Yamashita Styler

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    G.R. No. L-129 December 19, 1945

    TOMOYUKI YAMASHITA,petitioner,

    vs.

    WILHLM D. STYR, !omm"#$%#& Ge#er"', U#%(e$ S("(e) Arm* +orce), We)(er#"c%%c,respondent.

    Col. Harry E. Clarke and Lt. Col. Walter C. Hendrix for petitioner.

    Maj. Robert M. Kerr for respondent.

    Delgado, Dizon, lores and Rodrigo appeared as a!i"i "#riae.

    MORAN, C.J.:

    Tomoyuki Yamashita, erstwhile commanding general of the 14th army group of the JapaneseImperial Army in the hilippines, and now charged !efore an American "ilitary #ommission

    with the most monstrous crimes ever committed against the American and $ilipino peoples,comes to this #ourt with a petition for $abeas "orp#sand prohi!ition against %t. &en. 'ilhelm

    (. )tyer, #ommanding &eneral of the *nited )tates Army $orces, 'estern acific. It is alleged

    therein that petitioner after his surrender !ecame a prisoner of war of the *nited )tates ofAmerica !ut was later removed from such status and placed in confinement as an accused war

    criminal charged !efore an American "ilitary #ommission constituted !y respondent %ieutenant

    &eneral )tyer+ and he now asks that he !e reinstated to his former status as prisoner of war, andthat the "ilitary #ommission !e prohi!ited from further trying him, upon the following grounds

    -1 That the "ilitary #ommission was not duly constituted, and, therefore, it is without/urisdiction+

    -0 That the hilippines cannot !e considered as an occupied territory, and the "ilitary

    #ommission cannot eercise /urisdiction therein+

    -2 That )pain, the 3protecting power3 of Japan, has not !een given notice of the implementing

    trial against petitioner, contrary to the provisions of the &eneva #onvention of July 0, 1560, and

    therefore, the "ilitary #ommission has no /urisdiction to try the petitioner+

    -4 That there is against the petitioner no charge of an offense against the laws of war+ and

    -7 That the rules of procedure and evidence under which the "ilitary #ommission purports to!e acting denied the petitioner a fair trial.

    'e !elieve and so hold that the petition for $abeas "orp#sis untena!le. It seeks no discharge of

    petitioner from confinement !ut merely his restoration to his former status as a prisoner of war,to !e interned, not confined. The relative difference as to the degree of confinement in such cases

    is a matter of military measure, disciplinary in character, !eyond the /urisdiction of civil courts.

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    8either may the petition for prohi!ition prosper against %t. &en. 'ilhelm (. )tyer. The military

    #ommission is not made party respondent in this case, and although it may !e acting, as alleged,

    without /urisdiction, no order may !e issued in these case proceedings re9uiring it to refrain fromtrying the petitioner.

    $urthermore, this #ourt has no /urisdiction to entertain the petition even if the commission !e/oined as respondent. As we have said inRa%#iza &s. 'radford -pp. 7:, ;1, ante, 3. . . an attempt

    of our civil courts to eercise /urisdiction over the *nited )tates Army !efore such period -stateof war epires, would !e considered as a violation of this countrye andsu!/ect to disciplinary measures those enemies who in their attempt to thwart or impede our

    military effort to have violated the law of the war.3 -Ex parte?uirin, 21 *)., 1+ ;2 )up. #t., 0.

    Indeed, the power to create a "ilitary #ommission for the trial and punishment of war criminalsis an aspect of waging war. And, in the language of a writer, a "ilitary #ommission 3has

    /urisdiction so long as a technical state of war continues. This includes the period of an armistice,

    or military occupation, up to the effective date of a treaty agreement.3 -#owles,(rial of War

    Cri!inals by Military (rib#nals, American @ar Association Journal, June, 1644.

    *pon the other hand, we have once said -ayomo &s.$loyd, 40 hil., 55, and this applica!lein time of war as well as the time of peace that this #ourt has no power to review upon

    $abeas "orp#sthe proceedings of a military or naval tri!unal, an that, in such case, 3the singlein9uiry, the test, is /urisdiction. That !eing esta!lished, the $abeas "orp#smust !e denied and the

    petitioner discharged.3 -)n re &rimley, 12 *.)., 14+ 11 )up. #t., 74+ 24 %a. ed., ;2;.

    $ollowing this rule in the instant case, we find that the "ilitary #ommission has !een validly

    constituted and it has /urisdiction !oth over the person of the petitioner and over the offenseswith which he is charged.

    The #ommission has !een validly constituted !y %ieutenant &eneral )tyer duly issued !y

    &eneral (ouglas "acArthur, #ommander in #hief, *nited )tates Army $orce acific, in

    accordance in authority vested in him and with radio communication from the Joint #hiefs of)taff, as shown !y =hi!its #, =, &, and B, attached !y petition. *nder paragraph 27; of the

    Cules of the %and 'elfare a "ilitary #ommission for the trial and punishment of the war

    criminals must !e designated !y the !elligerent. And the !elligerent

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    #hief, *nited )tates Army $orces, acific.3 Articles of 'ar 8os. 10 and 17 recogni>ed the

    3"ilitary #ommission3 appointed !y military command as an appropriate tri!unal for the trial

    and punishment of offenses against the law of the war not ordinarily tried !y court martial. -Exparte?uirin,s#pra. And this has always !een the *nited )tates military practice at since the

    "eican 'ar of 154 when &eneral 'infield )cott took the position that, under the laws of war,

    a military commander has an implied power to appoint and convene a "ilitary #ommission. Thisis upon the theory that since the power to create a "ilitary #ommission is an aspect of waging

    war, "ilitary #ommanders have that power unless epressly withdrawn from them.

    The "ilitary #ommission thus duly constituted has /urisdiction !oth over the person of the

    petitioner and over the offenses with which he is charged. It has /urisdiction over the person ofthe petitioner !y reason of his having fallen into the hands of the *nited )tates Army $orces.

    *nder paragraph 24 of the Cules of the %and 'arfare, 3the commanders ordering the

    commission of such acts, or under whose authority they are committed !y their troops, may !epunished !y the !elligerent into whose hands they may fall.3

    As to the /urisdiction of the "ilitary #ommission over war crimes, the )upreme #ourt of the*nited )tates said

    $rom the very !eginning of its history this #ourt has recogni>ed and applied the law of

    war as including that part of the law of nations which prescri!es, for the conduct of war,the status rights and duties and of enemy nations as well as of enemy individuals. @y the

    Articles of 'ar, and especially Article 17, #ongress has eplicitly provided, so far as it

    may constitutionally do so, that military tri!unals shall have /urisdiction to try offendersor offenses against the law of war in appropriate cases. #ongress, in addition to making

    rules for the government of our Armed $orces, has thus eercised its authority to define

    and punish offenses against the law of nations !y sanctioning, within constitutional

    limitations, the /urisdiction of military commissions to try persons and offenses which,according to the rules and precepts of the law of nations, and more particularly the law of

    war, are cogni>a!le !y such tri!unals. -Ex parte?uirin, 21 *.). 1, 0D05+ ;2 )up. #t.,0.

    etitioner is charged !efore the "ilitary #ommission sitting at "anila with having permitted

    mem!ers of his command 3to commit !rutal atrocities and other high crimes against the people

    of the *nited )tates and of its allies and dependencies, particularly the hilippines,3 crimes andatrocities which in the !ills of particulars, are descri!ed as massacre and etermination of

    thousand and thousands of unarmed noncom!atant civilians !y cruel and !rutal means, including

    !ayoneting of children and raping of young girls, as well as devastation and destruction of

    pu!lic, or private, and religious property for no other motive than pillage and hatred. These areoffenses against the laws of the war as descri!ed in paragraph 24 of the Cules of %and 'arfare.

    It is maintained, however, that, according to the Cegulations &overning the Trial of 'ar

    #riminals in the acific. 3the "ilitary #ommission . . . shall have /urisdiction over all of Japanand other areas occupied !y the armed forces commanded !y the #ommander in #hief, *nited

    )tates Army $orces, acific3 -emphasis supplied, and the hilippines is not an occupied

    territory. The American $orces have occupied the hilippines for the purpose of li!erating the

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    $ilipino people from the shackles of Japanese tyranny, and the creation of a "ilitary

    #ommission for the trial and punishment of Japanese war criminals is an incident of such war of

    li!eration.

    It is maintained that )pain, the 3protecting power3 of Japan, has not !een given notice !efore

    trial was !egun against petitioner, contrary to the provisions of the &eneva #onvention of July0, 1606. @ut there is nothing in that #onvention showing that notice is a prere9uisite to the

    /urisdiction of "ilitary #ommissions appointed !y victorious !elligerent. *pon the other hand,the unconditional surrender of Japan and her acceptance of the terms of the otsdam *ltimatum

    are a clear waiver of such a notice. It may !e stated, furthermore, that )pain has severed her

    diplomatic relation of Jap