Source: Law Reports of Trials of War Criminals. Selected and Prepared by the United Nations War Crimes Commission. Volume IV. London: HMSO, 1948

CASE NO. 21

TRIAL OF GENERAL TOMOYUKI YAMASHITA

UNITED STATES MILITARY COMMISSION, MANILA,

(8TH OCTOBER-7TH DECEMBER, 1945), AND THE SUPREME COURT OF THE UNITED STATES

(JUDGMENTS DELIVERED ON 4TH FEBRUARY, 1946).

Part IV

Part I  Part II  Part III  Part IV  Part V  Part VI

p.37

15. PETITION TO THE SUPREME COURT OF THE UNITED STATES

The case was brought before the Supreme Court of the United States on a petition for writs of habeas corpus and prohibition in that Court, and on a petition for certiorari to review an order of the Supreme Court of the Commonwealth of the Philippines, denying the petitioner’s application to the Court for writs of habeas corpus and prohibition. The opinion of the Court, rejecting Yamashita’s petition and application, was delivered by Chief Justice Stone on 4th February, 1946. Dissenting judgments were read by Mr. Justice Murphy and Mr. Justice Rutledge. (Footnote 1: Mr. Justice Jackson took no part in the consideration of this case.) The issues raised and the opinions expressed were of the highest legal importance in relation to war crimes and the trial of those accused of committing them.

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1. CHIEF JUSTICE STONE (MAJORITY OPINION) (Footnote 1)

(i) The Problems Before the Supreme Court

After summarising the history of the trial before the Military Commission, Chief Justice Stone set out the problems facing the Supreme Court, in the following words :

“ 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., ss. 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.”

Note:pp.38-75 deal partly with the legal status of the Military Commission that tried General Yamashita.  These sections have been omitted here. The headings that have been omitted are indicated.

(ii) The Sources and Nature of the Authority to Create Military Commissions to Conduct War Crime Trials

This section omitted here, pp. 38-40

(iii) The Authority to Create the Military Commission Which Tried Yamashita

This section omitted here, pp. 40-41

(iv) The Question Whether the Authority to Create the Commission and Direct the Trial by Military Order Continued after the Cessation of Hostilities

This section omitted here, pp. 41-42

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(v) The Question Whether the Charge Against Yamashita Failed to Allege a Violation of the Laws of War

Chief Justice Stone observed that : “ Neither Congressional action nor the military orders constituting the Commission authorised it to place petitioner on trial unless the charge preferred against him is of a violation of the Law of War.”

p.43

The Chief Justice then quoted the charge, made reference to the Bills of Particulars, and went on to say :

“ It is not denied that such acts directed against the civilian population of an occupied country and against prisoners of war are recognised in International Law as violations of the Law of War. Articles 4, 28,46 and 47, Annex to 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 ofthe 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 violations 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 recognised by the Annex to Fourth Hague Convention of 1907, respecting the laws and customs of war on land. Article I lays down as a condition which an armed force must fulfil 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.’

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“ 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 recognised, and its breach penalised by our own military tribunals. (Footnote 1) A like principle has been applied so as to impose liability on the United States in international arbitrations. Case of Jenaud, 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. 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. Whiting, supra, 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 alleges 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. UnitedStates, 152 U.S. 539 ; Williamson v. United States, 207 U.S. 425, 447 ; Classer v. United States, 315 U.S. 60, 66, and cases cited."

(vi) Articles 25 and 38 of the United States Articles of War and the Provisions of the Geneva Prisoners of War Convention Regarding Judicial Suits Not Applicable to Trials of Alleged War Criminals

This section omitted here, pp. 44-48

(1) “ 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, 17th August, 1901. And in Gen. Orders No. 264, Hq. Div. of the Philippines, 9th September, 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.”

(vii) Effect of Failure to give Notice of the Trial to the Protecting Power

This section omitted here, pp.48-49

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11. DISSENTING JUDGMENT OF MR. JUSTICE MURPHY

(i) Applicability of the Fifth Amendment to the United States Constitution to War Crime Trials and to the Yamashita Trial in Particular (Footnote 1)

Mr. Justice Murphy had no doubt that a United States Military Commission appointed to try alleged war criminals was bound to observe the procedural rights of an accused person as guaranteed by the United States Constitution, especially by the due process clause of the Fifth Amendment.

His opinion is stated in the following passage :

“ The Fifth Amendment guarantee of due process of law applies to ‘ any person ’ who is accused of a crime by the Federal Government or any of its agencies. No exception is made as to those who are accused of war crimes or as to those who possess the status of an enemy

(1) The Fifth Amendment to the United States Constitution, which was adopted on 15th December, 1791, runs as follows (Italics inserted) : “ No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger ; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb ; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of Law ; nor shall private property be taken for public use, without just compensation.”

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belligerent. Indeed, such an exception would be contrary to the whole philosophy of human rights which makes the Constitution the great living document that it is. The immutable rights of the individual, including those secured by the due process clause of the Fifth Amendment, belong not alone to the members of those nations that excel on the battlefield or that subscribe to the democratic ideology. They belong to every person in the world, victor or vanquished, whatever may be his race, colour or beliefs. They rise above any status of belligerency or outlawry. They survive any popular passion or frenzy of the moment. No court or legislature or executive, not even the mightiest army in the world, can ever destroy them. . . . They cannot be ignored by any branch of the Government, even the military, except under the most extreme and urgent circumstances. "

In Mr. Justice Murphy’s opinion, “ The failure of the military commission to obey the dictates of the due process requirements of the Fifth Amendment is apparent in this case. . . . No military necessity or other emergency demanded the suspension of the safeguards of due process. Yet petitioner was rushed to trial under an improper charge, given insufficient time to prepare an adequate defence, deprived of the benefits of some of the most elementary rules of evidence and summarily sentenced to be hanged.”

Such a procedure was “ unworthy of the traditions of ” the United States people and possessed “ boundless and dangerous implications ” for the future, but “ even more significant will be the hatred and ill-will growing out of the application of this unprecedented procedure.”

(ii) Extent of Review Permissible to the Supreme Court in Cases such as the Present

This section omitted here, p.50

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(iii) The Question Whether the Charge against Yamashita had Stated a Recognised Violation of the Laws of War

Mr. Justice Murphy agreed that the military commission was lawfully created in this instance and that petitioner could not object to its power to try him for a recognised war crime. He felt it impossible, however, to agree that the charge against the petitioner stated a recognised violation of the Laws of War.

After summarising the history of the United States offensive against Yamashita’s troops, and pointing out that the Commission in its findings had itself noted the difficulties under which he had acted, (Footnote 1: See p.34) Mr. Justice Murphy pointed out that nowhere in the charge or in the Bills of Particulars, “ was it alleged that the petitioner personally committed any of the atrocities, or that he ordered their commission; or that he had any knowledge of the commission thereof by members of his command.” “ The findings of the military commission,” he went on, “ bear out this absence of any direct personal charge against the petitioner.” The commission merely found that atrocities and other high crimes “ have been committed by members of the Japanese armed forces under your command . . . that they were not sporadic in nature but in many cases. were methodically supervised by Japanese officers and non-commissioned officers . . . that during the period in question you failed to provide effective control of your troops as was required by the circumstances.”

Mr. Justice Murphy claimed that “ read against the background of military events in the Philippines subsequent to 9th October, 1944, these charges amount to this : ‘ We, the victorious American forces . . . charge you with the crime of inefficiency in controlling your troops. We will judge the discharge of your duties by the disorganisation which we ourselves created in large part.’ ” He expressed the view that “ to use the very inefficiency and disorganisation created by the victorious forces as the primary basis for condemning officers of the defeated armies bears no resemblance to justice or to military reality.”

He continued : “ International Law makes no attempt to define the duties of a commander of an army under constant and overwhelming assault ; nor does it impose liability under such circumstances for failure to meet the ordinary responsibilities of command. The omission is understandable. Duties, as well as ability to control troops, vary according to the nature and intensity of the particular battle. To find an unlawful deviation from duty under battle conditions requires difficult and speculative calculations . . . .The probability that vengeance will form the major part of the victor’s judgment is an unfortunate but inescapable fact. So great is that probability that International Law refuses to recognise such a judgment as a basis for a war crime, however fair the judgment may be in a particular instance.”

Mr. Justice Murphy then went on :

“ The Court’s reliance upon vague and indefinite references in certain of the Hague Conventions and the Geneva Red Cross Convention is misplaced. Thus the statement in Article 1 of the Annex to Hague

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Convention No. IV of 18th October, 1907, 36 Stat. 2277, 2295, to the effect that the laws, rights and duties of war apply to military and volunteer corps only if they are ‘ commanded by a person responsible for his subordinates,’ has no bearing upon the problem in this case. Even if it has, the clause ‘ responsible for his subordinates ’ fails to state to whom the responsibility is owed or to indicate the type of responsibility contemplated. The phrase has received differing interpretations by authorities on International Law. In Oppenheim, International Law (6th Edition rev. by Lauterpacht, 1940, vol. 2, p. 204, footnote 3) it is stated that ‘ The meaning of the word “ responsible ” . . . is not clear. It probably means “ responsible to some higher authority,” whether the person is appointed from above or elected from below ; . . . ’ Another authority has stated that the word ‘ responsible ’ in this particular context means ‘presumably to a higher authority,’ or ‘possibly it merely means one who controls his subordinates and who therefore can be called to account for their acts. ’ Wheaton, International Law (14th Edition, by Keith, 1944, p. 172, footnote 30). Still another authority, Westlake, International Law (1907, Part II, p. 61), states that ‘ probably the responsibility intended is nothing more than a capacity of exercising effective control.’ Finally, Edwards and Oppenheim, Land Warfare (1912. p. 19, para. 22) state that it is enough ‘ if the commander of the corps is regularly or temporarily commissioned as an officer or is a person of position and authority. ’ It seems apparent beyond dispute that the word ‘ responsible ’ was not used in this particular Hague Convention to hold the commander of a defeated army to any high standard of efficiency when he is under destructive attack ; nor was it used to impute to him any criminal responsibility for war crimes committed by troops under his command under such circumstances.

“ The provisions of the other conventions referred to by the Court are on their face equally devoid of relevance or significance to the situation here in issue. Neither Article 19 of Hague Convention No. X, 36 Stat. 2371,2389, nor Article 26 of the Geneva Red Cross Convention of 1929, 47 Stat. 2074, 2092, refers to circumstances where the troops of a commander commit atrocities while under heavily adverse battle conditions. Reference is also made to the requirement of Article 43 of the Annex to Hague Convention No. IV, 36 Stat. 2295,2306, that the commander of a force occupying enemy territory ‘ 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.’ But the petitioner was more than a commander of a force occupying enemy territory. He was the leader of an army under constant and devastating attacks by a superior re-invading force. This provision is silent as to the responsibilities of a commander under such conditions as that.

“ Even the Laws of War heretofore recognised by this nation fail to impute responsibility to a fallen commander for excesses committed by his disorganised troops while under attack. Paragraph 347 of the War Department publication, Basic Field Manual, Rules of Land Warfare, FM 27-10 (1940), states the principal offences under the Laws of War

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recognised by the United States. This includes all of the atrocities which the Japanese troops were alleged to have committed in this instance. Originally this paragraph concluded with. the statement that ‘ The commanders ordering the commission of such acts, or under whose authority they are committed by their troops, may be punished by the belligerent into whose hands they may fall.’ The meaning of the phrase ‘ under whose authority they are committed ’ was not clear. On 15th November, 1944, however, this sentence was deleted and a new paragraph was added relating to the personal liability of those who violate the Laws of War. Change, 1, FM 27-10. The new paragraph 345.1 states that ‘ Individuals and organisations who violate the accepted laws and customs of war may be punished therefor. However, the fact that the acts complained of were done pursuant to order of a superior or government sanction may be taken into consideration in determining culpability, either by way of defence or in mitigation of punishment. The person giving such orders may also be punished.’ From this conclusion seems inescapable that the United States recognises individual criminal responsibility for violations of the Laws of War only as to those who commit the offences or who order or direct their commission. Such was not the allegation here. Cf. Article 67 of the Articles of War, 10 U.S.C., s. 1539.”

Mr. Justice Murphy drew attention to numerous instances, especially with reference to the Philippine Insurrection in 1900 and 1901, where commanding officers were found to have violated the Laws of War by specifically ordering members of their command to commit atrocities and other war crimes, and to other cases where officers had been held liable where they knew that a crime was to be committed, had the power to prevent it and failed to exercise that power. In no recorded instance, however, had the mere inability to control troops under fire or attack by superior forces been made the basis of a charge of violating the Laws of War.

The United States Government had claimed that the principle that commanders in the field are bound to control their troops had been applied so as to impose liability on the United States in international arbitrations. The precedents quoted, however, related to arbitrations on property rights, (Footnote 1) not to charges of war crimes ; even more significant was the fact that even these arbitration cases fail to establish any principle of liability where troops under constant assault and demoralising influences by attacking forces. The same observation applied to the common law statutory doctrine, referred to by the Government, that one who is under a legal duty to take protective or preventive action is guilty of criminal homicide if he wilfully or negligently omits to act, and death is proximately caused. (Footnote 2) Had there been some element of knowledge or direct connection with the atrocities the problem would be entirely different.

“ Moreover,” said Mr. Justice Murphy, “ we are not dealing here with an ordinary tort or criminal action ; precedents in those fields are of little if

(1) Case of Jeunnuud (1880), 3 Moor, International Arbitrations (1898) 3000 ; Case of TheZufiro (1910), 5 Hackworth, Digest of International Law (1943) 707.
(2) “ State v. Harrison, 107 N.J.L. 213 ; State v. Irvine, 126 La. 434 ; Holmes, The Common Law, p. 278.”

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any value. Rather we are concerned with a proceeding involving an international crime.”

The only conclusion which Mr. Justice Murphy could draw was “ that the charge made against the petitioner is clearly without precedent in International Law or in the annals of recorded military history.” 

That did not mean “ that enemy commanders may escape punishment for clear and unlawful failures to prevent atrocities. But that punishment should be based upon charges fairly drawn in light of established rules of International Law and recognised concepts of justice.” The charge in the present case, however, “ was speedily drawn and filed but three weeks after the petitioner surrendered. The trial proceeded with great dispatch without allowing the defence time to prepare an adequate case. Petitioner’s rights under the due process clause of the Fifth Amendment were grossly and openly violated without any justification. All of this was done without any thorough investigation and prosecution of those immediately responsible for the atrocities, out of which might have come some proof or indication of personal culpability on petitioner’s part. Instead the loose charge was made that great numbers of atrocities had been committed and that petitioner was the commanding officer ; hence he must have been guilty of disregard of duty. Under that charge the Commission was free to establish whatever standard of duty on petitioner’s part that it desired. By this flexible method a victorious nation may convict and execute any or all leaders of a vanquished foe, depending upon the prevailing degree of vengeance and the absence of any objective judicial review.”

III. DISSENTING JUDGMENT OF MR. JUSTICE RUTLEDGE

(i) Opening Remarks

Mr. Justice Rutledge claimed that Yamashita’s trial was a novelty in United States history, both legally and historically. There must be room in law for growth, but it was necessary for the judges to keep in view the traditions of the past, of which none was “ older or more universally protective against unbridled power than due process of law in the trial and punishment of men, that is, of all men, whether, citizens, aliens, alien enemies or enemy belligerents.” Mr. Justice Rutledge expressed his view in these words : “ With all deference to the opposing views of my brethren, whose attachment to that tradition needless to say is no less than my own, I cannot believe in the face of this record that the petitioner has had the fair trial our Constitution and laws command.“’

“ It is not in our tradition,” continued Mr. Justice Rutledge, “ for anyone to be charged with crime which is defined after his conduct, alleged to be criminal, has taken place ; (Footnote 1) or in language not sufficient to inform him of the nature of the offence or to enable him to, make defence. (Footnote 2) Mass guilt we do not impute to individuals, perhaps in any case but certainly in none where the person is not charged or shown

(l) “ Cummings v. Missouri, 4 Wall. 217 ; Kring v. Missouri, 107 U.S. 221.”
(2) “ 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 . . .” (as pp. 59-60).

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actively to have participated in knowingly to have failed in taking action to prevent the wrongs done by others, having both the duty and the power to do so.

“ It is outside our basic scheme to condemn men without giving reasonable opportunity for preparing defence ;(Footnote 1) in capital or other serious crimes to convict on ‘ official documents . . . ; affidavits ; . . . documents or translations thereof; diaries . . . , photographs, motion picture films and . . . newspapers ‘(Footnote 2) or on hearsay, once, twice or thrice removed,( Footnote 3) more particularly when the documentary evidence or some of it is prepared ex parte by the prosecuting authority and includes not only opinion but conclusions of guilt. Nor in such cases do we deny the rights of confrontation of witnesses and cross-examination. (Footnote 4)

“ Our tradition does not allow conviction by tribunals both authorised and bound (Footnote 5) by the instrument of their creation to receive and consider evidence which is expressly excluded by Act of Congress or by treaty obligation ; nor is it in accord with our basic concepts to make the tribunal, specially constituted for the particular trial, regardless of those prohibitions the sole and exclusive judge of the credibility, probative value and admissibility of whatever may be tendered as evidence.

“ The matter is not one merely of the character and admissibility of evidence. It goes to the very competency of the tribunal to try and punish consistently with the Constitution, the laws of the United States made in pursuance thereof, and treaties made under the nation’s authority.

“ All these deviations from the fundamental law, and others, occurred in the course of constituting the Commission, the preparation for trial and defence, the trial itself, and therefore, in effect, in the sentence imposed. Whether taken singly in some instances as departures from specific constitutional mandates or in totality as in violation of the Fifth Amendment’s command that no person shall be deprived of life, liberty or property without due process of law, a trial so vitiated cannot withstand constitutional scrutiny.”

The only basic protection accorded to the petitioner had been representation by able Counsel : yet this had lost much of its value because of the denial of reasonable opportunity for them to perform their function.

(1) “ Hawk v. Olson, No. 17, October Term, 1945, decided 13th November, 1945 ; 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 defence of it.” See . . .” (as pp. 62-3).
(2) “ 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, photo- graphs, motion picture films, and Manila newspapers.”
Concerning the specific nature of these elements in the proof, the issues to which they were directed, and their prejudicial effects, see text infiu and notes m . . .” (now pp. 57-62).
(3) “ Queen v. Hepburn, 7 Cranch. 289 ; Donnelly v. United States, 228 U.S. 243, 273. . . . (as p. 61, note 2.)
(4) “ Motes v. United States, 178 U.S. 471 ; Paoni v. United States, 281 Fed. 801. See . . .” (as pp. 57-63.)
(5) The judgment here made a cross-reference to the material now set out on page 58, note 1, and pages 60-l and 62-3.

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Mr. Justice Rutledge summed up his view as follows : “ On this denial and the Commission’s invalid constitution specifically, but also more generally upon the totality of departures from constitutional norms inherent in the idea of a fair trial, I rest my judgment that the Commission was without jurisdiction from the beginning to try or punish the petitioner and that, if it had acquired jurisdiction then, its power to proceed was lost in the course of what was done before and during trial.”

The only hypothesis on which either of these conclusions be avoided was “ that an enemy belligerent in petitioner’s position is altogether beyond the pale of constitutional protection, regardless of the fact that hostilities had ended and he had surrendered with his country. The Government has so argued, urging that we are still at war with Japan and all the power of the military effective during active hostilities in theatres of combat continues in full force unaffected by the events of 14th August, 1945, and after.

“ In this view the action taken here is one of military necessity, exclusively within the authority of the President as Commander-in-Chief and his military subordinates to take in warding off military danger and subject to no judicial restraint on any account, although somewhat inconsistently it is said this Court may ‘ examine ’ the proceedings generally.

“ As I understand the Court, this is in substance the effect of what has been done, For I cannot conceive any instance of departure from our basic concepts of fair trial, if the failures here are not sufficient to produce that effect.”

Mr. Justice Rutledge’s attitude to this argument was expressed in these words :

“ We are technically still at war, because peace has not been negotiated finally or declared. But there is no longer the danger which always exists before surrender and armistice. Military necessity does not demand the same measures. The nation may be more secure now than at any time after peace is officially concluded. In these facts is one great difference from Ex parte Quirin, 317 U.S. 1. Punitive action taken now can be effective only for the next war, for purposes of military security. And enemy aliens, including belligerents, need the attenuated protections our system extends to them more now than before hostilities ceased or than they may after a treaty of peace is signed. Ample power there is to punish them or others for crimes, whether under the Laws of War during its course or later during occupation. There can be no question of that. The only question is how it shall be done, consistently with universal constitutional commands or outside their restricting effects. In this sense I think the Constitution follows the flag.

“ The other thing to be mentioned in order to be put aside is that we have no question here of what the military might have done in a field of combat. There the maxim about the law becoming silent in the noise of arms applies. The purpose of battle is to kill. But it does not follow that this would justify killing by trial after capture or surrender, without compliance with laws or treaties made to apply in such cases, whether trial is before or after hostilities end.”

p.57

The Judgment continues : “ My basic difference is with the Court’s view that provisions of the Articles of War and of treaties are not made applicable to this proceeding and with its ruling that, absent such applicable provisions, none of the things done so vitiated the trial and sentence as to deprive the Commission of jurisdiction.”

Mr. Justice Rutledge expressed his agreement with the views of Mr. Justice Murphy with respect to the substance of the crime, and went on to state : ‘ My own primary concern will be with the constitution of the Comrnssion and other matters taking place in the course of the proceedings, relating chiefly to the denial of reasonable opportunity to prepare petitioner’s defence and the sufficiency of the evidence, together with serious questions of admissibility, to prove an offence, all going as I think to the Commission’s jurisdiction,” but, before proceeding to his first major topic, he claimed that “ although it was ruled in Ex Parte Quirin, supra, that this Court had no function to review the evidence, it was not there or elsewhere determined that it could not ascertain whether conviction is founded upon evidence expressly excluded by Congress or treaty ; nor does the Court purport to do so now.”

(ii) The Range of Evidence Admitted

Section 16 of the Regulations Governing the Trial of War Criminals, by which the directive of General MacArthur to General Styer (Footnote 1) was accompanied, permitted, in the words of Mr. Justice Rutledge, reception of documents, reports, affidavits, depositions, diaries, letters, copies of documents, or other secondary evidence of their contents, hearsay, opinion evidence and conclusions, in fact of anything which in the Commission’s opinion “ would be of assistance in proving or disproving the charge,” without any of the usual modes of authentication. (Footnote 2)

The learned Judgment continues :

“ A more complete abrogation of customary safeguards relating to the proof, whether in the usual rules of evidence or any reasonable substitute and whether for use in the trial of crime in the civil courts or military tribunals, hardly could have been made. So far as the admissibility and probative value of evidence was concerned, the directive made the Commission a law unto itself.

(1) see pp. 2-3.
(2) “ 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. . . .”

p.58

“ It acted accordingly. As against insistent and persistent objection to the reception of all kinds of ‘ evidence,’ oral, documentary and photographic, for nearly every kind of defect under any of the usual prevailing standards for admissibility and probative value, the Com-mission not only consistently ruled against the defence, but repeatedly stated it was bound by the directive to receive the kinds of evidence it specified, (Footnote 1) reprimanded counsel for continuing to make objection, declined to hear further objections, and in more than one instance during the course of the proceedings reversed its rulings favourable to the defence, where initially it had declined to receive what the prosecution offered. Every conceivable kind of statement, rumour, report, at first, second, third or further hand, written, printed or oral, and one ‘ propaganda ’ film were allowed to come in, most of this relating to atrocities committed by troops under petitioner’s command throughout the several thousand islands of the Philippine Archipelago during the period of active hostilities covered by the American forces’ return to and recapture of the Philippines.

“ The findings reflect the character of the proof and the charge. The statement quoted above (Footnote 2) gives only a numerical idea of the instances in which ordinary safeguards in reception of written evidence were ignored. In addition to these 423 ‘ exhibits,’ the findings state the Commission ‘ has heard 286 persons during the course of this trial, most of whom have given eye-witness accounts of what they endured or what they saw. . . .’ ”

(1) “ 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 authorised to receive and weigh such evidence as we can consider to have probative value, and further comments by the Defence on the right which we have to accept this evidence is decidedly out of order.’ But see note 19.” (At present set out on pages 60-l .)
(2) See p. 55, note 2.

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