDUCTED AS
RAPIDLY AS THE CIRCUMSTANCES PERMIT; PREVENTIVE IMPRISONMENT SHALL BE
LIMITED AS MUCH AS POSSIBLE." 

THUS, AT THE MOST, SUBSECTION 1 CONTAINS, IN SOME OF ITS ARTICLES,
THE SAME AMBIGUITIES AND IS OPEN TO THE SAME PROBLEM THAT WE ARE FACED
WITH IN CONSTRUING ARTICLES 60 AND 63.  IT CANNOT BE SAID, THEREFORE,
THAT ALL OF CHAPTER 3, AND ESPECIALLY SUBSECTION 3, RELATE ONLY TO ACTS
COMMITTED BY PRISONERS OF WAR AFTER CAPTURE, FOR THE MEANING OF
SUBSECTION 3, IN THIS ARGUMENT, IS RELATED TO THE MEANING OF SUBSECTION
1; AND SUBSECTION 1 IS NO MORE CLEARLY RESTRICTED TO PUNISHMENTS AND
PROCEEDINGS IN DISCIPLINARY MATTERS THAN IS SUBSECTION 3. 

FN38  ARTICLE 60 PERTINENTLY IS AS FOLLOWS:  "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. 

"THIS ADVICE SHALL CONTAIN THE FOLLOWING INFORMATION: 

"A)  CIVIL STATE AND RANK OF PRISONER; 

"B)  PLACE OF SOJOURN OR IMPRISONMENT; 

"C) SPECIFICATION OF THE (COUNT) OR COUNTS OF THE INDICTMENT, GIVING
THE LEGAL PROVISIONS APPLICABLE. 

"IF IT IS NOT POSSIBLE TO MENTION IN THAT ADVICE THE COURT WHICH WILL
PASS UPON THE MATTER, THE DATE OF OPENING THE TRIAL AND THE PLACE WHERE
IT WILL TAKE PLACE, THIS INFORMATION MUST BE FURNISHED TO THE
REPRESENTATIVE OF THE PROTECTING POWER LATER, AS SOON AS POSSIBLE, AND
AT ALL EVENTS, AT LEAST THREE WEEKS BEFORE THE OPENING OF THE TRIAL." 

ARTICLE 63 READS:  "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." 

FN39  ITEM 89 CHARGED THE ARMED FORCES OF JAPAN WITH SUBJECTING TO
TRIAL CERTAIN NAMED AND OTHER PRISONERS OF WAR "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."    FN40  NATIONS ADHERE TO
INTERNATIONAL TREATIES REGULATING THE CONDUCT OF WAR AT LEAST IN PART
BECAUSE OF THE FEAR OF RETALIATION.  JAPAN NO LONGER HAS THE MEANS OF
RETALIATING. 

FN41 THERE CAN BE NO LIMIT EITHER TO THE ADMISSIBILITY OR THE USE OF
EVIDENCE IF THE ONLY TEST TO BE APPLIED CONCERNS PROBATIVE VALUE AND
THE ONLY TEST OF PROBATIVE VALUE, AS THE DIRECTIVE COMMANDED AND THE
COMMISSION FOLLOWED OUT, LIES "IN THE COMMISSION'S OPINION," WHETHER
THAT BE CONCERNING THE ASSISTANCE THE "EVIDENCE" TENDERED WOULD GIVE IN
PROVING OR DISPROVING THE CHARGE OR AS IT MIGHT THINK WOULD "HAVE VALUE
IN THE MIND OF A REASONABLE MAN."  NOR IS IT ENOUGH TO ESTABLISH THE
SEMBLANCE OF A CONSTITUTIONAL RIGHT THAT THE COMMISSION DECLARES, IN
RECEIVING THE EVIDENCE, THAT IT COMES IN AS HAVING ONLY SUCH PROBATIVE
VALUE, IF ANY, AS THE COMMISSION DECIDES TO AWARD IT AND THIS IS
ACCEPTED AS CONCLUSIVE. 

FN42  2 THE COMPLETE WRITINGS OF THOMAS PAINE (EDITED BY FONER, 1945)
588. 

MR. JUSTICE MURPHY JOINS IN THIS OPINION. 
..END :

Part I  Part II   Part III  Part IV  Part V