IN RE YAMASHITA, 327 U. S. 1 (1946)

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U.S. Supreme Court

In re Yamashita, 327 U.S. 1 (1946)

In re Yamashita

No. 61, Misc.

Argued January 7, 8, 1946

Decided February 4, 1946*

327 U.S. 1


Prior to September 3, 1945, petitioner was the Commanding General of the Fourteenth Army Group of the Imperial Japanese Army in the Philippine Islands. On that day, he surrendered to the United States Army and became a prisoner of war. Respondent was the Commanding General of the United States Army Forces, Western Pacific, whose command embraced the Philippine Islands. Respondent appointed a military commission to try the petitioner on a charge of violation of the law of war. The gist of the charge was that petitioner had failed in his duty as an army commander to control the operations of his troops, "permitting them to commit" specified atrocities against the civilian population and prisoners of war. Petitioner was found guilty, and sentenced to death.


1. The military commission appointed to try the petitioner was lawfully created. P. 327 U. S. 9.

(a) Nature of the authority to create military commissions for the trial of enemy combatants for offenses against the law of war, and principles governing the exercise of jurisdiction by such commissions, considered. Citing Ex parte Quirin, 317 U. S. 1, and other cases. Pp. 327 U. S. 7-9.

(b) A military commission may be appointed by any field commander, or by any commander competent to appoint a general court-martial, as was respondent by order of the President. P. 327 U. S. 10.

(c) The order creating the military commission was in conformity with the Act of Congress (10 U.S.C. §§ 1471-1593) sanctioning

Page 327 U. S. 2

the creation of such tribunals for the trial of offenses against the law of war committed by enemy combatants. P. 327 U. S. 11.

2. Trial of the petitioner by the military commission was lawful, although hostilities had ceased. P. 327 U. S. 12.

(a) A violation of the law of war, committed before the cessation of hostilities, may lawfully be tried by a military commission after hostilities have ceased -- at least until peace has been officially recognized by treaty or proclamation by the political branch of the Government. P. 327 U. S. 12.

(b) Trial of the petitioner by the military commission was authorized by the political branch of the Government, by military command, by international law and usage, and by the terms of the surrender of the Japanese government. P. 327 U. S. 13.

3. The charge preferred against the petitioner was of a violation of the law of war. P. 327 U. S. 13.

(a) 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 acts which are violations of the law of war and which are likely to attend the occupation of hostile territory by an uncontrolled soldiery, and he may be charged with personal responsibility for his failure to take such measures when violations result. Pp. 327 U. S. 14, 327 U. S. 16.

(b) What measures, if any, petitioner took to prevent the alleged violations of the law of war, and whether such measures as he may have taken were appropriate and sufficient to discharge the duty imposed upon him, were questions within the peculiar competence of the military officers composing the commission, and were for it to decide. P. 327 U. S. 16.

(c) 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. P. 327 U. S. 17.

(d) The allegations of the charge here, tested by any reasonable standard, sufficiently set forth a violation of the law of war, and the military commission had authority to try and to decide the issue which it raised. P. 327 U. S. 17.

4. In admitting on behalf of the prosecution a deposition and hearsay and opinion evidence, the military commission did not violate any Act of Congress, treaty, or military command defining the commission's authority. Pp. 327 U. S. 18, 327 U. S. 23.

(a) The Articles of War, including Articles 25 and 38, are not applicable to the trial of an enemy combatant by a military commission

Page 327 U. S. 3

for violations of the law of war, and imposed no restrictions upon the procedure to be followed in such trial. Pp. 327 U. S. 19-20.

(b) Article 63 of the Geneva Convention of 1929, which provides that

"Sentence may be pronounced against a prisoner of war only by the same courts and according to the same procedure as in the case of persons belonging to the armed forces of the detaining Power,"

does not require that Articles 25 and 38 of the Articles of War be applied in the trial of the petitioner. Article 63 refers to sentence "pronounced against a prisoner of war" for an offense committed while a prisoner of war, and not for a violation of the law of war committed while a combatant. P. 327 U. S. 20.

(c) The Court expresses no opinion on the question of the wisdom of considering such evidence as was received in this proceeding, nor on the question whether the action of a military tribunal in admitting evidence which Congress or controlling military command has directed to be excluded may be drawn in question by petition for habeas corpus or prohibition. P. 327 U. S. 23.

5. On an application for habeas corpus, the Court is not concerned with the guilt or innocence of the petitioner. P. 327 U. S. 8.

6. By sanctioning trials of enemy aliens by military commission for offenses against the law of war, Congress recognized the right of the accused to make a defense, and did not foreclose their right to contend that the Constitution or laws of the United States withhold authority to proceed with the trial. P. 327 U. S. 9.

7. The Court does not appraise the evidence on which the petitioner here was convicted. P. 327 U. S. 17.

8. The military commission's rulings on evidence and on the mode of conducting the proceedings against the petitioner are not reviewable by the courts, but only by the reviewing military authorities. From this viewpoint, it is unnecessary to consider what, in other situations, the Fifth Amendment might require. Pp. 327 U. S. 8, 327 U. S. 23.

9. Article 60 of the Geneva Convention of 1929, which provides that,

"At the opening of a judicial proceeding directed against a prisoner of war, the detaining Power shall advise the representative of the protecting Power thereof as soon as possible, and always before the date set for the opening of the trial,"

applies only to persons who are subjected to judicial proceedings for offenses committed while prisoners of war. P. 327 U. S. 23.

10. The detention of the petitioner for trial, and his detention upon his conviction, subject to the prescribed review by the military authorities, were lawful. P. 327 U. S. 25.

Leave and petition denied.

Page 328 U. S. 4

No. 61, Misc. Application for leave to file a petition for writs of habeas corpus and prohibition in this Court challenging the jurisdiction and legal authority of a military commission which convicted applicant of a violation of the law of war and sentenced him to be hanged. Denied.

No. 672. Petition for certiorari to review an order of the Supreme Court of the Commonwealth of the Philippines, 42 Off.Gaz. 664, denying an application for writs of habeas corpus and prohibition likewise challenging the jurisdiction and legal authority of the military commission which tried and convicted petitioner. Denied.

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