On December 7, 1945, four years to the day after the attack on Pearl Harbor, five American Army officers sitting as a military commission in Manila found General Tomoyuki Yamashita of the Imperial Japanese Army "guilty as charged" and sentenced him to death. He had not been accused of committing any crime with his own hands, of ordering one, or of condoning one. The charge was narrower: that while commanding Japan's forces in the Philippines he had "unlawfully disregarded and failed to discharge his duty as commander to control the operations of the members of his command, permitting them to commit brutal atrocities and other high crimes against people of the United States and of its allies and dependencies, particularly the Philippines."
Two months later the case reached the Supreme Court of the United States. On February 4, 1946, in In re Yamashita, the Court refused to intervene. Six justices held that the commission had been lawfully created, that the charge stated a violation of the law of war, and that the way the commission handled evidence was for the military, not the courts, to review. Two justices dissented. Nineteen days after the decision, with the sentence confirmed by the American commander in the Pacific, Yamashita was executed at Los Baños. He was 60.
The case turned on a principle: whether a commander can be held criminally responsible, and put to death, for crimes committed by troops he was found to have failed to control.
Yamashita was born on November 8, 1885, on Shikoku, the smallest of Japan's four main islands. He trained as an army officer and graduated at the head of his class at the military academy. His career ran through staff and command posts in peace and in war; the commission that later tried him described him as an officer "of long years of experience" who had held "extensive command and staff duty in the Imperial Japanese Army in peace as well as war in Asia, Malaya, Europe, and the Japanese Home Islands."
His reputation rested on one campaign. As commander of the 25th Army he took Singapore, advancing through Malaya; the British commander surrendered the city to him on February 15, 1942. He was promoted to full general. Within months he had been posted away from the center of power to Manchuria, where he commanded an army group along the frontier. He stayed there until the fall of 1944.
On October 9, 1944, Yamashita became commanding general of the Fourteenth Army Group of the Imperial Japanese Army, with headquarters in the Philippines. The Supreme Court later described him as having been, for the period charged, "military governor of the Philippines, as well as commander of the Japanese forces."
That single command, held from October 9, 1944, until September 2, 1945, is the whole of the period named in the charge. Everything the commission later weighed was measured against it.
Japan's surrender in August 1945 reached Yamashita in the mountains. He came into American lines on September 2, 1945. On September 3 he surrendered to the United States Army Forces at Baguio, where at 12:10 that afternoon, at Camp John Hay, he signed the second instrument of surrender for the Philippines as "Highest Commander, Imperial Japanese Army in the Philippines." The senior Japanese naval commander in the islands signed beside him. By the terms of the document, all Japanese army, navy and auxiliary forces in the Philippines passed to the control of United States Army Forces, Western Pacific.
He became a prisoner of war that day and was interned in conformity with the 1929 Geneva Convention.
The machinery that would try him had already been set in motion in Washington. On September 12, 1945, the Joint Chiefs of Staff, acting at the direction of the President, instructed the Commander in Chief, United States Army Forces, Pacific, to bring to trial before appropriate military tribunals the Japanese war criminals who "have been or may be apprehended." On September 24 that commander ordered the commanding general of United States Army Forces, Western Pacific, whose command took in the Philippines, to proceed with Yamashita's trial on the charge that had been drafted.
The order came with a set of regulations for the trial of war criminals. Two of their provisions shaped everything that followed. The first, in a section headed "Evidence," directed the commission to admit any evidence that "in its opinion would be of assistance in proving or disproving the charge, or such as in the commission's opinion would have probative value in the mind of a reasonable man," and listed among admissible material official documents without proof of signature, reports by investigators, affidavits, depositions, diaries, letters and copies of documents. The second fixed the review: the officer who convened the commission could approve, reduce or alter its sentence, and no death sentence could be carried out until it had been confirmed by the Commander in Chief, United States Army Forces, Pacific.
On September 25, about three weeks after his surrender, Yamashita was served with the charge, which had been prepared by the Judge Advocate General's Department of the Army. With that, he passed out of the status of an ordinary prisoner of war and into confinement as an accused war criminal.
The full charge read: "Tomoyuki Yamashita, General Imperial Japanese Army, between 9 October 1944 and 2 September 1945, at Manila and other places in the Philippine Islands, while commander of armed forces of Japan at war with the United States of America and its allies, unlawfully disregarded and failed to discharge his duty as commander to control the operations of the members of his command, permitting them to commit brutal atrocities and other high crimes against people of the United States and of its allies and dependencies, particularly the Philippines; and he, General Tomoyuki Yamashita, thereby violated the laws of war."
It was a single count. It did not say that he had committed, ordered or known of any particular act. The specific acts were set out separately, in bills of particulars filed by the prosecution at the commission's direction. The first bill, served on the day of his arraignment, contained 64 items. A supplemental bill filed on the opening day of the trial added 59 more. Together they alleged 123 acts by members of the forces under his command across the archipelago during the charged period, among them crimes against the civilian population and against prisoners of war, pillage, and the destruction of religious and public buildings. One item of the supplemental bill accused forces under his command of trying and executing prisoners of war without notice to their protecting power, the same failure his own lawyers would soon raise on his behalf.
The commission consisted of five Army officers, all of them generals, appointed by order of the commanding general in the Western Pacific. None was a lawyer. The same order appointed six Army officers, all lawyers, to defend him. The Supreme Court later went out of its way to praise them, writing that they had "demonstrated their professional skill and resourcefulness and their proper zeal for the defense with which they were charged." One of the dissenting justices put it more warmly, saying that their "difficult assignment has been done with extraordinary fidelity."
Yamashita was arraigned on October 8, 1945, and pleaded not guilty. On the same day the prosecution filed the first bill of particulars, and the defense moved to dismiss the charge on the ground that it failed to state a violation of the law of war. The commission adjourned for three weeks. The defense had asked for two; the extra week came at the prosecution's suggestion. In that time six lawyers had to investigate 64 items, many of them concerning events on distant islands.
The commission reconvened in Manila on October 29, 1945. It denied the motion to dismiss. The prosecution then filed the supplemental bill of 59 further items, a copy of which had reached the defense three days earlier. Defense counsel told the commission that they had expected perhaps two or three new specifications, not 59 concerning "entirely new persons and times," and moved at once for a continuance. "We have worked earnestly seven days a week in order to prepare the defense on 64 specifications," the senior defense counsel told the commission. The motion was denied. The commission said it would consider a renewed request once the prosecution had finished its case on the original bill.
The following weeks, traced day by day in the dissent of Justice Rutledge, were a running contest over time and evidence. On October 30 the commission declined to hear testimony on the supplemental bill for the present. On November 1 it ruled that it would not decide any item on an affidavit alone and that witnesses must be called on each specification; four days later, at the prosecution's urging, it reversed itself and affirmed its "prerogative of receiving and considering affidavits or depositions, if it chooses to do so." On November 2 it announced that, unless the defense objected, it would assume the defense was ready to proceed on any item of the supplemental bill. On November 8 the prosecution remarked that the war crimes investigators had needed some three months to look into the matters in the bills, and that it could not conceive of the defense doing the same in less. The commission acknowledged "the tremendous burden which we have placed on the Defense" but kept its ruling. On November 12 it said it would grant a continuance "only for the most urgent and unavoidable reasons."
On November 20 the prosecution rested. The senior defense counsel moved for a reasonable continuance, telling the commission that since October 29 the defense had been "working night and day" and had had "no time whatsoever to prepare any affirmative defense." The commission retired, returned, and denied the motion. Asked for a recess of a single day, it offered one until the afternoon; when counsel said that would not be enough and that they had not yet had time even to prepare an opening statement, it recessed until the following morning.
By the end, the commission had heard 286 witnesses, whose testimony filled more than 3,000 pages, and received 423 exhibits. Its own description of the documentary material listed "official documents of the United States Army, the United States State Department, and the Commonwealth of the Philippines; affidavits; captured enemy documents or translations thereof; diaries taken from Japanese personnel, photographs, motion picture films, and Manila newspapers." Over defense objection it admitted a deposition taken by an Army captain, hearsay and opinion evidence, and a film whose soundtrack named the accused. Defense counsel told the Supreme Court, without contradiction from the government, that the only proof offered at trial that Yamashita knew of the crimes came in the form of affidavits and depositions, and that some specifications rested on affidavits alone.
Testimony cut both ways on his own conduct. A prosecution witness testified that Yamashita had ordered action against areas of the Philippines that supported the Americans. A defense witness testified that Yamashita had told him to be fair in all his dealings with the Filipino population. The defense presented evidence that he lacked the power to discipline, demote, promote or remove members of the naval land forces, and that his communications had been badly disrupted.
The commission recorded that the defense had "established the difficulties faced by the Accused" with respect to "the swift and overpowering advance of American forces," the errors of his predecessors, and weaknesses in "organization, equipment, supply with especial reference to food and gasoline, training, communication, discipline and morale of his troops." It also recorded the defense contention that naval and air forces had been assigned to his tactical command suddenly, that naval forces had until then answered to a separate ministry in Tokyo, and that his orders had not been obeyed.
Yamashita maintained throughout that he had not known of the crimes; the commission's findings say that he "stoutly maintained his complete ignorance" of them. When the trial closed on December 7 he addressed the commission and declared his innocence: "I stand here today with the same clear conscience as on the first day of my arraignment."
The commission announced its decision the same day. Before stating its conclusions it set out the reasoning on which it had acted. "Clearly, assignment to command military troops is accompanied by broad authority and heavy responsibility," it said. It rejected the idea that a commander becomes a criminal because one of his soldiers commits a crime. "Nevertheless," it went on, where crimes "are widespread offences, and there is no effective attempt by a commander to discover and control the criminal acts, such a commander may be held responsible, even criminally liable, for the lawless acts of his troops, depending upon their nature and the circumstances surrounding them. Should a commander issue orders which lead directly to lawless acts, the criminal responsibility is definite and has always been so understood." It cited the Army's own field manual on the rules of land warfare and said that the tactical situation, the quality of his staff and subordinate commanders, and the training and character of his troops "have been the principal considerations of the Commission during its deliberations."
It then addressed him directly: "General Yamashita: The Commission concludes: (1) That a series of atrocities and other high crimes have been committed by members of the Japanese armed forces under your command against people of the United States, their allies and dependencies throughout the Philippine Islands; that they were not sporadic in nature but in many cases were methodically supervised by Japanese officers and 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," it said, and it sentenced him to death.
The findings made no count of the dead and named none of them. Their only description of the victims is the phrase in the first conclusion: "people of the United States, their allies and dependencies throughout the Philippine Islands."
The sentence could not be carried out until it had been reviewed and confirmed within the Army, and the defense used the interval to go to the civilian courts. Its lawyers first asked the Supreme Court of the Commonwealth of the Philippines for writs of habeas corpus and prohibition. That court heard argument and denied the petition, holding that its inquiry was limited to whether the commission had jurisdiction to try him for the offense charged, and that the commission, "being validly constituted" by the order that created it, had jurisdiction over his person and over the trial.
The defense then went to Washington. It filed two applications in the Supreme Court of the United States: No. 61 Miscellaneous, a motion for leave to file petitions for writs of habeas corpus and prohibition directly in that Court, and No. 672, a petition for certiorari to review the Philippine court's order. The respondent named in both was the commanding general of United States Army Forces, Western Pacific, who had convened the commission and held the prisoner.
The petitions advanced four grounds. The first was that the commission had not been lawfully created and that no military commission could be convened to try violations of the law of war once hostilities between the United States and Japan had ceased. The second was that the charge did not accuse him of any violation of the law of war. The third was that the regulations allowing depositions, affidavits, hearsay and opinion evidence violated the 25th and 38th Articles of War and the Geneva Convention of 1929, and denied him the fair trial guaranteed by the due process clause of the Fifth Amendment. The fourth was that the United States had failed to give advance notice of the trial to the neutral power representing Japan's interests, as Article 60 of the Geneva Convention required. Switzerland was then that protecting power.
The Court set the two applications down for argument together "because of the importance and novelty of some of those presented." Three Army lawyers appeared for the petitioner, and the Solicitor General and an Assistant Solicitor General for the government. Argument was heard on January 7 and 8, 1946.
The Court decided the case on February 4, 1946. The opinion, by the Chief Justice, began by marking the limits of what the Court was doing. On habeas corpus, it said, "we are not concerned with the guilt or innocence of the petitioners. We consider here only the lawful power of the commission to try the petitioner for the offense charged." Military commissions were not courts whose judgments the Supreme Court reviewed. "If the military tribunals have lawful authority to hear, decide and condemn, their action is not subject to judicial review merely because they have made a wrong decision on disputed facts. Correction of their errors of decision is not for the courts but for the military authorities which are alone authorized to review their decisions."
On the first ground, the Court found an unbroken chain of authority running from the President through the Joint Chiefs of Staff and the Pacific commander to the general who appointed the commission, and held that Congress, through Article 15 of the Articles of War, had sanctioned the use of military commissions to try offenses against the law of war. The end of fighting did not end that power. "We cannot say that there is no authority to convene a commission after hostilities have ended to try violations of the law of war committed before their cessation, at least until peace has been officially recognized by treaty or proclamation of the political branch of the Government." No peace had yet been agreed. Japan, by accepting the Potsdam Declaration and surrendering, "has acquiesced in the trials of those guilty of violations of the law of war."
On the charge, the Court acknowledged the defense argument that it did not allege that Yamashita had "either committed or directed the commission of such acts." But that, it said, "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 was whether the law of war imposed such a duty. The Court held that it did, and that the duty was personal: the relevant conventions "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." It concluded "that the allegations of the charge, tested by any reasonable standard, adequately allege a violation of the law of war and that the commission had authority to try and decide the issue which it raised."
It declined to go further into the facts. "We do not here appraise the evidence on which petitioner was convicted," the opinion said. Whether he had taken any measures to prevent the crimes, and whether they were sufficient, were "questions within the peculiar competence of the military officers composing the commission and were for it to decide." In a footnote the Court noted that the commission had taken account of the difficulties the defense had shown and had still found that he had not taken the measures "required by the circumstances," and said: "We merely hold that the charge sufficiently states a violation against the law of war, and that the commission, upon the facts found, could properly find petitioner guilty of such a violation."
On evidence, the Court held "that neither Article 25 nor Article 38 is applicable to the trial of an enemy combatant by a military commission for violations of the law of war." Those Articles protected persons made subject to the Articles of War by Article 2, essentially members of the American Army and those accompanying it, and an enemy combatant was not among them. Article 63 of the Geneva Convention, which required that a prisoner of war be sentenced only by the same courts and procedure as the detaining power's own soldiers, applied in the Court's reading only to offenses "committed while a prisoner of war," not to violations of the law of war committed while a combatant. The same reasoning disposed of Article 60 and the want of notice to Switzerland. The commission's rulings on evidence and procedure "are not reviewable by the courts, but only by the reviewing military authorities." The Court added that it was "unnecessary to consider what, in other situations, the Fifth Amendment might require, and as to that no intimation one way or the other is to be implied."
The disposition was brief. The detention of the petitioner for trial and upon conviction, "subject to the prescribed review by the military authorities," was lawful, and the petition for certiorari and the motion for leave to file "should be, and they are Denied." Justice Jackson took no part in the case. The vote was six to two.
Justice Murphy accepted that the commission had been lawfully created. He did not accept that it had tried Yamashita for a recognized crime. "The significance of the issue facing the Court today cannot be overemphasized," he began. In his view the Fifth Amendment's guarantee of due process applied to "any person" accused by the federal government, and those rights "belong to every person in the world, victor or vanquished, whatever may be his race, color or beliefs."
He described the proceedings in blunt terms. Yamashita, he wrote, "was rushed to trial under an improper charge, given insufficient time to prepare an adequate defense, deprived of the benefits of some of the most elementary rules of evidence" and summarily sentenced. "In all this needless and unseemly haste there was no serious attempt to charge or to prove that he committed a recognized violation of the laws of war. He was not charged with personally participating in the acts of atrocity or with ordering or condoning their commission. Not even knowledge of these crimes was attributed to him."
He read the charge against the background of the campaign: a commander whose communications and control had been broken by the American advance, now judged for the disorder that advance had produced. Paraphrasing what he took the charge to mean, he wrote: "In short, we charge you with the crime of inefficiency in controlling your troops." In his view, "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."
He was explicit that the atrocities themselves were not in question. That they had been inflicted by forces under the petitioner's command "is undeniable," he wrote, and "That just punishment should be meted out to all those responsible for criminal acts of this nature is also beyond dispute." His objection was to the method. "This is not to say 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 recognized concepts of justice." He warned that "the fate of some future President of the United States and his chiefs of staff and military advisers may well have been sealed by this decision." And he closed on the same theme: "To conclude otherwise is to admit that the enemy has lost the battle but has destroyed our ideals."
Justice Rutledge wrote at greater length, and Justice Murphy joined him. "Not with ease does one find his views at odds with the Court's in a matter of this character and gravity," he began. "More is at stake than General Yamashita's fate. There could be no possible sympathy for him if he is guilty of the atrocities for which his death is sought. But there can be and should be justice administered according to law."
"This trial is unprecedented in our history," he wrote. "Never before have we tried and convicted an enemy general for action taken during hostilities or otherwise in the course of military operations or duty. Much less have we condemned one for failing to take action." He agreed with Justice Murphy on the charge and directed his own fire at the procedure: the regulation on evidence, which in his words "made the commission a law unto itself"; the denial of continuances, which he traced day by day through the trial record; and the findings, which he said "draw no express conclusion of knowledge, but state only two things": that widespread atrocities had occurred and that the petitioner had "failed to provide effective control ... as required by the circumstances."
He held that Articles 25 and 38 of the Articles of War, which spoke expressly of military commissions, governed this one, that the regulations conflicted with them, and that the commission therefore "was invalidly constituted, was without jurisdiction, and its sentence is therefore void." He read Articles 60 and 63 of the Geneva Convention to cover the trial as well. On the Fifth Amendment he wrote: "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." His last words on the case were: "I cannot consent to even implied departure from that great absolute."
With the Supreme Court's decision the last civilian route was closed. The Commander in Chief, United States Army Forces, Pacific, approved the verdict and the sentence, as the regulations required before any death sentence could be carried out.
Tomoyuki Yamashita was executed at Los Baños on February 23, 1946, a little less than three weeks after the Supreme Court denied his petitions.
The legal question in this case was not whether the acts set out in the bills of particulars were war crimes. The defense did not deny that crimes against civilians and prisoners of war were violations of the law of war, and the Supreme Court noted that it was not disputed. The question was what the law required of the commander, and on what showing he could be punished for the conduct of his subordinates.
The Court's majority built the commander's duty from treaty provisions, beginning with the Fourth Hague Convention of 1907, to which, it noted, the United States and the Axis powers were parties. Article 1 of the Annex to the Fourth Hague Convention of 1907 required that an armed force, to be recognized as lawful belligerents, be "commanded by a person responsible for his subordinates." Article 43 of the same Annex required the commander of a force occupying enemy territory to "take all the measures in his power to restore, and ensure, as far as possible, public order and safety." The Court also cited Article 19 of the Tenth Hague Convention and Article 26 of the Geneva Red Cross Convention of 1929, both of which placed duties of execution on commanders in chief. From these it concluded that the law of war "presupposes that its violation is to be avoided through the control of the operations of war by commanders who are to some extent responsible for their subordinates," and that the protection the law gives to civilians and prisoners "would largely be defeated if the commander of an invading army could with impunity neglect to take reasonable measures for their protection."
Justice Murphy answered from the same conventions and from the Army's own manual. The Hague phrase "responsible for his subordinates," he wrote, had been read by authorities on international law to mean responsible to a higher authority, or capable of effective control, not criminally answerable for every act of the troops. He pointed to the War Department's Rules of Land Warfare, Field Manual 27-10 of 1940. Paragraph 347 had originally said that commanders "ordering the commission of such acts, or under whose authority they are committed by their troops, may be punished." On November 15, 1944, that sentence was deleted, and a new paragraph 345.1 provided that individuals who violate the laws of war may be punished and that "The person giving such orders may also be punished." From that change he drew the conclusion that the United States recognized individual criminal responsibility "only as to those who commit the offenses or who order or direct their commission." He reviewed American military commission cases from the Philippines in 1900 and 1901, in which officers had been held liable for ordering crimes or for failing to prevent a crime they knew was to be committed and had the power to prevent, and found none in which "the mere inability to control troops under fire or attack by superior forces" had been made the basis of a charge.
The other strand of law in the case concerned the tribunal. Under Article 15 of the Articles of War, as revised in 1916 and 1920, the jurisdiction of courts-martial did not displace the concurrent jurisdiction of military commissions over offenses "that by statute or by the law of war may be triable by such military commissions." The majority read that article as preserving the military commission as a tribunal of the common law of war, outside the procedural Articles that bound courts-martial. The dissent read the legislative history, including the testimony of the Judge Advocate General who had sponsored the 1916 revision, to mean that every military commission was bound by the same procedural Articles. That difference decided whether the affidavit evidence admitted at Manila was lawful.
No court ever found that Yamashita committed, ordered or witnessed any of the crimes in the bills of particulars, and the commission made no express finding that he knew of any of them. The charge turned on the single word "permitting." Justice Rutledge pointed out that the word could describe a knowing failure to restrain troops he knew were committing crimes or a negligent failure to discover what they were doing, that the findings did not say which, and that the government had presented the case on the first theory. The Supreme Court majority left the question open.
Whether the forces responsible were under his effective authority was also contested and was decided against him only in the general terms of the commission's findings. The commission accepted that the defense had shown real limits on his control and held that he had still failed to provide the control the circumstances required. It did not attribute particular items in the bills to army, naval or air units.
The fairness of the trial was never resolved on the merits by any civilian court. Two justices held that the commission lacked jurisdiction and that its sentence was void. The majority did not hold that the trial was fair; it held that the commission's rulings on evidence and procedure were for the military reviewing authorities, not for the courts.
November 8, 1885: Tomoyuki Yamashita is born on Shikoku, Japan.
February 15, 1942: Singapore surrenders to Japanese forces under his command as commander of the 25th Army.
October 9, 1944: He becomes commanding general of the Fourteenth Army Group of the Imperial Japanese Army in the Philippines; the period of the later charge begins.
September 2, 1945: He comes into American lines; the period of the charge ends.
September 3, 1945: He surrenders at Baguio and signs the instrument of surrender for Japanese forces in the Philippines.
September 12, 1945: The Joint Chiefs of Staff instruct the Pacific commander to try Japanese war criminals.
September 24, 1945: The Pacific commander orders the commanding general in the Western Pacific to proceed with Yamashita's trial and issues regulations for war crimes trials.
September 25, 1945: He is served with the charge.
October 8, 1945: Arraignment in Manila; he pleads not guilty; the first bill of particulars (64 items) is filed.
October 29, 1945: The trial opens; the motion to dismiss is denied; a supplemental bill (59 items) is filed; a defense request for a continuance is refused.
November 20, 1945: The prosecution rests; a further defense motion for a continuance is denied.
December 7, 1945: The commission finds him "guilty as charged" and sentences him to death.
January 7 and 8, 1946: The US Supreme Court hears argument.
February 4, 1946: The US Supreme Court denies his petitions in In re Yamashita, 327 U.S. 1, with Justices Murphy and Rutledge dissenting.
February 23, 1946: Yamashita is executed at Los Baños.