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 V

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

(iii) The Question of the Accused’s Knowledge

Mr. Justice Rutledge’s judgment continues :

“ But there is not a suggestion in the findings that petitioner personally participated in, was present at the occurrence of, or ordered any of these incidents, with the exception of the wholly inferential suggestion noted below. Nor is there any express finding that he knew of any one of the incidents in particular or of all taken together. The only inferential findings that he had knowledge, or that the Commission so found, are in the statement that ‘ the crimes alleged to have been permitted by the accused in violation of the Laws of War may be grouped into three categories ’ set out below, (Footnote 3) in the further statement that

(3) “ 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 offences extended throughout the period the Accused was in command of Japanese troops in the Philippines. In point of area, the crimes extended through the Philippine Archipelago, although by far the most of the incredible acts occurred on Luzon.“’

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‘ the Prosecution presented evidence to show that the crimes were so extensive and so widespread, both as to time and area, that they must either have been wilfully permitted by the accused, or secretly ordered by ’ him ; and in the conclusion of guilt and the sentence. (Footnote 1) (Emphasis added.) Indeed the Commission’s ultimate findings draw no express conclusion of knowledge, but state only two things : (1) the fact of widespread atrocities and crimes ; (2) that petitioner ‘ failed to provide effective control . . . as required by the circumstances.’

“ This vagueness, if not vacuity, in the findings runs throughout the proceedings, from the charge itself through the proof and the findings, to the conclusion. It affects the very gist of the offence, whether that was wilful, informed and intentional omission to restrain and control troops known by petitioner to be committing crimes or was only a negligent failure on his part to discover this and take whatever measures he then could to stop the conduct.

“ Although it is impossible to determine from what is ‘before us whether petitioner in fact has been convicted of one or the other or of both these things, the case has been presented on the former basis and, unless as is noted below there is fatal duplicity, it must be taken that the crime charged and sought to be proved was only the failure, with knowledge, to perform the commander’s function to control, although the Court’s opinion nowhere expressly declares that knowledge was essential to guilt or necessary to be set forth in the charge.”

In a footnote to these paragraphs, Mr. Justice Rutledge pursues the point further :

“ 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(1) below .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.

(1) “ 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 cruel and inhuman treatment accorded by local commanders and guards ‘.; and that, although ‘ the defence had 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 : (I) That a series of atrocities and other high crimes have been committed by members of the Japanese armed forces under your command against the 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 non-commissioned 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. (Emphasis added.) ”

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“ 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 judgment itself then goes on :

“ It is in respect to this feature especially, quite apart from the reception of unverified rumour, report, etc., that perhaps the greatest prejudice arose from the admission of untrustworthy, unverified, unauthenticated evidence which could not be probed by cross-examination or other means of testing credibility, probative value or authenticity.

“ Counsel for the defence have informed us in the brief and at the argument that the sole proof of knowledge introduced at the trial was in the form of ex parte affidavits and depositions. Apart from what has been excepted from the record in the applications and the briefs, and such portions of the record as I have been able to examine, it has been impossible for me fully to verify counsel’s statement in this respect. But the Government has not disputed it ; and it has maintained that we have no right to examine the record upon any question ‘ of evidence. ’ Accordingly, without concession to that view, the statement of counsel is taken for the fact. And in that state of things, petitioner has been convicted of a crime in which knowledge is an essential element, with no proof of knowledge other than what would be inadmissible in any other capital case or proceeding under our system, civil or military, and which furthermore Congress has expressly commanded shall not be received in such cases tried by military commissions and other military tribunals. (Footnote 1: See p. 63-9 for the material to which the judgment here makes cross-references.)

“ Moreover counsel assert in the brief, and this also is not denied, that the sole proof made of certain of the specifications in the Bills of Particulars was by ex parte affidavits. It was in relation to this also vital phase of the proof that there occurred one of the Commission’s reversals of its earlier rulings in favour of the defence, a fact in itself conclusive demonstration of the necessity to the Prosecution’s case of the prohibited type of evidence and of its prejudicial effects upon the Defence.”

A footnote explains the reference to “ one of the Commission’s reversals of its earlier rulings ” : “ On 1st November, 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

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of a particular item based solely on an affidavit. Therefore, until evidence is introduced, these particular exhibits are rejected.’ (Emphasis added.)

“ Later evidence of the excluded type was offered, to introduction of which the Defence 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 1st November] 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 similar nature which the Prosecution stated has been prepared for introduction.’ (Emphasis added.)

“ 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 characterise 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.’ ”

( iv) Concluding Remarks on the Type of Evidence Admitted  

The Judgment continues :

“ These two basic elements in the proof, namely, proof of knowledge of the crimes and proof of the specifications in the bills, that is, of the atrocities themselves, constitute the most important instances perhaps, if not the most flagrant, (Footnote 1) of departure not only from the express command of Congress against receiving such proof but from the whole British-American tradition of the common law and the Constitution. Many others occurred, which there is neither time nor space to mention. (Footnote 2)

“ Petitioner asserts, and there can be no reason to doubt, that by the use of all this forbidden evidence he was deprived of the right of cross-examination and other means to establish the credibility of the deponents or affiants, not to speak of the authors of reports, letters, documents and newspaper articles ; of opportunity to determine whether the multitudinous crimes specified in the bills were committed in fact by troops under his command or by naval or air force troops not under his command at the time alleged ; to ascertain whether the crimes attested were isolated acts of individual soldiers or were military acts committed by troops units acting under supervision of officers ; and,

(1) “ 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.”
(2) “ Innumerable instances of hearsay, once or several times removed, relating to all manner of incidents, rumours, 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.”

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finally, whether ‘ in short, there was such a “ pattern ” of conduct as the Prosecution alleged and its whole theory of the crime and the evidence required to be made out.’

“ He points out in this connection that the Commission based its decision on a finding as to the extent and number of the atrocities and that this of itself establishes the prejudicial effect of the affidavits, etc., and of the denial resulting from their reception of any means of probing the evidence they contained, including all opportunity for cross-examination. Yet it is said there is no sufficient showing of prejudice. The effect could not have been other than highly prejudicial. The matter is not one merely of ‘ rules of evidence.’ It goes, as will appear more fully later, to the basic right of defence, including some fair opportunity to test probative value.

“ Insufficient as this recital is to give a fair impression of what was done, it is enough to show that this was no trial in the traditions of the common law and the Constitution. If the tribunal itself was not strange to them otherwise, it was in its forms and modes of procedure, in the character and substance of the evidence it received, in the denial of all means to the accused and his counsel for testing the evidence, in the brevity and ambiguity of its findings made upon such a mass of material and, as will appear, in the denial of any reasonable opportunity for preparation of the defence. Because this last deprivation not only is important in itself, but is closely related to the departures from all limitations upon the character of and modes of making the proof, it will be considered before turning to the important legal questions relating to whether all these violations of our traditions can be brushed aside as not forbidden by the valid Acts of Congress, treaties and the Constitution, in that order. If all these traditions can be so put away, then indeed will we have entered upon a new but foreboding era of law.”

(v) The Alleged Denial of Opportunity to Prepare Defence

Mr. Justice Rutledge claimed that Yamashita’s six Defence Counsel would have found it impossible to prepare adequately, during the three weeks before the trial, a defence against the 64 items contained in the Bill of Particulars, (Footnote 1: See p.4) “ had nothing more occurred.” He went on :

“ But there was more. On the first day of the trial, 29th October, the Prosecution filed a Supplemental Bill of Particulars, containing 59 more specifications of the same general character, involving perhaps as many incidents occurring over an equally wide area. A copy had been given the Defence three days earlier. One item, No. 89, charged that American soldiers, prisoners of war, had been tried and executed without notice having been given to the Protecting Power of the United States in accordance with the requirements of the Geneva Convention, which it is now argued, strangely, the United States was not required to observe as to petitioner’s trial.”

After recapitulating the various requests of the Defence for a continuance, (Footnote 2: And also the Commission’s rulings of 1st and 5th November, 1945, regarding admissibility of uncorroborated affidavits. See pp. 10, 15-16, 23 and 60-l. ) Mr. Justice Rutledge expressed the following view :

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“ Further comment is hardly required. Obviously the burden placed upon the Defence, in the short time allowed for preparation on the original bill, was not only ‘ tremendous.’ In view of all the facts, it was an impossible one, even though the time allowed was a week longer than asked. But the grosser vice was later when the burden was more than doubled by service of the supplemental bill on the eve of trial, a procedure which taken in connection with the consistent denials of continuance and the Commission’s later reversal of its rulings favourable to the Defence was wholly arbitrary, cutting off the last, vestige of adequate chance to prepare defence and imposing a burden the most able counsel could not bear. This sort of thing has no place in our system of justice, civil or military. Without more, this wide departure from the most elementary principles of fairness vitiated the proceeding. When added to the other denials of fundamental right sketched above, it deprived the proceeding of any semblance of trial as we know that institution.”

(vi) The Question of the Applicability of the Articles of War

This section omitted here, pp.63-69

(vii) The Question of the Applicability of the Geneva Convention of 1929

This section omitted here, pp.69-73

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(viii) The Question of the Applicability of the Fifth Amendment to the United States Constitution (Footnote 2: See p. 49)

Mr. Justice Rutledge’s view on this final topic was expressed in his judgment as follows :

“ Wholly apart from the violation of the Articles of War and of the Geneva Convention, I am completely unable to accept or to understand the Court’s ruling concerning the applicability of the due process clause of the Fifth Amendment to this case. Not heretofore has it been held that any human being is beyond its universally protecting spread in the guaranty of a fair trial in the most fundamental sense. That door is dangerous to open. I will have no part in opening it. For once it is ajar, even for enemy belligerents, it can be pushed back wider for others, perhaps ultimately for all.

“ The Court does not declare expressly that petitioner as an enemy belligerent has no constitutional rights, a ruling I could understand but not accept. Neither does it affirm that he has some, if but little, constitutional protection. Nor does the Court defend what was done. I think the effect of what it does is in substance to deny him all such safeguards. And this is the great issue in the cause.

“ For it is exactly here we enter wholly untroddden ground. The safe signposts to the rear are not in the sum of protections surrounding jury trials or any other proceeding known to our law. Nor is the essence of the Fifth Amendment’s elementary protection comprehended in any single one of our time-honoured specific constitutional safeguards in trial, though there are some without which the words ‘ fair trial ’ and all they connote become a mockery.

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“ Apart from a tribunal concerned that the law as applied shall be an instrument of justice, albeit stern in measure to the guilt established, the heart of the security lies in two things. One is that conviction shall not rest in any essential part upon unchecked rumour, report, or the results of the prosecution’s ex parte investigations, but shall stand on proven fact ; the other, correlative, lies in a fair chance to defend. This embraces at the least the rights to know with reasonable clarity in advance of the trial the exact nature of the offence with which one is to be charged ; to have reasonable time for preparing to meet the charge and to have the aid of counsel in doing so, as also in the trial itself ; and if, during its course, one is taken by surprise, through the injection of new charges or reversal of rulings which brings forth new masses of evidence then to have further reasonable time for meeting the unexpected shift.

“ So far as I know, it has not yet been held that any tribunal in our system, of whatever character, is free to receive ‘ such evidence as in its opinion ’ would be ‘ of assistance in proving or disproving the charge ’ or, again as in its opinion, ‘ would have probative value in the mind of a reasonable man ’ ; and, having received what in its unlimited discretion it regards as sufficient, is also free to determine what weight may be given to the evidence received without restraint. (Footnote 1)

“ When to this fatal defect in the directive, however innocently made, are added the broad departures from the fundamentals of fair play in the proof and in the right to defend which occurred throughout the proceeding, there can be no accommodation with the due process of law which the Fifth Amendment demands.

“ All this the Court puts to one side with the short assertion that no question of due process under the Fifth Amendment or jurisdiction reviewable here is presented. I do not think this meets the issue, standing alone or in conjunction with the suggestion which follows that the Court gives no intimation one way or the other concerning what Fifth Amendment due process might require in other situations.

“ It may be appropriate to add here that, although without doubt the directive was drawn in good faith in the belief that it would expedite the trial and that enemy belligerents in petitioner’s position were not entitled to more, that state of mind and purpose cannot cure the nullification of basic constitutional standards which has taken place.”

(ix) Concluding Remarks

Mr. Justice Rutledge’s dissenting judgment ends with these words :

“ It is not necessary to recapitulate. The difference between the Court’s view of this proceeding and my own comes down in the end to the view, on the one hand, that there is no law restrictive upon these

(1) “ 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 com mission 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.”

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proceedings other than whatever rules and regulations may be prescribed for their government by the executive authority or the military and, on the other hand, that the provisions of the Articles of War, of the Geneva Convention and the Fifth Amendment apply.

“ I cannot accept the view that anywhere in our system resides or lurks a power so unrestrained to deal with any human being through any process of trial. What military agencies or authorities may do with our enemies in battle or invasion, apart from proceedings in the nature of trial and some semblance of judicial action, is beside the point. Nor has any human being heretofore been held to be wholly beyond elementary procedural protection by the Fifth Amendment. I cannot consent to even implied departure from that great absolute.

“ It was a great patriot who said : 
‘ He that would make his own liberty secure must guard even his enemy from oppression ; for if he violates this duty he establishes a precedent that will reach himself.' (Footnote 1:“ Tom Paine, quoted in Brooks, The World of Washington Irving, 73, n. I am indebted to Counsel for petitioner for this quotation.”)

“ Mr. Justice Murphy joins in this opinion.”

16. EXECUTION OF SENTENCE

Yamashita was executed on 23rd February, 1946.

B. NOTES ON THE CASE

It is not proposed in these pages to touch upon all of the many points of legal interest which arose between the commencement of proceedings against Yamashita in Manila and the delivery of judgments by Chief Justice Stone, Mr. Justice Rutledge and Mr. Justice Murphy in the Supreme Court. Attention is to be turned more particularly to the questions of International Law which were involved and, where desirable to a comparative study of international practice on these matters. Among the topics which will not be discussed in this commentary, most of which received extensive treatment during the proceedings and particularly in the judgments delivered by Chief Justice Stone, Mr. Justice Murphy and Mr. Justice Rutledge, are the question of the legal basis in United States Law and the jurisdiction of the Commission which tried Yamashita, (Footnote 2: See pp. 38-41, and-see Volume I of this series pp. 23-4, 29-31 and 72-9) the applicability of the United States Articles of War (Footnote 3: See pp. 44 and 63) and of the Fifth Amendment to the United States Constitution (Footnote 4: See pp. 49 and 73) and the extent to which the Supreme Court of the United States was legally empowered to review the proceedings and findings of United States Military Commissions. (Footnote 5: See pp. 39 and 50) It is proposed to devote attention to the following topics ; the legality of the trial of war criminals after the termination of hostilities, the finding that an alleged war criminal is not entitled to the protection of the Geneva Prisoner of War Convention relating to trial, the types of evidence admitted in war crime trial proceedings, the stress placed by the Commission on the need for expeditious procedure, and the responsibility of a commander for offences committed by his troops.

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1. THE LEGALITY OF THJ3 TRIAL OF WAR CRIMINALS AFTER THE TERMINATION OF HOSTILITIES

Chief Justice Stone, in delivering the majority judgment of the Supreme Court, stated that :

“ No writer on International Law appears to have regarded the power of military tribunals, otherwise competent to try violations of the Law of War, as terminating before the formal state of war has ended. In our own military history there have been numerous instances in which offenders were tried by military commissions after the cessation of hostilities and before the proclamation of peace, for offences against the Law of War committed before the cessation of hostilities." (Footnote 1: See p.42)

The dissenting judges made little objection to this point, although Mr. Justice Rutledge thought that there was less necessity for a military commission to be appointed after active hostilities were over, since “ there is no longer the danger which always exists before surrender and armistice. . . . The nation may be more secure now than at any time after peace is officially concluded. " (Footnote 2: See p.56)

It has been pointed out that, “ In so far as the application of the usages of war to war crimes is concerned, the jurisdiction of the enemy courts only exists as long as the war lasts. After the war, war crimes can only be prosecuted if they constitute ordinary crimes,” and “ The most serious shortcoming of customary International Law consists in its limitation for the duration of war of national jurisdiction in war crimes which are not simultaneously ordinary crimes. " (Footnote 3: Dr. G. Schwarzenberger, International Law and Totalitarian Lawlessness, London, 1943, pp. 61 and 67.)

The position under customary International Law seems, therefore, to be that whereas (as was recognised by the Supreme Court and by general international practice following the recent war) jurisdiction over war crimes exists without limitation beyond the cessation of fighting and up to the conclusion of peace, jurisdiction continues after this point only over such offences as are also infringements of the municipal law of the state whose courts are trying the alleged offender. Whether an offence fulfils this test of illegality under municipal law will depend upon the laws of each state, and the attitude which these laws reflect to the principle of the territoriality of criminal law. (Footnote 4: See G. Schwarzenberger, op.cit, pp.61-2)

This position under customary International Law can, of course, be altered by international agreement ; “. . . the belligerents have to make up their mind at the peace conference whether they wish to bury the past by a general amnesty, leave the matter unsettled or institute proceedings in time of peace, a procedure which, as a derogation of customary International Law, requires the sanction of an international agreement between the States concerned.” (Footnote 5: G. Schwarzenberger, op.cit, pp.67) It has thus been possible for the Peace Treaty between the Allied and Associated Powers and Italy to provide, in Article 45, that:

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“ 1. Italy shall take all necessary steps to ensure the apprehension and surrender for trial of :

(a) Persons accused of having committed, ordered or abetted war crimes and crimes against peace or humanity ;

(b) Nationals of any Allied or Associated Power accused of having violated their national law by treason or collaboration with the enemy during the war. “

2. At the request of the United Nations Government concerned, Italy shall likewise make available as witnesses persons within its jurisdiction, whose evidence is required for the trial of the persons referred to in paragraph 1 of this Article. “

3. Any disagreement concerning the application of the provisions of paragraphs 1 and 2 of this Article shall be referred by any of the Governments concerned to the Ambassadors in Rome of the Soviet Union, of the United Kingdom, of the United States of America, and of France, who will reach agreement with regard to the difficulty." (Footnote 1: British Command Paper, Cmd. 7022, p. 18)

The Treaties of Peace with Roumania, Bulgaria, Hungary and Finland contain similar provisions. (Footnote 2: Ibid, pp.80, 100, 119 and 140) An interesting passage in the official Commentary by the United Kingdom Foreign Office on the Treaty with Italy runs as follows :

“ The United Nations have concluded certain agreements between themselves for the bringing to justice of war criminals. Italy, once the Peace Treaty comes into force, would be under no obligation to assist in this matter. Provision is thus made in Article 45 that she should assist in the apprehension and surrender both of war criminals and of quislings." (Footnote 3: British Command Paper, Cmd. 7026)

On the related question of the permissibility under International Law of continuing, after the conclusion of peace, the operation of sentences passed on war criminals before that event, another learned authority has expressed the following view, which commands general assent :

“ All war crimes may be punished with death, but belligerents may, of course, inflict a more lenient punishment, or commute a sentence of death into a more lenient penalty. If this be done and imprisonment take the place of capital punishment, the question arises whether persons so imprisoned must be released at the end of the war, although their term of imprisonment has not yet expired. Some answer this question in the affirmative, maintaining that it could never be lawful to inflict a penalty extending beyond the duration of the war. But it is believed that the question has to be answered in the negative. If a belligerent has a right to pronounce a sentence of capital punishment, it is obvious that he may select a more lenient penalty and carry it out even beyond the duration of the war. It would in no wise be in the interest of humanity to deny this right, for otherwise belligerents would be tempted always to pronounce and carry out a sentence of capital punishment in the interest of self-preservation." (Footnote 4: Oppenheim-Lauterpacht, International Law, Sixth Edition (Revised) Volume II, p. 456.)

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2. ALLEGED WAR CRIMINALS NOT ENTITLED TO RIGHTS RELATING TO JUDICIAL PROCEEDINGS SET OUT IN THE GENEVA CONVENTION

There was a division of opinion in the Supreme Court as to the applicability of Part 3 (Judicial Proceedings) of Part III, Section V, Chapter 3 of the Geneva Prisoners of War Convention of 1929 to the trial of a person accused of a war crime as distinct from an offence committed while a prisoner. (Footnote 1: See pp.46 and 69) The view taken by the majority, that the Convention does not apply, has, however, been that followed in the practice of the various states which have held war crime trials in recent years.

This principle is so well established that it has rarely been questioned in war crime trials. It was, however, raised, and decided in the same way as in the Yamashita Trial, in the Dostler Trial (see Volume I of this series, pp. 29- 31) and in the Trial of Martin Gottfried Weiss and 39 others by a General Military Government Court at Dachau, 15th November-13th December, 1945 (The Dachau Trial) to be reported in a later volume of these reports. For an interesting decision on the part of the French Cour de Cassation (Court of Appeal), that an alleged war criminal is not entitled to the rights provided for a prisoner of war under French Law reference should be made to the report on the Wagner Trial (see Volume III of these Reports, pp. 42- 43). The Court ruled that the appellants were not sent as prisoners of war before the Military Tribunal which tried them and regarded as irrelevant the fact that that Tribunal was not composed in the way laid down for the trial of French military personnel and so, in accordance with paragraph 13 of Article 10 of the Code de Justice Militaire, also for the trial of prisoners of war. Paragraph 13 provides that “ military tribunals convened to try prisoners of war are composed in the same way as those convened for the trial of French military personnel, that is to say according to the rank of the accused.” It will be seen that this is an application in terms of French law of Article 63 of the Geneva Convention : “ A sentence shall only be pronounced on a prisoner of war by the same tribunals and in accordance with the same procedure as in the case of persons belonging to the armed forces of the detaining Power.” In deciding as it did, therefore, the Cour de Cassation tacitly affirmed the principle that the provisions of the Geneva Convention regarding judicial proceedings do not protect any prisoner of war during his trial for alleged war crimes.

In an editorial comment on the Yamashita proceedings, Professor Quincy Wright has made a brief but interesting comment on a separate though related aspect of the matter. He states that, irrespective of the interpretation of Article 63 of the Geneva Convention, “ it is to be noted that denial of justice in International Law has frequently been interpreted to require, as a minimum, treatment of aliens equal to that of nationals. It may be questioned, however, whether International Law requires the application of this principle in military commissions. The enemy can, apart from specific convention, claim only the international standard even if the national is given more." (Footnote 2: American Journal of International Law, Vol. 40, No. 2 , April, 1946, p . 405.)

THE TYPES OF EVIDENCE ADMITTED IN WAR CRIME TRIAL PROCEEDINGS

 In commenting upon the conflict of opinion in the Supreme Court as to the admissibility in war crime proceedings of depositions, affidavits, and hearsay

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and opinion evidence, (Footnote 1: See pp.46, 48, 50, 57, and 61) Professor Quincy Wright points out that, while the majority opinion of the Supreme Court did not cite international practice on this matter, it is clear “ that international tribunals have hesitated to exclude any sort of evidence and the courts in many civilised countries are similarly free in the admission of evidence leaving it to the judges to appreciate the weight that should be attached to the materials. Such evidence has been commonly admitted in military tribunals although in American courts martial certain limitations are imposed by statute.. It is not believed that admission of such evidence constitutes a denial of justice in International Law." (Footnote 2: Loc cit, p.405)

A study of the rules and the practice followed in war crime trials by other than United States Military Tribunals, (Footnote 3:Regarding the rules of evidence followed by United States Military Commissions, Military Government Courts and Military Tribunals, see Volume III of this series, pp. 109-111, 117 and 118.) does indeed indicate that the tendency to render admissible a wide range of evidence, and to allow the courts then to decide what weight to place on each item is at least in the Anglo-Saxon Countries a general one and is demonstrated not merely in the elastic rules of evidence which are binding on the courts but also by the liberal interpretations placed by the courts on these provisions when points of doubt arise.

The practice of the British Military Courts for instance, is amply demonstrated by the Belsen Trial proceedings, (Footnote 4: See Volume II of this series, pp.129 et.seq.) and indeed the decisions of the Court in this trial had a strong influence on the British practice in subsequent trials. The opening words of Regulation 8 (i) of the British Royal Warrant (Ibid. pp.130-131) are moreover substantially the same as Article 9 (1) of the Australian War Crimes Act of October 11th, 1945, and the provisions of Regulation 8 (i) as a whole are essentially the same as those of Regulations 10 (1) and (2) re-enacted under the Canadian War Crimes Act of 31st August, 1946, it being stated again that it is the duty of the Court to judge the weight to be attached to any evidence given in pursuance of this provision which would not otherwise be admissible.

A few words may be added on affidavit and hearsay evidence in particular. The Defence in the Yamashita Trial directed more objections against affidavits and items of hearsay evidence than against any other type of evidence. It is true that these types of evidence cannot be subjected to cross-examination in the same way as the first hand evidence of a witness in court, yet in these particular aspects also the attitude of the Commission trying the case, and of the draftsmen who produced the regulations which bound its proceedings, is paralleled by the practice of other Anglo-Saxon countries. In the Belsen Trial, for instance, a large number of affidavits were admitted and also much hearsay evidence, including some contained in the affidavits themselves. (Footnote 6: See Volume II of this series, pp.. 131-138) During the trial of Erich Killinger and four others by a British Military Court, Wuppertal, 26th November-3rd December, 1945,(Footnote 7: See Volume III of this series, pp. 67-75) before the tendering of the affidavit evidence for the Prosecution, the Defence applied for one

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deponent to be produced in person. The Defence had been given to understand that the British officer in question would be available for questioning. The Court decided, after hearing argument, that the deponent could not be produced “ without undue delay ” (in the wording of Regulation 8 (i) (a)), and the President of the Court added the significant statement that “ we realise that this affidavit business does not carry the weight of the man himself here, as evidence, and when it is read we will hear what objections you have got to anything that the affidavit says, and we will give that, as a Court, due weight.” The President’s words may fairly be taken as a reference to the fact that if evidence is given by means of an affidavit the person providing the evidence is not present in Court to be examined, cross-examined and re-examined.

Nevertheless, in his summing up, the Judge Advocate in the trial of Karl Adam Golkel and thirteen others, by a British Military Court, Wuppertal, Germany, 15th-21st May, 1946,(Footnote 1: To be reported in Volume V of this series) stressed that : “ There is no rule that evidence given in the witness box must be given more weight than evidence, statements, taken on oath outside the court. As I said earlier, take into account all the circumstances . . . ”

The Continental practice tends to prefer not to make special rules of evidence applicable to war crime trials, yet often the result is the same, the Courts not being bound by rules of evidence of a highly technical nature. For instance, the Ordinance of 28th August, 1944, under which trials by French Military Tribunals are held, makes no special provisions regarding evidence and procedure, and the rules contained in the Code de Justice Militaire, which govern trials of French military personnel, are applied. (Footnote 2: See volume III of this series, pp.97-9) Article 82 of the Code, on which the Presiding Judge in the Wagner Trial relied in ordering certain documents to be filed with the records of the case, (Footnote 3: Ibid,p.39) provides however that :

“ The President shall possess a discretionary power over the conduct of the proceedings and the elucidation of the truth.
“ He may, during the course of the proceedings, cause to be produced any piece of evidence which seems to him of value in the finding of the facts and he may call, even by means of a summons, any person whom it may seem to him necessary to hear . . . ”

It is also significant that such special rules of evidence as have been made for the conduct of war crime trials by courts set up by continental countries have tended to relax the rules of evidence binding on those courts. Thus, the Norwegian Law No. 2 of 21st February, 1947, which governs the procedure of Norwegian War Crimes Trials, has made, on the matter of evidence, only one departure from the ordinary civil court procedure of Norway, (Footnote 4: ibid, pp.87 and 88) but this provides that, during the main hearing of war crimes cases, previous statements of witnesses, whether given before a court or not, may be read and used as evidence if the statement has been given by a person who has since died or disappeared or whose personal appearance is impossible to arrange or would cause considerable delay or expense. Again, paragraph

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28 (1) of the Czechoslovak Law of 24th January, 1946, which concerns the punishment of war criminals and traitors by Extraordinary People’s Courts, provides that : “ . . . The examination of the accused and the taking of evidence shall be conducted in general in accordance with the ordinary rules of criminal procedure. Verbatim reports of the interrogation of accomplices and witnesses and the views of experts may be read whenever the president of the senate considers this suitable." (Footnote 1: Italics Inserted) Such verbatim reports as those mentioned in the second sentence of this provision would be admissible in other than war crimes proceedings only with the consent of both Prosecution and Defence, if at all.

The Anglo-Saxon drafting technique is reflected in the wording of the Charters of the International Military Tribunals. Article 13 (Evidence) of the Charter of the International Military Tribunal for the Far East provides, inter alia, as follows :

“ a. Admissibility. The Tribunal shall not be bound by technical rules of evidence. It shall adopt and apply to the greatest possible extent expeditious and non-technical procedure, and shall admit any evidence which it deems to have probative value. All purported admissions or statements of the accused are admissible.”

With the exception of the omission of the final sentence, Article 19 of the Charter of the Nuremberg International Military Tribunal has the same wording.

In general it may be said that the rules of evidence applied in war crime trials are less technical than those governing the proceedings of courts conducting trials in accordance with the ordinary criminal law. This is not to say that any unfairness is done to the accused ; the aim has been to ensure that no guilty person will escape punishment by exploiting technical rules. The circumstances in which war crime trials are often held make it necessary to dispense with certain such rules. For instance many eye witnesses whose evidence was needed in trials in Europe had in the meantime returned to their homes overseas and been demobilised. To transport them to the scene of trial would not have been practical, and it was for that reason that affidavit evidence was permitted and so widely used.

Furthermore, it should be pointed out that the historic function of many of the stricter rules of evidence such as the rule against hearsay was to protect juries from evidence which had not been subjected to cross-examination and the value of which, owing to their inexperience, they might not be able properly to assess. It has been argued with justification, however, that the judges serving on war crime courts are less likely to need such protections than is the average juryman and that many of the stricter rules therefore lose their raison d’être.  

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