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The most noteworthy case reported in this Volume is that of General Tomoyuki Yamashita who was tried and condemned by a United States Military Commission in Manila. His sentence was confirmed. The matter came before the Supreme Court of the United States on a petition for a writ of habeas corpus. The petition was rejected by that Court by a majority of the judges. The Court was not empowered to deal with the issues of fact which had been decided by the Court in Manila. The questions ‘which came before the Supreme Court were questions of jurisdiction or competency. The majority, speaking by that great Judge, Stone, Chief Justice, whose death has deprived the Court of one of its greatest ornaments since its formation, held that the Military Commission was legally constituted, and that the charges exhibited in the Petition were within its competence because they were charges of violations of the law of war. The two dissenting judges founded their dissents upon certain technical question, no doubt of a basic character, but not calling for special notice here in this brief introduction which only deals with International Law. The observations of the Chief Justice (in which the majority of the judges agreed) are of leading importance for students of the law of war. In the first place there was the question whether the Military Court was validly and legally constituted. On that the Chief Justice repeated in effect what the Supreme Court had said in 1942 in Ex parte Quirin (Volume 317, United States Supreme Court Reports, page 1). He said that the law of the United States recognised that the Military Commission appointed by Military Command, according to recognised United States Army practice, was an appropriate tribunal for the trial and punishment of offences against the law of war (which he said is a part of the law of nations), and that offenders by statute or the law of war may be tried by such Military Commissions. The Court further repeated what it had said in Ex parte Quirin that Congress by sanctioning trial of enemy combatants for violation of the law of war by Military Commissions had not attempted to codify the law of war or mark its precise boundaries, but had adopted the system of Military Commission law applied by military tribunals so far as it should be recognised and deemed applicable by the Courts and as further defined by the Hague Convention. This is a general statement applicable to all military tribunals or commissions established for the same purpose by the law of the nations, and subject to any provisions of the latter law. The Supreme Court treated this principle as long established and referred to the jurisdiction of

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the Military Commission or Court as “ traditional.” They added that they were not concerned, on such an application as that before them, with the guilt or innocence of the petitioners, which are not subject to review by the Court. If the Military Courts have come to a wrong decision on disputed facts, their errors are subject to review only by the military authorities. The Supreme Court further declined to say that there is no authority to convene a Commission after hostilities have ended to try violations of the law of war committed before their cessation, at least until peace has been officially recognised by treaty or proclamation of the political branch of the Government. The power of Military Tribunals, otherwise competent, to try violations of the law of war, does not generally terminate before the formal state of war is ended.

The second principal matter decided by the Court had reference to the offences charged. The petitioner had not either committed or directed the acts which were the subject of the charges. The gist of the charge was that he had committed an unlawful breach of his duty as an army commander to control the operations of the members of his command by permitting them to commit “ the extreme and widespread atrocities specified.” This, the Court held, exhibited a proper charge of an offence against the law of war. This is an important though carefully guarded pronouncement. The tribunal of fact must decide the issue on a consideration of all the circumstances. The Supreme Court did not purport to discuss or review the sufficiency of the actual facts. But it stated the general principal firmly and clearly. The Commission was bound “ 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.”

The only other point in the judgment to which I need refer here is the decision that Part III, Section V, Chapter 3, Part 3, and in particular Article 63, of the Geneva Convention of 1929 only apply to judicial proceedings directed against a prisoner of war for offences committed while a prisoner of war and hence did not come into operation as regards the petitioner who was charged with acts done before his capture.

It would be out of place in an Introduction to deal other than briefly with the three remaining Reports in this volume, which seem to deal with questions more or less similar to the question of the responsibility of commanding officers-viz., the trial of Kurt Meyer, the trial of Karl Rauer and others, and the trial of Kurt Student. The facts in each case are carefully stated and examined but it is not clear that the Courts dealing with the last two cases, which were decided upon after the delivery of the Supreme

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Court’s judgment, ever dealt with the standard of responsibility laid down by the Supreme Court. Hence these two cases cannot safely be regarded as doing more than illustrating conditions of fact which might test the application of the law laid down by the Supreme Court.

This Volume has been prepared by Mr. G. Brand, like its two predecessors, under the supervision of the Legal Publications Committee. The Appendix on Canadian Law has also been prepared by Mr. G. Brand and has been approved by the Canadian Department of External Affairs.

WRIGHT, Chairman,

United Nations War Crimes Commission.

London, 17th February, 1948.